1996 PLP (C (PLC(CS))

Date of hearing: 1st September, 1994. MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑In this appeal, Mr. Muhammad Ali Memon, the Executive Engineer, Education Works Department, Dadu has called in question the Education Department's Notification No. S.O. (E‑V)9‑48/89, dated 5th October, 1993 whereby in exercise of powers conferred by section 24 of the Sindh Civil Servants Act, 1973 (hereinafter referred as the said Act) and rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (hereinafter referred as 1974 Rules), the Chief Minister appointed by transfer, Mr. Zia‑ud‑Din Ansari, Assistant Professor Civil (BPS‑18) of Directorate of Technical Educations as Executive Engineer (BPS‑18) in the Directorate of , Engineering Works Education Department with effect from 1st March, 1989. Briefly stated the facts of the case are these. The appellant joined the Education Works Directorate as Assistant Engineer initially on ad hoc basis. Following his selection by the Sindh Public Service Commission, his appointment in the above capacity was regularized w.e.f 23‑6‑1986. He was subsequently promoted as Executive Engineer on 10‑5‑1989 and his said promotion was regularized by the notification-dated 2‑3‑1992. On the other hand the private respondent started his service career as Instructor(Civil), in the Director Technical Education from 20‑4‑1977. He was later promoted as Assistant Professor (Civil BPS‑18) on 4th August, 1975. In the meantime he was deputed to work as Assistant Engineer (BPS‑17) People Rural Development from 14‑11‑1974 to 25‑3‑1976. On his repatriation he worked as Assistant Professor. He was again sent on deputation as Project Engineer Agriculture University Tando Jam (13‑7‑1978 to 19‑11‑1983). Following his repatriation from there he worked as Executive' Engineer, Education Department. Once again he was deputed to work for the Agriculture University, Tando Jam, first as Technical Officer from 20‑2‑1986 to 27‑4‑1988 and then as Project Director from 28‑4‑1988 to 28‑2‑1988. Thereafter, he was repatriated as Design Officer, Directorate of Engineering Works, Education Department in which capacity he worked from 1‑3‑1989 to 5‑8‑1989. He was ultimately posted as Executive Engineer, Education Works Division and by the impugned notification he was absorbed' as Executive Engineer in the Directorate of Engineering Works, Education Department as mentioned above Hence, the present appeal which was filed on 2‑3‑1994. Mr. Zia Makhdoom appeared for the appellant, Mr Muhammad Aqil Awan represented the private respondent and Mr. Abdul Latif Ansari, A.A.‑G. put in his appearance on behalf of the official respondents. We heard the arguments of the said learned counsel and with their assistance examined the documents including judgments of Superior Courts relevant for disposal of the appeal. The appellant's prayer is that the absorption of the private respondent in Engineering Education Works Department by the impugned notification be declared as invalid or in the alternative the said absorption be held to have taken effect prospectively and not retrospectively. For the sake of convenience,, the impugned notification is reproduced as under.‑‑ "No. S.O.(E‑V) 9‑18/89.‑‑‑In exercise of powers conferred by section 24 of Sindh Civil Servants Act, 1973 and Rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and in relaxation of relevant rules, the Chief Minister, Sindh has been pleased to appoint by transfer Mr. Ziauddin Ansari, Assistant Professor Civil (B‑18) in the Directorate of Technical Education as Executive Engineer (B‑18) in the Directorate of Engineering Works Education Department with effect from 1‑3‑1989 as a special case." The appellant's learned counsel assailed the above notification on various grounds. According to him section 24 of the said Act was inapplicable in the present case because it is a settle law that the powers under section 24, cannot be exercised so as to violate the interests of other civil servants, as has been done in the present case. The next objection of the learned counsel was that since the private respondent's absorption which was nothing but appointment by transfer was not cleared by the relevant D.P.C., it was not legal His contention was that section 24 could not be invoked for regularization of the appointment, much less with retrospective effect. He further submitted that the private respondent himself had moved for the absorption in the new cadre and as such he would have to be placed the bottom of that cadre. It was also his objection that according to rules the private respondent was not eligible for appointment by transfer. Before examining the above arguments of the appellants learned counsel, we would have to first deal with the legal objection raised by the respondent; learned counsel. According to them the impugned notification did not provide any cause of action to appellant. In support of their contention, reference was invited to our own judgment which has been reported as Ahsanullah A. Memon v Government of Sindh and 3 others (1992 PLC (C.S.) 1157). We have perused the reported judgment. Its relevant portion .is reproduced as under:‑‑ "As for the impugned notification, we are in agreement with the view that it by itself did not provide any cause of action to the appellant. No doubt it was a potential danger to the appellant's seniority vis‑a‑vis the private respondent. But unless it had actually disturbed his seniority, the cause of action could not be held have accrued to the appellant. Howsoever imminent may be the fear of the future, it could not provide the basis for launching the litigation. Because there was always a possibility of intervention of some unforeseen events capable of averting the adverse occurrence. In the instant case the appellant's fear that the impugned notification posed a positive threat to his seniority may be quite genuine but until it became a reality by way of adverse entries in the seniority list or by such other step taken in the light of the said notification, the appellant could not be held to have been aggrieved in respect of his terms and conditions of service within the meaning of section 4 of the Service Tribunals Act. The impugned notification does not even remotely make a mention of the appellant's name. It has absolutely no linkage with the appellant or violation of his terms and conditions of service. Accordingly we are convinced that the impugned notification, did not provide the cause of action to the appellant for filing this appeal which therefore must fail on this ground." The above findings in the reported case are fully applicable in the present case which, it would be noticed, is on all fours of the reported case. We need not repeat our observations in the reported case that the impugned notification which speaks of only the private respondent's absorption with retrospective effect did not by itself provide any cause of action to the appellant unless some concrete steps were taken in the light of the notification, such as placing the name of private respondent above the name of appellant in the seniority list or promoting him to higher post in preference to the appellant etc. Accordingly our considered view is that the appellant had shown undue haste in rushing to file this appeal for which, as has been noted above, he had no cause of action. The appeal is therefore liable to be thrown out on this sole ground. On merits of the case, we have to keep in view the arguments hereinabove made on behalf of the appellant. We have to decide if section 24 of the said Act was rightly invoked. It is a settled law that the powers conferred by the said section were exercisable only in the case of hardship. In the case reported as Capt. (Retd.) Abdul Qayoom, Executive Engineer v. Muhammad Iqbal Khokhar and others (PLD 1992 SC 184), the question of law of public importance required to be answered was whether the Governor could exercise his powers under section 23 of the Punjab Civil Servants Act (i.e. section 24 of the Sindh Civil Servants Ad) to relax some rule adversely affecting thereby the seniority of a number of other civil servants. It was held: The argument that the exercise of this power can ride rough over the statutory right of others would amount to negation of rules or law, going beyond the Constitutional parameters, subordinating of statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by the law as anyone else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and considers just and fair but not at the cost of others not even at the slightest cost of the statutory right already granted to the beneficiary. This is a power of redress, of providing a relief and not of impairing statutory right of any one." In view of the findings of the Supreme Court in the above reported case, the exercise of power under section 24 of the said Act was not permissible at the cost of others. We have to see what actually has been allowed by the impugned notification and further whether the benefit conferred by the notification was inconsistent with the dictum laid down by the Supreme Court. The plain reading of the impugned notification shows that all the notifications had given to the appellant was that he was simply appointed by transfer as Executive Engineer in the Directorate of Engineering Works Education Department with retrospective effect from 1‑3‑1989. In our opinion in absence of the specific language used in the notification, the appointment made thereby would not automatically assume the status of regular appointment, particularly when the procedure prescribed for making such appointment had not been followed nor specific mention had been made for relaxation of the rule with regard to the prescribed procedure, until issuance of the impugned notification the private respondent and the status of only a deputationist. His such status came to an end as soon as the impugned notification was issued. But still his appointment could not be held to have been made on regular basis by the said notification. His appointment was merely of the nature of adhoc appointment which required to be regularized on the recommendations of the relevant Board. As pointed out above, the impugned notification did not speak of the appointment of the private respondent's as made on regular basis. But even if it was assumed that the appointment made by the impugned notification was intended to be a regular appointment, yet the learned counsel for the respondents had to satisfy us that the regularisation of the private respondent's appointment through a normal procedure posed a problem or any insurmountable difficulty so that extraordinary method had to be followed to achieve the desired result. But we saw no difficulty in convening the relevant Board for the purpose of regularization of the private respondent s appointment. After doing so, the departmental authorities should have addressed themselves to sorting out the question of his seniority. In any case we are convinced that the appellant s hue and cry against the impugned notification was misplaced. The upshot of above discussion was that the impugned notification did not provide any cause of action to the appellant. Consequently the appeal is dismissed with no order as to costs. H.B.T./602/Sr.S Appeal dismissed.