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Civil Appeals Nos. 77 and 78 of 1982, decided on 30th September,

1985.

(On appeal from the judgment and order of the Punjab Service Tribunal Lahore, dated 29‑11‑1981 passed in Cases Nos. 15/6 and 6/7 of 1973).

‑‑‑Ss. 8(3) & 10‑‑Section 8(3) controls S. 10 of Act‑‑Section 8(3) being a special provision with regard to civil servants and terms and conditions of the employment remain unaffected by general provisions of S.10 providing for continuance of existing laws till amended.

‑‑‑S. 8(3)‑‑No vested right was available either in the prospect of promotion or rule governing promotion‑‑Rules of promotion, in the absence of statute, were liable to change and officer awaiting promotion could make to grievance of that.

Government of West Pakistan v. Fida Muhammad Khan P L D 1960 S C 45; Government of West Pakistan v. Fatehullah Khan P L D 1960 S C 105; Province of West Pakistan v. M. Akhtar Qureshi P L D 1962 S C 428; Manzur Ahmad and others v. Ch. Muhammad Ishaq PLD 1964 S C 17 and C.B.R. v. Mr. Asad Ahmad Khan P L D 1960 S C 81 mentioned.

‑‑‑Art. 212‑‑Supreme Court on question of fact, held, would be guided by finding of Tribunal rather than representation of parties.

‑‑‑Ss. 8 & 10‑‑‑Integration circular, dated 25‑11‑1955, para. 12‑‑None of appellants were Executive Engineer on 13‑10‑1955‑‑Para. 12 of Integration circular, dated 25‑‑11 1955, held, was of no avail to such persons.

‑‑‑Seniority‑‑Seniority lists were liable to change from time to time on account of new inductions into services and various grades thereof‑‑No finality was attached to seniority lists‑‑Such lists, however, to conform to rules for time being applicable to its preparation, maintenance and revision‑‑Seniority list of one year, therefore, would not of its own force be decisive of correctness and validity of subsequent lists.

‑‑‑Rr. 4(a), 7, 8, 9 & 15‑‑When a temporary Executive Engineer was absorbed against cadre post of Executive Engineer, he would not on such entry be junior to an Assistant Executive Engineer already in service‑‑Rule 15 would take over for determining seniority on such induction.

Muhammad Iqbal and another v. Secretary to Government of Punjab and 37 others 1986 S C M R 1 ref.

D.M. Awan, Senior Advocate Supreme Court, Ehsan Ullah Lille, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record (absent) for Appellant (in Civil Appeal 77 of 1982).

Shahzad Jahanagir Advocate Supreme Court with Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents Nos. 22, 24 and 25.

Muhammad Aslam, Advocate‑on‑Record for Respondent Nos. 17 32 and 33. '

M. Nawaz Abbasi, Asstt. A.‑G. Punjab with Rao Muhammad Yousaf, Advocate‑on‑Record for the State.

Other Respondents: Ex parte.

D.M. Awan, Senior Advocate Supreme Court and Inayat Hussain, Advocate‑on‑Record (absent) for Appellant (in Civil Appeal 78 of 1982).

Respondents Nos. 1 to 21, 23, 24, 26 to 39: Ex parte.

Mehdi Khan Mehtab,. Advocate‑on‑Record (absent) for Respondents Nos. 22 and 25.

Muhammad Aslam, Advocate‑on‑Record with Shahzad Jahangir, Advocate Supreme Court for Respondents Nos. 17, 32 and 33.

M. Nawaz Abbasi, A.A.‑G. Pb. with Rao Muhammad Yousaf Khan, Advocate‑on‑Record for the State.

Dates of hearing: 22nd, 23rd, 24th, 25th, 26th and 29th June, 1985.

‑Leave to appeal was granted to the three pre‑integration officers of Bahawalpur State Service of Engineers under Article 212(3) of the Constitution to examine the following questions of law:‑

(1) Whether the Punjab Service of Engineers Class : (P.W.D.) Irrigation Branch Rules, 1941 and the Bahawalpur State Service of Engineers Rules, 1934 remained in force in view of the provisions of section 10 of the Establishment of the West Pakistan Act, 1955, in the matter of the terms and conditions of the parties, even after the issuance of Integration Circular, dated 25‑11‑1955, which do not appear to have the effect of modifying on repealing even by implication, any of the Statutory Rules, referred to above

(2) Whether the benefit of section 8(3) of the Establishment of West Pakistan Act, 1955, which provided that the terms and conditions of all persons serving in connection with the affairs of the integrating territories shall not be less favourable than the terms and conditions enjoyed by the petitioners in the aforesaid three petitions, as their promotion order to the rank of Officiating Executive Engineers had been passed by the competent authority against clear cadre substantive vacancies were on 13‑10‑1955 i.e. before the commencing day

(3) Whether any alteration could subsequently be made in the integrated seniority list, dated 3‑6‑1957 of the Officers Group Sub‑Cadre 'C' allegedly prepared, issued, circulated and acted upon in accordance with the formula embodied in the Integration Circular, dated 25‑11‑1955 and the Statutory Rules applicable to the respective parties

(4) Whether the persons who became members of Class I Service under rule 4(a) of the West Pakistan Irrigation Engineers Service (Class I) Rules, 1967, prior to the promulgation of the said rules were to remain senior to the persons absorbed in the service as per the provisions of Rules 7, 8 and 9 read alongwith Rule 4 and Rule 15(3) of the said Rules.

(5) Whether the judgment of the High Court, dated 13‑11‑1961 in Writ Petition No. 161 of 1958 against which leave was refused by this Court debars the petitioners in petition for leave to Appeal No. 1205/81 (Ch. Nazar Muhammad), from agitating the pleas now being raised by him in the present round of proceedings.

As one of the appellants (Saeed Ahmad Beg) died pending hearing of his appeal (C . A .76 /82) it abated and has been disposed of as such.

Ch. Nazar Muhammad (appellant in C.A. 77/82) was appointed Assistant Engineer in Bahawalpur State on 27‑9‑1949, was confirmed w.e.f 21‑4‑1950 and was governed by Bahawalpur State Service of Engineers Rules, 1934 (hereinafter referred to as Bahawalpur Service Rules). He was promoted Officiating Executive Engineer in Class I, w.e.f. 1‑3‑1955. He received an order of promotion as officiating Executive Engineer on 13‑10‑1955 but could take over charge on an equivalent post of Under Secretary on 19‑10‑1955. He had to be reverted on 5‑11‑‑1955 and was re-promoted and took over on such re-promotion on 14‑5‑1958. He claimed seniority from 13‑10‑1955, and wanted to avoid the period of revertion 6‑11‑1955 to 13‑5‑1958. His constitutional petition (W.P. 161 of 1958) on the subject was dismissed on 13‑11‑1961. He was refused leave to appeal by this Court on 27‑6‑1963.

Rao Riazur Rahman, the appellant (C.A.78/82) joined as Assistant Engineer in Bahawalpur State on 18‑8‑1949 and was confirmed as such on 18‑2‑1950. He officiated as Executive Engineer from 4‑7‑1954 to 31‑11‑1954. He was appointed substantively as Assistant Executive Engineer Class I, w.e.f. 1‑3‑1955. He was promoted as officiating Executive Engineer on 13‑10‑1955 and actually took over charge on the promotion post on 15‑10‑1955. He claimed on the basis of this promotion order, as distinguished from actual date of taking over, to be pre integration Executive Engineer with the benefit of seniority as such.

The claim of Ch. Nazar Muhammad was rejected by the Tribunal observing as follows:‑

"In the case of Ch. Nazar Muhammad, besides merits which are not in his favour, he is estopped to challenge his seniority over the answering respondents because this was sub‑judice before the High Court and the Supreme Court and his Writ Petition and Civil Petition for Special Leave to Appeal were rejected by the High Court and the Supreme Court. This fact he has himself admitted in para. 4 of his appeal wherein it has been made clear by him that his claim of officiating Executive Engineer from 13‑10‑1955 stood repelled by this Court."

As regards the merits of their claim the Tribunal held as follows:‑

(i) On the issuance of the integration circular the Bahawalpur Service Rules and the Punjab Service Rules ceased to be applicable to the parties;

(ii) The two appellants failed to show and establish that there were any available vacancies of Executive Engineer in Ex‑Bahawalpur State before 14‑10‑1955 on which they could be promoted.

On the first conclusion that the pre‑integration Service Rules of Punjab 'and Bahawalpur ceased to have effect the reasoning of the Service Tribunal has proceeded as follows:‑

"In view of the above we are in accord with the learned counsel for the respondents that on the issuance of Integration Circular the Rules of Ex‑Bahawalpur and Ex‑Punjab did not remain applicable to the parties. It will be also useful to attend to the arguments advanced and vehemently contended that Rule 8 of the West Pakistan Establishment Act, 1955, provided a safeguard to the service of the integrating units. Therefore, no interference can be made with their status in relation to that of the respondents. By looking into the arguments and going through the provisions of section 8 of the West Pakistan Establishment Act, 1955, we find that the arguments is not convincing. Firstly, for the reason that this guarantee only existed for whatever status they had prior to integration among themselves which would not be interfered with, and, secondly, this issue came under consideration in Writ Petition No. 161 of 1958 titled "Nazar Muhammad v. Government of West Pakistan" and Special Leave to Appeal before the Supreme Court of Pakistan on the same case and was repelled."

On the second conclusion that there were no vacancies of Executive Engineers on 13‑10‑1955 against which the two appellants could be promoted, the reasoning of the Service Tribunal was as follows:‑

"Before concluding the case of Bahawalpur group it will be useful to mention that M.A. Hamid Rahmani, Rao Riazur Rahman. Mirza Saeed Ahmad Beg and Ch. Nazar Muhammad were holding the post of S.D.0s. on 14‑10‑1955 although Mr. M.A. Hamid Rahmani was inducted in Class I Junior on 1‑3‑1955. Similarly Rao Riazur, Rahman and Mirza Saeed Ahmed Beg were also S.D.Os. on the crucial date 14‑10‑1955 and their taking over as Executive Engineer was subsequent to the said crucial date. These two, appellants failed to show and establish on the record that there were any available vacancies of Executive Engineer in Ex‑Bahawalpur State before the crucial date of 14‑10‑1955."

Section 8 subsection (3) controls section 10 of the Establishment of West Pakistan Act on which the appellants heavily rely for their claim section 8(3) is reproduced hereunder:‑

"8(3) All persons in the service of the Crown, serving in connection with the affairs of the specified territories and all persons holding civil posts under the Government of the State of Bahawalpur, or the State of Khairpur, or the Baluchistan State Union, shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of West Pakistan on such terms and conditions as the Governor of the Province of West Pakistan may determine :‑

(a) such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August, 1955; and

(b) notwithstanding the terms of his appointment in the specified territory, any such person may be required to serve in any post of capacity and in any part of West Pakistan."

Section 8(3) being a special provision with regard to Civil Servants and the terms and conditions of their employment remain unaffected by the general provisions of section (10) providing for continuance of the existing laws till amended.

On the 10th of August, 1955 none of the appellant was an Executive Engineer either by appointment or on taking over. What they want to protect is their position as Assistant Executive Engineer and the prospect of their promotion as Executive Engineer. Section 8(3) has been the subject‑matter of interpretation by this Court in Government of West Pakistan v. Fida Muhammad Khan P L D 1960 S C 45; Government of West Pakistan v. Fatehullah Khan P L D 1960 S C 105; Province of West Pakistan v . M, Akhtar Qureshi P L D 1962 S C 428; Manzur Ahmad and others v. Ch. Muhammad Ishaq P L D 1964 S C 17 and in all of them no vested right was recognized either in the prospect of promotion or the rule governing promotion. Even in the absence of statute rules of promotion were held liable to change and an officer awaiting promotion can make no grievance of it, vide C.B.R. v. Mr. Asad Ahmad Khan P L D 1960 S C 81.

In the case of Akhtar Quraishi referred to above the provisions of Integration Circular, dated 25‑11‑1955 were examined in the context of protection allowed under Establishment of West Pakistan Act. The provisions of the circular were found to be intra vires, efficacious, not violative of any of the terms and conditions guaranteed under the Establishment of West Pakistan Act. This integration circular is generally considered confined to determination of seniority of the officers of the integrating units. There is more in it. It makes provision for constituting Provincial Services (Class‑I and Class‑II) as listed in the Annexure. At serial No. 4 of the Annexure is found the Irrigation Service to which the dispute relates. It lays down principles of direct recruitment, the integration of pre‑unification service cadres, principles of seniority for purposes of integration and of new entrants, and finally the principles of promotion. These principles were prefaced in the following words "The principles laid down in the orders 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 this manner the previous rules of service had to yield.

The question whether there existed in the Bahawalpur State vacancies of Executive Engineers on 12‑10‑1955 against which the appellants could be promoted we have a positive finding of the Service Tribunal that there existed none. The appellants have been controverting, it. We would on a question of fact be guided by the finding of the/" Tribunal rather than the representation of the parties.

We are also clear on the point that para. 12 of the integration circular was not of avail to the appellants for claiming benefit in grade of Executive Engineers. It provides:‑

"All pre‑unification officers who were either permanent or officiating in substantive vacancies in the corresponding Provincial or equivalent State cadres on the 31st October, 1955 will be placed on the group sub‑cadres of the West Pakistan Provincial Services. Other officiating officers and those promoted to a Provincial Service after that date will not be placed in these Group Sub‑cadres and will be brought on to the All‑West Pakistan Cadre of the Service in question."

None of the appellant was an Executive Engineer on 13‑10‑1955 and hence cannot avail of this provision.

Seniority lists are liable to change from time to time on account of new inductions into services and various grades thereof. There is no finality to the list. It has however to conform to the rules for the time being applicable to its preparation, maintenance and revision. The seniority list of 1957 will not of its own force be decisive of the correctness and validity of the subsequent lists.

It appears that the appellants were members of Class I Service of Engineers of Bahawalpur State on 14‑10‑195b and on the strength of rule 4(a) of Irrigation Engineers Service (Class‑I) Rules became members of this Service. Their contention is that anyone entering' the Class‑I Service after them cannot be senior to them. Rules 7, 8 and 9 of 1967 Rules provide for "absorption of Class‑II Officers and Temporary Engineers holding corresponding posts in the Department". Unlike requirement of sub‑rule (5) of rule 10 such absorption of the Class‑II of Temporary Engineer may be at stages higher than lowest of Class‑I (provided for in rule 15(2). In other words if a Temporary Executive Engineer is absorbed against the cadre post of Executive Engineer he will not on such entry be junior to an Assistant Executive Engineer already in service. On such inductions rule 15 takes over for determining seniority. This rule has been considered by us in other connected Appeals (7 and 8 of 1983) Muhammad Iqbal and another v. Secretary to Government of Punjab and 37 others 1986 S C M R 1 decided today.

In the Constitutional Petition earlier filed Nazar Muhammad appellant had failed to avoid his reversion on 5‑11‑1955. Not only that decision, the jurisdiction of the Service Tribunal itself being limited to matters of July, 1969 and after, the question of reversion was clearly barred.

None of the contentions of the appellants has merit. The appeals are dismissed with no order as to costs.

M . B . A . Appeals dismissed.

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