Civil Appeal No. 44 of 2010 and Civil Review of 2004

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.”


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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29

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.”


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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30

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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31

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


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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32

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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33

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….”



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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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35

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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39

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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40

passed by Board of Revenue and

as discussed hereinabove.”


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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41

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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44

[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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45

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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46

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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47

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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49

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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50

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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52

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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53

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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54

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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55

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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56

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

Documents

Civil Appeal No. 44 of 2010 and Civil Review of 2004