1996 PLP (C (PLC(CS))

NOOR MUHAMMAD MAGSI (MEMBER).‑‑‑ Syed Riaz Hussain and Muhammad Babu Parvez who are working as Assistants (B‑11) on regular basis in the National Highway Authority, Islamabad have filed Appeals Nos.343(R) and 349(R) of 1995 respectively challenging the induction of respondents Nos. 3 to 5 against the posts of Superintendents (B‑16) being contrary to National Highway Authority's (Appointment and Promotion) Rules, 1995 notified vide S.R.O. No. 71(KE)/95 where under 100% posts of Superintendents (B‑16) are to be filled by promotion. Their case is that since respondents Nos.‑6 and 7 in Appeal No. 343(R) of 1995 and respondents Nos.6, 7 and 9 in Appeal No. 349(R) of 1995 have not challenged the Notification of respondents Nos. 3 to 5, therefore, they have abandoned their right of consideration for promotion. As such both the appellants being senior‑most regular Assistants are entitled to be considered for promotion against 100 % promotion posts of Superintendents against which respondents Nos. 3 to 5 have been wrongly and illegally inducted. Since both the appeals are identical, they are being disposed of by this single judgement.

2. Since respondents Nos. 3, 4 and 6 in Appeal No. 343(R) of 1995 and respondents Nos. 3, 4, 6 and 9 in Appeal No. 349(R) of 1995 were absent despite notice on the date of hearing, they are therefore, proceeded against ex part.

3. Learned counsel for the appellant argued that in Schedule I to National Highway Authority's (Appointment and Promotion) Rules, 1995 notified vide SRO No. 71(KE)/95, the posts of Superintendent (B‑16) are to be filled by promotion. Learned counsel also invited our attention to rule 12 of Chapter III of the aforesaid Rules which provides that initial or direct appointment in Pay Scale 16 (other than Superintendents) to 20 and equivalent shall be made on the basis of tests and interviews and on the recommendations of the respective Selection Committee. According to learned counsel, the National Highway Authority's (Appointment and Promotion) Rules as contained in SRO No. 71(KE)/95 being the latest rules, excluded the direct entry against the pots of Superintendents (B‑16). He also contended that even under the Rules of Federal Government issued vide SRO 248(1)/88 on 7th April, 1988, the posts of Superintendents are to be filled in 100% by promotion. As such the case of the appellants is that induction of respondents Nos. 4 to 5 into the posts of Superintendents (B‑16) is ultra vires of the National Highway Authority's (Appointment and Promotion) Rules as contained in SRO 71 (KE)/95 which is the latest law applicable to this case. And provisions of SRO No. 70(KE)/95 read with rule 12 of National Highway Authority's (Appointment and Promotion) Rules, 1995. .

4. On the other hand the learned counsel for respondents Nos. 2 and 3 though conceded that except the National Highway Authority's (Appointment and Promotion) Rules, as contained in SRO 71(KE)/95, there are no National Highway Authority's (Appointment and Promotion) Rules but contended that respondents Nos. 3 to 5 could be inducted under rule 20(2) of SRO No.70(KE)/95.

5. We have heard the learned counsel for the appellants as well as the learned counsel appearing on behalf of National Highway Authority. Out of respondents Nos. 3 to 5 only respondent No. 5 was present, but he did not file any objection whereas all others were absent and as such they are proceeded against ex parte. The question which is to be determined in this case is whether respondents Nos. 3 to 5, who were admittedly working on work‑charge basis in a Project of National Highway Authority, could or could not be inducted against the posts of Superintendent (B‑16) which under the Authority's rules and those of Federal Government, are to be filled in 100% by promotion. It is provided in the rules that post of Superintendent (B‑16) can only be filled 100% by promotion whereas all other posts are to be filled partly by direct recruitment and partly by promotion. As such there could be a scope for induction against the posts other than those of Superintendents. But respondents Nos. 3 to 5 who were admittedly work‑charge employees could not be inducted against the posts of Superintendents, as the same ought to be filled 100% by promotion.

6. Learned counsel for the National Highway Authority straightaway admitted that the rules as contained in SRO 71(KE)/95, are the only Appointment and Promotion Rules for the direct recruitment. That being so, there was no rule for induction of respondents Nos. 3 to 5 against 100 %. Promotion quota of Superintendent (B‑16). Therefore, rule 20(2) relied upon by the counsel for the respondents, being earlier rule, is clearly contrary to items 6 and 7 of Schedule I read with rule 12(1) of Chapter III of SRO No.71(KE)/95. As such it must give way to the latter law and contained in SRO No. 71(KE)/95. It is well‑settled principle of law that where two provisions of a section are repugnant to each other, the latter provision shall prevail. It was held in PLD 1959 Dacca 167 that where two sections relating to same question are repugnant to each other, the latter section should prevail. The learned counsel for the appellant also invited our attention to PLD 1956 (W.P.) Lahore 807 in which it was held: "If the two provisions involve an absolute contradiction and it is impossible to construe them together, the former provision must give away to the latter. The maxim: leges posteriores priores contrarias abrogant will then come into play." The last case referred by the learned counsel for the appellant in support of his case in PLD 1988 SC 370 wherein two Notifications S.R.O. 580(1)/83 and SRO 666/1/81 came under consideration of their Lordships of the Supreme Court. And it was held that the special provisions made in the latter S.R.O. would be an exception to the earlier general provision made in S.R.O. 666/1/81, and therefore, will hold away and the earlier notification will yield. The latest authority relied upon by the learned counsel for the appellant is PLD 1991 SC 258, in which it has been held that where a particular enactment is absolutely repugnant and inconsistent with the general enactment, the Court may declare the general enactment as having been repealed by the special one.

7. In view of the above discussion we are of the view that rule 20(2) being earlier in time has to give way to S.R.O. No. 71(KE)/95. This rule is admittedly repugnant and in direct conflict with the provisions of N.H.A. (Appointment and Promotion) Rules, where under 100% posts of Superintendent are to be filled in by promotion. As such in view of the above legal position rule 20(2) would be deemed to‑ be ineffective and of no legal effect in so far as the post of Superintendent (B‑16) is concerned. In this view of the matter, the Notification, to the extent of the post of Superintendent (B‑16) is unwarranted by the latest law and contrary to items 6 and 7 of Schedule I read with rule 12(1) of N.H.A. (Appointment and Promotion) Rules, 1995. Therefore, respondents Nos. 3 to 5 could not be inducted against the posts of Superintendent (B‑16). Their Notification, being in violation for the rules is hereby set aside. Both the appellants being the senior most, as stated above, are entitled to be considered for promotion against the three posts of Superintendents (B‑16).

8. The net result of the above discussion is that we accept the appeals, set aside the notification of induction of respondents Nos. 3 to 5 against the posts of Superintendent (B‑16) being contrary to the rules of the Authority and those of Federal Government, and direct the respondents department to consider both the appellants for promotion against the said posts of Superintendent (B‑16) from the same date from which respondents Nos. 3 to 5 were illegally inducted, with all consequential benefits.

9. No order as to costs. Parties be informed. H.B.T./26/Sr.F Appeals accepted.