1990 PLP (C (PLC(CS))

In the Islamic Republic of Pakistan v. Rabnawaz Khan and others P L J 1982 S C 541, the appeal was accepted on the ground that respondent No. 1 in that case, was a member of Provincial Civil Service and his services were transferred to the Central Government on deputation. It was held that as the respondent was not transferred to or permanently taken over by the Federal Government, he was treated as deputationist from the Government of N.W.F.P. It was further opined that it was correct that respondent was promoted to senior C.S.P. scale from 15‑11‑1966 and as such he was entitled to the benefit accruing to senior C.S.P. scale from the said date, but his appointment as such did not confer upon him the status of Deputy Secretary automatically, because for the appointment as Deputy Secretary he had to be cleared by Selection Board, which was not done. The contention of the Service Tribunal that the respondent had automatically become entitled to the rank of Deputy Secretary was held to be misconceived. In Ijaz Hussain Shah v. Secretary, Establishment Division and 167 others 1984 S C M R 1023, the petition for leave to appeal was dismissed on the ground that the finding of the Tribunal that the petitioners appointment as Section Officer was not on regular basis but on ad hoc basis and as such he was not entitled to seniority among the officers appointed on regular basis, under rule 13 of C.S.S. Rules, 1965. It was held that the order of the Tribunal did not suffer from any legal infirmity. In Saleem Akhtar Bhalli and others v. Secretary to Government of the Punjab, Communications and Works Department, Lahore and ethers 1985 S C M R 950, the petition for leave to appeal was refused with the observations that the contention of the petitioners that they were entitled to carry forward their earlier seniority from lower grade was not accepted because they were not duly inducted into clause II service. Thus, it was held that the seniority of the petitioners would be reckoned from the date of their continuous appointment in the relevant grade. In Mushtaq Ahmed Chaudhry v. Azad Government of the State of Jammu and Kashmir and others 1987 P L C (C.S.) 307, it was observed that period of ad hoc appointment cannot be considered for determination of seniority; seniority is to be determined with reference to the date of regular appointment to the post in the cadre falling vacant and having filled in by a regular appointment. It was further observed that where sequence of names of civil servants showed that the respondent's name preceded the name of the appellant, in absence of any evidence to the contrary, the appellant could not be regarded as senior to the respondent. In Muhammad Iqbal and another v. Secretary to Government of Punjab and others 1986 S C M R 1, it was held that upgadation of all graduate Engineers to Class I would not have effect of making all graduate Engineers of Class I service. It was further held that once a service was consituted by integration and encadrement, rights of those within service begin to take shape as against persons who were not within service. The learned counsel for the appellant has also referred to section 2(1)(a) of the Civil Servants Ad, 1976 and rule 23 of Rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service Rules, 1977 [hereinafter referred as Civil Service Rules] in support of his contention that an appointment made in violation of rules is an ad hoc appointment and the period of service as an ad hoc appointee cannot he counted towards his seniority. Sardar Rafique Mahmood Khan, the learned counsel appearing on behalf of Sardar Muhammad Ilyas Khan appellant has contended that the judgment of the Service Tribunal is contradictory. On one hand the Service Tribunal has expressed the view that the seniority of Muhammad Ashraf Khan is to be reckoned from 1‑7‑1976, while on the other hand dealing with the case of Muhammad Ilyas appellant, the Service Tribunal declined to give opinion as to whether who was senior between Muhammad Ilyas and Muhammad Ashraf Khan, respondent. Sardar Rafique Mahmood Khan, the learned counsel for Muhammad Ilyas Khan appellant, has more or less advanced the same arguments as were advanced by the counsel for Inayatullah Chaudhry. In reply Sh. Abdul Aziz, Advocate appearing on behalf of Sardar Muhammad Ashraf Khan, has contended that the impugned judgment of the Service Tribunal did not suffer from any legal infirmity and appointment of Sardar Muhammad Ashraf Khan on 15‑7‑1974, by transfer cannot be regarded as an ad hoc appointment. He has contended that the seniority of his client should be reckoned, at least, from the date of his appointment, i.e., 15‑7‑1974, when he was transferred as Assistant Engineer to the Electricity Department. The learned counsel referred to rules 14, 24 and 25 of the K.S.R. in support of his contention that the appointment of Muhammad Ashraf Khan cannot be regarded as ad hoc appointment but would be deemed to be a regular appointment as Assistant Engineer and thus his seniority should be counted from the date of his first appointment as Assistant Engineer. Assuming for the sake of argument that the transfer of Sardar Muhammad Ashraf Khan, respondent, from the department of Development and Planning to the Electricity Department was not merely a `posting by transfer' but was an `appointment by transfer', the question which needs to be resolved is as to whether it would be regarded as an `ad hoc appointment' or it would be a regular appointment. There is no dispute that Rules of Business, 1971, were promulgated on 28‑1‑1971 and thus Sardar Muhammad Ashraf was inducted in service and was subsequently transferred to the Electricity Department when the said rules were in force. Evidently, the provisions of the K.S.R. which are found to be inconsistent with any of the rules contained in the Rules of Business, 1971 would be deemed to have been repealed by necessary implications. The Rules of Business were framed under section 19 of the Azad Jammu and Kashmir Act, 1970 and were thus statutory rules which had force of law. A reference may be made to Reference No. 1 of 1977 by President, Azad J&K P L D 1978 SC (AJ&K) 37, wherein it has been held that as the Rules of Business of Azad Government of the State of Jammu and Kashmir have binding force, the same can only be brushed aside if found in conflict with the provisions of the Constitution Act. Thus, the provisions contained under rule 17 of the Rules of Business 1971 which H governed the appointment, promotion and other conditions of civil servants would prevail against any rule of K.S.R. which is found to be inconsistent with the said rules. For the sake of convenience rule 17 of the Rules of Business 1971 is reproduced as under:‑ 17. (1) The Public Service Commission shall be consulted‑‑ (i) on all matters relating to methods of recruitment to a civil service or a civil post; (ii) on the principles to be followed in making appointments to the civil services and posts and in making promotions and transfers from one service to another; (iii) on all cases of appointments‑‑ (a) on promotion to a gazetted post from a non‑gazetted post; (b) on promotion to Class II gazetted post from a lower grade; (c) on promotion to junior gazetted Class I from a lower grade; (d) on promotion to senior gazetted Class I from Class 11 or a lower grade; (e) on original appointment to any gazetted rank; and (f) on original appointment to other posts the initial pay of which is Rs.250 or above:' Provided that for temporary appointment for a period not exceeding six months, consultation with the Public Service Commission will not be necessary. (iv) on all cases laying down principles for determining the relative seniority of persons in Civil Services and posts; (v) on all cases of relative seniority of persons holding gazetted posts or other posts the initial pay of which is Rs.250 or above. (2) The Public Service Commission shall advise on any matter referred to it under sub‑rule (1). (3) The Advice of the Public Service Commission shall ordinarily be accepted by the Department in all matters where it is obligatory to consult the Commission under sub‑rule(1). (4) If it is proposed not to accept the advice of the Commission, the case shall be submitted to the President through the Services and General Administration Department which shall give an opportunity to the Public Service Commission of further justifying its recommendation before a final decision is taken." It is evident that under rule 17(1)(ii), reproduced above, promotion and transfer from one service to another service could be ordered only after the consultation with Public Service Commission. Under rule 17(3), the advice of Public Service Commission was ordinarily to be accepted by the Department concerned. However, in case the department concerned was not inclined to accept the same, the matter had to be submitted to the President through the Department of Service and General Administration who was to refer the matter again to the Public Service Commission to justify its recommendations before taking any final decision one way or the other. The phraseology employed in rule 17 and the scheme contained therein show that the provisions of the said rules were mandatory and there is no room for the argument that the said rule was I directory in nature and not mandatory. No doubt it is correct that finally the President could overrule the recommendation of the Public Service Commission but it is not correct to suggest that even if the procedure laid down under rule 17 was not followed that did not affect the action taken adversely or invalidated the same. The very fact that recommendation of the Public Service Commission could be disregarded only after resubmitting the matter to the Commission for justifying its previous recommendations is clearly indicative of the fact that provisions contained in rule 17 were mandatory in nature. The expression `advice of the Commission shall ordinarily be accepted' in rule 17(3) further shows that provisions of rule 17 were mandatory and not directory, as was contended by the learned counsel for the respondents. The point shall be further dealt with in detail in the later part of the judgment. The transfer of Sardar Muhammad Ashraf Khan, respondent, from the Department of Planning and Development was made without the consultation of the Public Service Commission as required under the aforesaid rule. Sardar Muhammad Ashraf Khan was transferred from the Department of Planning and Development to the Electricity Department on 15‑7‑1974 but he was again transferred to his parent department on 1‑12‑1974, although he was directed to continue performing his duties in the Electricity Department. On 16‑5‑1981 a temporary vacancy of Assistant Engineer, Electricity was created in the relevant department from 1‑7‑1976 to 10‑3‑1980 on the condition that Sardar Muhammad Ashraf Khan would be paid his salary out of the budget of the Electricity Department. It is evident that temporary vacancy in the Electricity Department was created so as to overcome the financial difficulties which might have arisen due to the transfer of Sardar Muhammad Ashraf Khan to the Electricity Department without there being a clear vacancy. The report of the Public Service Commission dated 4‑8‑1974 shows that Muhammad Ashraf, respondent, along with some other candidates had to appear before the Public Service Commission for approval of his appointment as Assistant Engineer Electricity but he did not appear before the Public Service Commission and consequently the Public Service Commission recorded in the aforesaid report that the appointment of Muhammad Ashraf Khan as Assistant Engineer Electricity by transfer could not be made without the approval of the Public Service Commission and thus it was observed by the Commission that the candidates who were approved by the Commission as Assistant Engineer in the Electricity Department should be given preference over Sardar Muhammad Ashraf Khan, respondent. Muhammad Ashraf Khan, respondent, was transferred to the Electricity Department on 15‑7‑1974 whereas his post in Planning and Development was upgraded on 6‑6‑1974; mere upgradation of a post does not result in the promotion of the civil servant concerned. The promotion to a higher grade could be given only according to rules. There is nothing on the record to show that in fact after upgradation of the post Sardar Muhammad Ashraf Khan was promoted to the aforesaid grade with the consultation of the Public Service Commission as envisaged under rule 17 of the Rules of Business. Thus, it cannot be said that he was ever promoted to Grade 500‑1,250 with the consultation of the Public Service Commission as required under rule 17 of the Rules of Business. Even otherwise, Sardax Muhammad Ashraf Khan, respondent, could not be transferred as Assistant Engineer in Electricity Department, because he was not enjoying an equivalent grade to one which was enjoyed by the Assistant Engineers Electricity on 15‑7‑1974. The authorities cited by the learned counsel for the appellant, referred to above, amply show that there is consensus of judicial opinion on the point that period of ad hoc appointment could not be counted towards the seniority. Under section 2(1)(a) of the Civil Servants Act, 1976, the appointment made, in violation of the rules would be regarded as an ad hoc appointment. Under rule 23 of the Service Rules, 1977, the period of ad hoc service cannot be counted towards seniority. Thus, in view of the above state of law we have no hesitation in holding that seniority of Muhammad Ashraf Khan, respondent, would commence from the date of his regular appointment, i.e., 20‑1‑1982, specially so when his, appointment was not given retrospective effect. It has been further contended by Sh. Abdul Aziz, the learned counsel for Muhammad Ashraf Khan, respondent that under section 22 of the Civil Servants Act, 1976, the Government has powers to deal with the case of civil servants as appears to it just and aquitable, irrespective of the provisions contained in the said Act or any rules. The learned counsel has also referred to an unreported case of this Court entitled Prof Muhammad Ayub v. Azad Government and others Civil Appeal No. 13 of 1989, decided on 17‑1‑1990, wherein it has been held that the Government is competent to give retrospective effect to an appointment by promotion', if the circumstances of the case so demand. It may be observed that in the aforesaid case the appointment of the appellant was made by direct recruitment, whereas the appointment of the respondents was made by way of promotion. The question of seniority of Prof. Raja Muhammad Ayub and of those who were appointed by promotion was in dispute between the parties. The Government gave retrospective effect to the appointments which were made by promotions. When the matter came up too this Court, it was held that as the vacancies which were filled by promotions were available much earlier but were not filled by the Government in time, the Government rightly exercised its powers in giving retrospective effect to the appointments of the promotees. It may also be observed here that in that case the orders with retrospective effect were issued after the candidates had been approved by Public Service Commission as envisaged under the relevant rules. Besides, in the instant case the basic question involved is as to whether the appointment without the approval of the Public Service Commission is to be regarded as ad hoc or it will be deemed to be a regular appointment. Sh. Abdul Aziz, Advocate, has maintained that the Government in the case of Sardar Muhammad Ashraf Khan has given retrospective effect to his appointment for the purpose of seniority. It may be observed that in the instant case the Government did not give retrospective effect to the appointment of Sardar Muhammad Ashraf Khan, respondent. What the President/Chief Executive did was that he added a period of six months to the dates of appointments of the contesting parties and fixed the dates so worked out as the starting point of their seniority. It was perhaps done under the wrong impression that an ad hoc appointment after the expiry of six months would automatically become a regular appointment. It has already been observed that an ad hoc appointment would remain the same until and unless the order of appointment is made after consultation with the Public Service Commission as envisaged under rule 17 of the Rules of Business, 1971. Thus; it cannot be said that the formula adopted by the President/Chief Executive for determining the seniority was tantamount to give retrospective effect to the appointment of Sardar Muhammad Ashraf Khan or other contesting parties on equitable grounds as envisaged under section 22 of the Civil Servants Act. As has been stated earlier the case of Prof. Raja Muhammad Ayub Khan, referred to above, is also distinguishable because in that case the retrospective effect to the appointments by promotion was specifically recorded in the order of appointments of the concerned civil servants who had been approved by the Public Service Commission. We have no quarrel with the proposition that the Government has powers to make any order in case of civil servant which is just and equitable‑, section 22 of the Civil Servants Act, 1976 envisages that provisions contained in the Civil Servants Act or any other law for the time being in force do not abridge iv the powers of the Government to pass an equitable and just order. Thus, irrespective of the result of this appeal, the Government is at liberty to make an appropriate order in case of Sardar Muhammad Ashraf Khan, if it feels that it would serve the ends of justice. Sh. Abdul Aziz, Advocate, has further argued that as the appellants did not challenge the order of seniority of Sardar Muhammad Ashraf Khan, in their review petitions before the Government, they were dcbarred to do so subsequently by way of an appeal to the Service Tribunal or to this Court. We are afraid we cannot subscribe to the contention of the learned counsel, because the perusal of record shows that primarily the dispute between the parties was that of their seniority amongst them; the seniority of Sardar Muhammad Ashraf Khan, respondent, was subject of controversy in the review petition as well as before the Service Tribunal. Even if it is assumed for the sake of argument that the question of seniority of Sardar Muhammad Ashraf Khan was not pressed in review petitions, the fact remains that the same was challenged before the Service Tribunal. It is well‑settled principle of law that there is no estoppel against a statute and thus the argument that the appellants are estopped to challenge the seniority of Sardar Muhammad Ashraf Khan is without any force and is hereby repelled. So far as rule 24 of the K.S.R. is concerned, it has already been stated above that none of the provisions contained in K.S.R. deals with the eventualities envisaged under rule 17 of the Rules of Business 1971; there is no conception of an `ad hoc appointment' in K.S.R. Similarly, the mode of determining the seniority envisaged in Civil Service Rules, 1977, is altogether foreign to the provisions contained in K.S.R., because the eventualities envisaged under rule 17 do not find place in the rules known as K.S.R. The question of the seniority of contesting parties arose when the Rules of Business, Civil Servants Act, 1976 and Civil Service Rules, 1977 has already been promulgated. The provisions contained in the aforesaid laws would govern the question of seniority of parties, especially so when none of the provisions contained in K.S.R. envisages the eventualities stipulated under section 17 of the Rules of Business. Besides, under rule 23(2) of Service Rules, 1977, only those provisions of K.S.R. would continue to remain in force which are not found to be inconsistent with the aforesaid law. Raja Muhammad Hanif Khan, the learned counsel appearing on behalf of Iqbal Mohi‑ud‑Din, respondent, has argued that the merit list of the candidates prepared by the Public Service Commission on 4‑8‑1974 was overruled by the President because while preparing the merit list, Public Service Commission had not adhered to the quota system fixed for seats allotted to various districts; the President had also declined to accept the said list because the candidates who had been appointed on work‑charge basis had not been given preference to the others. He has further contended that the President was not legally bound by the recommendations made by the Public Service Commission. It was contended by the learned counsel that it was for the aforesaid reason that the advice of the Public Service Commission was sent for by the department concerned and the list of all the approved candidates was sent by the Public Service Commission to the department on 31‑8‑1974, wherein Iqbal Mohi‑ud‑Din, respondent, was placed at serial No.

5. However, according to the contention of the learned counsel again one Sardar Muhammad Altaf who was placed at serial No. 7 of the merit list was appointed instead of Iqbal Mohi‑ud‑Din, respondent, in violation of the merit list and quota system. Subsequently, Iqbal Mohi‑ud‑Din, respondent, made a representation to the Government and he was appointed as Assistant Engineer Electricity on 19‑11‑1975. The learned counsel has contended that in the year 1978 an Ordinance known as `The Azad Jammu and Kashmir Public Service Commission Ordinance' was promulgated; under section 9(h) of the said Ordinance, civil servants recruited with effect from 24‑8‑1974 till the enforcement of the Public Service Function Rules, 1978 had to appear before the Public Service Commission so that their fitness to hold the relevant jobs could be ascertained. The said provision was incorporated in the Ordinance because the Public Service Commission which had been functioning during the said period was found to have been not properly constituted. Thus, even the candidates who had already been appointed with the consultation of the previous Public Service Commission had to appear under section 9(b) of the Ordinance but such candidates were not to be treated at par with those who were not approved by the Public Service Commission; unapproved candidates had to appear before the Public Service Commission under section 9(a) of the Ordinance and the period of service of such candidates before approval would be deemed to be ad hoc, as was the case with Inayatullah Chaudhry, Sardar Muhammad Ilyas Khan and Mushtaq Ahmed Gorsi, appellants. Thus, Iqbal Mohi‑ud‑Din, was one of those candidates who had been appointed on regular basis on the advice of the previous Public Service Commission yet had to appear before the Public Service Commission in view of the provisions contained in section 9(b) of the said Ordinance. The learned counsel maintained that the case of Iqbal Mohi‑ud‑Din cannot be equated with those who had to appear before the Public Service Commission because they were appointed on ad hoc basis and were not approved by the Public Service Commission at any stage. The learned counsel laid great stress on the point that it has been recorded in the appointment order of Iqbal Mohi?ud‑Din dated 19‑11‑1975 that he was appointed on the recommendations of the Public Service Commission. The learned counsel has argued that even if it is assumed for the sake of argument that the President had not overruled the merit list sent by the Public Service Commission to the department concerned on 4‑8‑1974, the fact remains that the. appointment of Iqbal Mohi‑ud‑Din respondent, was not on ad hoc basis because he had been approved previously by the Public Service Commission. The learned counsel has contended that had the law‑giver intended that the candidates who had been appointed with the approval of the previous Public Service Commission were to be treated at par with those who were not so approved, it would not have envisaged different categories of the candidates under section 9 of the said Ordinance. The learned counsel further maintained that the mere fact that initially the Public Service Commission had sent the names of only four candidates against the vacancies available at that time does not imply that lqbal Mohi‑ud‑Din and others were not approved by the Public Service Commission‑Tor being appointed as Assistant Engineer at any subsequent stage. There is nothing in the report dated 4‑8‑1974 or 31‑8‑1974 that Iqbal Mohi‑ud‑Din was not approved, especially so when his name appears at serial No. 5 of the merit list dated 31‑8‑1974. He has further maintained that the contention of the learned counsel for the appellant that in the year 1978 the Public Service Commission had taken a policy decision that the list of approved candidates would be valid only for six months does not help the case of the appellants because even if the said policy decision could be regarded as having the force of law, that is not applicable to the appointment of Iqbal Mohi‑ud‑Din whose case was finalised in the year 1975. The learned counsel submitted that as Iqbal Mohi‑ud‑Din, respondent, had been approved in the year 1974, the said policy decision which was not given retrospective effect is not relevant so far as the case of Iqbal Mohi‑ud‑Din is concerned. The learned counsel for the appellant Inayatullah Chaudhry, has contended that a definite mode has been prescribed under rule 17 of the Rules of Business 1971 for consulting the Public Service Commission. He has argued that the advice of the Public Service Commission is not binding on the President but in case the department concerned did not agree with the advice of the Public Service Commission the matter was to be referred to the President through the Department of Services and General Administration who might have sent the recommendations back to the Public Service Commission to justify its recommendations as envisaged under Rule 17(4) of the Rules of Business. The learned counsel for the appellant maintained that it was only after following the procedure under rule 17 of the Rules of Business that the President could legally take final decision in the matter. Thus, the learned counsel for the appellant contended that it cannot be said by any stretch of imagination that the President had rejected the recommendations of the Public Service Commission dated 4‑8‑1974 within the meanings of rule

17. He has conceded that if it is shown that the appointment of Iqbal Mohi‑ud‑Din, respondent, on 19‑11‑1975 was made after the approval of the previous Public Service Commission, his case would fall under section 9(b) of the Public Service Commission Ordinance and thus his seniority would commence from that date, i.e., 19‑11‑1975; and the mere fact that he had to appear before the Public Service Commission by the operation of section 9(b) of the Ordinance would not deprive him of the seniority to which he is otherwise entitled under law. According to the case of the learned counsel for the appellant, there were only three vacancies of Assistant Engineers available in the year 1974 and the Public Service Commission recommended four candidates against these vacancies. Thus, Iqbal Mohi‑ud‑Din, whose name was at serial No. 5 cannot be said to have been recommended to be appointed as Assistant Engineer Electricity against any of the three vacancies or approved to have been found fit for the appointment as Assistant Engineer against any vacancy which might subsequently became available. We have given our due consideration to the arguments advanced by the learned counsel for the parties. The contention of the learned counsel for the appellant that the President had overruled or rejected the merit list submitted by the Public Service Commission to the department concerned on 4‑8‑1974 is not correct because there is no note by the department concerned as envisaged under rule 17 of the Rules of Business indicating that the department did not agree with the recommendations of the Public Service Commission, nor the file was submitted by the department concerned through the department of the Service and General Administration to the President for directing the Public Service Commission for justifying its recommendations. Therefore, it cannot be said that as the President had overruled the recommendations of the Public Service Commission, the appointment of Iqbal Mohi‑ud‑Din, respondent, would be deemed to have been made on regular basis and not as ad hoc. However, we do not agree with the learned counsel for Inayatullah Chaudhry, appellant, that the list which was submitted by the Public Service Commission on 31‑8‑1974, is of no avail to the case of Iqbal Mohi‑ud‑Din, respondent, because he could not be deemed to have been approved by the Public Service Commission or that the merit list had lost its validity because the period of six months had elapsed at the time of the appointment of lqbal Mohi‑ud‑Din, respondent. The perusal of the initial list prepared by the Public Service Commission shows that lqbal Mohi‑ud?Din, respondent, finds place at serial No. 5 of the merit list. As there were only three vacancies available, he could not be appointed against any of the said vacancies, as this name was at serial No. 5 of the merit list. However, this does not mean that according to the merit list which was submitted by the Public Service Commission at the instance of department on 31‑8‑1974, Iqbal Mohi‑ud?Din, respondent, was not an approved candidate. It is correct that he was not recommended against any of the three vacancies which existed at that time but all the same he was an approved candidate to be appointed as Assistant Engineer subject to the availability of a vacancy. The policy decision which was taken by the Public Service Commission on 10‑10‑1987, if at all the same can be regarded to have a binding force, is not applicable to the case of Iqbal Mohi‑ud‑Din, respondent, as the matter pertaining to his approval had already been finalised by the previous Public Service Commission in the year 1974. No other law was cited that the approval of the candidate for a particular job ceases to be valid after the expiry of a period of six months. The order of appointment of Iqbal Mohi‑ud‑Din, respondent, dated 1.9‑11‑1975 shows that the list prepared by the Public Service Commission in the year 1974 was treated by the appointing authority as valid; besides his case was not referred to the Public Service Commission before the promulgation of the Public Service Commission Ordinance, 1978. All these facts establish that for all practical purposes his previous approval in the year 1974 for the appointment as Assistant Engineer Electricity was treated as valid approval at the time of his appointment in 1975. Thus, we have no hesitation in holding that the appointment of Iqbal Mohi‑ud‑Din, respondent, on 19‑11‑1975, was on regular basis and not as an ad hoc appointment. Thus, his seniority would be reckoned from the said date. Next it has been contended by the learned counsel for Iqbal Mohi‑ud?Din, respondent, that the recommendations of the Public Service Commission were not binding on the President and in any case the provisions contained in rule 17 of the Rules of Business are merely directory in nature and not mandatory. The learned counsel has referred following cases in support of his contention:‑ (1) Dr. M.S. Qureshi v. West Pakistan and another P L D 1966 Lah. 825 and (2) State of U.P. v. Manbodhan Lal Srivastava P L D 1958 S C (Ind.)

170. The learned counsel arguing on behalf of lqbal Mohi‑ud‑Din, respondent, has further contended that non‑compliance of the provisions contained in rule 17 could not debar the President from rejecting the recommendations of Public Service Commission because the povisions of the said rule are directory in nature and not mandatory. He has cited following authorities in support of his contention:‑ (1) Bashir Ahmed Khan v. Custodian, Evacuee Property Azad Jammu and Kashmir P L D 1987 S C (AJ&K) 118, (2) Raja Muhammad Niaz Khan v. Azad Government of the State of Jammu and Kashmir P L D 1988 S C (AJ&K) 53, (3) Inayatullah Khan v. Capt. (Retd.) Inayatullah Khan P L D 1985 SC (AJ&K) 85 and (4) (Major) Shujait Ali v. Mst. Surraya Begum P L D 1978 SC (AJ&K)

118. We have given our due consideration to the points raised by the learned counsel for the respondent. So far the question as to whether the advice of the Public Service Commission was binding on the President is concerned, it has been already observed while dealing with the case of Sardar Muhammad Ashraf Khan, respondent, that the advice of the Public Service Commission is not binding on the President but all the same the President could disregard the advice of the Commission only after following the procedure envisaged under rule 17 of the Rules of Business, i.e., if the department concerned did not agree with the recommendations of the Public Service Commission, it was incumbent upon the department to submit the matter to the President through the Department of Services and General Administration; the President had to send the recommendations of the Public Service Commission back to it for reconsidering its recommendations and justifying the same. The President without following the said procedure could not disregard the advice tendered by the Public Service Commission. So far as the authorities cited by the learned counsel for Iqbal Mohi‑ud‑Din, respondent, that the advice of Public Service Commission was not binding on the Government are concerned; those are not relevant in the instant case because the view in those cases was based on the statutory provisions which are not identical to the provisions contained in rule 17 of the Rules of Business. However, rule 17 it self envisages that the final decision in the matter rested with the President, of course, after following the procedure laid down in the aforesaid rule. A reference may be made to the authorities cited by the learned counsel for Iqbal Mohi‑ud‑Din, respondent. In Dr. M.S. Qureshi v. West Pakistan Government and another P L D 1966 Lah. 825, it was held that in view of section 26(3) of the Government of India Act read with Articles 185 and 186 of the Constitution of 1956, the functions of the Public Service Commission are advisory in nature and, therefore, it would be wholly wrong to say that the failure to consult the Public Service Commission would vitiate the appointment. Similarly, in State of U.P. v. Manbodhan Lai Srivastava P L D 1958 SC (Ind.) 170, it was observed that the word shall in the statute though generally is taken in a mandatory sense but it does not necessarily mean that in every case it shall have that effect and if the words used in a statute are not followed the outcome of the proceedings would be invalid. It was opined that Article 320(3)(c) of the Indian Constitution does not give any right to a public servant to assail the appointment on the ground that in absence of consultation with the Public Service Commission or due to some other irregularity the appointment of the civil servant was defective; such a relief could not be claimed under the writ jurisdiction which vested in the Court under Article 226 of the Indian Constitution. The question in the aforesaid case was as to whether it was incumbent upon the Executive Government to consult the Public Service Commission before taking a disciplinary action against a public servant. The phraseology employed in the relevant provision of law which was made basis for the pronouncement in the abovementioned cases was different from one contained in rule

17. The former authority Dr. M S. Qureshi v. West Pakistan Government and another P L D 1966 Lah. 825 is also distinguishable as the phraseology used in the relevant provision of law was different from one employed in Rule 17 of the Rules of Business. It may be observed here that after taking the view that Iqbal Mohi‑ud?Din, respondent, was on the approved list of the candidates who were to be appointed as Assistant Engineers Electricity and thus his appointment would be deemed to have been made after the consultation with the Public Service Commission, it is not necessary for us to dilate upon the matter in detail. While dealing with the case of Sardar Muhammad Ashraf Khan, respondent, it has been already observed that the compliance of the provisions contained in rule 17 of the Rules of Business was not directory but mandatory in nature. It is incorrect that mere use of word `shall' does not necessarily imply that relevant provision of law R is mandatory; the other factors such as the phraseology generally used in the relevant law and the object which the law‑giver intended to achieve by a particular statutory provision should also be taken into consideration for ascertaining as to whether a provision is directory in nature or it is mandatory. It would be expedient to refer some of the authorities on the point:‑ In Mafizullah v. Manai Ullah and others P L D 1963 Dacca 318, it was held that there is no general rule as to when an enactment is to be considered mandatory and when directory. It is the duty of the Court to ascertain the real intention of the Legislature having regard to the whole scope and purpose of the enactment to be construed. In James Fiulay & Co. Ltd. v. Aminul Islam and others P L D 1969 Dacca 571, it was observed that it is true that sometime difficulty arises to determine whether a certain provision of statute is directory or mandatory. Where the Legislature itself has expressed its opinion as to the consequence of non‑compliance with such a direction no difficulty arises. But in a case where the Legislature does not indicate its mind as to the consequence for violation of provisions, the Court has to consider whether the instruction of the Legislature is merely directory or mandatory. This has to be construed by reference to the object intended to be achieved or other surrounding circumstances. In Tanzeem‑e‑Mulazamin Buldiya and 2 others v. Government of West Pakistan and 4 others P L D 1971 Kar. 535, it was observed as under:‑ ?The use of words such as `may' and `shall' as representing the permissive or compulsive nature respectively of the act intended to be done has long ceased to be a conclusive and unerring index to the intention of the Legislature and one may now venture to say this as an eximotic pronouncement without feeling the necessity of covering the ground from Jullius v. Bishop of Oxford (1880) 5 AC 214 onward. Be that as it may, it seems to us that the truest guide to the interpretation of a statute must necessarily lie in a consideration of the object that the statute or a particular provision therein is designed to achieve. As observed by Lord Campbell in Liverpool Borough Bank v. Turner (1861) 30 LJ Ch. 379; `It is the duty of Courts of justice to try get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed: Lord Penzance, after being through all the principal cases on the subject, found it impossible, in Howard v. Bodington (1877) 2 PD 203, to reach a conclusion different from Lord Campbells. In each case' he said `you must look to the subject‑matter, consider the importance of the provision and the relation of that provision to the general object, intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory'." In Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others P L D 1971 S C 61, it was held as under:‑ "It is well‑settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered as absolute and when as merely directory? It is not possible to lay down a general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in .a certain manner and in no other manner, it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other had the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment, prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language." It is evident from the above‑cited authorities that there is no hard and fast rule as to whether a particular provision is directory or mandatory. The intention of the Legislature is to be gathered not only from the phraseology used in the relevant provision of law, but also the object which the law‑giver intended to achieve. Judging in light of the principles enunciated in above‑cited cases, the provisions contained in rule 17 of Rules of Business cannot be regarded as directory. The object of the rule was that only persons having necessary qualifications and merits should be inducted into civil service. Thus, it cannot be said that rule 17 was merely a procedural formality and the Chief Executive; President could disregard it when he liked. 'We are not persuaded to subscribe to the contention of the learned counsel for the appellant that if a rule does not stipulate that non‑compliance of the same would follow with a penalty, the rule must be always regarded as directory in nature; that is too broad a principle to be followed in the matter of interpretation of law. The factum of absence of penalty in case of non‑compliance of rule may be one of the factors which may be taken into consideration while judging as to whether the rule is mandatory or directory but it cannot be regarded as a sole consideration for ascertaining the directory or mandatory nature of a provision. Next it has been contended that as the Government is empowered to give retrospective effect to the appointment of a civil servant under the provisions contained in section 22 of the Civil Servants Act, 1976, it should be deemed to have exercised the said powers while fixing the seniority of lqbal Mohi‑ud‑Din, respondent. The learned counsel has referred to a case reported as S.M. Jalal‑ud?Din Akbar Zaidi v. Secretary, Establishment Division 1984 P L C (C.S.) 219 and an unreported case of this Court entitled Professor Raja Muhammad Ayub Khan v. Azad Government and others (Civil Appeal No. 13 of 1989 decided on 17‑1‑1990 in support of his contention that appointment could be given retrospective effect. It may be observed here that this point has been dealt with in some detail in the earlier part of the judgment while dealing with the case of Sardar Muhammad Ashraf Khan, respondent. Thus, it would suffice to state that the case of lqbal Mohi‑ud‑Din, respondent, was never dealt with in the spirit of section 22 of the Civil Servants Act. The appointing authority merely added six ' months' period to the date of the appointment of lqbal Mohi‑ud‑Din, respondent, and others and the dates so worked out were fixed as the starting point of seniority in the respective cases. This was done under an erroneous impression that after the expiry of the period of six months an ad hoc appointment is automatically converted into a regular appointment. As we have already held that Iqbal Mohi‑ud‑Din was appointed after the approval of Public Service Commission we need not deal with the point any further. The learned counsel for lqbal Mohi‑ud‑Din, respondent, has also argued that as the order of appointment of his client dated 19‑11‑1975 was not challenged by the appellant by way of appeal, revision and review in time, the same has attained finality and cannot be questioned while dealing with the question of seniority. He has referred to a case reported as Raja Muhammad Ashraf Kayani v. Azad Government 1989 P L C (C.S.) 561, in support of his contention that if the order of appointment is not challenged at the proper stage, the same cannot be assailed subsequently at the time of determining the seniority of the contesting civil servants. It may be observed that the authority cited by the learned counsel for Iqbal Mohi‑ud‑Din is distinguishable because in that case the orders of confirmation of the concerned judicial officers were issued on 8‑6‑1975 but the same were given retrospective effect from a previous date. The question of the seniority of the contesting judicial officers in that case depended on the date of their regular appointments. It was opined by the Court that as one of the appellants had not challenged the orders whereby the appointment of his rivals was given retrospective effect, he was debarred from challenging the question of retrospectively at the time of the determination of the seniority. In the instant case none of the orders of appointments of contestants has been given retrospective effect. The question in the instant case is as to whether the period of ad hoc appointment could be counted towards seniority or not; and whether the appointment of Iqbal Mohi‑ud‑Din, respondent, was ad hoc or regular in the circumstances listed in the earlier part of this judgment. Thus, the point involved in the instant case is not as to whether retrospective effect could be given to the appointment of the contestants or not, rather the question which falls for determination in the present case is whether the appointments of the contestants including Iqbal Mohi‑ud‑Din would be regarded as ad hoc or the same would be deemed to have been made on regular basis. Thus, the question pertains to the nature of the appointments and not the validity of the same. The question of retrospective effect which was in controversy in the case cited by the learned counsel for the respondent is not involved in the case in hand. Even otherwise,, when the order of appointment of lqbal Mohi‑ud‑Din dated 19‑11‑1975 was passed in the instant case, Inayatullah Chaudhry, appellant, was‑not in service at that time. Therefore, he could only assail the order dated 19‑11‑1975 to the extent so far as related to the question of seniority only when the question of seniority between the parties became controversial and not earlier. Next it has been contended by the learned counsel for the respondent that when the question of seniority of the parties was still awaiting decision by the authorities concerned, Iqbal Mohi‑ud‑Din, respondent, was promoted to the next higher grade but his promotion was not challenged by Inayatullah Chaudhry, appellant, as such he should be deemed to have accepted his seniority. It may be observed that some of the contestants were promoted to the next higher grade during the pendency of the dispute of their seniority as Assistant Engineers Electricity. Their promotions were made when the controversy of their seniority was still to be resolved by the competent authority. Even otherwise, the mere fact that the promotion was ordered when the controversy of seniority of the contestants was still awaiting decision would not debar the competent authority or the Service Tribunal to determine the question of seniority of the contesting parties. We are fortified in our view from a case reported as Muhammad Moosa v. Chief Secretary, Government of Sindh 1982 P L C (C.S.) 362, wherein it was observed that the question of seniority cannot be allowed to be affected by consideration that it would disturb some of the appointments already made in disregard of seniority, superseding the appellant and promoting the respondent to higher grade. It may be further stated here that under rule 8 of the Civil Service Rules, 1977, the mode of the determination of the seniority in case of promotion to the next higher grade is provided in detail. Thus, the fact that during the pendency of the dispute of seniority in lower grade, some of the contestants were promoted to the next higher grade would not present any difficulty to determine their seniority in the next higher grade. ‑Arguing on behalf of Mushtaq Ahmad Gorsi, appellant, Raja Muhammad Hanif, Advocate, has contended that Mushtaq Gorsi is senior to Inayatullah Chaudhry, Sardar Muhammad Ilyas Khan and Sardar Muhammad Ashraf Khan. So far as the case of Mushtaq Ahmed Gorsi against Sardar Muhammad Ashraf Khan is concerned that must succeed on the simple ground that Mushtaq Ahmed Gorsi, appellant, on the recommendations of Public Service Commission was confirmed as Assistant Engineer on 28‑9‑1978, whereas Sardar Muhammad Ashraf Khan, as has been pointed out earlier, was confirmed as Assistant Engineer on 20‑1‑1982. So far as the case of Mushtaq Ahmed Gorsi against Inayatullah Chaudhry and Muhammad Ilyas is conccrncd, there is no dispute that Mushtaq Ahmed Gorsi, appellant, Inayatullah Chaudhry and Muhammad Ilyas appeared before the Public Service Commission at the same time in the year 1978 and their recommendations by the Public Service Commission were confirmed on 28‑9‑1978. Their case falls within the ambit of rule 8 of the Civil Service Rules, 1977, and thus their seniority would be as was assigned to them by the Public Service Commission at the time of preparing their merit list. There is no dispute that in that merit list Mushtaq Ahmed Gorsi is shown junior to Inayatullah Chaudhry and Sardar Muhammad Ilyas Khan. Thus, the contention of the learned counsel for Mushtaq Ahmed Gorsi, appellant, that as he had joined service in the Electricity Department on work‑charge basis on 1‑12‑1974, and was appointed as Assistant Engineer on ad hex basis on 27‑7‑1975, he should have been declared senior to the aforesaid two rivals is without any substance because the period of ad hoc service cannot be counted towards his U seniority. The point has already been discussed in detail while dealing with the case of Sardar Muhammad Ashraf Khan, appellant, that the period of ad hoc service cannot be counted towards seniority. The mere fact that Inayatullah Chaudhry and Sardar Muhammad Ilyas Khan joined service later than Mushtaq Ahmed Gorsi, appellant, does not help his case in view of the provisions contained in rule 8 of the Civil Service Rules 1977, according to which seniority in case of initial recruitments would be in accordance with order of merit assigned by the Selection Authority, i.e., the Public Service Commission. Thus, we have no V hesitation in holding that the claim of seniority of Mushtaq Ahmed Gorsi? appellant, against Inayatullah Chaudhry and Muhammad Ilyas has no substance in it and must fail. Consequently, the findings of the Service Tribunal on the point are hereby confirmed. The argument that as the Government has power to give retrospective effect to the appointment of a civil servant under section 22 of the Civil Servants Act, 1976, the seniority assigned to the contesting candidates by the President/Chief Executive should be deemed to have been fixed under the said provision of law is also fallacious for the reasons which have already been listed while dealing with the case of &irdar Muhammad Ashraf Khan and Iqbal Mohi? ud‑Din. Coming to the case of Sardar Muhammad Ilyas Khan, it may be stated that he claims seniority against Sardar Muhammad Ashraf Khan, respondent. It may be observed here that the Service Tribunal has expressed the view that as Sardar Muhammad Ilyas Khan, appellant, had not claimed the seniority against Sardar Muhammad Ashraf Khan, respondent, it was not necessary for the Service Tribunal to give any opinion on the point. The perusal of the judgment of the Service Tribunal is indicative of the fact that the same is contradictory on the point. On one hand the Service Tribunal has dearly held that the regular appointment of Sardar Muhammad Ashraf Khan would commence from the year 1974 when he was initially transferred from the Department of Planning and Development; and on the other hand it has expressed the view that as Sardar Muhammad Ilyas Khan did not seek the relief regarding his seniority against Sardar Muhammad Ashraf Khan it was not necessary to give any finding on the point. The case of Sardar Muhammad llyas Khan, throughout, has been that he was senior to Sardar Muhammad Ashraf Khan. Therefore, the Service Tribunal was not correct in declining to give a specific finding, on the point, on the assumption that Sardar Muhammad Ilyas Khan, appellant, did not claim seniority against Sardar Muhammad Ashraf Khan. The case of Sardar Muhammad Ilyas Khan must succeed on the simple ground that the regular appointment of Muhammad Ashraf Khan as Assistant Engineer Electricity would be deemed to have been made on 20‑1‑1982 and thus Sardar Muhammad Ilyas Khan, appellant whose regular appointment was made on 28‑9‑1978 would be senior to Sardar Muhammad Ashraf Khan, respondent. The upshot of the whole discussion is that all the appeals captioned above are accepted to the extent they pertain to seniority of Sardar Muhammad Ashraf Khan, respondent. Consequently, it is held that the appellants Inayatullah Chaudhry, Sardar Muhammad Ilyas Khan and Mushtaq Ahmed Gorsi, are senior to Sardar Muhammad Ashraf Khan and the Service Tribunal's decision to that extent stands vacated. So far as the appeals relating to other contesting respondents or appellants involved in other appeals Civil Appeal No. 37 of 1988, entitled Inayatullah Chaudhry v. Azad Government and others; Civil Appeal No. 39 of 1988, entitled Mushtaq Ahmed Gorsi v. Inayatullah Chaudhry and others and Civil Appeal No. 40 of 1988, entitled Mushtaq Ahmed Gorsi v. Sardar Muhammad Ilyas Khan and others are concerned they stand dismissed. Resultantly the finding of the Service Tribunal in respect of Inayatullah Chaudhry in Civil Appeal No. 37 of 1988, Sardar Muhammad Ilyas Khan in Civil Appeal No. 38 of 1988, Mushtaq Ahmed Gorsi in Civil Appeal No. 39 of 1988 and Mushtaq Ahmed Gorsi, Civil Appeal No. 40 of 1988, determining their seniority, for the reasons stated in the body of the judgment, we do not find any ground to interfere in the findings of the Service Tribunal. Therefore, the seniority, inter se, in seriatim is as under:‑ (1) Iqbal Mohi‑ud‑Din, (2) Inayatullah Chaudhry, (3) Muhammad Ilyas Khan, (4) Mushtaq Ahmed Gorsi, and (5) Sardar Muhammad Ashraf Khan. Before parting with the case we would like to observe once again that the ' Government has power to make any `just' and `equitable' order in case of civil servant under section 22 of the Civil Servants Act, 1976. As has already been '', noted in the body of the judgment, irrespective of the result of the appeal, the Government, if so advised, may make any appropriate order in case of Sardar Muhammad Ashraf Khan. In the circumstances of the case we make no order as to the costs. AA./277/SC.A ??????????????????????????????????????????????????????????????????????? Order accordingly.