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8/9/2019 Civil Appeal No. 44 of 2010 and Civil Review of 2004
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SUPREME COURT OF AZAD JAMMU AND KASHMIR[Appellate/Review Jurisdiction]
PRESENT:Mohammad Azam Khan, C JCh. Muhammad Ibrahim Zia, J.Sardar Muhammad Sadiq Khan, J.
Civil Appeal No. 44 of 2010
(PLA filed on 9.10.2009)
1.
Syed Subtain Hussain Kazmi, Tehsildar,
Presently posted at Bagh Development
Authority.
2. Muhammad Ismail, Tehsildar, presently posted
at Patikha, Sub Division.
3.
Abdul Haleem, Tehsildar, presently posted at
Hajira, District Poonch.
…. ASPPELLANTSVERSUS
1. Syed Mumtaz Hussain Kazmi, Naib Tehsildar,
Presently posted at Office of Deputy
Commissioner, Bagh, Haveli.
2. Syed Nusrat Hussain Shah, Naib Tehsildar,
Presently posted as Naib Tehsildar, Bagh.
… RESPONDENTS
3. Azad Government through its Chief
Secretary, Muzaffarabad.
4. Board of Revenue through its Secretary, New
Secretariat, Muzaffarabad.
5. Selection Committee through its Chairman
having his office at New Secretariat,
Muzaffarabad.
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6. Commissioner Muzaffarabad Division, having
his office at old Secretariat, Muzaffarabad.
… PROFORMA-RESPONDENTS
(On appeal from the Judgment of the Service Tribunaldated 13.8.2009 in service appeal No. 365 of 2009)
------------
FOR THE APPELLANTS: Kh. M. Nasim, Advocate.
FOR THE RESPONDENTS: Sardar Karam Dad Khan,Advocate.
AMICUS CURIAE: M/S Abdul Rashid Abbasiand Raja MuhammadHanif Khan, Advocates.
Civil Review No. 4 of 2009(Filed on 2.3.2009)
1. Manzoor Maqbool, Divisional Forest Officer,
Muzaffarabad, Forest Division, Bank Road,
Muzaffarabad.
2. Sh. Abdul Hameed, Divisional Forest Officer,
Range Land Central Plate, Muzaffarabad.
…. PETITIONERS VERSUS
1. Asad Mehmood Malik, Divisional Forest
Officer, presently posted at Bagh, Tehsil &
District Bagh.
… RESPONDENT
2. Azad Jammu & Kashmir Government through
its Chief Secretary, having his office at New
Secretariat Complex, Lower Chatter,
Muzaffarabad.
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3. Minister Forest, Azad Jammu and Kashmir,
having his office at Ministers Block, Lower
Chatter, Muzaffarabad.
4. Secretary Forest, Azad Jammu & Kashmir
Govt. having his office at New Civil
Secretariat Complex, Muzaffarabad.
… PROFORMA-RESPONDENTS
(In the matter of review from the judgment of thisCourt dated 22.1.2009 in civil appeal No. 47 of 2007)
------------
FOR THE PETITIONERS: Raja Muhammad HanifKhan, Advocate.
FOR THE RESPONDENTS: Sardar Abdul SammieKhan, Advocate.
AMICUS CURIAE: Mr. Abdul Rashid AbbasiAdvocate.
Date of hearing: 5.3.2013.
JUDGMENT
Ch. Muhammad Ibrahim Zia, J.— The
captioned appeal No. 44/2010 by leave of the Court is
addressed against the judgment of Service Tribunal
dated 13.8.2009 whereby appeal filed by the
contestant respondents has been accepted. Whereas
the review petition No.4/2009 has been filed for review
of the judgment of this Court dated 22.1.2009,
whereby appeal filed by respondent No.1 has been
accepted. Having involved the common legal
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proposition, we propose to dispose of both of these
cases through this consolidated judgment.
2. The controversy in appeal No. 44/2010
relates to inter-se seniority of civil servants of the
Revenue Department. The respondents challenged the
seniority list issued by the Board of Revenue on
31.7.2007 through an appeal in the Service Tribunal.
According to their version, they were inducted into
service as Naib Tehsildar, B-14 vide orders dated
4.10.2004 and 14.10.2004, respectively through initial
recruitment. Whereas the appellants were firstly
promoted on officiating basis and later on regularly
appointed by promotion as Naib Tehsildars vide order
dated 19.3.2007. They were given retrospective effect
of promotion from the date of their officiating/current
charge appointment due to which they have been
shown senior to them. The learned Service Tribunal
accepted the appeal filed by respondents herein and
declared them senior on the basis of the date of regular
promotion of appellants i.e 19.3.2007. In this
perspective this appeal is filed.
3. The facts of the review petition No. 4/2009
are that respondent No.1 was appointed as Assistant
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Conservator of Forests vide order dated 10.4.2002, on
the recommendations of Public Service Commission
after completion of two years’ course of M.Sc. Forestry
from Pakistan Forests Institute, Peshawar. The
petitioners were promoted as Assistant Conservator of
Forests through Notification dated 12.3.2005 on the
recommendations of the Selection Board No.3 with
retrospective effect from 10.12.1997 and 1.2.2001.
Respondent No.1 assailed the notification dated
12.3.2005 before the Service Tribunal but his appeal
was dismissed. The findings of Service Tribunal were
challenged in appeal which was accepted by this Court
through the judgment under review whereby while
vacating the judgment of Service Tribunal, grant of
anti-dated promotion/seniority to the petitioners has
been set-aside.
4. Kh. Muhammad Nasim Advocate, the learned
counsel for the appellants submitted that the appellants
have been continuously officiating in the office. They
were duly entitled to promotion but due to non-holding
of selection board’s meeting or initiation of process on
the part of the authority, they cannot be penalized. He
further submitted that the appellant’s promotion will be
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anti-dated promotion whereas in the impugned
judgment it also appears that the retrospective
promotion order has also been set-aside. According to
celebrated principle of law and previous
pronouncements of this Court, retrospective promotion
if is justified in the light of facts of the case, cannot be
recalled. Therefore, this is an error apparent on the
face of record. He further submitted that according to
spirit of some of the judgments of this Court, if a civil
servant has been deprived of the right of promotion
due to no fault on his part, subsequently, if he is
promoted with retrospective effect, in such case,
seniority of such civil servant shall be determined from
the date when the promotion was due. He submitted
that as the anti-dated promotions are granted under
the provisions of section 22 of the Act, on just and
equitable grounds, therefore, in this case, as the
petitioners were holding the post; they were not
promoted timely on regular basis due to inaction of the
departmental authority, hence, for maintaining the
justice and equity, they deserve seniority from the date
of anti-dated promotion. However, he while assisting
the Court in other case as an AMICUS CURIAE , very
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gracefully conceded that in some of the
pronouncements of superior Courts, trend is against
giving the seniority from the date of anti-dated
promotion and same is only declared effective for the
monitory benefits and other benefits excluding the
benefit of seniority. He referred to the cases reported
as Aslam Warraich and others vs. Secretary, Planning
and Development Division and 2 others, [1991 SCMR
2330] and Sqn. Ldr. Farooq Janjua vs. Secretary M/O
Defence and others, [2004 PLC (CS) 612] in support of
this proposition. He further submitted that the term
“regular appointment” is defined in subsection 2 of
section 2 of the Act which speaks that the
appointments which are made in the prescribed
manner shall be deemed as regular appointments.
6. Conversely, Sardar Karam Dad Khan
Advocate, the learned counsel for the respondents in
appeal strongly opposed the appeal and submitted that
the impugned judgment of the Service Tribunal is quite
consistent with the principle of statutory law, hence,
does not call for any interference. He submitted that
according to the statutory provision, for the purpose of
seniority, the only regular service can be considered. In
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case of a civil servant appointed on officiating, current
charge or acting charge basis, such a service of civil
servant cannot be counted for the purpose of seniority.
He submitted that on this point, statutory provisions
are very much clear which speak that all such
appointments neither are regular nor create any right
or interest for the purpose of regular promotion. He
placed reliance upon the cases reported as Muhammad
Arshad Khan Tehsildar District Bagh & others vs. Azad
Govt. of the State of J&K through its Chief Secretary &
others, [PLJ 2000 SC (AJ&K) 88], Federation of
Pakistan and others vs. Rais Khan, [1993 SCMR 609],
Burhan Ahmed vs. Pakistan Post Office, Islamabad
through Director General and 7 others, [1994 PLC
(C.S.) 884], Dr. Shoukat Tanveer vs. Azad Govt. &
another , [2003 SCR 177], Raja Muhammad Sohrab,
Deputy Director Planning v. Azad Jammu & Kashmir
Government through Chief Secretary and 6 others,
[2002 PLC (C.S.) 1138] and Inayatullah Chaudhry vs.
Azad Jammu and Kashmir Government and five others,
[1990 PSC 1035], in support of his version.
7. Sardar Abdul Sammie Khan Advocate, the
learned counsel for the respondent in review petition
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strongly opposed the review and submitted that the
grounds agitated in the review petition amounts to
rehearing and reopening the case which is beyond the
scope of review. He submitted that according to
celebrated principle of law, review petition can only be
entertained if there is error or mistake apparent on the
face of record. No such error or mistake has been
pointed out by the petitioners, therefore, this review
petition is not competent. He further submitted that the
judgment under review is quite in accordance with the
statutory provisions and principles of law enunciated by
the superior Courts of Pakistan and the Azad Jammu &
Kashmir, therefore, the review petition has no
substance.
8. Mr. Abdul Rashid Abbasi, Senior Counsel,
while assisting the Court as AMICUS CURIAE , rendered
valuable assistance. He submitted that the term
“regular appointment” and “continuous appointment”
have not been defined by the statute. For the purpose
of seniority, the moot consideration is regular
appointment. Regular appointment, whether made by
initial recruitment or otherwise means permanent
appointment against the post after following the
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prescribed mode and it does not include any ad-hoc,
acting charge or officiating appointment. He submitted
that in this case, most relevant provision is sub rule 2
of rule 8 of the Azad Jammu & Kashmir Civil Servants,
(Appointment and Terms & Conditions of Service) Rules
1977, (hereinafter to be referred as Rules 1977). While
summarizing the arguments, he submitted that
according to statutory provision, seniority cannot be
counted from the retrospective or anti-dated
promotion. It can only be counted from the date of
regular appointment by initial recruitment or otherwise.
He referred to the cases reported as Professor Dr. Raja
Muhammad Ayub Khan v. Azad Jammu and Kashmir
Government and 4 others, [PLJ 1990 SC (AJ&K) 29],
Ghulam Rasool and others vs. Government of
Balochistan and others, [2002 PLC (CS) 47],
Muhammad Siddique Ahmed Khan vs. Pakistan
Railways through Financial Advisor and Chief Accounts
Officer, Pakistan Railways, Lahore and others, [1997
SCMR 1514], Nazar Ahmed Khan vs. Syed Sabir
Hussain Naqvi and 3 others, [2000 SCR 580], Ch.
Abdul Latif & 2 others vs. Secretary AJ&K Council & 2
others,[1999 SCR 222], Syed Zawar Hussain Naqvi vs.
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Registrar of AJ&K University & others [2006 SCR 15],
Raja Muhammad Iqbal and others vs. The Additional
Chief Secretary Government of the Punjab, [1982
SCMR 971] Muhammad Tufail and 2 others vs. The
State, [1995 SCMR 1158] and Messrs Swat Textile Mills
Ltd. Vs. Pakistan through Secretary, Ministry of Finance
Islamabad , [1985 SCMR 517] in support of his version.
9. We have heard the learned counsel for the
parties as well as the AMICUS CURIAE and perused the
record. In the captioned cases, the first identical legal
proposition raised for determination is of inter-se
seniority among civil servants directly appointed to the
post and appointed otherwise. The next proposition
emerged from the facts of these cases is the effect of
retrospective promotion upon the inter-se seniority. To
resolve the propositions, we would like to have a
survey of the statutory provisions relating to the
subject matter.
10. The basic provision dealing with the seniority
is section 7 of the Act. According to this statutory
provision, the seniority on initial appointment to
service, cadre, grade or post shall be determined in
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the prescribed manner. Whereas, the seniority in the
grade to which a civil servant is promoted shall take
effect from the date of regular appointment to the post
in that grade. The term “ regular appointment” used in
this statutory provision is of vital importance. The
subsection (2) of section 2 of the Act, speaks that “f or
the purpose of this Act an appointment whether by
promotion or otherwise shall be deemed to have been
made on regular basis if it is made in the prescribed
manner.” According to clause (i) subsection 1 of section
2 of the Act, “prescribed” means prescribed by rules.
Thus, this statutory provision clearly convey that the
appointment whether by promotion or otherwise made
in prescribed manner shall be deemed on regular basis.
Under the provision of section 3 of the Act, the terms
and conditions of Civil Servant shall be as provided in
this Act and Rules made thereunder. When the scope of
legal term ‘regular appointment’ hereinabove, is judged
in the light of the statutory provisions of the Act in
juxtaposition with the Rules, 1977, it becomes clear
that it refers only to the regular permanent
appointment either; by initial recruitment, transfer or
promotion excluding the appointments on acting
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charge, current charge and promotion on officiating
basis. Regarding these appointments, the statute itself
clarifies that these are not regular appointments. Rule
10-A, of the Rules, 1977 deals with the appointment on
acting charge basis. Under sub rule 4 it has been
clarified that such appointment shall not be deemed to
have been made on regular basis for any purpose nor
shall confer any right for regular appointment. Sub rule
2 of this rule deals with the appointment on current
charge basis which clearly speaks that the appointment
shall come to an end on appointment of a person on
regular basis or on expiry of six months which ever is
earlier. Same like rule 13 of the Rules, 1977 deals with
the promotion on officiating basis. Sub rule 3 of this
rule speaks that the officiating promotion shall not
confer any right of promotion on regular basis but shall
be liable to be terminated as soon as the person
becomes available for promotion on regular basis.
Thus, the cumulative examination of the statutory
provision dealing with the subject, it becomes clear that
the term ‘regular appointment’ against a post or
grade used in section 7 of the civil servants Act, refers
only to the regular appointment made through initial
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recruitment by transfer or by promotion and not
otherwise. In this respect, we find support from the
case reported as Syed Zawar Hussain Naqvi vs.
Registrar of AJ&K University & others, [2006 SCR 15]
wherein this Court has observed as under:-
“5. I have considered the respective
submissions of the learned counsel for
the parties in the light of record made
available by them with this Court. The
petitioner even though was holding
charge of post in BPS-17 on officiating
basis on 5.1.1994 but undoubtedly he
was confirmed against this post by the
competent authority vide order dated
16.8.2003 w.e.f 7.1.1995. It was laid
down in this order itself that the
retrospective effect given to the
petitioner’s appointment shall not affect
the promotion or seniority of any other
officer already working in BPS-17. The
legality of this order has not been
challenged by the petitioner even
though writ petition was filed by him
much after the said order. On the
recommendations of the selection board
respondent No.6 was recommended for
promotion to BPS-18 on 10.7.2002.
Finally vide notification dated 13.8.2002
he was promoted to BPS-18 w.e.f
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10.7.2002. At that time the petitioner
could not be considered as he was
working on officiating basis against the
vacancy falling in BPS-17. The holder of
a post on ad-hoc basis, officiating basis
or work charge basis cannot be
considered for further promotion until
and unless such officer is appointed
against the post he is holding on regular
basis. The petitioner, therefore, was not
eligible to be considered when the
selection board recommended
respondent No.6 for further promotion
on 10.7.2002 and the said
recommendations were approved by the
syndicate on 27.7.2002 and later on
notified on 13.8.2002. Therefore, as
rightly held by the High Court in the
light of two judgments of this Court, the
petitioner could not be considered for
further promotion as he was holding the
post in BPS-17 on officiating basis.
Reference may be made to the reports
of cases titled Zahid Mehmood vs.
Muhammad Sabir Khan, [PLJ 2000 SC
(AJ&K) 79] and Syed Shaukat Hussain
Gilani vs. Abdul Rehman Abbasi &
others [1993 SCR 70].
(underlining is ours)
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In another case reported as Sqn Ldr. Farooq Jamjua vs.
Secretary, M/O Defence and others, [2004 PLC (C.S.)
612], following observation has been made:-
“7. The appellant was admittedly
retired from Pakistan Air Force w.e.f.
1.9.1990 with all pensionary benefits
and was appointed in CAA on 2.9.1990,
therefore, for all practical purposes he
would be deemed to be appointed in
CAA from the date of his induction
without taking the benefit of the period
of his deputation in the CAA. It was
held in S.M. Farooq and others vs.
Muhammad Yar Khan 1999 SCMR 1039
as under:-
‘(12). In the back ground of legal and
factual aspects and adverting to
real controversy it may be seen
that notification, dated 8th August
1995 unambiguously disclosed
status of respondent Yar
Muhammad Khan being surplus
and his consequential absorption
as Deputy Controller (BPS 18) in
the department of tourist services.
Obviously in pursuance of above
notification said respondent had
assumed duty without any protest.
Therefore, his seniority was
properly fixed keeping in view
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provision of rule 3 (3) of Civil
Servants (Appointment, Promotion
and Transfer) Rules, 1973 as
amended and instructions issued
by the establishment division
regarding absorption of surplus
employees. Besides rule 4 of civil
servants seniority Rules, 1993
promulgated by notification S.R.O.
(I) /93, dated 28th Feb, 1993 lays
down that seniority in service,
cadre or post, by transfer shall
take effect from the date of regular
appointment of civil servant to said
service, cadre, or post. Therefore,
necessary corollary would be that
such civil servant on his
appointment by transfer would
rank junior to those who were
already serving in permanent
capacity in the same grad. This is
in consonance with principle of
justice and fair play because
service rights of employees in the
absence of any rules cannot be
normally affected by out side
introduction. The respondent No.1
Muhammad Yar Khan till date of
his absorption continued to be
member of his parent service or
cadre. Therefore, unless
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transferred and absorbed on
account of conscription; the
seniority of above respondent in
tourist services department held to
be reckoned from the date of his
regular appointment against
permanent post. It may be
mentioned here that respondent
No.1 had option to refuse and in
such eventuality, he would be
entitled to seniority reckoned in the
parent department.”
(underlining is ours)
11. The next legal proposition which requires
deliberation is the term “continuous appointment’. The
learned counsel for the appellants and petitioners, to
substantiate their arguments have referred to the
provisions of section 6 of the Act and attempted that
the continuous appointment means the holding of post
by a civil servant whether by initial recruitment,
transfer, promotion, acting charge, officiating
promotion basis or even by retrospective promotion.
According to their version, under subsection (6) of
section 6 of civil servants Act, it has been clearly laid
down that “confirmation of a civil servant in service
or against a post shall take effect from the date of the
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occurrence of a permanent vacancy in such service or
against such post or from the date of continuous
officiation,.” According to their version, the term
‘continuous officiation’ is unanimous to the term
‘continuous appointment’.
12. It appears that the argument is based on
bare reading of the statutory provision without diving
deep into it. No provision of statute can be interpreted
in isolation. For interpretation of a statutory provision,
the statute as one organ has to be considered while
keeping in mind the whole scheme and wisdom of
legislature. This Court, while dealing with the
interpretation of statute in the case reported as Miss
Rakhshanda Aslam and another vs. Nomination Board
of Azad Jammu and Kashmir through its Secretary,
Muzaffarabad and 2 others, [PLD 1986 SC (AJ&K) 1]
has observed as under:-
“17… it should be remembered that an
enactment or rule is to be read and
interpreted as a whole. To discover the
intention of the author, such intention is
to be gathered from the Act or Rules as
a whole. It is settled principle of law
that effect is to be given to every part
and every word of the Act or Rules.
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Therefore, as a general rule the Court
should avoid a construction which
renders any provision meaningless or
inoperative and must lean in favour of a
construction which will render every
word operative rather than one which
may make the same word idle or
nugatory. Therefore, while construing
an enactment or rule it is the duty of
the Court to have regard to the whole
instruments to ascertain the true intent
and meaning of any particular provision.
The particular phrase of an instrument
must be construed with regard to the
remainder of the instruments to know
the intent of the author.”
In another case reported as Abdul Karim & 6 others vs.
Tahir-ur-Rehman [1990 PSC (Supreme Court of AJ&K)
735], has enumerated the following principles for
interpretation at page 749 of the judgment which are
as follows:-
“ (k) Before I part with the case, I would
like to narrate the general principles of
interpretation stated by the Supreme Court
of Pakistan in a reference by the President
under the defunct constitution of 1956 (P.L.D
1957 S.C. 219). The Supreme Court stated
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the general principles of interpretation and
said:-
“1. The first object of the Court is to
discover the intention of the author and
that such in the statute or document.
2. The second rule is that the intention of
the legislature in enacting a statute
ought to be derived from a
consideration of the whole enactment in
order to arrive at a consistent plan. It is
wrong to start with some a prior idea of
that intention and to try by construction
to Wedge it into the word of the statute.
3. The third rule is that a statute may not
be extended to meet a case for which
provision has clearly and undoubtedly
not been made.
4. The fourth rule is that whenever there is
a particular enactment and a general
enactment in the same statute, and the
latter, taken in its most comprehensive
sense, would overrule the former, the
particular enactment must be operative,
and the general enactment must be
taken to affect only the other part of
the statute to which it may properly
apply.
5. The fundamental principle of
constitutional construction has always
been to give effect to the intent of the
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framers of the organic law and the
people adopting it.
6. Another elementary rule of construction
of constitutional instrument is that
effect should be given to every part and
every word of the constitution. Hence as
a general rule, the Courts should avoid
a construction which renders any
provision meaningless or inoperative
and must lean in favour of a
construction which will render every
word operative rather than one which
may make some words idle and
nugatory.
7. The next rule in construing a
constitutional provision is that it is the
duty of the Courts to have recourse to
the whole instrument, if necessary, to
ascertain the true intent and meaning
of any particular provision. The best
mode of ascertaining the meaning
affixed to any word or sentence by a
deliberative body is by comparing it with
the words and sentences with which it
stands connected, and a constitutional
provision or a phrase to a constitutional
provision must be read in connection
with the context. Nosciture a Sociis is
the rule of construction applied to all
written instruments. Therefore,
particular phrases of a constitution must
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be construed with regard to the
remainder of the instrument and to the
express intent of the constitutional
convention in adopting it.
8. If there be any apparent repugnancy
between different provisions, the Court
should harmonize them if possible. The
rule of construction of constitutional law
requires that two sections be so
construed, if possible, as not to create a
repugnancy, but that both be allowed to
stand and that effect be given to each.”
(1) It would appear that one of the cardinal
principles of interpretation is that: the law
should be interpreted in such manner that it
should rather be saved than destroyed. The
law including the constitution must be
interpreted in a broad and liberal manner
giving effect to all its parts and the
presumption should be that ‘no conflict or
repugnancy was intended by the framers. In
interpreting the word of an Act actual words
used in fact throw light about the intention of
the law makers and the other parts of the
statute.”
13. According to the above referred guidelines, it
is well established principle of interpretation that the
provision of statute should not be read in isolation so
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as to give such meanings which make the other
provisions meaningless and redundant. Our this view
stands fortified from the case reported as Muhammad
Ayub vs. Abdul Khaliq, [1990 MLD 1293], wherein this
Court while interpreting the statutory provisions has
observed as under:-
“35… Therefore, in interpreting a statute
one is to see whether a reasonable
meaning can be given after reconciling
the various provisions contained in
different sections and not to read one
section independently of all other
sections and give any unreasonable
interpretation. So was held in
Commissioner of Income-tax v. Messrs
Hoosen Kasam Dada PLD 1960 Dacca
506 wherein it was held that one section
in a statute should not be read
independently of all others and given
unreasonable interpretation.
14. When the wisdom of legislature and whole
scheme of the Act is examined while considering the
statute as one organ, it becomes clear that the
statutory provision of section 6 of the Act has no nexus
with the seniority of Civil servants. These provisions are
related to the legal proposition mentioned in the
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statutory provision of section 5 of the Act according to
which all the regular appointments whether by initial
recruitment or by promotion or transfer shall be made
on such probation and for such a period of probation as
may be prescribed. While dealing with the question of
probation and confirmation under the pari-materia
provisions of the Civil Servant Act, 1973 (Pakistan), in
the case reported as Muhammad Siddique Ahmad Khan
and others vs. Pakistan Railways through Financial
Advisor and Chief Accounts Officer, Pakistan Railways,
Lahore and others, [1997 SCMR 1514], the apex Court
of Pakistan has drawn the following conclusion which
clarifies the term “continuous officiation” with relevance
to probation:-
“According to section 6 of the Civil
Servants Act, an initial appointment to a
service or post referred to in section 5,
not being an ad hoc appointment, shall
be on probation as may be prescribed.
This shows that an ad hoc appointment
cannot be on probation and an
appointment on probation cannot be ad
hoc. According to Audit Instruction No.
(2) (c) given in para.3 (i), Chapter 11,
section 1 of Manual of Audit
Instructions, reproduced in combined
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set of F.R and S.R., Volumes I and II by
Hamid Ali (1991 Edition), the status of a
probationer is to be considered as
having the attributes of a substantive
status except where the rules prescribe
otherwise, perusal of the promotion
order dated 23.5.1969 would show that
appellants Intizar Ahmad and
Muhammad Mushtaq Jawaid were
appointed on probation and not on ad
hoc basis. They were to remain on
probation for a period of six months, at
the end of which they were either to be
continued in their posts or were to be
reverted to the posts of cash
Counters/Clerks, depending on their
earning satisfactory reports, vide para,
1 of the order dated 23.5.1969. Fact
that said appellants were not reverted
and were continued as S.P.Ms beyond
initial period of six months, indicates
that they earned satisfactory reports.
Hence at the expiry of their period of
probation either the period of probation
was to be extended or they were to be
confirmed. Date of their promotion is,
therefore, relevant for considering
their seniority in the cadre of S.P.Ms.
At the stage of arguments learned
counsel for the appellants produced a
copy of P.R. Gazzette dated 18.1.1975
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reproducing the Government decision,
which reads as below:-
‘(1) Confirmation of Staff.—TheGovernment had decided that allstaff, except work-charged staff orthose working in the temporaryprojects, with three year’ s, serviceshould be confirmed and the postsagainst which they are workingshould be made permanent as far
as possible. All others who cannotbe so confirmed should be given allthe benefits/privileges of confirmedstaff.” Viewed from any angle appellants
Intizar Ahmad and Muhammad Mushtaq
Jawaid have established their right of
their service as S.P.Ms, being counted
towards their seniority. In all fairness
their seniority in the cadre of S.P.Ms.
should be reckoned from the date of
their promotion to said post.
There is no force in the contention
of learned counsel for respondent No.1
that regular promotion of Intizar Ahmad
and Muhammad Mushtaq Jawaid as
S.P.Ms. depended upon their passing
the departmental examination. There is
no mention in the order of promotion
dated 23.5.1969 that promotion of said
appellants would be subject to passing
of any examination except appearing
before the Selection Board, for which
the said appellants were never asked.
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It is settled position of law that
seniority in a grade will be accorded to
an officer with effect from the date of
his continuous officitiation in that grade
and not from the date of his
confirmation. Similar view was taken in
the cas of Araab Mukhtar Ahmad v.
Secretary to Government of Pakistan,
Establishment Division Rawalpindi (1983
PLC (C.S) 104). Learned counsel for the
appellants Engineering Officers’
Association and others v. State
Maharashtra and others (AIR 1990 SC
1607), where it was observed by the
Supreme Court of India that once an
incumbent is appointed to a post, his
seniority has to be counted from the
date of his appointment and not from
the date of confirmation.”
(underlining is ours)
Thus, it is clear that in case of appointment of civil
servant otherwise than made on regular basis, the
question of probation and confirmation does not arise.
Same like the question of confirmation does not arise in
case of a civil servant who has been given retrospective
or anti-dated promotion under the residuary powers of
the Government or the authority. Therefore, the
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arguments that continuous appointment should be
reckoned from the date of confirmation or continuous
officiation without regular appointment, in the light of
the provisions of section 6 read with section 7 of the
Act, has no substance, hence, is not acceptable.
15. It will be useful to reproduce here the
provisions of Rule 8 (2) of Rules 1977 which are as
follows:-
“:8. Seniority:- The seniority inter se of
persons appointed to post in the same
grade in a Functional Unit shall be
determined:-
(1) (a) In the case of persons appointed
by initial recruitment, in accordance
with the order of merit, assigned by
the Selection authority;
Provided that persons, selected
for appointment to the grade in an
earlier selection shall rank senior to
the persons selected in a later
selection; and
(b) in the case of persons appointed
otherwise, with reference to the dates
of their continuous appointment in the
grade;
provided that if the date of continuous
appointment in the case of two or
more persons appointed to the grade
is the same, the older if not junior to
the younger in the next below grade,
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shall rank senior to the younger
person.
Explanation-I xxx xxx xxx
Explanation-II xxx xxx xxx
Explanation-III xxx xxx xxx.
(2)
The seniority of the persons
appointed by initial recruitment to the
grade vis-à-vis those appointed
otherwise shall be determined with
reference to the date of continuous
appointment to the grade;
Provided that if two dates are
the same, the person appointed
otherwise shall rank senior to the
person appointed by initial
recruitment;
Provided further that inter se
seniority of persons belonging to
same category will not be altered.”
Explanation:………………………………………
(3) XXX XXX XXX XXX
(underlining is ours)
In the light of peculiar facts of these cases, the relevant
provision which is attracted is sub rule 2 Rule 8 of the
Rules 1977 which speaks that the seniority of a person
appointed by initial recruitment to a grade vis-a-vis
those appointed otherwise shall be determined with
reference to the date of continuous appointment to
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the grade. Here again, the term “continuous
appointment” is of vital importance.
16. As the term “continuous appointment” has
not been defined by the statute itself. In the light of
the discussion regarding the scope of section 7 of the
Act, it becomes clear that for the purpose of seniority,
the appointment means regular appointment and in this
rule, the word “continuous” attached to the
appointment, in our considered opinion is another
condition in addition to regular appointment. For
definition of word “continuous” in absence of definition
by the statute, we will have to take its ordinary
dictionary meanings. In the Black’s Law Dictionary With
Pronunciation,, Sixth Edition, page 322, the word
“continuous” has been defined as following:-
“Continuous. Uninterrupted; unbroken;
not intermittent or occasional; so
persistently repeated at short intervals as
to constitute virtually an unbroken series.
Connected, extended, or prolonged without
cessation or interruption or sequence.
Thus, it is clear that according to the rules, the
continuous appointment means ‘unbroken regular
appointment’ . Our this view stands fortified from the
case reported as Professor Dr. Raja Muhammad Ayub
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Khan v. Azad Jammu and Kashmir Government and 4
others, [PLJ 1990 S.C (AJ&K) 29], wherein it has been
observed by this Court that:-
9. It is obvious that the expression
“continuous appointment” is used both
in Civil Service Rules and in the
Departmental Rules. The word
“continuous” has not been defined
either in the Departmental Rules or in
the Civil Service Rules. The dictionary
meanings of the word “continuous” are
‘without any break’. Thus, we cannot
subscribe to the view that the date of
“continuous appointment” appearing in
the aforesaid rules would be the date
on which the relevant civil servant
actually assumes the charge of the post
to which he is promoted or appointed.
The aforesaid expression has been used
in altogether different context. It means
that appointment by promotion must
have been continuous and shall be
unbroken. For instance if a civil servant
is demoted to his original grade or in
case of appointment by transfer, he
ceases to enjoy the higher grade, his
previous date of promotion shall not be
considered for the purpose of
seniority….”
(underlining is ours)
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Therefore, for determination of seniority, there are two
conditions, one is regular appointment to the grade or
post and the other is continuous service.
In another case reported as Ghulam Rasool
and others vs. Government of Balochistan and others,
[2002 PLC (C.S.) 47], the apex Court of Pakistan while
dealing with the question of fixation of seniority with
retrospective effect has held that seniority cannot be
conferred with retrospective effect unless such right is
established. It will be useful to reproduce here the
relevant portion of the judgment which speaks as
under:-
“6… In our considered view, conferment
of seniority with retrospective effect
cannot be done unless such right is
established. The petitioners have failed
miserably to establish such a right on
the basis whereof their seniority could
be determined retrospectively. It is well
settled by now that seniority cannot be
determined without reference to
continuous appointment in a particular
grade. Admittedly their services were
discontinued with effect from 30.5.1973
and it is also an admitted feature of the
case that they could not complete their
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training and remained ousted from
service till 1978. There is no denying
the fact that they were reinstated by the
Review Board vide order, dated
20.10.1978 wherein it has been clarified
categorically that no back benefits
would be given and it was a
reinstatement simpliciter without any
sort of back benefits. This order, dated
20.10.1978 was neither further assailed
nor any review was made to get the
back benefits inserted which does not
mean financial benefits alone, but also
include seniority which is the real
benefit. It can thus simply be inferred
that the order of Review Board was
accepted as it is and now it is too late to
get it modified by making any deletion,
addition, insertion or amendment as a
specific task was assigned to Review
Board and after its accomplishment it is
no more available to do the needful.
Admittedly the petitioners had remained
out of service during 1973 to 1978
having no concern whatsoever with the
cadre of Tehsildar and the said period
was never taken into consideration by
the Review Board and the petitioners
could have been treated on duty by
granting extraordinary leave without
pay. It was not an accidental omission
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but a deliberate and calculated action of
the Review Board which by now has
attained finality and thus the petitioners
cannot claim any benefit for the
intervening period.
7……………………………………………………………..
8. We have also examined the order,
dated 27.12.1972 passed by Board of
Revenue concerning the appointment of
petitioners which is reproduced
hereinbelow for ready reference:--
ORDER BY THE MEMBER BOARD OF
REVENUE BALOCHISTAN
(Administrative Branch)
Dated Quetta, the 27th December, 1972.
No. 10925/66-Admn-1/71 (II).—
M/s. Ghulam Rasool son of Mir
Karim Bakhsh, caste Raisani,
resident of Dhadar (Karachi
District) and Muhammad Nasir son
of Nek Muhammad, caste Mengal
resident of Wadh (Kalat District)
are hereby accepted as direct
Tehsildar. They will undergo
necessary training as prescribed
in the West Pakistan Tehsildari and
Naib Tehsildari Departmental
Examination and Training Rules,
1969 against the newly-created
two posts of Tehsildars for
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Settlement training during the
current financial year, 1972-1973;
(2) During the training period, they
will be entitled to such pay and
allowances as admissible under
Rules. They are required to
undergo the training and to pass
the Departmental Examination ofTehsildars, within the period of
their training as specified in the
above Rules.
(3) On successful completion of
training and passing the
Departmental Examination theyshould be declared as qualified to
hold the post of Tehsildar.
Thereafter on the availability of
vacancy they will be posted as
officiating Tehsildar.
(4) Before joining training they arerequired to:--
(1) Appear before the Medical
Board for Medical
Examination.
(2) Produce Certificates of
Character from a First ClassMagistrate.
(Sd.) Capt, Saleh Muhammad
Khan, PCS,
Member, Board of Revenue,
Balochistan.”
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9. A careful perusal of the
said order would reveal as
follows:--
(a) The petitioners were
neither appointed as
Tehsildar nor posted as
such but only their
candidature as Tehsildar
was accepted.
(b) They were required to
undergo necessary
training as prescribed in
the West Pakistan
Tehsildars and Naib
Tehsildars Departmental
Examination and Training
Rules, 1969 and only
after successful
completion of training
and passing
Departmental
Examination they could
claim the post of
Tehsildar.
(c) Even after the
completion of training
their postings as
Tehsildar was subject to
availability of posts
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On the basis of above mentioned
order it can be said safely that the
petitioners were neither appointed
nor posted as Tehsildar, but only
accepted as a candidate for the
post of Tehsildar.
10. We have not been persuaded
to agree with Mr. Basharatullah,
learned Senior Advocate Supreme
Court that no embargo whatsoever
had bee placed regarding
conferment of seniority with
retrospective effect by Review
Board for the simple reason that
order, dated 2.10.1978 is free from
any ambiguity and it is implicit that
the petitioners were reinstated in
service with immediate effect with
specific direction that their
reinstatement shall not entitle the
petitioners to any damages,
compensation or arrears of
emoluments or other benefits for
the period they remained out of
service. Had they been reinstated
with retrospective effect it could
have been mentioned in the said
order and accordingly no seniority
could have been conferred
retrospectively in view of the order
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passed by Board of Revenue and
as discussed hereinabove.”
(underlining is ours)
In the light of survey of statutory provisions
and the intention of legislature as depicted from the
statute, it can be safely held that the term ‘continuous
appointment’ refers to the appointment of a civil
servant made on regular basis and continued without
any break.
In the case reported as Professor Dr. Raja
Muhammad Ayub Khan v. Azad Jammu and Kashmir
Government and 4 others, [PLJ 1990 SC (AJ&K) 29], it
has been observed by this Court that:-
“8. It is evident that in view of the
above provisions, any law inconsistent
with the provisions of Civil Servants Act
would be inoperative. Thus even if it is
assumed for the sake of argument that
a retrospective promotion, is not
permissible under the Departmental
Rules that would be deemed to have
been repealed by the operation of
provisions contained in Section 22 of the
Act and the rules framed thereunder.
The contention of the learned counsel
for the appellant that expression”….. to
the date of continuous appointment”
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appearing in rule 10 of the
Departmental Rules would mean the
date on which a promotee actually
starts functioning against the relevant
post or assume the charge of the post
as a result of promotion is not
supported by any authority. An
identical expression also occurs in rule
8(2) of the Civil Service Rules, which is
reproduced as under:
‘8. The Seniority inter se of
persons appointed to post in the
same grade in Functional Unit shall
be determined:--
(1) xxx xxx xxx
(a) xxx xxx xxx
(b) xxx xxx xxx
(2) The seniority of the persons
appointed by initial recruitment to
the grade vis-à-vis those appointed
otherwise shall be determined with
reference to the date of
continuous appointment to the
grade;
Provided that if two dates are
the same, the persons appointed
otherwise shall rank senior to the
person appointed by initial
recruitment;
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Provided further that inter se
seniority of persons belonging to
same category will not be altered.’
After taking into consideration the detailed deliberation
of hereinabove referred statutory provisions and case
law, in our considered opinion, for determination of
seniority, the basic requirements are regular
appointment to the post, grade or cadre and
continuation of it.
17. Now we advert to the most complex legal
proposition raised in these cases i.e. the effect of
retrospective, proforma and notional promotion of the
civil servants. As it has been concluded that for
determination of seniority, the foremost condition is
regular appointment which means the appointment
made in the prescribed mode. The Civil Servant Act
speaks that the word prescribed means the prescribed
by rules. As the proforma, anti-dated or notional
promotions are not prescribed by the rules, therefore,
such appointments cannot be termed as regular
appointments. It is almost now settled that the
proforma or anti-dated promotion orders are made by
the Government while exercising the inherent powers
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derived under the provisions of section 22 of the Act.
The statutory provisions of section 22 of the Act
speaks as under:-
“22. Saving:- Nothing in this Act
or in any rules shall be construed to
limit or abridge the power of the
Government to deal with the case of any
civil servant in such manner as may
appear to it to be just and equitable;
Provided that, where this Act or
any rule is applicable to the case of a
civil servant, the case shall not be dealt
with in any manner less favourable to
him than that provided by this Act or
such rule.”
Under this statutory provisions, the Government is not
vested with unlimited or unguided powers rather the
powers vested are qualified with just and equitable
purposes. Therefore, it is clear that the anti-dated or
proforma promotion while exercising the powers under
section 22 of the Act, can only be made if necessary for
just and equitable purposes. These powers cannot be
exercised under discretion in an arbitrary manner. This
Court has also dealt with this point in detail in the case
titled Sh. Manzoor Ahmed vs Azad Govt. & another
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[1994 SCR 297]. Relevant portion of the judgment is
reproduced as under:
“Now, the next point which needs
resolution is as to what is the scope of
powers of the Government under
section 22 of the Azad Jammu and
Kashmir Civil Servants Act, 1976 and
the rules framed thereunder. To be
more specific whether the Government
could pass an order under the said
provisions giving it a retrospective
effect, even if the same adversely
affects the seniority of other civil
servants. It may be stated that this
aspect of the matter has been subject
of judicial consideration by the superior
Courts of Pakistan in a number of cases.
Identical provisions to those contained
in section 22 of the Azad Jammu and
Kashmir, Civil Servants Act, 1976 also
exist in the corresponding service laws
which are in force in the province of the
Punjab. Thus, it would be expedient to
consider some of the authorities which
have been relied upon by the learned
counsel for the appellant during the
course of arguments. A reference may
be made to a case reported as
Muhammad Iqbal Khokhar v. The
Government of the Punjab (PLD 1991
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S.C. 35), while dealing with the scope of
identical provisions contained in Punjab
Civil Servants Act, 1974 and the rules
framed thereunder, it was observed that
although the Government had wide
powers to make an order regarding the
terms and conditions of civil servants,
irrespective of the provisions of the Act
and rules, but these powers are subject
to one important condition, namely, that
the order must be ‘just and equitable’
and not arbitrary. The question as to
whether an order which adversely
affects the seniority of another civil
servant, would be ‘equitable and just’
within the relevant provisions of law.
While dealing with the question, Mr.
Justice Shafi-ur-Rehman made the
following observations in Iqbal
Khokhar’s case, referred to above:-
’13. The only question that
remains to be examined is
whether the power possessed by
the Governor under Section 22 of
the Punjab Civil Servants Act, to
which the provisions in the Rules
on the same subject are
subordinate, justify the conferment
of seniority retrospectively in a
manner to violate the provision of
Rule 8(1) (a) of the Appointment
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Rules and 15 (1) (a) of the Service
Rules, 1967 in a manner to
prejudicially and adversely affect
the vested right of the appellants
and many others. The dispensation
under section 22 of the Punjab Civil
Servants Act is individual and is
limited and controlled by a proviso
which establishes the supremacy
of the Act and the Rules. The
relaxation can be beneficial to the
civil servant without being
prejudicial to anyone else even to
the civil servant who is granted
relaxation or exemption. On that
principle the impugned order of the
Governor is ultra vires section 22
of the Punjab Civil Servants Act in
so far as it grants the respondent
No.2, seniority for the period
21.10.1969 to 26.2.1975 and
refixes the seniority accordingly.
The allowance to an officer the
benefit of his Army service towards
pay and pension and relaxation of
five years service in the
Department as Assistant Engineer
for promotion to the post of
Executive Engineer do not by
themselves prejudicially affect
anyone, and are, therefore, not in
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violation of the law but in
relaxation of it. Therefore, they are
declared to that extent to be valid
and proper.’
Another learned member of the bench,
Mr. Justice Rustam S. Sidhwa, while
dealing with the proposition, made the
following observation at page 52:-
‘….The grant of seniority or
promotion under section 22, unless
it meets the strict test of being just
and fair, can only be a colourable
violation of the law under the guise
of its exercise, which cannot be
permitted. Discretion, even where
outwardly appearing as absolute,
will always be treated as qualified
by the terms and spirit of the
provision in which it occurs and by
the object of the law. See
Federation of Pakistan vs.
Muhammad Saifullah Khan PLD
1959 SC 166, where the
President of Pakistan’s exercise of
discretionary powers under Article
58 (2) (b) of the Constitution were
struck down for violating the terms
and spirit of that Article. The order
of the learned Governor in the
instant case not only violates the
law declared by this Court, which
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strikes down retrospective
regularization, but directly
contravenes Rule 8 of the 1967
and 1974 Rules and adversely
affects the seniority and right of
promotion of the 1974 batch of
direct inductees and I would,
therefore, with profound respect to
the learned Governor, declare that
the same deserves to be set aside.’
In case reported as Mian Shafiuddin,
Deputy Director v. Surat Khan Marri,
Director Regional Information Office,
Islamabad (1991 SCMR 2216), it was
observed that regularization of seniority
cannot be ordered if it affects the
seniority of other civil servants.
In case reported as Ghulam Sarwar
v. Province of Punjab (1982 SCMR 46),
it was observed that an ad hoc
appointee does not get the status of a
regular appointment merely by afflux of
time.
In Mian Muhammad Afzal v.
Government of the Punjab (1982 SCMR
408), dealing with the question of
seniority in case of an ad hoc appointee,
it was observed as under:-
“ We propose taking up the
question of the nature and effect of
ad hoc appointment first because it
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is common to the first three
appellants and to some of the
respondents. Their appointments
as Assistant Engineers were
expressed to be ad hoc,
temporary, not conferring any right
seniority etc. The word ‘ad hoc’ has
the dictionary meaning of ‘for a
particular object’. The object as
appearing from the appointment
of the appellants as well as that of
some of the respondents was that
their appointments were made
and were to last only as long as
regular appointments in
accordance with the prescribed
Rules were not made. The moment
the regular appointments in
accordance with the procedure
prescribed were made, such
appointments were to terminate.
Ad hoc appointments truly so
called being not in accordance with
the Rules applicable to the service
cannot receive either recognition or
protection by reference to any of
the Rules because they do not
imply appointments to the service
as such. Such appointments being
outside the purview of the rules
cannot for any purpose be treated
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as conferring a benefit under the
Rules. It follows that if the
appellants and some of the
respondents were truly ad hoc
appointees for a certain period
they cannot on the basis of Rules
claim their seniority from that date
whether it was continuous or not.’
In Saif-ud-Din v. Secretary to
Government of the Punjab (1982 PSC
920), it was observed that an ad hoc
appointment does not confer any right
to the seniority from the date of such
appointment.
In case reported as Saifuddin v.
Secretary to Government of the Punjab
(1982 SCMR 877), it was again held
that an employee shall not be entitled to
claim seniority from the date of his ad
hoc appointment; his seniority is to be
reckoned from the date of his regular
appointment.
Identical view was expressed in two
unreported cases of this Court entitled
Muhammad Fazal Khan v. Muhammad
Muskeen (Civil appeal No.6 of 1994
decided on 8.5.1994) and Ghulam
Mustafa Qureshi v. Azad Government
(Civil Appeal No. 35 of 1993 decided on
5.11.1993.
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As stated earlier, even the Service
Tribunal has expressed the view that
seniority of a civil servant will be
normally reckoned from the date of
regular service, as is evident from the
extract from the judgment of the
Service Tribunal reproduced in the
earlier part of the judgment. However, it
appears that the Service Tribunal
entertained the brief that powers
available to the Government under
section 22 of the Civil Servants Act are
exercisable even when the seniority of
other civil servant is adversely affected.
But the law laid down by the superior
Courts of Pakistan, as indicated above,
is that the residuary powers under
section 22 of the Civil Servants Act
cannot be said to have been exercised
‘justly and equitable’ if the same have
been exercised in a way which is
detrimental to the interests of another
civil servant, as has been clearly held in
Iqbal Khokhar’s case, referred to
above. The residuary powers available
under section 22 of the Civil Servants
Act are to be sparingly exercised to
advance the cause of justice and equity
and not give an undue advantage to a
civil servant in contravention of relevant
law on the subject.”
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In the light of what has been stated
above, I accept the appeal in terms that
notification No. Admin./Rules/ 685-
705/89 dated 18.4.1989 is ineffective
and inoperative so far as it adversely
affects the seniority of the appellant in
relation to respondent No.2. The
seniority list dated 6.6.1991 shall be
amended and the appellant shall be
shown senior to respondent No.2.”
Thus, it is clear that under the statutory provisions, the
terms “just and equitable” are of vital importance
which clearly connotes that while granting the anti-
dated or proforma promotion, neither any injustice be
caused to civil servant nor it should be inequitable.
18. Another aspect of this legal proposition is
that vested rights are created in favour of a civil
servant on regular appointment to a post or grade and
at the time of his regular appointment, if any other
person holder of the same post or grade is not regularly
appointed then by granting subsequently, notional
promotion or regularization of his service may result
into depriving the former of the vested legal rights.
Surely, this will be not just and equitable exercise of
powers. However, there may be some eventualities
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where a civil servant has been deprived of his vested
legal right of promotion without any fault on his part.
For exercising the residuary powers under section 22 of
the Act, the Government must have to determine the
just and equitable purposes and where it appears that
due to proforma or retrospective promotion or
regularization of service any other civil servant’s rights
are being adversely effected, he must have been
provided an opportunity of hearing and the order
should be passed after comparative examination of the
rights of both the contestant civil servants. The apex
Court of Pakistan, while dilating upon the legal
proposition of anti-dated promotion and seniority in the
case reported as Nazeer Ahmed and others vs.
Government of Sindh through the Chief Secretary,
Sindh Secretariat, Karachi and others, [PLJ 2001 SC
228], has categorically observed that the right of
seniority is not available with retrospective effect as it
amounts to deprive a civil servant of his accrued rights.
Para 7 of the judgment is relevant which reads as
under:-
“7. In so far as the question of
conferring seniority with retrospective
effect is concerned that cannot be done
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unless such right was established. It is
true that Government has the power to
make retrospective promotion but there
must exist some criteria for assignment
of such right with retrospective effect.
Seniority may be so assigned that the
seniority of senior is not adversely
affected. The dates of promotion cannot
be later than the dates of actual
promotion because valuable rights
accrue on promotion and the official
concerned cannot be denied the benefits
which have accrued to them
It is well established by now that
“regularization of seniority from the
retrospective date is not permitted and
is beyond the power of Government. In
this regard reference can be made to
PLD 1991 SC 82 + 1985 SCMR 1201….”
19. This Court while attending the question of
promotion of direct appointees and promotees as well
as the anti-dated promotion in the case titled Abdul
Majeed Banday vs. Azad Government & others, [civil
appeal No. 66/2004, decided on 12.7.2005] has
observed as under:-
“13. The other contention of the learned
Advocate for the respondents that
under the rule of law laid down in the
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case of Ejaz Ahmed Awan and 5 others
vs. Syed Manzoor Ali Shah and another
[1999 SCR 204], that the seniority
would start from the date of passing of
B.Ed. has not been a matter,
controversy or dispute between the
contesting parties in this case, hence, it
has no bearing in the present case. This
rule may apply to the promotees i.e the
respondents inter-se and it is rightly so
laid down. The case in hand is different.
The dispute in this case is of seniority
between the direct recruits and the
promotees. The seniority in this case
would, therefore, begin from the date of
their regular appointments as discussed
above.
14. As for the anti-dated
promotion is concerned, it is not
approved by any law or rule, however,
the Government is empowered under its
general powers vested under section 22
of the Civil Servants Act to deal with the
case of any civil servant in such manner
as may appear to it to be just and
equitable. As the respondents were
allowed selection grades B-17, they
were given the anti-dated promotion
from the dates of their placement in B-
17 for the purpose of monitory benefits
and perks. It does not partake with the
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anti-dated seniority. The seniority is
reckoned from different set of principles,
while anti-dated promotion is not
governed by any rule of law, except the
general power of Government to meet
the hardship in given cases. The
notifications whereby respondents are
allowed the anti-dated promotion,
therefore, do not bestow upon them
the right of seniority from the dates
they are given the anti-dated
promotion. In the case reported as
Nazar Ahmed Khan v. Syed Sabir
Hussain Naqvi and 3 others, [2000 SCR
580], this Court has held that it is within
the discretion of the competent
authority to award a proforma-
promotion to any civil servant provided,
it is just and equitable and does not
adversely affect the rights of any civil
servant. The above case is also reported
as Nazar Ahmed Khan, Circle Registrar
Co-operative Department of Azad Govt.
of the State of Jammu and Kashmir
Muzaffarabad and others v. Syed Sabir
Hussain Naqvi, Circle Registrar, Co-
operative Department of Azad Govt. of
the State of Jammu and Kashmir,
presently acting as Deputy Registrar,
Co-operatives, Muzaffarabad & 3 others
in [2001 PSC 187]. In the case of
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Government of N.W.F.P. through Chief
Secretary and another v. Muhammad
Ajmal and 2 others [1986 SCMR 2007],
the anti-dated promotion ordered by the
Government was set-aside by the
Service Tribunal, and the order passed
was upheld by the Supreme Court
holding that no rule or regulation was
produced by the Government either
before the Tribunal or before this Court
authorizing it to order promotion with
retrospective effect. In the case titled
Sh. Manzoor Ahmed v. Azad
Government & another [1994 SCR 297],
where the question of seniority was
involved, it was held that:-
‘ The residuary powers under
section 22 of the Civil Servants Act
cannot be said to have been
exercised “justly and equitably” if
the same have been exercised in a
way which is detrimental to the
interests of another civil servant---
The residuary powers under section
22 of the Civil Servants Act are to
be sparingly exercised to advance
the course of justice and equality
and not to give an undue
advantage to a civil servant in
contravention of relevant law on
the subject.’
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It is further held in the above case
that:-
‘Even if a person duly qualified the
Public Service Commission, but is
given anti-dated seniority over the
other civil servants, it will be ultra-
vires of this section.’
This view was reiterated and reaffirmed
in another case titled Muhammad
Arshad Khan Tehsildar District Bagh and
others v. Azad Government of the State
of J&K through its Chief Secretary
Muzaffarabad and others [PLJ 2000 SC
(AJK) 88].
15. The learned Advocates for the
respondents had relied upon the case
reported as Muhammad Ilyas Khan and
5 others v. Sardar Muhammad Hafeez
Khan and 4 others [2001 SCR 179] in
support of their contention that anti-
dated promotion in the case was
accepted for the purpose of seniority.
We have gone through the report of the
case and are sorry to agree with the
learned Advocates. In this case the
retrospective promotion of respondents
from 1987 was not challenged in view of
which it was observed by this Court
that “Seniority of a civil servant would
be reckoned from the date of his
regular promotion, irrespective of facts
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as to whether the retrospective effect
to his promotion from 1987 was legal or
not because it was not challenged.” It
was further observed that even a void
order adversely affecting the interest of
a person should be challenged within a
reasonable time. The anti-dated
promotion/seniority in the referred case
was not accepted as a rule, but failure
of affectee in not challenging the order
hit his indolence.
In view of above, accepting the
appeal, the judgment of Service
Tribunal is vacated to the extent of the
direction that “the Department must
settle issue of seniority amongst the
appellant and respondents”. The
appellant having been selected earlier in
grade B-17 to the regular cadre of
Subject Specialist ranks senior to the
respondents, who were selected later,
irrespective of their anti-dated
promotion, which is for the purpose of
pay etc, not for seniority.”
In this judgment, the previous judgments on
the subject i.e Nazar Ahmed Khan vs. Syed Sabir
Hussain Naqvi and 3 others, [2000 SCR 580], Nazar
Ahmed Khan, Circle Registrar Co-operative
Department of Azad Govt. of the State of Jammu and
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Kashmir Muzaffarabad and others v. Syed Sabir
Hussain Naqvi, Circle Registrar, Co-operative
Department of Azad Govt. of the State of Jammu and
Kashmir, presently acting as Deputy Registrar, Co-
operatives, Muzaffarabad & 3 others [2001 PSC 187],
Government of N.W.F.P through Chief Secretary and
another vs. Muhammad Ajmal and 2 others, [1986
SCMR 2007], Sh. Manzoor Ahmed vs. Azad Govt. &
another, [1994 SCR 297], Muhammad Arshad Khan
Tehsildar District Bagh & others vs. Azad Govt. of the
State of J&K through its Chief Secretary & others, [PLJ
2000 SC (AJ&K) 88], Muhammad Ilyas Khan & 5 others
v. Sardar Muhammad Hafeez Khan and 4 others, [2001
SCR 179], have been discussed and relied upon,
therefore, these reports need not to be separately
discussed.
20. The apex Court of Pakistan also while
attending the question of seniority with reference to
anti-dated appointment has held that seniority of civil
servant will be determined from the date of actual
appointment. This principle of law has been enunciated
in the case reported as Muhammad Hayat & others v
Jan Muhammad , [1988 SCMR 971]. The apex Court of
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Pakistan in a recent judgment reported as SQN. LDR.
Farooq Janjua vs. Secretary M/O Defence and others,
[2004 PLC (C.S.) 612] while dealing with the question
of anti-dated promotion has observed as follows:-
“10. We having heard the appellant in
person at length have thoroughly
considered the point raised by him insupport of the appeal. We find that
appellant voluntarily accepted the offer
of appointment on contract and
subsequently on representation he was
absorbed on permanent basis,
therefore, the period of his contractdespite having been treated as part of
his regular service, he would not be
entitled to be given seniority over the
employees who were appointed on
permanent basis during the period when
he was on contract. The regular
appointment from retrospective date
with the grant of pay and allowances to
the appellant would not make him
senior to his colleagues who joined
service on permanent basis before he
joined. We have not been able to find
out any illegality in the judgment of the
Tribunal and further no question of
public importance is involved in the
present case for interference of this
Court.”
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21. In the light of hereinabove discussed
statutory provisions and legal precedents, it becomes
clear that the anti-dated/proforma appointments are
not regular appointments rather these fall within the
domain of residuary powers of the Government,
derived under section 22 of the Civil Servants Act for
just and equitable purpose. According to law of the
land, such appointments normally are made for
redressal of any injustice caused to a civil servant to
the extent of his monitory benefits etc. but seniority
cannot be determined from the dates of such
retrospective appointments rather the seniority has to
be determined from the date of regular appointment.
22. As we have already observed that there may
be some exceptional cases or eventualities in which for
redressal of grievance of an individual civil servant and
protection of his accrued rights, the issue of seniority
should also be considered. In such like cases, in
absence of any prescribed mode, we can only suggest
that if in the light of the established facts, vacancy of
the respective quota of the concerned civil servant was
available; he was fulfilling all the legal requirements
for promotion or holding the post but has been
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deprived of without any fault on his part due to any
mismanagement of the concerned official or by any
other reason and his junior has got preference over
him; to meet such eventualities, either there should be
prescribed statutory mode or there must be some
statutory guidelines. However, till that according to
peculiar facts of each case, if for determination of
seniority, exercise of powers by the Government under
section 22 of the Act is also necessary for just and
equitable purpose, in such case, the Government
should with reasoning determine this issue after
hearing the other concerned civil servants whose rights
of seniority are apprehended to be adversely effected.
If for just and equitable purpose, effect of seniority is
also demanded, it should be given through an express
order and not impliedly or by implication.
23. Now we advert to the titled cases separately.
First of all we observe here that in appeal N0. 44/2010,
in the light of hereinabove discussed detailed reasons,
the judgment of Service Tribunal is quite consistent
with the principle of justice, hence, the appeal has no
substance, thus, the same stands dismissed.
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24. As for the matter raised in review petition
No. 4/2009 is concerned, we have hereinabove
observed that confirmation of proforma or anti-dated
promotion falls within the domain of Government under
the residuary provisions of section 22 of the Act. In the
impugned judgment, it appears that the appointment
order of respondent to the extent of retrospective
promotion has also been recalled. The argument of
learned counsel for the petitioner to this extent appears
to have substance. The Government may confer the
anti-dated or proforma-promotion to a civil servant for
the monitory purpose, therefore, to this extent, review
petition is accepted with the observation that the
promotion order of the petitioner to the extent of
retrospective effect is restored with the condition that it
will be only to the extent of monitory benefits but for
the purpose of seniority the date shall be the date of
regular appointment, therefore, with this modification,
review petition stands disposed off.
Muzaffarabad. JUDGE CHIEF JUSTICE JUDGE