1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑‑In this appeal the appellant is aggrieved of the order of respondent No. 1 dated‑7th February, 1973 fixing his seniority below the respondents Nos. 2 to 10 and the advice of the Public Service Commission dated 20th February, 1972 authorising the aforesaid action. The appellant alongwith respondents Nos. 2 to 10 were selected for training and eventually appointed as Assistant Agricultural Engineers in the Agriculture Department under the then Government of West Pakistan in pursuance of Scheme called "The Development of Land and Provisions of Machinery for Augmenting the Water Supply in West Pakistan Training of Assistant Agricultural Engineers" framed by the Government of West Pakistan in the year 1965 which had the effect of modifying rule 7 of the West Pakistan Agricultural Engineering. (Class 11) Service Rules, 1963. The aforesaid Scheme modified rule 7 of the above rules which laid down the qualification for recruitment to the posts of Assistant Agricultural Engineers as follows:‑ (a) A degree in Mechanical or Agricultural Engineering from a recognized University; or (b) A degree in Agriculture with a. Diploma in Agricultural Engineering acquired after at least one year's academic study from a recognized University or Institute or equivalent qualification. Since there was a paucity of qualified Engineers the above Scheme was framed with the approval of the Governor of West Pakistan. The appellant and the respondents who were. B.Sc. in Agriculture Were selected by the Public Service Commission alongwith 36 other persons for 2 years' training at Agriculture University Lyallpur and eventual appointment to the post of (Assistant Agricultural Engineers (Class II). 1n the selection list received from the Public Service Commission as placed on record .by the appellant (Annex. .C at page 17) the merit of the appellant leas shown at No. '6 whereas the merit of all the respondents Nos. 2 to 10 was much below him. However before the completion of the Course in Agricultural Engineering by the candidates so selected by the West‑ Pakistan Public Service Commission the Government informed the trainees that they will have to re‑appear before the Public Service Commission for selection for appointment to the post of Assistant Agricultural Engineers. The appellant and other; did not accept the above action of the Government and instead contested the same in the first instance before the High Court where their writ petition was dismissed and finally before the Supreme Court of Pakistan on the ground that they had already been selected and were entitled to be appointed against the post of Assistant Agricultural Engineers (Class 11) after qualifying the examination at the Agriculture University. They succeeded on 29th October, 1971 before the Supreme Court and their Lordships were pleased to declare that "the appellants have satisfied the terms and conditions laid down by the Government for their appointment as assistant Agricultural Engineers and are therefore, entitled to be appointed as such and that they are not ' required to APPEAR AGAIN BEFORE THE Public Service Commission for fresh interview for selection for such appoint ment". In the meantime in June, 1968 the Government had appointed some of the trainees as Assistant Agricultural Engineers in ad hoc basis and after the Supreme Court Judgment referred to above the Department ultimately on 18th March, 1972 appointed the appellant and the respondents on regular ‑basis. It appears in the meantime the Government also obtained the concurrence from the Public Service Commission that the inter se seniority of the persons appointed in pursuance of the recommendations of the Public Service Commission were to be regulated on the basis of the results in the Diploma Examination by the Engineering University. The concurrence of the Public Service Commission dated 22nd February, 1972 had been placed on record. However the Commission observed in the same letter that is view of the Supreme Court decision no further reference is called for to the Commission and the Government could make the appellant's appointment without the approval of the Commission. Ultimately on 7th February, 1973 the respondent No. 1 issued a seniority list placing the present appellant at Serial No. 10 and respondents 2‑10 at Serial Nos. 1 to 9 on the basis of the result in the Diploma Course. The appellant appears to have represented against the same but without any success. Ultimately he filed this appeal on 7th June, 1974 before this Tribunal. The learned counsel appearing for the appellant assailed the seniority list in the first instance on the ground that the seniority of the appellant vis‑a‑vis respondents 2 to 10 was governed by rule 9 of the West Pakistan Agricultural Engineering (Class II) Service Rules, 1963, according to which the same had to be fixed in accordance with the order of merit assigned by the Commission. Since the appellant and respondents 2‑10 were selected in the same selection and the order of meat of the appellant being higher he was entitled to seniority and the respondents 2‑10 have been wrongly placed above. According to the appellant there was no other provision in the aforesaid Rules to regulate the seniority of the appellant. It was next contended that the Department has misconceived the position inasmuch as the Diploma Course was merely a qualifying examination as prescribed under rule 7 of the aforesaid Rules. This could not he considered to be a competitive examination. In fact there was nothing on record of the Department or anywhere else that the aforesaid examination was a competitive examination. The learned counsel for the appellant also argued that even the advertisement for the aforesaid posts (copy filed us Annexure B to this appeal) did not contain any such stipulation. No such condition having been prescribed anywhere, the course of action adopted by the Department was entirely unauthorised and illegal. The learned counsel further contended that the appointments in fact had been based on the selection of the Public Service Commission which even according to the judgment of the Supreme Court entitled the selectees to appointments to the posts of Assistant Agricultural Engineers after qualifying the examination in question. Thus according to the learned counsel the action taken by the Department is also unwarranted by the judgment of the Supreme Court. It was lastly submitted that the concurrence of the Public Service Commission obtained in February, 1972 was wholly uncalled for as the same was never the requirement under rule 9 of the West Pakistan Agricultural Engineering (Class II) Service Rules of 1963. According to the learned counsel any advice given by the Public Service Commission outside the provisions of rule 9 was illegal. He also argued that in any case since the rights of the appellant were seriously effected by the second advice of the Public Service Commission, therefore, the principles of natural justice required that he should have been associated in the same. He rather argued that the Commission having given their advice for the selection at the first occasion became functus officio and the second advice given by them was illegal and without jurisdiction. The learned counsel for the respondent No. 1 Mr. A. G. Humayun argued that in this case rule 9 was not applicable which was applicable to the case of initial recruitment whereas it was a case of special selection in pursuance of the Scheme framed by the Provincial Government in modification of rule 7 of the West Pakistan Agricultural Engineering (Class II) Service Rules, 1963. According to the learned Government Pleader the merit list (Annex. C) had no legal sanction. He also advanced the argument that rule 9 has to be read alongwith rule 7 and rule 5 of the aforesaid rules which prescribe the mode of recruitment and the qualifications for the persons to be so recruited/appointed. According to the Government Pleader since it was not a case of initial recruitment in terms of rule 5 as such rule 9 was not attracted. Thus in the absence of rule 9 the course adopted by the Government was amply justified. The learned counsel appearing for respondent No.

5. Ch. Khurshid Ahmed, Advocate also supported the Government Pleader in the contention above. He rather contended that in view of the modification of rule 7, rule 9 should also be deemed to have been modified which was a necessary implication ensuing from the Supreme Court judgment reported as P L D 1971 S C

846. He also submitted that the selection by the Commission only ensured the entry into service and did not determine the order of seniority along the candidates so selected. He argued that in the absence of any specific rule the guiding principles of good conscience and equity would have to be followed. He also referred to para. 17‑A of the Integration Circular which laid down the fixation of seniority in order of the merits in competitive examination. According to the learned counsel this was case of exceptional/ unusual entry into service in a mode prescribed otherwise than the one under rule 7 of the 1963 Rules. He also made a reference to the judgment of Supreme Court of Pakistan to support his submission to show that the entry into service was not totally unconditional or en bloc but was dependent upon qualifying the examination in question. According to the learned counsel the modification of rule 9 was inescapable in view of the modification of rule 7 which relaxed the qualification for entry into service and rule 8 which changed the period of probation on initial entry into service to one year instead of two years as originally prescribed. The learned counsel also placed reliance on Supreme Court authority in Re: Nazir Ahmad v. Pakistan (P L D 1970 S C 453) which laid down that in the absence of any specific rules the seniority inter se would depend upon the number of marks obtained by each ‑in final examination held on the completion of their training. He also referred to P L D 1959 Kar. 92 to show that the departmental practice has to be followed if there was no clear rule to the point. In reply the learned counsel for the appellant argued that the failure of a selected candidate in the training examination could cost him his job but after qualifying the examination in question the same could not in any way deprive him of seniority, merely because be had obtained lesser marks than his colleagues. It was argued that it would be wrong to read the Supreme Court Judgment to determine the issue of seniority. He also submitted that there was no indication of any repeal or modification of rule

9. According to the learned counsel, according to the accepted principles of interpretation the implied repeal had not to be inferred lightly He also invited our attention to the provisions contained in rule 2(g) which defined initial recruitment to mean "appointments made otherwise than by promotion or transfer from another Service/Department post". Thus according to the learned counsel the appointment made in the instant case could not be held but initial appointment within the meaning of rule 9(1) of 1963 Rules. After hearing both the parties we are clearly of the view that this appeal must succeed. In the first instance we are not prepared to subscribe to the view that the appellant's case was not governed by rule 9 ibid. We find that there is considerable force in the argument advanced by the appellant that 1963 Rules and the case falls under rule 9(1). Thus the order of merit as assigned by the Commission as to regulate the seniority. We are also not impressed by the contention raised by the respondent that rule 9 stood modified impliedly. There is nothing in the Scheme or the advertisement to show that rule 9 was intended to be modified by the rules framing authority. In fact wherever it was intended to modify the rules in question the same were expressly changed by the competent authority who framed the rules. Nor there is anything in the Supreme Court judgment to warrant the inference that rule 9 stood modified in any respect. We accordingly repel this contention of the respondent. The facts of the circumstances of the case also clearly show that the training of the selected candidates at the Agriculture University at Lyallpur was merely for the purpose of equipping them with the qualification prescribed under rule 7 of the 1963 Rules as it originally stood. In our view the examination in question was never intended to be a competitive examination. In fact we do not find any cogent reasons to support the conclusion that in the facts of this case the mere result of the examination was the decisive factor to determine the issue of seniority. In fact after acquiring the qualifications in question the selection of the appellant as made by the. Commission, has been declared to be valid basis of fixing or changing the seniority. Cases may be conceivable where after entry into service the incumbents may improve their qualifications. But there is no precedent anywhere to show that the mere fact of improvement in the qualification will disturb the inter se seniority of the civil servants. We are therefore of the view that the training course was a mere qualifying examination and not a competitive examination and thus the same alone could Dot furnish the basis for fixing the inter se seniority of the appellant. The reliance of the appellant on P L D 1970 S C 453 is misplaced inasmuch as it dealt with the case where the parties were required to take up a competitive examination. Thus the aforesaid facts are clearly distinguished. Similarly in view of finding above the ratio of the case reported as P L D 1959 Kar is not attracted to the facts of this case. Lastly, we may also observe that the advice of the Public Service Commission dated 20th February, 1972 was uncalled for and the Public Service Commission after having tendered their advice at the time of initial selection was functus officio and the Commission was not competent to give the second advice to disturb the inter se seniority of the appellant. The previous advice of the Commission was unreserved and unqualified. The following views expressed by Mr. Justice. Shafi‑ur‑Rehman in 1981 P L C (C. S.) 434 wherein his Lordship observed that "no such reservation having been made or conditions indicated and the service record already in the office of the Commission the reasons given out for altering a formal advice duly communicated does not hold good", tend to support our conclusion above. We accordingly find that previous advice having been unreserved and unconditional and having been acted upon the alteration in the same was uncalled for and does not hold good. Even otherwise we find that the second advice of the Commission being to the material prejudice to the appellant and he having never been associated with the same at any stage was violative of the principles of natural justice and the same could not be allowed to operate to his disadvantage. Consequently the appeal succeeds and the Department is directed to fix the seniority of the appellant in accordance with the order of merits assigned by the Commission at the time of previous selection. The parties are left to bear their own costs. The parties may be informed accordingly. Appeal allowed.