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Civil Misc. No. 92 of 1971

HAQ NAWAZ KHAN, GUARD, P. W. R., KHANEWAL AND 14

OTHERS‑Petitioners

versus

THE VICE‑CHAIRMAN, P. W. RAILWAY LAHORE AND 2

OTHERS‑Respondents

Civil Misc. No. 102 of 1971

LATIFUR RAHMAN AND 82 OTHERS‑Petitioners

versus

GENERAL MANAGER (Now VICE‑CHAIRMAN), P. W. RAILWAY, LAHORE AND 27 OTHERS--Respondents

Civil Misc. No. 103 of 1971

GENERAL MANAGER (NOW VICE‑CHAIRMAN), P. W. RAILWAY, LAHORE AND OTHERS---Petitioners

versus

KHUSHI MUHAMMAD AND OTHERS‑Respondents

Criminal Miscellaneous No. 39 and Civil Miscellaneous Nos. 92, 102 and 103 of 1971, in Civil Appeal No. 28 of 1968, decided on 18th October 1971.

Constitution of Pakistan (1962),

Art. 123‑Contempt of superior Court ‑ Government servant ‑ Seniority‑Supreme Court in an appeal before it laying down general principles with regard to fixation of seniority in grade of Railway employees in a particular Department ‑ Contempt proceedings initiated against Railway administration on ground that order of Supreme Court was not being made applicable to all incumbents but was being confined by Railway authorities to parties who were appellants before Supreme Court‑Railway administration in reply showing that in deference to order of Supreme Court directions were issued for recasting and revision of seniority list of all incumbents and allowing objectors to file objec tions‑Contempt petitions, in circumstance, held, rendered completely infructuous.

Cr. Misc. No. 39 of 1971

M. Nawaz Khan Toor, Advocate Supreme Court instructed by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Mian Fazl‑i‑Mahmood, Advocate supreme Court instructed by Rana Maqbool Ahmad, Advocate‑on‑Record for Respondents.

Civil Misc. No. 92 of 1971

M. Pervaiz Akhtar, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi, Advocate‑on‑Record for Petitioners.

Fazl‑i‑Mahmood, Advocate Supreme Court instructed by Rana Maqbool Ahmad, Advocate‑on‑Record for Respondents Nos. 1 and 2.

M. Nawaz Khan Toor, Advocate Supreme Court instructed by Abdul Karim, Advocat-on‑Record for Respondent No. 3.

Civil Misc. No. 102 of 1971

S. M. Zafar, Senior Advocate Supreme Court instructed by Yaqub Hussain Zaidi, Advocate‑on‑Record for Petitioner.

Mian Fazl‑i‑Mahmood, Advocate Supreme Court instructed 'by Rana Maqbool Ahmad, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Nemo fouRespondents Nos. 3 to 28.

Civil Misc. No. 103 of 1971

Mian‑Fazl‑I-Mahmood, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on-Record for Petitioners.

Nemo for Respondents.

Date of hearing : 18th October 1971.

JUDGMENT

SAJJAD AHMAD, J.‑

This order will dispose of Criminal Miscellaneous No. 39fof 1971 and Civil Miscellaneous Nos. 92, 102 and 103 of 1971, which are inter‑connected, arising out of a judgment of this Court made in Civil. Appeal No. 28 of 1968 on the 13th of February 1970, followed by another order dated the 8th of July 1971, made in clarification of that judgment. By the main judgment in the civil appeal aforeside, relief to the 4 appellants before the Court, namely, Khushi Muhammad, Tufail Muhammad Khan, Muhammad Saeed and Rashid Ahmad Rashid, was granted in the following terms

"In view of what has been stated above, we accept this appeal, set aside the orders of the High Court and issue a writ as prayed for by the appellants, directing that their seniority in the grade qua the respondents (Nos. 3 to 28) should be fixed according to their respective dates of entry into the grade."

Thereafter, Khushi Muhammad, one of the appellants in that appeal, filed a Civil Miscellaneous Application for clarification of that judgment an the ground that the Railway administration was silt implementing the judgment of this Court to fix his seniority. in the relevant grade on an overall‑basis embracing‑all the incumbents of that grade. It was submitted that the Department was confining the operation of the judgment only to the case of the appellants, and respondents, who were parties to the appeal before this Court. Tufail Muhammad Khan, another appellant, moved a contempt application Criminal Miscellaneous No. 39 of 1971, already mentioned above, on the ground that the direction of this Court was not being made applicable to all the incumbents in the grade, and was being confined to the parties to the proceedings, By an order dated the 8th of July 1971, the application of Khushi Muhammad was dismissed with the observation that "Technically the Railway administration may be correct in its view that the judgment directly affects only respondents Nos. 3 to 28, who were impleaded as respondents in the proceeding, and not the others. However, since a general principle with regard to the fixation of seniority in the grade has been fixed by this Court, it was the Department's constitutional duty to accept that principle and to give effect to it". It was pointed out that "resort to technicalities in such matters means further litigation, and does not conduce to harmonious relationship between the administration and its employees an objective for which both must conscientiously strive." The contempt application of Tufail Muhammad Khan was adjourned on that date to enable him to give further particulars to substantiate his allegation that persons from amongst the respondents to the proceedings had been made senior to him in violation of the directions made by this Court. An application has been submitted by the Railway administration (No. 103 of 1971), through its learned counsel, Mian Fazal‑i -Mahmood, in which it is submitted that consequent upon receipt of the order of this Hon'ble Court dated the 8th of July 1971, the Railway Board, on the 17th of August 1971, in supersession of all previous orders on the subject, had forwarded a copy of the aforesaid order of the Court to the Railway administration for immediate compliance. A further direction was issued that the impugned seniority list should be re‑cast and a revised seniority list of all the incumbents in the relevant grade of guards be issued strictly in accordance with the judgment of this Court." It is submitted that in re‑casting the seniority list, the Railway administration has strictly adhered to the principle laid down by this Court to fix the seniority of the Railway guards from their respective dates of entry into the grade. However, the persons concerned were allowed 60 days' period for filing objections, if any, to the correctness or otherwise of the proposed revised list. The attitude of the Railway administration, as described in this application, completely absolves it from any intention not to follow the directions of this Court. On the contrary, the Railway administration has issued directions for the preparation of the new seniority lists strictly in accordance with the orders of this Court, allowing time to the objectors to file their objections, if any to that list, within 60 days. The contempt application, in the circumstances, is rendered completely infructuous, and must be dismissed.

It is, however, pointed out in the application submitted by the Railway administration (No. 103 of 1971) that in giving effect to the judgment of this Court dated the 13th of February 1970, and the subsequent clarification order dated the 8th of July1971, certain practical difficulties arc being encountered by the Railway administration, and that intricate legal questions have arisen for determining the seniority of the persons concerned, which were not directly in issue before this Court and were not agitated by either party during the hearing of the .appeal. It is pointed out that the promotee guards are appointed to the grade after they have qualified and passed the prescribed course T‑10 at the Walton Training School, Lahore. Similarly, the directly recruited guards are also appointed to the grade after they have qualified by passing the prescribed T‑3 Course at the same School, as laid down by subsidiary rule 1 (d) of section VI of Advance Chapter No. 1 of Personnel Manual. It is submitted that the seniority of the direct recruits between themselves, and that of the promotee guards in their own category, has always been determined according to the order of merit assigned to them in the qualifying examination, and that strict adherence to the principle of determining seniority according to the respective dates of entry into the grade, when applied to the case of persons within the same category, will have the effect of defeating the aforesaid rule, We feel it necessary to state that the principle, referred to above, was stated generally in our judgment as one of normal application and we did not intend to lay down that it had to be adopted in all cases regardless of special rules that may be found to govern particular cases, as for instance rule 1 (d) of section VI of Advance Chapter No. 1 of Personnel ‑Manual, described above. Our judgment or the clarification order could not have had the effect of doing away with any relevant rule nor do they take away the rights of any person, which, had become vested in him prior to our judgment, if he was not a party to the proceedings before us. Similarly, persons promoted from guards to higher cadres and who are confirmed in their appointments, cannot be decon firmed and demoted for their seniority to be fixed in accordance with the dates of their entry in the cadre of the guards.

Another matter mentioned in the application of the Railway administration as also in the Civil Miscellaneous No. 102/71, is that in pursuance of our clarification order, some of the guards, who were not parties to the appeal before us, are being denied the concession of war service in the determination of their seniority, to which they are entitled under the War Service Rules. If under the rules, the war service of such candidates has to be counted towards their seniority, our judgment does not and could not have taken away that concession from them.

We consider that our present order makes clear the whole position, and that the administration will not feel any difficulty now in implementing our judgment rendered in Civil Appeal No. 28 of 1970, as also the general and limited scope of the clarification order made as a sequel thereto on the 8th July 1971. We order accordingly.

Order accordingly.

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