P L D 1973 Supreme Court 497 (PLP)

Feeling aggrieved by the promotion of the respondent the petitioner represented to the College Governing Council, but there was no response. Thereafter, he took the matter to the Secretary to the Government of the Punjab in the Basic Democracies, Social Welfare and Local Government Depart ment (respondent No. 1), but the said officer decided to promote another lecturer by the name of Races Ahmad Siddiqi, who had earlier been superseded by Sumbal. According to the petitioner, this order issued by the Provincial Government on the 1st of June 1970, had the effect of reverting Sumbal from the senior grade. However, by an order made on 17‑8‑70, the Provincial Government again promoted the respondent "on compassionate grounds in a stop‑gap arrangement against the selection grade post Class I (Junior) which fell vacant on the demise of late Mr. Asghar Ali, Vice‑Principal, Municipal Degree College, Burewala." By another order issued on the 3rd of November 1970 the Provincial Government decided, in partial modification of its earlier orders of the 1st of June and the 17th of August 1970, that Sumbal who was absorbed in Local Council Service Class I (Junior) on 1‑7‑1968 would be allowed to continue against the post he was holding on promotion to Class I (Junior) since 1965, and Races Ahmad Siddiqi, who was given pro forma promotion with effect from 12‑12‑1963 by the order dated 1‑6‑1970, would be adjusted against the post which fell vacant on the demise of Mr. Asghar Ali, Vice‑Principal of the College. Simultaneously with representing against the promotion of respondent No. 4 to the Senior Scale, the petitioner also agitated the matter of his seniority, asserting that he was senior to Sumbal on the ground that he was appointed against a substantive post, whereas Sumbal had been appointed purely on a temporary basis for one year, and his appointment was extended 33 days after the initial period had expired. This representation was, however, finally rejected by the Provincial Government by an order made on the 30th of September 1970. It was held that the petitioner was junior to Sumbal. Having failed to obtain redress of his grievances from the Governing Council of the College, the Municipal Committee of Burewala, the Controlling Authority, and the Provincial Govern ment, the petitioner invoked the writ jurisdiction of the High Court. It was contended before the High Court that the promotion of Sumbal to the Senior Scale Class I by the Municipal Committee's resolution of the 29th of May 1965, was invalid as he did not fulfil two of the essential conditions embodied in a resolution of the College Governing Council dated the 17th of November 1964, on the subject of promotions to Class 1, namely :‑ (a) That he did not hold a second class Master's degree in his subject; and (b) That he had not completed five years satisfactory service on the date of the resolution. The High Court, however, repelled these contentions by observing that the rules approved by the College Governing Council were not in the nature of statutory rules but were rather internal regulations, and could not, therefore, be enforced by the High Court under Article 98 of the 1962 Constitution. It was further hold that in any case by means of an amendment in the Regulations of the Punjab University in October 1968, the Master's degree held by respondent No. 4 was reclassified as falling in the second division with retrospective effect from 1959, which was the year of his passing the M. A. examination. It was next observed that the service of the respondent was continuous from the date of his appointment, namely, the parent body could condone 28‑9‑1960, and the deficiency of a few months, required to complete five years service namely, the Municipal Committee. Finally, the High Court observed that the petitioner's appointment having been regularised only on 7‑1‑1961, he had also not completed five years' service on the date of the impugned resolution, and, therefore, he had no locus stands to challenge the promotion of the respondent on that date. On the question of his seniority vis‑a‑vis respondent Sumbal, the petitioner placed reliance on instructions appearing on page 504 of the O & M Establishment Manual, Vol. 111, 1966 Edition, for the proposition that Sumbal, having been appointed against a temporary appointment, was junior to the petitioner who had been appointed against a substantive vacancy from the very start. The High Court has observed that the contention raised by the petitioner would require a probe into controversial facts, which could not be undertaken in the exercise of the writ jurisdiction of the High Court, especially after the lapse of a period of ten or eleven years since Sumbal was appointed on probation in pursuance of a resolution adopted by the College Governing Council on the 30th of October 1961. The learned Judge has further observed that even otherwise it would appear from the resolution of the 19th of September 1960, as well as from a certificate issued by the Administrator of Municipal Committee, Burewala, on the 10th of September 1971 that Sumbal was appointed against a permanent sanctioned post of lecturer during the year 1960. The High Court has repelled the contention that the only permanent post available for the respondent was the one which fell vacant on 22‑9‑1962 on account of the resignation of one Mr. Muhammad Tufail. Lastly, the High Court has held that there was no break in the service of the respondent in spite of the fact that sanction to his continuance in service beyond the initial period of one year was accorded after the expiry of that period, as the competent authority could give retrospective effect to its resolution. In support of this petition for special leave to appeal, it is submitted by Raja Muhammad Anwar, the learned counsel for the petitioner, that the High Court has erred in deciding both the main questions arising in this case, namely, the inter se seniority of the two contending officials, and the validity of respondent Sumbal's promotion to the Senior Class I (Junior) Grade of Lecturer. We shall first take up the question of seniority. In the year 1958, the Administrator of the Municipal Committee of Barewala, acting under section 33 of the Punjab Municipal Act, 1911, passed a comprehensive order setting up a Governing Council for the management of the Municipal College at Burewala, and delegating to It all his powers under section 39 of the Act. One of the stipulations in this order was that :‑ "The teaching and ministerial staff of the Institution shall be appointed by, and shall hold office during the pleasure of the College Governing Council." Another clause provided that :‑ "The Civil Service Rules, as far as practicable shall be applicable to these services." It is in pursuance of this stipulation that the petitioner has placed reliance on Rule 2.49 contained in Chapter II of Punjab Civil Services Rules, Vol. I, as well as on instructions appearing on page 504 of Vol. III of O & M Establishment Manual issued by the Government of West Pakistan. We further find that in the grounds enumerated in para. 21 of the writ petition filed in the High Court, as well as in para. 9 of the present petition for special leave to appeal, the petitioner has specifically referred to the application of rule 14 of the West Pakistan Local Council and Municipal Committee Service Rules, 1963, as amended up to July 1968, in the matter of seniority. Rule 2.49 of the Civil Service Rules defines a probationer as meaning "a Government Servant employed on probation in or against a substantive vacancy in the cadre of a depart ment . . . . . This definition is said to be relevant for applying the rule embodied in the instructions appearing on page 504 of the Establishment Manual. These instructions, issued by the Services and General Administration Department of the Government of West Pakistan on 10‑12‑1966, do not Indicate that they have been embodied in the Civil Services Rules, which were made applicable to the teaching staff of the Municipal College, Burewala, in 1958. Nor do these instructions have any retrospective effect so as to govern the seniority of persons appointed in the years 1960 and 1961. For these reasons the entire superstructure of arguments built on the basis of these instructions cannot be sustained. Even otherwise even a cursory glance at the opening sentence would show that they are intended to regulate the "determination of the seniority of officials appointed by initial recruitment vis‑a‑vis those appointed otherwise". The phrase "appointed otherwise" is used in these instructions, as becomes clear from the succeeding paragraphs, to denote officers promoted from the lower grade. In other words, the instructions are intended to regulate the Inter se seniority of the direct recruits vis‑a‑vis the promotee officers, but in the instant case both the contending officers are direct recruits. These instructions, therefore, have no application to their case. The learned counsel for the petitioner drew our attention to a statement appearing at the bottom of page 504 of the Manual to the effect that :‑ "According to this rule appointment against a substantive vacancy would ensure seniority to an official as against others appointed against temporary vacancies whether they be direct recruits or promotees." This explanation, however, goes beyond the scope of the rules earlier enumerated by the Government on the same page, which relate clearly to the inter se seniority of direct recruits vis‑a‑vis promotees and not the inter se seniority of direct recruits only. No benefit can therefore accrue to the petitioner on the basis of this explanation. Rule 2.49 of the Civil Services Rules (Punjab) and the instructions appearing on page 504 of the Establishment Manual having been found to be inapplicable, we now turn to the West Pakistan Local Council and Municipal Committee Service Rules, 1963, as amended up to July 1968. These rules, as originally promulgated on the 14th of October 1963, did not extend to members of the teaching staff employed in Municipal institutions. However, by an amendment made on the 1st of July 1968, they were extended to the teaching staff, and all teachers were absorbed in the Education Branch of the Local Council Service with effect from 1‑7‑1968. This fact finds mention in the order issued by the Provincial Government in this case on the 3rd of November 1970, to which reference has already been made earlier. From this date onwards, in any case, the petitioner as well as the respondent were to be governed by these rules. The question of seniority inter se of the members of the service in the various classes and grades thereof is dealt with in rule 14 of these Ruses. Clause (1) (a) prescribes that in the case of members appointed by initial recruitment, seniority shall be determined in accordance with the order of merit assigned by the Selection Board; provided that persons selected for the Service in an earlier selection shall rank senior to the persons selected in a later selection. Clause (1) (6) of this Rule then deals with the case of members appointed otherwise than by initial recruitment. Clause (2) of the same Rule contemplates that "The seniority of officials deemed to have been appointed to the service under Rule 8 shall be determined with respect to the date of their continuous appointment to the post hold by them immediately before the coming into force of these rules. It may be mentioned that Rule 8 provides for the absorption into the Local Council Service of those employees who were already in service on the date of the promulgation of these rules. The petitioner and the respondent fall in this category). Clause (3) deals with the question of seniority of direct recruits vis‑a‑vis promotees, and is practically In the same terms as are embodied in the instructions appearing on page 504 of the Establishment Manual. Proviso (b) to Clause (2) of rule 14 also needs to be noticed in this behalf, as it lays down that "Nothing herein contained shall be construed to affect the inter se seniority of such members of the service, determined in accordance with such rules or orders. If any, as were applicable to them before the commencement of these rules." We have already seen that the only rules relied upon by the petitioner, other than West Pakistan Local Council and Municipal Committee Service Rules, 1963, are Rule 2.49 of the Civil Service Rules (Punjab) and instructions appearing on page 504 of the Establishment Manual, both of which have no direct bearing on the question of the inter se seniority of the petitioner and the respondent Sumbal. In these circumstances, Clause (2) of Rule 14 aforesaid will apply, and proviso (b) will not be attracted. From the provisions embodied in Clauses (1) (a) and (2) of rule 14, it becomes abundantly clear that the Inter se seniority of direct recruits is to be determined according to the date of their continuous appointment to the post or grade concerned, and not by the fact whether any one of them was initially appointed against a temporary or a substantive post. On this view of the matter, it was not at all necessary for the High Court to investigate the question whether the respondent Sumbal had been appointed against a temporary or a substantive post. This issue was unnecessarily raised by the petitioner by reference to instructions which were not applicable to the case. As already stated, the respondent Sumbal was appointed as Lecturer with effect from 28‑9‑1960, and since then he has been continuously holding this appointment. The High Court was clearly right in expressing the view that the mere fact that the College Governing Council extended the respondent's appointment by a Resolution passed 33 days after the expiry of the initial period of one year, would not constitute a break in service. By the Resolution of the 30th October 1961, the respondent was treated on probation from the date of the original appointment. The Administrator of the Municipal Committee of Burewala also furnished a certificate to the effect that Sumbal had been continuously in service since the date of original appointment. Thus, the position, which emerges, is that the respondent was appointed earlier than the petitioner and has continuously held the appointment of Lecturer much longer than the petitioner. On these facts, the respondent is decidedly senior to the petitioner in accordance with Clause (2) of Rule 14 aforesaid. It is too late in the day for the petitioner to challenge the legality of the respondent's appointment with reference to the Rules of the Punjab University or the Board of Higher Secondary Education, laying down that ordinarily a Lecturer should possess a Master's degree in the second division. The appointment was made in 1960, and the petitioner started agitating against the respondent for the first time in the year 1965, when the real controversy centered round the grant of the next higher grade. In any case, the classification of the degree held by the respondent stands upgraded with retrospective effect from 1959. Turning now to the question of the grant of Senior Scale Class I (Junior), we find that the petitioner bang junior to the respondent in the ordinary grade of lecturer, he could have no legitimate claim for promotion, in preference to the respondent. Further, in May 1965 the petitioner himself was also not qualified for the grant of the higher grade, as he had not completed five years' service by then. The learned counsel for the petitioner conceded that for this reason the petitioner had no locus stand to challenge the respondent's promotion on that occasion. In any case, the respondent's degree having been upgraded with retrospective effect from third division to the second division, and the respondent having completed five years' service In September 1965, his promotion from that point of time onward could not be challenged on the ground of non‑fulfilment of the prescribed conditions. There is also the fact, asserted by the petitioner himself, that this particular promotion of the respon dent came to an end by the order made by the Provincial Government on the 1st of June 1970. When the vacancy in question was given to Races Ahmad Siddiqi. The petitioner's challenge to the 1965 promotion therefore became infructuous even on this account. However, the respondent was re‑promoted by an order made by the Provincial Government on the 17th of August 1970, and modified on the 3rd of November 1970. On both these dates, the respondent was fully qualified for this promotion and was rightly given preference over the petitioner, who was junior to him as lecturer. By these dates, the respondent had not only completed nearly ten years of continuous service as Lecturer, but his degree also stood‑re‑classified as second division. No fault could, therefore, be found with these two orders. During the course of arguments, the learned counsel for the petitioner produced before us an uncertified copy of a memo randum dated the 22nd of November 1969 from the Secretary to the Government of West Pakistan Basic Democracies, Social Welfare and Local Government Department, Lahore, to the Commissioner, Multan Division, Multan, to show that the Government had in fact accepted the claim of she petitioner, and, therefore, the subsequent orders passed in 1970 could not hold the field. We notice that this memorandum does not form part of the High Court record, and for that reason alone it is not possible to take it into consideration at this late stage in the proceedings. Even otherwise, this memorandum does not advance the case of the petitioner. On the question of the regularity of the respondent's appointment this memorandum concedes that it could be considered regular by taking into consideration the retrospective effect of the upgrading of the respondent's degree. It leaves the question of seniority undecided and asks the Commissioner to furnish certain information as to the rules applicable alongwith the list of seniority maintained by the College so as to enable the Government to take a decision under Clause (2) of rule 14 of the West Pakistan Local Council and Municipal Committee Service Rules read with proviso (b) thereof. Only on the question of the promotion of the respondent, the memorandum declares it to be without lawful authority and irregular on the ground that the respondent had not completed five years satisfactory service on the date of the promotion. However, this part of the memorandum stood clearly superseded by the orders made by the Provincial Government on the 1st of Juno 1970, 17th of August 1970 and the 3rd of November 1970. The memorandum is, therefore, no longer operative in this behalf. Before parting with this case we may observe that the High Court appears to be right in thinking that the recommendations of a sub‑committee laying down conditions for promotion to Senior Class I (Junior) Grade could not be regarded as being in the nature of statutory rules, even though they were approved by the Council itself in its meeting held on the 17th of November 1964. It would be recalled that the College Governing Council itself was created by the Administrator of the Municipal Committee of Burewala, and certain powers were delegated to it under section 33 of the Punjab Municipal Act, 1911, read with section 39 thereof. The effect of this delegation was that the teaching staff and other employees of the Municipal College, Burewala, could be appointed and removed by the College Governing Council subject to the provisions of the Act and the rules and bye‑laws made thereunder. The power to frame rules under the Act is vested, by section 240, in the Provincial Government. Claus: (n) of subsection (1) of this section deals with the subject of employment, punishment, suspension or l, removal of officers and servants of the Committee. It is clear that this rule‑making power cannot be delegated to any sub committee or the College Governing Council. It was for this reason that the West Pakistan Local Council and Municipal Committee Service Rules, 1963, were framed by the Governor of West Pakistan in exercise of the powers conferred by Article 44 read with Article 89 of the Basic Democracies Order. 1959, and section 29 read with section 121 of the Municipal Administration Ordinance, 1960 (which had replaced the Punjab Municipal Act of 1911). Apart from the rules which can be framed only by the Government, the Municipal Act contemplates, by virtue of section 188, that bye‑laws may be framed by a Municipal Committee. Here again, them is no provision for a Municipal Committee to delegate this power to any subordinate sub committee or authority. Such being the case, the College Governing Council or any constituted by it could only make regulations foil the internal management of the College, and such regulations could not acquire the status of statutory rules, so as to be enforced by the High Court in the exercise of its extraordinary jurisdiction under Article 98 of the 1962 Constitution. For the foregoing reasons the petition has no merit and is hereby dismissed. S. A. H. Petition dismissed.