2004 PLP 497 (SCMR)

‑‑‑‑S.23‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal‑‑‑Limitation‑‑‑Petitioner was required to file appeal within thirty days whereas he had wasted time unnecessarily in making second appeal/ representation to the Department for referring his case to the Services and General Administration Department for consultation with the Provincial Law Department/Advocate‑General, which was turned down‑‑‑Effect‑‑‑No scope for repeated appeals/representations was available to the civil servant and the period of limitation could not be extended by repeated representations‑‑‑Appeal of civil servant was rightly held time‑barred by the Service Tribunal. (e) Constitution of Pakistan (1973)‑‑‑ ‑‑‑‑Art. 212(3)‑‑‑Appeal to Service Tribunal‑‑‑Service Tribunal having elaborately dealt with the pros and cons of the case of the petitioner in juxtaposition to the case of opponent civil servant, complete justice had been done and there was no ground for interference by the Supreme Court in exercise of the jurisdiction under Art.212(3) of the Constitution‑‑‑Petition for leave to appeal was dismissed. Manzoor Ali Khan, Advocate Supreme Court for Petitioner. Nemo for Respondents Nos. l to 5 and 7 to

18. Naraindas C. Motiani, Advocate Supreme Court/Advocate‑on- Record for Respondent No.6. Date of hearing: 24th October, 2003. RANA BHAGWANDAS, J.‑‑‑Sole question for determination in this petition under Article 212 of the Constitution is whether the petitioner was rightly assigned seniority and protection of his service rendered in Karachi Development Authority, on his deputation in the first instance and afterwards appointment to the Directorate of Engineering Works in Education Department, Government of Sindh in BS‑17 by transfer.

2. Petitioner was serving as Assistant Executive Engineer in Karachi Development Authority with effect from 31‑5‑1981. Through letter dated 16‑6‑1991 of the Provincial Minister, Education Department, his services were required for posting in the Education Works Directorate and vide notification dated 26‑8‑1991, issued by the Education Department, he was posted as Assistant Engineer (BS‑17), Education Works Sub‑Division with specific stipulation that he shall be on deputation for a period of three years on usual terms and conditions. It seems that vide letter dated 11‑11‑1991, he was informed that the Government was considering his absorption in the Directorate of Engineering Works on permanent basis. He was called upon to submit his written irrevocable option indicating his willingness for permanent absorption in Education Department within a week's time. Petitioner says that, in response to this offer, he exercised his option vide letter dated 14‑11‑1991 opting for permanent absorption in the aforesaid Directorate, provided his service from 31‑5‑1981 to 26‑8‑1991, rendered in Karachi Development Authority was counted towards seniority etc. in terms of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. Accordingly, vide notification dated 23‑12‑1991, he was appointed by transfer as Assistant Engineer (BS‑17) in the Directorate of Engineering Works, Education Department with immediate effect, until further orders. This notification recites that, on his appointment, he would be eligible for benefit of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred as Rules 1975).

3. Consequent upon this notification, in the provisional seniority list, circulated vide letter dated 17‑3‑1992 of the Project Director, Engineering Works, Education Department, Hyderabad and similar list circulated by Secretary, Education Department vide letter dated 11‑5‑1992, petitioner's‑ name was shown at serial No.1 of the list of Assistant Engineers BS‑17 in the meanwhile, vide notification dated 2‑5‑1992, on the recommendation of Departmental Promotion Committee, he was promoted as Executive Engineer BS‑18 with immediate effect. Petitioner felt aggrieved, when Education Department, vide letter dated 22‑1‑1996, circulated another provisional seniority list of Executive Engineers (Civil) in BS‑18 reflecting the name of the petitioner at serial No.9 instead of serial No.1 and called upon him to submit his objections, if any, against his seniority position alongwith documentary proof within thirty days. Note recorded by the Department against the entry relating to petitioner's name reads asunder:‑‑ "At the time of his transfer from K.D.A. the approval of Competent Authority i.e. Chief Minister 'Sindh invoking the power of section 24 was not solicited. Summary in this behalf is under submission he therefore, loses his seniority till the approval of Competent Authority i.e. Chief Minister Sindh arrives."

4. Petitioner represented against this list and agitated that in the earlier list he was shown senior to as many as seven Executive Engineers and that the protection of his past service rendered in Karachi Development Authority could not be unilaterally taken away. His representation did not succeed and in‑the final seniority list circulated by the Education Department vide letter dated 21‑8‑1996, petitioner's name was shown at serial No.

15. Petitioner's departmental appeal against the revision of seniority, was rejected by the Chief Secretary, Government of Sindh vide letter dated 26‑9‑1998 on the premise that he was entitled to count his seniority as Assistant Engineer (BS‑17) from the date when formal notification about his appointment by transfer was issued on 23‑12‑1991 and that his promotion as Executive Engineer was also made on this basis. Instead of preferring service appeal before the Service Tribunal within thirty days of this decision, he made another representation for referring his case to Law Department/Advocate General. This prayer was turned down by the Competent Authority vide letter dated 14‑12‑1998 whereafter petitioner filed service appeal before the Tribunal seeking a direction to the effect that he shall count his seniority as Executive Engineer BS‑18 as well as Assistant Engineer BS‑17 in the Directorate of Engineering Works reckoning his past service before his appointment by transfer in the Directorate of Engineering Works under Rule 12(a) of the Rules 1975 and shall rank senior to respondents Nos.4 to

17. The appeal was resisted by the Provincial Government as well as respondents Nos.5, 6, 14 and 17 who filed separate written statements.

5. The case of the respondents appears to be that there was no dearth of experienced Engineers in the Directorate of Engineering Works of Education Department and were it so, requisition for services of the petitioner would have been made by Services and General Administration Department of the Government of Sindh. It was suggested that at the behest of the petitioner, Minister Education requisitioned his services by name just to favour him without complying with the codal formalities and in violation of the service laws and rules. It was pointed out that in terms of section 24 of the Sindh Civil Servants Act, 1973 (hereinafter referred to as the Act 1973),. Government enjoyed plenary power to deal with the case of any civil servant in such a manner as may appear to it to be just and equitable notwithstanding anything contained in any provision of the Act 1973 and the Rules. Such power, it may be clarified is required to be exercised fairly, justly and reasonably anti in a manner, which may not be prejudicial to the right and interest of a third person. It was agitated that on appointment by transfer, assigning him seniority in terms of Rule 12(a) of the Rules 1975 was totally wrong and in deviation of law which was rightly withdrawn. Tribunal, on consideration of various aspects of the case, dismissed the appeal as barred by time as also being devoid of any merit. Dilating upon the provisions of Rule 12(a) supra, the Tribunal observed that the appellant, after being relieved from Karachi Development Authority, joined the Education Department as a deputationist and till the time of his absorption through notification dated 23‑12‑1991, he did not enjoy the status of a civil servant as defined in section 2(d) of the Act, 1973 as such till his absorption, he could not press into service Rule 12(a) supra. Justification for the notification dated 23‑12‑1991, extending the benefit of Rule 12(a) supra to the petitioner, was found to be unwarranted in law. Tribunal formed the opinion that aforesaid Rule could not be pressed into service as appointment of the petitioner by transfer in the Education Department was on account of political influence exerted by him. Taking into consideration the backdrop of the petitioner's appointment, it was concluded that his case was covered by Rule 12(b) of the Rules, 1975, stipulating that after appointment by transfer on the request of appointee, he shall rank junior to all other persons appointed before him on regular basis. Another circumstance, which found favour with the Tribunal, appears to be that approval of the Chief Minister being the Chief Executive of the Province, for absorption of the petitioner was not obtained. On the question of applicability of the principle of locus poenitentiae, Tribunal observed that, since the petitioner had obtained his absorption through backdoor by way of exerting influence, contrary to the rules and regulations, this principle was not attracted in view of the judgment of this Court in Engineer‑in- Chief Branch v. Jalaluddin PLD 1992 SC 207.

6. We have heard. Mr. Manzoor Ali Khan, learned Advocate Supreme Court for the petitioner while Mr. Naraindas C. Motiani, learned Advocate Supreme Court, has entered appearance on caveat on behalf of respondent No.6. Learned counsel for the petitioner vehemently urged that Minister Education was fully competent to appoint the petitioner as Assistant Engineer BS‑17 in Education Department, he being the Appointing Authority after amendment of Rule 4 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (hereinafter referred to as the Rules 1974) vide notification dated 24‑7‑1979. Learned counsel vigorously urged that since the Minister Education was fully competent to order the appointment of the petitioner in BS‑17 in his department, in law there was no requirement of referring his case to the Chief Minister as Chief Executive of the Province.

7. We have examined Rule 4 of the Rules 1974 heavily relied upon by the petitioner, to contend that not only his appointment by transfer by order of the Provincial Education Minister was valid and lawful assignment of seniority with retrospective effect, after his induction in the Education Department was well within the parameters of law and competence of Education Minister. Prior to the amendment in serial No.7 of the Table under Rule 4 (supra), Secretary of the Department, with the approval of Chief Secretary, was designated as appointing authority for officials in BS‑17 (excluding Civil Judges). After the amendment referred to above, Minister has been substituted for Secretary and to this extent learned counsel may be correct but the fact remains that the petitioner was not serving as civil servant in any Government Department or organization authorizing his appointment by transfer without any due process. He was serving in Karachi Development Authority, a statutory body coordinating with the Local Government Department and, thus, could not be said to be a civil servant. Be that as it may, Rule 6‑A of the Rules 1974 categorically postulates that; for the purposes of selection for appointment by promotion or transfer to posts in grade 18 bearing special pay and above and such other posts as may be notified by Government, the Chief Minister may constitute one or more than one Provincial Selection Board. Furthermore, Rule 7(1) stipulates that appointment by promotion or transfer to posts in grades 1 and 2 shall be made by the appointing authority on merit whereas appointment by promotion and transfer to posts in grades 3 to 18 without special pay other than the posts in which Provincial Selection Board has been constituted under Rule 6‑A, shall be made on the recommendation of the appropriate Departmental Promotion Committee. While the petitioner‑ specifically pleaded that his appointment in Karachi Development Authority was made on the recommendation of appropriate Selection Board, it was neither pleaded nor urged at the bar that this process was adopted while inducting him in Education Department, as required by the above said Rules. Learned counsel laid much stress on Rule 9 of the Rules 1974, laying down that appointments by transfer shall be made from amongst the persons holding appointment on regular basis in the same cadre, in which the posts to be filled exist. He, however, lost sight of Rules 6‑A and 7 discussed hereinabove. Again mandatory requirement of Rule 8 is to the effect that persons as possess "such" qualifications and fulfil the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or Provincial Selection' Board, as the case may be. It is nobody's case that the cast; of the petitioner was duly considered by the appropriate Departmental Promotion Committee at the time of his appointment by transfer and extending to him the benefit or Rule 12(a) of the Rules, 1975.

8. Assuming, without deciding, that the appointment by transfer of the petitioner was authorized by law, there does not appear to be any legal authority on the part of the Education Department in extending the protection of Rule 12(a) to the petitioner to the utter disadvantage of all other incumbents already serving in the department on regular basis. In case the petitioner had opted to accept the so called regular appointment on permanent footing in Education Department, the department was not bound to accept the condition as regards the counting of past services rendered in Karachi Development Authority by the petitioner. It is doubtful whether the services of the petitioner were essentially requires by the Education Department for absorption by way of transfer from Karachi Development Authority, as no exceptional grounds have been shown to exist on the face of record. Even otherwise, assuming that the department required his services in the exigencies of public interest, it was within the competence of the Chief Minister to approve of his induction and to extend the benefit of the provisions contained in Rule 12(a) of the Rules 1975 after exercising his plenary powers by relaxing the Rules. It is not clear whether the Education Minister was legally competent to exercise such powers on behalf of the Chief Minister to whom even the case was not referred for ex‑post‑facto approval or exercise of discretion in terms of section 24 of the Act, 1.973 as u hardship case. Indeed, the impugned judgment of the Tribunal does not suffer from any error of law or jurisdiction when it says that for the purpose of assigning ante‑dated seniority to the petitioner and for his absorption a summary should have been submitted to the Chief Minister, who might be competent to relax the Rules in larger public interest. Again whether the case of the petitioner would fall within the domain of a "hardship case" raises a big question mark.

9. Adverting to the issue of locus poenitentiae raised by the petitioner, suffice it to say, apart from section 21 of the General Clauses I Act 1897, power of rescission or recall of the earlier order is always available to the authority passing an earlier order. Admittedly, seniority is not a vested right of the civil servants under the Act 1973, thus placement of the petitioner in the provisional seniority list at serial No. 1 did not confer any vested right on him to invoke the doctrine' of locus poenitentiae within the purview of the rule laid down in Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207; Abdul Haque Indhar v. Province of Sindh‑2000 SCMR 907; Pakistan International Airlines v. Nasir Jamal Malik 2001 SCMR 934; Director‑General .v. Muhammad Abdul Latif 2003 SCMR 410 and Pakistan International Airlines Corporation v. Inayat Rasool 2003 SCMR 1128. It was quite unnecessary and uncalled for on the part of the Tribunal to observe that the petitioner had secured his appointment in Education Department by exerting political influence.

10. Before parting with the judgment, a word may be said about the petitioner having been non‑suited on the issue of bar of limitation. Admittedly, his departmental appeal was rejected by the Competent Authority vide letter dated 26‑9‑1998. In law, petitioner was required to prefer service appeal within thirty days, whereas he wasted unnecessary time in making second appeal /representation to the department for referring his case to the Services and General Administration Department for consultation with the Law Department/Advocate‑General, which was turned down vide letter dated 14‑12‑1998. In law, there is no scope for repeated appeals/representations on behalf of a civil servant and the period of limitation is not extended by repeated representations. We are, therefore, inclined to endorse the well‑considered opinion of the Tribunal that the petitioner's appeal before the Tribunal was barred by limitation.

11. In the facts and circumstances of the case, we are of the definite view that the Tribunal having elaborately dealt with the pros and cons of the case of the petitioner in juxtaposition to the case of the private respondents, complete justice has been done and there is no ground for interference by this Court in the exercise of Constitutional jurisdiction.

12. For the aforesaid facts, circumstances and reasons, there is no merit in this petition, which is accordingly dismissed. M.B.A./M‑11/S Petition dismissed.