1992 PLP (C (PLC(CS))

(On appeal from the judgment of the Federal Service Tribunal dated the 1st November, 1989, in Appeals Nos. 307(R)/87 to 313(R)/87)

Art. 212(3)

Seniority

Leave to appeal was granted to consider whether the view taken by Service Tribunal in reversing seniority of respondents was proper.

Ss. 23 & 8

Seniority

Residuary power of President to provide relief to civil servant

Object and extent

Principle underlying an action under provision of S.21, Civil Servants Act, 1973, was to provide justice and fair play to each individual

Seniority being not a vested right, residuary power of President of Pakistan under S.23 of the Act could justifiably be exercised-- Mode of exercise of power under S.23, Civil Servants Act stated. The President of Pakistan may exercise residuary power under section 23, Civil Servants Act, 1973, in aid of justice and for removal of hardship. The purpose behind enacting this provision was that a situation might arise when an equitable relief could not be provided to the civil servant under the service laws and a civil servant might offer for no fault of his omission or commission. The principle underlying an action under this beneficial provision was to provide justice and fairplay to each individual. The section is to be read as a whole and the proviso cannot be excluded which is a part of this section. It means that the power under section 23 of the Act could not be exercised to erode the service structure. However, every civil servant was to be dealt with fairly and equally in accordance with the service laws. An action under section 23 to give benefits to a civil servant to the disadvantage of other civil servants and at their cost was not the real intention of the main clause itself. The order must be just and equitable so that all the civil servants could be treated at par with others of the same rank and file and placed in equal situation. Such power could be exercised to correct the error and remove the adverse effect. It must be exercised reasonably. In the present case the appellants, under the compelling circumstances which were beyond their control, could not complete their training. They became prisoners of war. It was, therefore, impossible for them to perform their duties as Police Officers. In, order to alleviate their hardship the President of Pakistan had rightly exercised his power under section

23. They were given the benefit of continuity of service. Their administrative training in 1974 was not considered an impediment in the way of their promotion. Under the rules they had to be on probation and that condition was also done away in order to do justice to them. Such favourable treatment was not made against equity and justice. Seniority being not a vested right on the express words of section 8 of the Civil Servants Act, 1973 no exception can be taken to the exercise of remedial power of the President of Pakistan under section 23 of the Act. Islamic Republic of Pakistan v. Abdul Qadir Haye 1981 SCMR 501; Jamalur Rehman Durrani v. Secretary to Government Establishment Division (OLD 1990 SC 719); Nayer Bari v. Government of Sindh 1991 PLC (C.S.) 1168; Muhammad Iqbal Khokhar v. The Government of Punjab PLD 1991 SC 35;. Abdul Qayyum v. Muhammad Iqbal Khokhar PLD 1992 SC 18; Jehangir Mirza v. Government of Pakistan PLD 1990 SC 1013 and Muhammad Yusuf Chohan v. Sarfraz Khan Jadoon PLD 1991 SC 514 rel.

Seniority

Prescribed minimum length of service was a condition for eligibility for promotion but would not confer right to promotion

Where a senior person had not completed prescribed service, junior person, as a rule, should not be considered even if he had fulfilled prescribed length of service condition

Even for selection post, persons have to be considered in the order of their seniority

Ad hoc promotee, thus, could not be promoted unless his seniors had been promoted. Mansab Ali v. Amir OLD 1971 SC 124; Mushtaq Ahmed v. The Federation of Pakistan PLD 1981 SC 172 and Kadir Bux v. Province of Sindh 1982 SCMR 582 ref.

S. 23

Constitution of Pakistan (1973), Art. 212(3)

Seniority

Appellants were selected for appointment in Police Service through competitive examination in 1970 and joined Police Academy in East Pakistan in December, 1970/January, 1971

Appellants could not complete their training for they were taken as prisoners of war

Appellants having been repatriated to Pakistan completed their training in 1974 and were promoted in BPS-18 in 1975

Respondents (Army Officers) joined police service and were inducted in BPS-18, a few months earlier than appellants

Appellants were assigned seniority by the President of Pakistan on their representation

Service Tribunal reversed President's decision and assigned seniority to respondents-- Supreme Court set aside Service Tribunal's decision and upheld decision of the President under S.23, Civil Servants Act, 1973, whereby appellants were assigned seniority as against respondents. Respondents Nos. 2, 4 and 5 in person ((in Civil Appeals Nos. 519 to 524 of 1990). Respondents Nos. 9 to 12 in person (in Civil Appeals Nos. 515 to 518 of 1990)