1993 PLP (C (PLC(CS))

(3) Whether the plaintiff has no cause of action to file this suit? OPD (4) Whether the impugned order dated 26‑3‑1977 is illegal, void, ultra vires and ineffective upon the rights of the plaintiff? (5) Relief. After recording evidence of the parties the trial Court returned findings on issues Nos. 1 and 2 against the defendants/respondents and on other issues, against the present petitioner. Resultantly, the suit was dismissed on 20th February, 1979. The petitioner's appeal was also dismissed by the Additional District Judge, Rawalpindi, vide judgment and decree dated 11‑11‑1979.

2. In support of his case the plaintiff/petitioner produced Muhammad Saleem P.W. 1 and himself appeared as P.W.

2. The seniority list Exh. P.1, the amended Regulation Exh. P.2, a copy of the representation P.3 and the order passed by the Director Administration P.4 were brought on the record on behalf of the petitioner. The respondent/defendant produced Muhammad Saleem as D.W. 1 (who had also appeared as P.W. 1). The respondents produced copy of the proceedings of the Promotion Committee, which was placed on the record as mark `A'.

3. The petitioner's learned counsel submits that the petitioner was promoted in the same batch, alongwith respondents 2 and 3 and was entitled to retain his inter se seniority, which is enjoyed in the lower grade in accordance with the provisions of sub‑para. (4), para. 3 of the amended Regulation 16 of Agricultural Development Bank (Staff) Service Regulations, 1961, issued on 13/14th November, 1977. He further submits that even if amended regulation was not applicable, the petitioner's inter se seniority could not be adversely affected by the Departmental Promotion Committee. He added that the only function of the Committee was to make a recommendation regarding the employee's eligibility for promotion to a higher post. He further submits that even if the Committee had the power to pass an order affecting the petitioner's seniority, the said power could not be exercised without affording an opportunity of being heard to the petitioner. He places reliance on the following judgments: (1) The Province of Punjab through Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCMR 304). (2) Ch. Sir Muhammad Zafarullah Khan v. Custodian of Evacuee Property, West Pakistan and Karachi (PLD 1964 SC 865). (3) Muhammad Ibrahim Munshi and others v. Province of West Pakistan through Chief Secretary and others (PLD 1968 SC 1). (4) Begum Nazir Abdul Hamid v. Pakistan (Federal Government) through the Secretary, Interior Division, Islamabad (PLD 1974 Lah. 7). (5) Attaullah v. The State (1983 PLC (C.S.) 205). (6) Water and Power Development Authority and another v. Ghulam Mustafa (1990 SCMR 137). (7) Nur Muhammad v. Deputy Commissioner/Controlling Authority, D.G. Khan etc. (1992 PLC (C.S.) 368). The learned counsel further submits that the amended regulation held the field when the suit was filed by the petitioner. He adds that the law prevailing at the time of commencement of proceedings had to govern the dispute. Alternatively he submits that the petitioner had cause of action under the un-amended Regulation No.

16. He submits that after fixation of the petitioner's seniority it could not have been changed on promotion particularly when he was found suitable to be promoted to the higher rank. Moreover, the petitioner's seniority could not have been changed or re-fixed without giving him an opportunity of being heard.

4. On the other hand the learned counsel for the respondents submits that the impugned order Exh. D.4 is only an Office Order relating to promotions, postings and transfers and cannot be challenged in the Civil Court. He further submits that the Departmental Promotion Committee found the petitioner's merit inferior to that of the respondents and accordingly his seniority was re-fixed. He adds that there was no requirement for notice or ?hearing for re-fixing the seniority. At any rate, he submits the petitioner's view point was considered by the employer through his representation Exh. P.3 which was turned down. He further submits that the competence of the authority to pass the impugned order was not challenged in the plaint and that the same could not be done at the revisional stage. Lastly he submits that the employees of the Agricultural Development Bank are governed by the principle of Master and Servant and cannot maintain a suit qua their terms and conditions of service. In this connection he places reliance on the following judgments: (1) Anwar Hussain v. Agricultural Development Bank of Pakistan and? others (PLD 1984 SC 194) and (2) Anwar Hussain v. The Agricultural Development Bank of Pakistan and others (1992 SCMR 1112).

5. Before adverting to the contentions raised by the learned counsel for the parties, it may be mentioned that the petitioner had joined as A.I.O. in the Agricultural Development Finance Corporation of Pakistan on 23‑10‑1959 and was promoted as Manager Grade‑I on 1‑8‑1973 in view of his good service record. Muhammad Abbas respondent No. 2 joined service in the Agricultural Bank of Pakistan on 1‑5‑1958 while Salah‑ud‑Din respondent No. 3 joined service in the Corporation on 29‑7‑1959. Both the concerns, i.e. the Agricultural Bank of Pakistan and the Agricultural Development Finance Corporation of Pakistan were emerged and constituted Agricultural Development Bank of Pakistan on 17‑2‑1961. The staff borne on the service of the two concerns was converted into a unified cadre and its combined seniority list was prepared in which the petitioner and respondents Nos. 2 and 3 figured at Sr. Nos. 23, 26 and 28 respectively. Most of the above facts are stated in the plaint and admitted to be correct in the written statement filed by the respondent/Bank. Referring to the combined seniority list (Exh. P.1), it was asserted in para. 5 of the plaint that it was the last and operative seniority list This assertion was admitted to be correct in the written statement filed by the Bank.

6. In the year 1977, the matter regarding promotion of the petitioner and respondents Nos. 2 and 3 (alongwith some other employees) came up for consideration before the Departmental Promotion Committee which held it meeting on 25‑3‑1977 and recommended their promotion giving first ant second positions to respondents Nos. 2 and 3 respectively. In the light of the said recommendations, the Director Administration issued the impugned Office Order No. Admn.l/8(143)/77/1900, dated 26‑3‑1977 regarding promotions, postings and transfers to‑the petitioners, respondents Nos. 2 and 3 as well as some other employees. The petitioner feels aggrieved by the last para of the impugned order which reads as under: "The promotion of six officers mentioned above will take effect from the date they take over charge of the higher post and their seniority in the higher post will be maintained in the same order in which their names appear above provided the delay in taking over charge of the higher post is not for personal reasons." Thus, the petitioner on promotion was made junior to respondents Nos. 2 and 3.

7. There is considerable force in the arguments of the petitioner's learned counsel. In the seniority list Exh. P.1 the petitioner, was given place at No. 23 while respondents 2 and 3 were placed at Nos. 26 and 28 respectively. True, seniority alone was not enough to entitle the petitioner to promotion but it was definitely relevant in the matter. The Departmental Promotion Committee or for that matter the Director Administration had no power to fix or re-fix seniority of the employees. Admittedly the said power vested with the Chairman of the Bank. The opinion of the Committee that respondents Nos. 2 and 3 be given 1st and 2nd positions was not binding on the competent authority in the matter of promotion. After finding the petitioner as well as respondents And 3 to be fit or promotion in the same batch, their inter se seniority could not be disturbed. If there was anything on the record adversely affecting the petitioner's merit for promotion, the competent authority could have refused to promote him. However, after ordering promotion in the same batch, the petitioner's inter se seniority qua respondents 2 and 3 ought to have been maintained. The petitioner definitely had a cause of action on 26‑3‑1977 when the impugned memo was issued by the Director Administration ordering promotion of the petitioner on the one hand and making him junior to respondents 2 and 3 on the other. The Courts below have taken an erroneous view of the law in non‑suiting the petitioner on the basis of sub‑para. (6) of the amended Regulation No. 16 of the Agricultural Development Bank of Pakistan (Staff) Service Regulations, 1961. The amended Regulation 16 was promulgated on 13th/14th of November, 1977 and had prospective effect. It barred re‑opening of cases of seniority and promotion already decided by the competent authority. The Court could definitely examine whether under the un-amended Regulation, the impugned order was rightly passed or not. Admittedly, the Director Administration was not competent to change or refix the petitioner's seniority. Therefore, the last part of the order relating to seniority of the 6 promotees including the petitioner and respondents 2 and 3 was clearly illegal and without jurisdiction. In the said order Muhammad Abbas respondent No. 2 and Salah‑ud‑Din, respondent No. 3 were shown at a higher place as compared to the petitioner. Even if it is assumed that Director Administration was competent to determine and refix the petitioner's seniority on promotion, he could have done so after hearing the petitioner. This view finds support from the judgment in the case of Nur Muhammad v. Deputy Commissioner/Controlling Authority, D.G. Khan etc. (1992 PLC (C.S.) 368). The petitioner's representation was also dismissed by the Director Administration and was never placed before the Chairman of the Bank who alone was competent to pass orders in the matter of seniority. To be properly placed in the seniority list is vested right of such employees or civil servants whose status is governed by statutory rules or regulations. After having assigned a higher position in the seniority list, if the same was sought to be changed, an opportunity of being heard must have been afforded to the petitioner. As regards the argument that the principle of master and servant applied in respect of employees of the Agricultural Development Bank, suffice it to say that after enforcement of the Agricultural Development Bank of Pakistan (Staff) Service Regulations, 1961 the relationship regarding terms and conditions of service is to be governed by the Regulations. The judgment in Anwar Hussain's case is distinguishable as he was employed on 5 years' contract of service and had voluntarily resigned. He invoked the instructions contained in the Banks' Manual of Instructions in support of his claim that after withdrawal of the resignation the same could not have been accepted by the competent authority. The said plea was not considered sufficient to exclude the rule of master and servant. It was observed by the Court that unless something by way of a guarantee of tenure of service was provided by statute or regulations framed thereunder or mala fides was alleged an employee of the bank could not maintain a suit for reinstatement in service. It clearly meant that on showing violation of the regulations or statute, a suit could be maintained. In the present case, the petitioner was not a fixed term employee. Moreover, his grievance had arisen due to disturbance of his seniority on the basis of orders passed by an incompetent authority. His case was governed by the express provisions of Regulation and not by the rule of master and servant.

8. Both the Courts below have rightly held that the amended Regulation No. 16 was not applicable in the petitioner's case because the impugned order was passed on 26‑3‑1977, when the un-amended Regulation No. 16 held the field. Therefore, the validity of the impugned order had to be judged according to the provisions of the un-amended Regulation. The principle enunciated in Muhammad Ibrahim Munshey's case that rule of decision must be according to the law prevailing at the time of commencement of the proceedings is not attracted in the facts and circumstances of the present case. In the precedent case a petition for quashment of a Government directive was filed under the Laws (Continuance in Force) Order, 1958 and thereafter the Constitution of 1962 was enforced. The Court impleaded some other respondents in May, 1962 and September, 1963 (after the enforcement of 1962 Constitution) who contended that no order could be passed in respect of a condition of service in view of the provisions of Article 98(3)(b) of the Constitution of Pakistan, 1962. The argument was repelled and it was held as under:‑‑ "I am of the opinion that this objection must fail, for, in the absence of any provision in the present Constitution for the abatement of pending proceedings the rule of decision must be according to the law prevailing at the time the proceedings were commenced. There can be no doubt that even on the date the added respondents were impleaded the High Court was not debarred from issuing writs with regard to matters relating to the fixation of proper seniority of public servants. The power that the High Court was, in the present case, called upon to exercise was under the Laws (Continuance in Force) Order, 1958,and not under Article 98 of the present Constitution. That power remained unaffected with regard to pending proceedings, for, the Constitution itself by Article 250 preserved that power not withstanding the repeal of the Laws (Continuance in Force) Order, 1958." Obviously in the above‑referred case the principle that the decision of petition must be made according to the law prevailing at the time of commencement of the proceedings was fully attracted. The petition filed under the Laws (Continuance in Force) Order, 1958 had to be decided strictly subject to the provisions of the Order. In the present case the principle that anything done or suffered under a certain law which is subsequently amended or repealed remains uneffected, notwithstanding the repeal or amendment, is attracted. To put it differently rights or liabilities which have accrued under the existing law remain undisturbed despite repeal or amendment of the law unless there is an express provision in the amending or repealing law to the contrary. It was held in the case of Hotel Industries (Private) Ltd., Lahore v. The Province of West Pakistan through the Secretary, Excise and Taxation Department, Lahore and another (PLD 1978 Lahore 53) that where an order had become final, subsequent amendment in law did not affect its validity, in the absence of express provision to annul effect thereof. In the present case, there is an express provision in the shape of para. 6 of the amended Regulation No. 16 which preserves the orders of promotion and seniority already passed by the competent authority. Hence validity of the impugned order has to be judged in accordance with the provisions of Regulation No. 16 as it originally, stood before the amendment.?????

9. The argument of the respondent's learned counsel that the impugned order being a mere office memo relating to promotions, postings and transfers cannot be challenged in the Civil Court appears to be misconceived. The said order so far as it relates to promotions, postings and transfers has not been challenged by the petitioner. Only that part of the order has been assailed which disturbs the petitioner's seniority qua respondents Nos. 2 and 3.

10. For the foregoing discussion I accept the revision petition, set aside the impugned judgment and decrees of the Courts below and decree the petitioner's suit regarding his claim of seniority qua respondents Nos. 2 and

3. The impugned order dated 26‑3‑1977 passed by respondent No. 1 relating to seniority of the petitioner and respondents Nos. 2 and 3 is declared to be illegal, without jurisdiction and hence a nullity in the eye of law. However, it is maintained so far as it relates to promotion of the parties. The parties are left to bear their own costs. A.A./A‑423/L ???????????????????????????????????????????????????????????????????????????????????? Revision accepted.