1983 PLP (C (PLC(CS))

JUSTICE SHAH AHDUR RASHID (CHAIRMAN).‑The appellant, Mr. Muhammad Mukhtar was one of the 16 persons who had been selected for appointment to the Telegraph Engineering Service (Class 1) as a result of interview held by the then Federal Public Service Commission during August/September, 1958. The Commission assigned 5th position to the appellant, but in the letter of offer sent to him, inter alia, the following conditions were laid down: (i) before you are considered for permanent appointment, you will have to pass the prescribed departmental confirmation test; (ii) the inter se seniority of the candidates selected by interview will be determined according to the total marks obtained in the above mentioned departmental confirmation test. The appellant joined the service and was appointed Assistant Divisional Engineer (Telegraphs) in August, 1959. It appears that a confirmation test was held and the appellant stood at 10th position in that test. A letter dated 25th January, 1962 was issued wherein the Government categorically stated that the inter se seniority would be determined as a result of the confirmation test. Thereafter, certain representations were made by the Assistant Divisional Engineers whose seniority determined by the Com mission stood disturbed to their disadvantage as a result of the confirmation test. On 20‑10‑1969, a letter No. S. 17‑52/68‑PT was issued .by the Government, saying that after careful consideration of representations, the seniority fixed by letter dated 2tth January, 1962 was being revised. It is admitted by the appellant as well as the departmental representative and counsel for State that this revision restored the seniority of 1958 batch of Assistant Divisional Engineers as determined by the Federal Public Service Commission.

2. The seniority assigned by letter dated 20th October, 1969 held the field for about 12 years but all of a sudden, on 27th June, 1981, the Director (Staff) of the Pakistan Telegraph and Telephone Department issued a letter to the effect that the seniority list issued on 20‑10‑1969 (determining the seniority in accordance with the decision of the Commis sion) has been cancelled and the seniority list issued on 16‑5‑1966 (based on the confirmation test) was restored. This gave cause of grievance to the appellant and he, after exhausting the departmental remedy, has come up before us claiming that the letter of 27th June, 1981, cancelling the letter of 20th October, 1969, was without any lawful authority and that the seniority as shown in the letter of 20th October, 1969 held the field and that the seniority fixed by letter dated 16‑5‑1966 on the basis of confirma tion test was not regular, as it upset the decision of the then Federal Public Service Commission which the Government had no power to do.

3. The learned counsel for State has argued that the seniority fixed in 1966 and then restored in 1981 conforms with the offer of appointment made to the appellant and other selectees of his batch which they accepted, and therefore, they cannot ask for restoration of the seniority inadvertently fixed in 1969. 1t was further stated that when the seniority was disturbed in 1969 on representation of some selectees of 1958 batch, one Nazir Ahmad brought a civil suit in Multan, challenging the same and that the Court granted him decree. It was however, admitted that this was a consent decree and the Government had accepted the stand taken by Nazir Ahmad that the seniority was to be fixed in accordance with the result of the confirmation test. In spite of being asked in this respect, the order of the Civil Court was not produced by the respondent Department. In any case the decision of the civil Court is not binding on the appellant because it is not established nor is it alleged that the appellant also agreed to such a decree being passed. The Government itself is not affected by the disturbance of the seniority, but it is the incumbents of the posts who are to suffer and unless it is shown that they had agreed before the Court to the determination of seniority in accordance with the confirmation test the decree of the court would not be binding on them and shall have no effect on the merits of their appeal.

4. Coming to the question whether the seniority assigned by the Federal Public Service Commission in 1958 and then restored in 1969 is the correct one or it is the seniority list which was prepared in 1966 and then restored in 1981, should hold the field. The officers likely to be affected by the order of the Tribunal have not cared to contest the appeal, though they were made parties and were duly served. The Department's stand is that since in the order of appointment, it was specifically laid down that the seniority shall be fixed in accordance with the result of the confirmation test and that offer of appointment with the said condition was accepted by the appellant, he cannot now claim that the seniority should be assigned in accordance with the result declared by the Federal Public Service Com mission.

5. It is not denied that when the appellant was selected by the Com mission, the principles of 1956 Constitution were applicable. Unless there was any law or rule made by the President, then the seniority fixed by the Commission of the batch to which the appellant belonged should hold the field throughout. However, if under rule‑making power conferred on the President by the. Constitution, it is provided that the seniority‑is to be fixed on the basis of confirmation test, then of course, the appellant cannot have any grievance against the order re‑determining the seniority, in 1981. We repeatedly asked the departmental representative, Mr. Shafiqur Rehman and the learned counsel for respondent, Syed Muhammad Shahudul Huque, whether there was any rule made by the President relating to seniority contrary to the general principle that the seniority fixed by the Commission is to hold the field, but neither of them could say that such a rule existed. Both of them were harping on the offer of appointment in which the condition was laid down, but they could not say on what rule or law, the stipulation which has now been impugned before us cropped up in the letter of appointment. Even if the appellant had accepted the offer, the stipulation being illegal, the appellant is not bound by the acceptance of the offer. It appears‑ that there was no such rule made by the President that the seniority was to be fixed in accordance with the confirmation test because it was admitted at the bar that this yardstick for fixing the seniority was applied in the case of selectees of 1958 batch only, and that it had neither been applied to any previous batch, nor to any subsequent batch. No reason was explained for making the distinction in respect of this particular batch. It is settled law that no contract which violates a law or rule made under the law is valid. The stipulation which has been impugned before us was thus not valid and the appellant, in spite of accepting the offer of appointment with the condition, is not bound by that illegal condition which was against the law.

6. In view of the above facts, therefore, we accept this appeal and cancel the letter of 1981 whereby 1966 seniority list was restored, and restore the seniority list determined vide letter No. S. 17‑52/68‑PT, dated 20th October, 1969, which is based on the result declared by the Federal Public Service Commission. However, we want to make it clear that our order is confined to direct selectees of 1958 batch and shall have no effect on the rights of persons who had been appointed by promotion or other wise.

7. There shall be no order as to costs.

8. This order is ex parte against respondents 3 to 6.

9. Parties including all the respondents be informed accordingly. Appeal accepted.