1984 PLP (C (PLC(CS))

5. Learned counsel for the appellant has submitted that the appellant came forward for the permanent post of Assistant Engineer, according to advertisement in the newspapers at that time. The mere joining of the appellant on the offer made by the Department in which his status was categorized as temporary in nature, would in no way militate against his legal rights which stood conferred upon him under the rules so framed in the year 1967. Learned counsel for the appellant has read before us the Rules and has drawn our attention to rule 15 of the said Rules in which, it has been laid down that there will be no temporary cadre in the rank of Assistant Engineers and if there are certain Engineers who were still in the said cadre, they should be either regularly absorbed in the service or their services should be terminated in consultation with the Public Service Commission. Relying on the strength of this Rule, learned counsel has submitted that record of this case would reveal that the offer made to the appellant was an offer not made by the Government but on behalf of some Section Officer, who at his own whim and fancy, put up the draft subject to the approval by the Secretary to Government, but it seems that without any such approval and without intimating to the Public Service Commission, a unilateral action was taken by a person not competent to do so. Learned counsel for the appellant has vehemently argued that the appointment of the appellant was made by initial recruitment to post 1963 substantive permanent vacancies on the terms and conditions as laid down in sub‑rule (15) of the said Rule, therefore, the appellant was fully justified to consider himself a permanent appointee under the said Rules. It has been further urged that in accordance with rule 4(i)(b) of 1967 Rules, the appellant had become the member of service so defined as permanent incumbent recruited against permanent post. While elaborating his point of view the learned counsel for the appellant has also taken an alternative stand by submitting that even if it is considered that the appellant was on probation, then even after the said probation period of 2 years with permissible extension of 2 years, appellant stood confirmed as a permanent Assistant Engineer and thus, from this angle also the stand of the Department is illegal as well as unjustified which is that as the appellant has accepted a temporary post, 4e would remain temporary till eternity. Learned counsel for the appellant has submitted that although on the face of it, the argument of the respondents, seems impressive that once an offer is made and same is accepted, the person accepting the same, is bound for the same, yet he has forcefully argued that any offer which has been made by a person, who was not authorised to make it, will be an offer, made in futility and would have no binding effect on the person who accepted the same. According to the learned counsel this tantamount to an exercise of ground made to appellant, by a person who claimed to be an authoritative person, which actually he was not.

6. On the other hand learned District Attorney has adopted the comments submitted by the respondents under the signatures of the Under Secretary (General) for Secretary to Government of the Punjab, Com munication and Works Department Lahore, and has submitted that as the appeal was time‑barred, therefore, merits rejection summarily. Learned District Attorney has also submitted that in fact this was an appeal, in which seniority has been sought over a number of Executive Engineers and as the appellant has failed to implead the same, therefore, the appeal would not be maintainable. It has also been argued that the offer was made to the appellant and he accepted the same, therefore, he was estopped to re‑agitate the matter through this appeal. With regard to the merits of the case learned District Attorney has submitted that the Department initially sent a requisition for 26 posts of Temporary Assistant Engineers (E & M) to the West Pakistan Public Service Commission, against which 8 candidates were recommended by the Commission on 22nd April, 1965. The remaining 18 posts of y Temporary Assistant Engineers were re‑advertised by the Commission and the last date for receipt of application was 20th May, 1965. It was pointed out that on a reference from the Commission, it was pointed out that the new appoint ment would not be as permanent Assistant Engineer but as temporary addition to the cadre. However, while sending requisition for 10 posts of Assistant Engineers (E & M) to the West Pakistan Public Service Commission on 22nd April, 1966 the posts were inadvertently shown as permanent, and when this error came to light at time when the offers of appointment were being issued, the same was rectified.

7. We have given our anxious thought to the arguments advanced by bath the parties and first of all will advert to the preliminary objection so raised by the respondents on the point of limitation. The philosophy of law of limitation as envisaged by .my lords as there they were i.e. Justice Sardar Muhammad Iqbal and Justice Sher Bahadur Khan in the case of Mst. Sardar Begum v. Mst. Sherin Taja (P L D 1970 Pesh. 194) which we reproduce the same as under :‑

"Needless to add here that the Law of Limitation is a procedural taw and except for section 28 whereunder a person, by adverse posses sion, acquires a title in an immovable property, it does not extinguish a right, but only bars the remedy. Therefore, in a case where the remedy is barred but the right exists the law should not be strictly interpreted against a person whose right is to be adversely affected." In the present case, the appellant came forward for a post which was permanent in nature and thus at the time when he applied for the same, he bad no misapprehension for the same. It is also on the record that he was selected and recommended by the Public Service Commission as a permanent incumbent of the post so advertised. It is also on the record that substantive vacancies were available at the time when the offer was made to the appellant. We have consulted the record in extenso and find that what happened actually in this case is that the Section Officer put up a note in which he stated his difficulties and has opined that as there were no substantive vacancies available, therefore, the Public Service Commission be informed to make recommendations for the posts of Temporary Assistant Engineers and not for the posts of permanent Assistant Engineers. To our utter surprise we find that the note remained where it was, and never saw the light of the day as it failed to receive the approval of the Secretary and thus was never communicated to the Public Service Commission. In this manner the offer made by the Section Officer on behalf of Government, in accordance with his own opinion so expressed in the said note, would be an offer by a person not competent to do so and lose all force of validity. In case this note had been approved by the Secretary and it was found by him that the situation as explained in the note was correct, then the case should have been forwarded to the Public Service Commission to inform them, as not to advertise the posts for permanent vacancies and to make it clear that persons coming forward for such posts, would be eligible for the posts of Temporary Assistant Engineer only. In these circumstances what we find is that the law of limitation so relied upon by the respondents, if applied to the case of the present appellant, would result into a great hardship as his remaining quiet all the time, was in fact on the assurance that he had been recruited as a permanent Engineer and further by the action of the Government itself which later on by promoting him to the rank of Executive Engineer ‑and subsequently regularizing him in the said rank in 1975, this impression gained much more force, therefore, the appellant remained in the dark. We have also taken care of the note of the Services, General Administra tion Department's advice which is available at para. 154 Note of File No. ETI/7‑4/68(2), which is reproduced below :‑

"S & G. A. Department observe that in case any permanent vacancies were available to be offered to the selectees of the Commission after absorption of the then 12 serving T. A. Es., the selectees could be adjusted against such permanent vacancies from the date of their availability. However, if posts were vacant at the time they joined but were given to T. A. Es. later, the selectees would have a prior right." In view of the unique circumstances of the case which have been explained above, we do not consider the preliminary objection raised by the respon dents as forceful and have no hesitation to repel the same. We, therefore, condone the delay and will deal with this appeal on merits.

8. With regard to the second preliminary objection that once an offer was made and the same was accepted, the person agitating against his earlier acceptance, would be estopped, it will be sufficient to say that if the offer made to a civil servant, is an offer valid by itself and made by the competent authority, then of course, a valid offer once accepted, cannot be re‑agitated again. In the present case as analysed in the earlier part of our judgment, the offer was made by a person who was not competent to do so, and arrogated "to himself such an authority on behalf of the Government, without having any such authority and thus in a way, person to whom such an offer was made. As an invalid offer is no offer in the eye of law, therefore, acceptance of such offer, would mean no estoppel against a person agitating the same. It is also a settled principle of law that there can be no estoppel against certain constitutional rights, which a person enjoys and finds later on, that the same have been injured.

9. With regard to his third preliminary objection that as basically the claim of the appellant would be a claim of seniority, he was under obligation to implead the persons so effected by the said decision, there fore, the appeal was incompetent before this Tribunal. Needless to say that this Tribunal is not going to deal with the matter of seniority in any manner whatsoever and what it has been asked to determine is, the status of the appellant in service. However, when the appellant will come forward to claim seniority, he shall have to face a number of hurdles like limitation etc. and it will be at that time for the Tribunal to resolve such issues.

10. With regard to the merits of the case, we will rely on rule 15 of the Rules framed in 1967 known as West Pakistan Services of Civil Engineers (B & R) (Class II) Rules, 1967. Rule 15 is reproduced as under:‑

"On the coming into force of these rules all cadres of Temporary Engineers shall cease and the services of a Temporary Engineer, not considered suitable in consultation with the Commission for appoint ment to the Services, shall be terminated." This Rule came into force in consequence of the decision of the Council of Ministers convened in August, 1964, in which it was decided that in future the temporary cadre in the rank of the Engineers would be abolished. As the appellant was recruited in 1968, after the enforcement of the said Rules and thus by no stretch of imagination, he could be offered a temporary post of Assistant Engineer when the advertisement issued by the Public Service Commission on the basis of the Requisition sent by the Department, declared the post as permanent. In rule 4 of the 1967 Rules, the Member of service, has been defined as a permanent incumbent recruited against a permanent vacancy, rule 10 of Rules, 1967 makes mention of Temporary Cadre but it only relates to the persons already serving as such, prior to the enforcement of Rules, 1967. As the appellant was appointed in accordance with rule 4(i)(b) read with rule 9 of sub -rule (5) of the 1967 Rules, therefore. he became Member of the service and thus cannot be considered as temporary in nature. We are further fortified in our observation as we find subsection (2) of section 2 of the Punjab Civil Servants Act, 1975, wherein it has been clearly laid down that an appointment whether by permanent or otherwise, shall be deemed to have been made on regular basis, if it is made in the prescribed manner. In view of the above we have no hesitation to hold that the appellant was recruited in prescribed manner and his case will be fully covered by the Rules so mentioned above. The manner of recruitment laid down in 1967 Rules was that the appellant's appointment to the service will be made by the Government in consultation with the Public Service Commission. The appellant was a selectee of Public Service Commission and the earlier Requisition under which he was so selected made by the Government to the Public Service Commission, positively stated that the posts were permanent in nature and on that Requisition the Public Service Commis sion advertised the posts and recommended the case of the appellant alongwith others. Once we have settled this issue and have declared that the appellant was a Member of service the day be joined the Department on 18th June, 1968 he became a probationer under rule

13. The period of probation for such Member of service would be initially for 2 years with permissible extension of 2 years more and if he has conducted himself well in the said prescribed period, be would be automatically deemed to have been confirmed from the date he joined service as envisaged by rule 13 of the West Pakistan Service of Civil Engineers (B & R) (Class II) Rule, 1967, read with the explanation thereto. This can be the only inter pretation of rule 13 and none other.

11. Before parting with this case we will also like to mention about the Exh. C. I., which we have so found in which a note has been placed on the record that the posts for which an advertisement was made were permanent posts so advertised by the former West Pakistan Public Service Commission vide page 153 of the interview letter issued to the appellant vide page

103. It will be useful to mention that such posts have been unequivocally described as permanent posts. It is also mentioned in the said note that it is really unfortunate that a person selected against a permanent post should have been given a temporary post. This note further indicates in unmistakeable terms that justice requires that the error may be rectified and he may be given his due. It seems that wisdom of this note is based on P L D 1970 Quetta 115 at page 127 Jaffar Ali Yusafi a Division Bench decision which lays down as under :‑

"In reaching this conclusion a question was posed as to whether the Government could claim that its ordinary method of filling a perma nent post will be appointment of a person whose services are terminable without assigning cause with a notice of 14 days ? His Lordship proceeded to answer that if the Government be allowed to fill all permanent posts in this manner the constitutional protec tion granted to the civil servant will disappear. The Government could not as an ordinary and permanent arrangement fill permanent posts by employees subject to a condition of termination of employ ment by notice. Barring exceptional cases, e.g., when it is an interim measure, the Government could not adopt it as a Rule that the post will be filled in this manner. This, in his Lordship's view, amounted to as if the Government wanted to retain a power of arbitrary termination of service so as to defeat the constitutional guarantee." These observations have been reproduced in extenso from the judgment of the Supreme Court of Pakistan reported as P L D 1965 S C

208. Their Lordships of the West Pakistan High Court, while relying on these observa tions have arrived at the following decision:‑ "In such like cases when continuous officiation is not specifically authorised by any law and the Government/competent authority continues to treat the incumbent of a post as officiating, in our view it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e.g., failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. In proper cases, therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it,"

12. In view of the above detailed analysis of the case, we have no hesitation to hold that the appellant for all purposes, would be a permanent Assistant Engineer from the date he was so inducted against a permanent vacancy since 18th June, 1968. If by some mechanization, a person without any authority, makes an offer, which we have already held being not valid in the eye of law, and a civil servant in all innocence accepted the same with the impression that as he has been‑inducted into service on permanent basis against a permanent vacancy, we would not penalize him to the extent which should jeopardize his entire career and also deprive him from his constitutional rights. The respondents in this case should have looked into this aspect of the case carefully and dispassionately and should not have arrived at a conclusion to which they have arrived now without referring to the background as well as the entire history of the case. To recount only one example which is of a very glaring nature i.e. the offer made to the appellant was an offer of Section Officer without approval of the Secretary, a matter should have put on guard his superior of the said Section Officer by withdrawing this invalid offer and substituting the same with a proper one. This very omission goes to the very root of the case and persuades us to strike down such like mechanization as mischievous as well as illegal.

13. Being aware of this fact that the appellant has not agitated the claim of his seniority vis‑a‑vis his juniors at this stage, we direct the respondent to examine the case of the appellant in the light of our decision so given in the earlier part of our judgment, vis‑a‑vis his status as perma nent Assistant Engineer, duly confirmed from the date of his continuous offciation, so as to grant him his due status which he has not been able to receive at their ends, as having been treated as a Temporary Assistant Engineer. No better case of hardship, can be made out for invoking the application of section 22 of the Punjab Civil Servants Act, 1974 and also rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.

14. In the light of the above discussions, we accept the appeal, leaving the parties to bear their own costs in view of the intricate question of law involved in this case. M. I. Appeal accepted.