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Civil Appeals Nos.7 and 8 of 1983, decided on 30th September, 1985.

(Against the judgment of the Punjab Service Tribunal, Lahore, dated 18‑5‑1982 in Service Appeals Nos. 115 and 116 of 1977).

‑‑‑Art. 212(3)‑‑Punjab Irrigation Engineers Service (Class I) Rules, 1967, r.15‑‑Leave to appeal granted to examine correctness of interpreta tion and application of r. 15 undertaken by Punjab Civil Service Tribunal.

‑‑‑‑R. 15‑‑Notifications, dated 27‑7‑1971 and 3‑5‑1972‑‑Upgradation of all graduate Engineers to Class I, held, would not have effect of making all graduate Engineers members of Class I Services‑‑Once a service was constituted by integration and encadrement, rights of those within service begin to take shape as against persons who were not within service‑‑Rights of members of a service inter se also assumed a definite character by act of Government in constituting service.

Saleem Akhtar Bhalli v. Secretary to Government of the Punjab, Communication and Works Department, Lahore 1985 S C M R 950 and Pakistan v. Hassumani P L D 1962 S C 409 ref.

‑‑‑R.15‑‑Integration circular, dated 25‑11‑1955‑‑Principles contained in circular, held, were intra vires, efficacious and not violative of any of vested rights of civil servants‑‑Rules of 1967 cater for prospective recruitment and cover in retrospect all vacancies even those of pre -integration period contained or existing on 14‑10‑1955 which distinguished Rules 1967 and explained compartmentalization of specified periods for purpose of recruitment.

Government of West Pakistan v. M. Akhtar Qureshi P L D 196 S C 428 quoted.

‑‑‑Rr.15, 11, 9, 8, 7, 6 & 3(2)‑‑Interpretation, application, scope and object of Rules.‑‑[Interpretation of statutes].

The definition of Temporary Engineers and Class II Officers makes it clear that there were "posts in the department corresponding to the cadre posts" and posts equivalent to Class II posts. On the encadred posts only the regular members of the service Class II or Class I could be appointed. On the posts equivalent to Class II posts Class II Officers could be appointed. On the corresponding posts the Temporary Engineers could be appointed. The posts corresponding to the cadre posts outside the cadre could be of the same description as is mentioned in rule 3(2) of the Rules of 1967. Rules 7, 8 and 9 make specific provision of filling up of vacancies "by absorption of Class II Officers and Temporary Engineers holding corresponding posts in the department which was to continue till the examination of suitability of all in that category was completed after which the vacancies were required to be filled in by going down to regional sub‑cadres rule 9(b). Rule 15(2) visualizes the induction into Class I service of officers at a level higher than that of junior Class I, and that is what is bound to happen if an exercise in retrospect is undertaken of filling up the vacancies continued from 14‑10‑1955. To insist that all recruitments including absorptions under rules 7, 8 and 9 should commence at junior Class I level and all appointments to the post of Executive Engineer and above should be necessarily channellized under rule 11 with all the explanations to rule 15 controlling such promotions, amounts to cutting across the scheme of Rules of 1967 established by rules 7 , 8 and 9 read with rule 15. It is a tailored interpretation of rules which may suit a particular section but does not follow from the express words, is certainly not the best, and would heighten the anomalies which were sought to be reduced if not altogether eliminated. The department owes an abiding duty to classify the vacant posts as required under rule 6 and to fill them up in accordance with rules 7, 8 and 9. However, arduous or thankless the job it is a statutory duty which has to be undertaken in earnest and to be completed expeditiously, if that word has a meaning left after nineteen years have gone by. In the case of absorption at the level of Executive Engineer there is no question of Explanations coming into play as between Class II Officers and Temporary Engineers forming one group and the direct recruits of junior Class I forming the other group.

The channel of induction into Class I service for those of the first group at the level of Executive Engineer is through Public Service Commission for the second it is a case of promotion under without such consultation. There is no matching, no competition the two groups in entry/absorption. For matching seniority in the grade of Executive Engineer the latter has to be taken as initial the former category as recruited otherwise.

‑‑‑Notification, held, would not acquire legal efficacy only because it was not challenged by those affected by it.

Saleem Akhtar Bhalli v. Secretary to Government of the Punjab, Communication and Works Department, Lahore 1985 S C M R 950 ref.

‑‑‑Art. 212(3)‑‑Jurisdiction of Supreme Court extends to examination of a question of law of public importance‑‑Decision on a question of law, held, would not follow, nor was it controlled by pleadings or representations of parties or their conduct in litigation though these may be of greatest assistance in rendering a decision in affording relief, in dispensing complete and substantial justice.

S.M. Zafar, Senior Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑on‑Record for Appellants.

M. Nawaz Abbasi, A.A. ‑G., Punjab and Rao M. Yousaf Advocate- on‑Record for Respondent No. 1.

Wasim Sajjad, Advocate Supreme Court and S. Wajid Hussain, Advocate‑on‑Record (absent) for Respondents Nos. 2 to 6, 8, 9, 13 to 18, 20, 21, 25, 26, 28, 36 and 37.

Dates of hearing: 25th, 26 and 29th June, 1985.

Leave to appeal was granted in the two appeals under Article 212(3) of the Constitution filed by the same two appellants to examine the correctness of the interpretation and application of rule 15 of Irrigation Engineers Services (Class I) Rules, 1967 (hereinafter referred to as the Rules of 1967) undertaken by the: Punjab Service Tribunal by its consolidated judgment, dated 18‑5‑1982 while disposing of two service appeals.

Both the appellants before us were recruited as Temporary Engineers in 1950 in the Irrigation, Department of the Government of Punjab. They were inducted into Class II from 1959 and got promotion as officiating Executive Engineers in 1959 and 1962. The two contestinh respondents were directly recruited into Class I Junior service in 196r in the same department. They were appointed officiating Executive Engineers in 1972. On 31st December, 1971 was notified a list of seniority as on 1‑11‑1971. The two contesting respondents were shown in the list of Assistant Executive Engineers at serial Nos. 50 and 52. The two appellants being outside the cadre did not figure anywhere in the gradation list. On 14‑10‑1972 a seniority list of officiating Executive Engineers was issued in which the two contesting respondents were shown at serial Nos. 163 and 164. The two appellants were shown much above them. In the next seniority list as it stood on 14‑10‑1975 the two contesting respondents fared no better. Hence by two separate appeals they challenged these seniority lists. Their case before the Tribunal was that by an exceptional dispensation all Graduate Engineers in the Irrigation Department were made Class I and as this happened by a circular, dated 22‑7‑1971 they all had to be first placed on junior Class I seniority list and then taken over to the officiating Executive Engineers Grade. On their insistence and to their satisfaction a list of junior Class I officers i.e. Assistant Executive Engineers was prepared in which their entry was shown in 1968 and of all others in competition at a later date. However, this seniority was not carried forward to the grade of officiating Executive Engineer though according to them Explanations added to rule 15 clearly supported the claim made by the two respondents. Ehsanullah Sardar respondent No. 2 (Civil Appeal) of 1983) filed a service appeal (115 of 1977) in the Tribunal. So, dill (No. 116 of 1977) Tahir Ahmed Malik respondent No. 2 (Civil Appeal No. 8 of 1983).

The legal questions that arose before the Tribunal were the following

(i) Whether the up-gradation of all Graduate Engineers to Class I ipso facto and forthwith resulted in their encadrization in Punjab Irrigation Engineer Service (Class I).

(ii) If so, whether on such encadrisation they had to be first inducted into junior Class I irrespective of the post held or grade enjoyed by them.

(iii) Whether the rule governing promotion (rule 15(2)), as distinguished from absorption was to determine their seniority in the grades superior to that of junior Class I.

On the first question the Tribunal recorded the following finding:

"We are also not impressed by the contention of the learned counsel of respondents that up-gradation of status of the contesting respondents to Class I (Jr.), w.e.f. 22‑7‑1971 does not amount to their regular promotion to Class I (Jr.). We do not see any difference between raising of status to Class I (Jr.) and promotion to that Class."

On the second question the Tribunal approved the earlier decision of Tribunal established under West Pakistan Civil Services (Appellate Tribunal) Ordinance, 1969 (W.P. Ord. XXVIII) of 1969 by quoting its judgment in the following terms:

"Thus, those from amongst the parties who were Graduate Engineers were raised in status to Class I (Jr.) by upgrading of the post, their inter se seniority which they enjoyed in the earlier rank of Assistant Engineer, they will maintain their seniority in Class I (Jr.) in accordance with their seniority as Assistant Engineers."

On the third point the Tribunal held as follows:‑

In the present case the appellants as well as the respondents both are promotees i.e. 'appointed otherwise' as Officiating Executive Engineers, therefore, by no means sub‑‑rule (4) is applicable to the facts of the present case. This point was further conceded by the learned D.A. who submitted that the application of rule 4 was uncalled for as respondents are well as the appellants were all promotees to the post of Officiating Executive Engineers and respondents were never recruited directly to the above posts. We have quoted rules 15(2) above and while analysing the same have come to a conclusion that the principle laid down therein fully applies to all the appellants and the contesting respondents. We are further fortified in our above view by the aforementioned judgment, dated 1‑6‑1973 in which this issue was before the learned Tribunal and the same was settled by the Tribunal in unequivocal terms following rule 15(2)."

After these two appeals were filed a number of events have taken place affecting the constitution of these appeals. The first is, that Muhammad Iqbal, the first appellant in both the appeals retired from service on 1‑6‑1985 and is no longer in the field to pursue his appeals and his name is, therefore, struck off. Respondents Nos. 10 and 12 have left service and are not interested in pursuing the matter.

Respondent No.22 has died. The other respondents, barring the Government of Punjab itself and the contesting respondents, in each appeal, have sought permission to be transposed as appellants. We permitted it and the appeal so reconstituted was heard and has come up for disposal.

As regards the up-gradation of Graduate Engineers the first notification appeared on 27th July, 1971 in following terms:‑

"The Governor of the Punjab is pleased to grant with immediate effect Class I status to the Graduate Engineers serving in the Irrigation, Buildings, Highways and Public Health Engineering Departments who are initially appointed as Assistant Engineers or Assistant Design Officers."

It was followed on 3rd of May, 1972 with the following Notification

"In continuation of its orders as contained in Notification of even number, dated the 22nd July, 1971, the Governor of the Punjab is further pleased to order that the Temporary Engineers who are graduates and are serving in the Irrigation, Buildings, Highways and Public Health Engineering Departments, on induction in P.S.E.‑II with recommendations of Public Service Commission, against substantive /temporary vacancies, as required under the provision of the respective Service Rules, shall also be entitled 'to Class I status, w.e.f. the 22nd July, 1971."

These notifications making all Graduate Engineers Class I do not accomplish by their own force encadrization of all Graduate Engineers in Class I Irrigation Engineers Service established by 1967 Rules. This is further borne out from the notification, dated 3rd of May, 1972 reproduced above wherein induction of temporary Graduate Engineers into P.S.E. II on recommendation of Public Service Commission is visualized. This notification makes the finding of the Tribunal palpably untenable because if by such up-gradation of status they became members of Class I service what occasion was left for their induction into Class II service and that too after consulting the Public Service Commission.

This question also came up before this Court in the case of Saleem Akhtar Bhalli v. Secretary to Government of the Punjab Communication and Works Department, Lahore 1985 S C M R 950 and the following findings are relevant in the context.

"The up-gradation of all Graduate Engineers to Class I did not' have the effect of making all Graduate Engineers members of Class I service. This Court had held in Pakistan v. Hassumani P L D 1962 S C 409 that;

'Once a service is constituted by integration and encadrement, the rights of those within the service begin to take shape as against persons who are not within the service, and the rights of the members of a service inter se also assume a definite character by the act of the Government in constituting the service'."

The Rules of 1967 took over from the integration circular of 25‑11‑1955, as the very opening words of the integration circular provided "The principles laid down in the order below should be kept in view while deciding individual personnel cases, and also for the purpose of framing detailed classification and Recruitment Rules for these services. In the case Government of West Pakistan v. M. Akhtar Qureshi PLD 1962 S C 428 this Court held that principles contained in the circular were intra vires, efficacious and not violative of any of the vested rights of the Civil servants. It is for this reason that Rules of 1967 cater for prospective recruitment and cover in retrospect all the vacancies even those of pre‑integration period continued or existing on 14‑10‑1955. It is this fact which distinguishes the Rules of 1967 and explains the compartmentalization of specified periods for the purposes of recruitment.

The definition of Temporary Engineers and Class II Officers makes it clear that there were "posts in the department corresponding to the cadre posts" and posts equivalent to Class II posts. On the encadred posts only the regular members of the service Class II or Class I could be appointed. On the posts equivalent to Class II posts Class II Officers could be appointed. On the corresponding posts the Temporary Engineers could be appointed. The posts corresponding to the cadre post outside the cadre could be of the same description as is mentioned in rule 3(2) of the Rules of 1967. Rules, 7, 8 and 9 make specific provision of filling up of vacancies "by absorption of Class II Officers and Temporary Engineers holding corresponding posts in the department, which was to continue till the examination of suitability of all in that category was not completed after which the vacancies were required to be filled in by going down to regional sub‑cadres (rule 9(b)). Rule 15(2) visualizes the induction into Class I service of officers at a level higher than that of junior Class I, and that is what is bound to happen if an exercise in retrospect is undertaken of filling up the vacancies continued from 14‑10‑1955.

To insist that all recruitments including absorptions under rules 7, 8 and 9 should commence at junior Class I level and all appointments to the post of Executive Engineer and above should be necessarily channellized under rule 11 with all the explanations to rule 15 controlling such promotions, amounts to cutting across the scheme of Rule of 1967 established by rules 7, 8 and 9 read with rule 15. It is a tailored interpretation of rules which may suit a particular section but does not follow from the express words, is certainly not the best, and would heighten the anomalies which were sought to be reduced if not altogether eliminated. The department owes an abiding duty to classify the vacant posts as required under rule 6 and to fill them up in accordance with rules 7, 8 and 9. Howsoever arduous or thankless the job it is a statutory duty which has to be undertaken in earnest and to be completed expeditiously, if that word has a meaning left after nineteen years have gone by. In the case of absorption at the level of Executive Engineer there is no question of Explanations coming into play as between class II Officers and Temporary Engineers forming one group and the direct recruits of junior Class I forming the other group.

The channel of induction into Class I service for those of the first group at the level of Executive Engineer is through Public Service Commission for the second it is a case of promotion under rule 11 without such consultation. There is no matching, no competition between the two groups in entry /absorption. For matching seniority in the grade of Executive Engineer the latter has to be taken as initial recruit and) the former category as recruited otherwise.

There are certain peripheral matters to be attended. One such is the contention that certain list of seniority were not challenged at all e.g. of 1982 or were not challenged in the form and manner in which it was done during he argument and certain concessions and admissions had been made. The other is that certain controversies relating to the same matter had been decided and the parties got reconciled to them and whether it will be proper to ignore these facts. In Bhalli's case one aspect of this argument was dealt with by observing as follows:

"We do not think that this notification can acquire legal efficacy only because it was not challenged by those affected by it".

The jurisdiction conferred on this Court under Article 212(3) of the Constitution extends to examination of a question of law of public importance. Such a question did indeed arise in these appeals with regard to the true construction of Rules of 1967. Decision on a question of law does not follow, nor is it controlled by the pleadings or representations of the parties or their conduct in litigation though these may be of greatest assistance in rendering a decision, in affording relief, in dispensing complete and substantial justice.

As a result of the discussion above we accept both the appeals set aside the judgment of the Service Tribunal in so far as on its interpretation of the Rules of 1967 it resettled the seniority of the two respondents vis‑a‑vis the appellants. Otherwise too the seniority lists are held not to have been drawn up in accordance with the Rules of 1967 as interpreted by us. They will have to be redrawn in accordance with the law. No order as to costs.

M . B . A . Appeals accepted.

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