1993 PLP (C (PLC(CS))

In paragraph 3 it .was stated that Messrs Ahmad Ghazali, Muhammad Rafiq, Deputy Directors and Muhammad Khan, Assistant Director were absorbed in Lahore Development Authority with effect froth their dates of joining Lahore Development Authority on deputation. It was further stated that Mr. Muhammad Anwar Akhtar, Deputy Director joined L.I.T. on deputation on 1‑2‑1967 as S.D.O. and was absorbed on 10‑3‑1970 after the expiry of his deputation period. On 12‑2‑1990, the Chief Minister exercising powers 7as Chairman, Lahore Development Authority was pleased to pass the following order:‑ "I feel that the discrimination between the Officers joining L.D.A. on deputation should be removed. All of them may be absorbed with effect from their respective dates of joining L.DA. on deputation. L.DA. should determine a well‑defined criterion for taking personnel from other Departments on deputation in future." 16, The petitioner' having learnt about order of the Chief Minister dated 12‑2‑1990, sought interview with the Director‑General, Lahore Development Authority and met him in his office. He assured the petitioner that the order of the Chief Minister dated 12‑2‑1990 would be strictly complied with and implemented and his placement in the seniority list would be rectified by giving him the seniority in the cadre of Assistant Director with effect from 15‑4‑1977. Mr. Manzoor Ahmad Malik was then the Director‑General, Lahore Development Authority. But strangely enough, the order of the Chief Minister dated 12‑2‑1990 has not so far been implemented. Mr. Qamar‑uz‑Zaman, the new Director‑General, Lahore Development Authority took over the charge on 1‑3‑1990. Despite repeated requests made by the petitioner, the order of the Chief Minister, Punjab/Chairman, Lahore Development Authority dated 12‑2‑1990 has not been implemented and the petitioner's position in the cadre of Assistant Director has not been rectified by granting him seniority in the seniority list from the date of joining Lahore Development Authority i.e. from 15‑4‑1977." COMMENTS ON PARAGRAPHS 15 AND 16 ON BEHALF OF THE AUTHORITY 15 &

16. Admitted to the extent of the Summary submitted to the Chairman LDA/Chief Minister, Punjab on 31‑8‑1989 and the Chief Minister's observations for absorption of the deputationists officers from their respective dates of joining LDA on deputation. Since the Chief Minister's observations were not in accordance with the Regulation 2(f)(i) of the LDA Service Regulations, 1978 and also because in a similar case where absorption of a deputationists officer from the date of joining LDA ordered by the Chief Minister, Punjab was assailed by some other officers in that category, the Chairman LDA/Chief Minister, Punjab was requested to review his decision regarding grant of back‑date seniority to the deputationists officers. This summary was sent to the Chairman, LDA/Chief Minister, Punjab by the former Director‑General LDA Brig. (Retd) Manzoor Malik. The Chief Minister, Punjab returned the Summary with following remarks:‑‑ "Chief Minister has seen and desired the new Director‑General, LDA to study the case and offer his views. It was due to the above orders of the Chairman, LDA/Chief Minister, Punjab, that the new Director‑General, LDA (Mr. Qaniar‑uz‑Zaman) resubmitted the Summary to‑ the Chairman, LDA/Chief Minister, Punjab on 12‑6‑1990. Since the summary had been resubmitted to the Chairman, LDA/Chief Minister, Punjab, the question for implementation of the Chief Minister's observations dated 12‑2‑1990 does not arise (It appears the underlining was omitted due to omission)."

10. A bare perusal of the aforesaid paragraphs of the writ petition and the comments filed by the Authority would show that the petitioner specifically stated in paragraph 16 of the writ petition that he sought interview with the Director‑General who assured him to comply with the order of the Chairman/Chief Minister dated 12‑2‑1990 and rectify the seniority list accordingly. This has not been controverted in the written statement. I am, therefore, inclined to agree with Mr. D.M. Awan, learned counsel for the petitioner, that the ratio laid down in the case ~f Municipal Committee, Bannu (supra) is not attracted here.

11. The record placed before the Court does not show that the order made in favour of the petitioner ‑by the previous Chairman was brought to the notice of the present Chairman while submitting the summary in the case of Mr. Gul Rukh Mian (supra).

12. The controversy raised herein needs examination in the light of various provisions of the Regulations. Regulation 11(i) provides that a person in the service of the Government or an autonomous or semi‑autonomous organization who possesses the minimum educational qualifications, experience or length of service prescribed for a post shall be eligible for appointment to the said post on deputation, in accordance with the policy prescribed by Government.

13. Regulation 22 is to the following effect:‑ "

22. Subject to the provisions of the Act, these Regulations and the Schedule, the following rules, shall apply mutatis to the employees of the Authority:‑‑ (i) The West Pakistan Government Servants (Conduct) Rules, 1966. (ii) The Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. (iii) The West Pakistan Civil Services Pension Rules, 1963, read with the Lahore Improvement Trust (Pension) Rules, 1968. (iv) The Punjab Civil Servants Leave Rules, 1955. (v) The Punjab Civil Services Rules. (vi) The Punjab Travelling Allowances Rules, 1975. (vii) The Punjab Financial Rules. (viii) The Punjab Civil Servants Pay Revision Rules, 1977 Provided that‑‑ (a) any reference to a Government Servant or Civil Servant shall be construed to be a reference to an employee of the Authority; (b)any reference to the Head of Department shall be construed to be a reference to the Director‑General in the case of the Authority and to the Managing Director in the case of an Agency; (c) any reference to a Secretary to Government shall be construed to be a reference to the Director‑General in the case of both the Authority and its Agencies; (d) any reference to the Government shall be construed to be a reference to the Chairman; (e) the Chairman, the Director‑General and a Managing Director may, by general or special order, delegate to any officer or officers of the Authority, any of these powers under these rules subject, where necessary, to such conditions as may be specified:'

14. Regulation 24 empowers the Chairman in individual cases of hardship or when public interest so requires and for reasons to be recorded in writing, relax the provision of any of the regulations except Regulation No.14 which provides that no person shall be appointed to a post unless he is a citizen of Pakistan, provided that this restriction may be relaxed by Government in suitable cases.

15. A perusal of the aforesaid Regulations would show that it is for the I Government to formulate policy regarding eligibility and appointment of persons holding requisite qualification and experience in the service of the Authority on deputation in accordance with the policy prescribed by it. The term `prescribed' as defined in Regulation 2(k) means prescribed by Regulation. Here no Regulation was framed for recruitment of deputationists. Therefore, in the absence of any Regulation, it was within the competence of .the Chairman to formally approve the principle that all the deputationists should be absorbed in the Authority with effect from their respective dates of joining the Authority on deputation. A specific direction was given in this behalf by the then Chairman/Chief Minister vide order dated 12‑2‑1990, which was intra Vires. The Regulation No.11 does not provide that the policy prescribed by the Government for recruitment of deputationists is to be made in any particular manner nor does it require previous publication of the policy in the official Gazette. That being so, the Chairman's order dated 12‑2‑1990 prescribing the special method for the recruitment of deputationists from the date of their joining Lahore Development Authority was as operative as the Regulation itself made on 12‑2‑1990 by the Chairman's aforesaid order, The Regulation 2(I) should be deemed to have been modified so far as recruitment of deputationists was concerned. In other words, the order dated 12‑2‑1990 of the Chairman regarding deputationists amounted to special rule of recruitment governing the deputationists alone. Refer Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary, Food and Agriculture, Civil Secretariat, Lahore and another (PLD 1971 Supreme Court 846). The relevant excerpt reads as follows:‑ "Thus, the order of the Governor, dated the 1st June, 1965, by which he approved the method of selection of candidates for appointment as Assistant Agriculture Engineers after successful completion of the training, is an order having the statutory force. Clause (2) of Article 178 of the 1962 Constitution empowers the Governor to make rules relating ‑to recruitment to civil service and civil posts in connection with the affairs of the Province. This clause does not provide that the recruitment rules are to be made in any particular manner, nor does it require previous publication of the rules in the official Gazette. That being so, the Governor's order, dated the 1st June, 1905 prescribing the special method for appointment of 46 candidates to the posts of Assistant Agricultural Engineers was as operative as the Recruitment Rules themselves made by the Governor on the 18th June, 1963. By the Governor's aforesaid order, the earlier Recruitment Rules shall be deemed to have been modified so far as recruitment of the 46 posts of Assistant Agricultural Engineers was concerned. In other words, the departure made by the Governor's order of the 1st June, 1965 as regards selection for training and eventual appointment as Assistant Agricultural Engineers amounted to a special rule of recruitment governing these 46 posts only in order to implement the scheme called `Development of land and provision of machinery for augmenting water supply in West Pakistan'. The view as above was taken by the High Court of West Pakistan, Lahore in the case of Province of the Punjab v. Ch. Nazir Hussain PLD 1950 Lah. 556 as affirmed by this Court in its decision reported in PLD 1960 SC

130. There are also other decisions of this Court to support the view that the order of the Governor, dated the 1st June, 1965, has all the characteristics of statutory rules. These are cases of Pakistan v. Abdul Hamid PLD 1961 SC 105 and the Province of West Pakistan v. Din Muhammad PLD 1964 SC

21. Both these decisions were later cited with approval by this Court in the case of Muhammad Naseem Ahmed v. Azra Feroz Bakht PLD 1903 SC 38."

16. A similar matter was also authoritatively determined by the Supreme Court in the case of M.U.A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228). The relevant portion reads thus:‑ "Now in the present case, if the Legislature had intended that the appointment of the Chief Inspector of Mines could not be made at all until such time as rules or regulations had been framed in terms of section 29(a) of the Act, then section 4(1) of the Act would have been so worded as to include a stipulation to the effect that `the appropriate Government may, by notification in the official Gazette, appoint a person qualified in accordance with the regulation made under section 29(a) of the Act to be Chief Inspector of Mines .` The relevant section, however, does not contain any such prescription, but contemplates only that the appropriate Government may appoint a "duly qualified person" to be Chief Inspector of Mines. It is, therefore, clear that effect could be given to 'he command of the Legislature even without the framing of the regulation under section 29(a) of the Act. As a result, the failure of the Provincial Government to frame the necessary regulation under section 29(a) of the Act did not have the effect of preventing the appointment of the Chief Inspector of Mines who holds a public office and is called upon to perform duties of a public nature concerning the working of Mines in the Province."

17. Once the policy decision dated 12‑2‑1990 was duly approved, the benefits accruing there under automatically extended to the petitioner and nothing else was required to be done. There is, therefore, no force in the submissions of the learned counsel for the respondents that the principle of animus revertendi or locus poenitentiae was not applicable here. Also refer Raja Muhammad Nawaz v. Government of the Punjab (1981 SCMR 523), Shahbaz v. The Crown (PLD 1955 F.C. 46), Lt.‑Col. G.L. Battacharya v. The State (PLD 1964 SC 503), Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and the State v. Muhammad Ismail (1980 S C M R 268), in which the law on the principle of animus revertendi or locus poenitentiae has been authoritatively settled. I do not feel the necessity of dilating any further on the subject aforesaid. Suffice it to say that in so far as this case is concerned, the Chairman being the competent authority having validly laid down the policy for recruitment of deputationists vide order dated 12‑2‑1990, effect should have been given to it by the Director‑General to the case of the petitioner. No animus revertendi or locus poenitentiae was available to the Authority to recall the benefits accruing there under. The present impugned policy decision would not affect the acts done or ought to have been done on the basis of the previous policy decision having the force of law. The following remarks made in the previous summary by the Chairman vide order dated 12‑2‑1990 itself show that the present policy was intended to regulate the employment of the deputationists in future and not the one who have already been taken in the service of the Authority on deputation. The relevant direction in the previous summary reads thus:‑ "L.D.A. should determine a well‑defined criterion for taking personnel from other Departments on deputation in future."

18. The new impugned decision taken by the present Chairman/Chief Minister, Punjab, when examined in overall context and history of the case relates to a policy decision for the future and would not govern the past and closed transactions. Clearly a decision adversely affecting the rights of the petitioner relating to his seniority cannot be given retrospective effect and to that extent the impugned decision is without lawful authority. Thus, visualised, the Chairman's decision dated 12‑2‑1990 prescribing the method of recruitment of deputationists was legally operative and is an order having the statutory force and the policy decision subsequently taken by the Chairman that fixation of the seniority of all the deputationists officers should be considered from the date of their absorption in the Authority would be effective from the date the decision was taken. It is well‑settled that the Rules cannot be given retrospective effect.

19. It is true that Regulation No. 8 regulates the seniority inter se of employees appointed to post in the same grade, and there is no specific provision in the Regulation for determining the seniority of the deputationists. Here this was expressly done by a policy decision taken by the Chairman/Chief Minister, Punjab, on 12‑2‑1990. Thus, the Chairman was competent to do so under Regulation 11 backed by Regulation No. 24 and having done so, the petitioner has a vested right to demand benefit of the same which cannot be' denied to him. In somewhat identical case, the same principle was approved in the case of Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan (PLD 1990 SC 1013) wherein it was held:‑ "When the President of Pakistan formally approved of the principle that the officers of the Armed Forces inducted into the Police Service of Pakistan shall have the seniority of regularisation from the date of their induction and not from the date of regularisation, he was competent to pass such an order and having done so, the Army personnel so inducted shall benefit from it."

20. In view of the above, the impugned policy decision/order dated 16‑21991 taken by the Chairman, Lahore Development Authority that the seniority of all the deputationists officers should be considered from the date of their absorption in the Authority is not applicable to the case of the petitioner. The order dated 14‑3‑1991 passed by the Chairman of the Authority that the policy decision dated 16‑2‑1991 ibid shall have retrospective effect is declared as without lawful authority and of no legal effect. Consequently the Letter of LDA/ADMN/1359, dated 27‑3‑1991 in so far as it adversely affects the petitioner is hereby declared as without lawful authority and of no legal effect. The result is that a right has accrued to the petitioner to have his seniority determined on the basis of the order/policy decision of the Chairman, Lahore Development Authority, Lahore, dated 12‑2‑1990 to which effect shall be given forthwith.

21. Resultantly, Writ Petition No. 7050‑S of 1990 is dismissed as withdrawn and Writ Petition No. 2880‑S of 1991 is accepted as indicated in para. 20 above. There shall be no order as to costs. N.B.A./M‑828/L Order accordingly.