1990 PLP 1283 (MLD)

6. Now the sole point which needs to be resolved is as to whether the p promotion of the respondents could be given retrospective effect and if so under what law. The learned counsel referred to section 22 of the Civil Servants Act, 1976 (hereinafter shall be called the Act) and rule 9 of the Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter shall be called as Civil Service Rules) in support of his contention that a retrospective promotion is permissible under the aforesaid provisions of law. For the sake of convenience section 22 of the Act and rule 9 of the Civil Service Rules are reproduced: "

22. Saving.‑‑Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: ??????? Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule." Rule 9 of the Civil Service Rules is as under:‑‑ "9. (1) Appointments by promotions or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board. (2) Promotion including pro forma promotion shall not be claimed as of right by any civil servant."

7. The question arises whether the aforesaid provisions of the Act and the Civil Service Rules would be applicable to the cases of the parties or their cases are to be governed by the Departmental Rules of 1973. It may be observed that under section 23 of the Civil Servants Act all law and rules etc. which are not inconsistent with the provisions of the Act would be deemed to have been made under this Act. For the sake of convenience section 23 of the Act is reproduced as under:‑‑ "23.‑‑(1) The Government, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. (2) Any rules, regulations, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, regulations, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be made under this Act."

8. It is evident that in view of the above provisions, any law inconsistent with the provisions of Civil Servants Act would be inoperative. Thus, even if it is assumed for the sake of argument that a retrospective promotion is not permissible under the Departmental Rules that would be deemed to have been repealed by the operation of provisions contained in section 22 of the Act and the rules framed thereunder. The contention of the learned counsel for the appellant that expression " ???to the date of continuous appointment" appearing in rule 10 of the Departmental Rules would mean the date on which a promotee actually starts functioning against the relevant post or assumes the charge of the post as a result of promotion, is not supported by any authority. An identical expression also occurred in rule 8(2) of the Civil Service Rules, which is reproduced as under: "

8. The Seniority inter se of persons appointed to post in the same grade in a Functional Unit shall be determined:‑‑ (1)??????? xxx?????? xxx ????? xxx (a)??????? xxx?????? xxx ????? xxx (b)??????? xxx?????? xxx ????? xxx (2) The seniority of the persons appointed by initial recruitment to the grade vis‑a‑vis those appointed otherwise shall be determined with reference to the date of continuous appointment to the grade; Provided that if two dates are the same, the persons appointed otherwise shall rank senior to the persons appointed by initial recruitment: Provided further that inter se seniority of persons belonging to same category will not be altered:"

9. It is obvious that the expression "continuous appointment" is used both in Civil Service Rules and in the Departmental Rules. The word "continuous" has not been defined either in the Departmental Rules or in the Civil Service Rules. The dictionary meanings of word "continuous" are `without any break'. Thus, we cannot subscribe to the view that the date of "continuous appointment" appearing in the aforesaid rules would be the date on which the relevant civil servant actually assumes the charge of the post to which he is promoted or appointed. The aforesaid expression has been used in altogether different context. It means that appointment by promotion must have been continuous and shall be unbroken. For instance if a civil servant is demoted to his original grade or in case of appointment by transfer, he ceases to enjoy the higher grade, his previous date of promotion shall not be considered for the purpose of seniority. However, the date of continuous appointment, whether notional or otherwise, is relevant factor for fixing the seniority. We are supported in our view by case reported as Khan Zia‑ud‑Din Khan v. I.G.P. West Pakistan, Lahore and 3 others 1971 P L C 47 (C.S.T.), in which it was held as under:‑‑ "When rule 9(1)(b) provides a rule of seniority with reference to the date of continuous appointment', the question, which must be considered is whether the date need not be confined to the date of actual appointment. It may well include a supposed or presumptive date of appointment or in very exceptional cases a date even prior to that from which a civil servant has functioned in the high rank. We are not inclined to rigidly confine the date of appointment to actual dates of functioning in a grade alone as date of continuous appointment. We are inclined to interpret those words in the rule in their wider meaning so as to include the dates of appointment as notified by the appointing authority and not necessarily the actual date of promotion to a higher grade. It may be the actual date or it may be an assumed date, which may presumptively be fixed to the discretion of the Government with a view to restore seniority or to avoid the causing of hardship or injustice to a civil servant. Thus we are inclined to hold as valid the dates of appointment presumptively fixed with retrospective effect in the case of the two respondents and see no invalidity in them. Even if our interpretation be not correct, we consider that this was a fit case for the Government to exercise its power or relaxation under rule 12, and to make appropriate orders under rule 14 of the 1962 Rules in order to safeguard the rights of the two respondents, which were threatened by reason of ignoring the advice of the Public Service Commission, and to avoid a hardship arid injustice, which may well seriously affect the official career of the two respondents."

10. It may be observed that sub‑rule (2) of rule 9 envisages that pro forma promotion cannot be claimed as of right by a civil servant. It implies that a proforma or notional promotion is not foreign to the Civil Servants Act or the Rules. Section 22 of the Civil Servants Act read with rule 9 empowers the Government to give retrospective effect to a promotion if the circumstances of the case so warrant. So far as the Departmental rules are concerned, even in these rules there is no provision prohibiting a notional promotion. As has already been pointed out in view of section 22 of the Civil Servants Act and Rule 9 of Civil "Service Rules any inconsistent provision of the Departmental Rules would have no legal effect.

11. In case reported as Ch. Kabir Ahmed etc. v. The Government of the Punjab etc. 1982 S C M R 978 as referred to above, it was held that the principle of seniority prescribed by the Notification cannot be said to be ultra vires of the Ordinance because under section 25 of the said Ordinance the Government was empowered to make rules which were necessary or expedient for carrying out the purpose of the Ordinance. Thus, in the instant case rule 13 of the Departmental Rules of 1973 which requires to record reasons for relaxing any of the rules would have no application in view of the provisions contained in section 23 of the Civil Servants Act, 1976. Rule 13 of the Departmental Rules also cannot override the provisions contained in section 22 of the Civil Servants Act: Thus, the contentions of the learned counsel for the appellant that the Government was obliged to record reasons in writing for giving retrospective effect to the promotion of the respondent or it was not competent to ante‑date the promotion of the respondents are not tenable and are hereby repelled.

12. There is no dispute that the respondents were senior to the appellant in the lower grades and the vacancies were in existence against the departmental quota on the date from which the promotion of the respondents was given retrospective effect. 1t has not been the case of the appellant before the Service Tribunal that the vacancies against the quota reserved for departmental, promotions were not available on the date from which the respondents have been given retrospective promotion. Even otherwise, for our satisfaction, we sent for the relevant record from the Service and General Administration Department which shows that vacancies in B.P.S. No. 19 which were to be filled by departmental promotion had been in existence since 29‑10‑1984. Therefore, there is no force in the contention of the learned counsel for the appellant that vacancies against which the respondents were promoted were not in existence in year 1984. However, the record shows that the selection of the respondents for promotion was made by the Board on 14‑10‑1986, but this would not affect the merits of the impugned order.

13. In case reported as Raja Muhammad lqbal and others v. The Additional Chief Secretary, Government of Pakistan 1982 S C M R 971 it was held that there were Ono provisions to claim ante‑date promotion under any law. Thus, the petition for leave to appeal was dismissed. The perusal of the aforesaid authority does not show the facts of the case and makes no reference to the rules nor it shows that the petitioners in that case were governed by the provisions identical to those contained in the Civil Servants Act, 1976, and the rules framed thereunder. Besides, in case reported as Government of N. W. F. P. and others v. Buner Khan and others 1985 S C M R 1158, referred to earlier, the Supreme Court while converting the petition for leave to appeal into appeal confirmed the view of the Service Tribunal that the appellants/promotees should have been promoted from the date when the vacancies in their quota had come into existence. We are in respectful agreement with views expressed in the aforesaid authority and hold that the Government is fully competent to give retrospective effect to an appointment by promotion. In the light of what has been stated above finding no force in this appeal it is dismissed. In the circumstances of the case no order is made as to the costs. H.B.T./268/S.C.A.?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.