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Case No. 105/41 of 1985.

(a) Punjab Service Tribunals Act (I% of 1974)‑‑

‑‑‑S.4‑‑Punjab Irrigation Engineers Class I Rules, 1967, R.9 (1) (a)‑ Induction of Class I1 Engineers into Class I‑‑Requirements‑‑Only such "Class II Officers" or "temporary Engineers" held, were entitled to be inducted into Class I who were holding posts in department corresponding to "Cadre posts"‑‑Benefit of induction in Class I was only meant for those "Class II Officers" and "temporary Engineers", who were at time of coming into force of 1967 Rules, holding Class I posts in department i.e. officiating Executive Engineers or Assistant Executive Engineers‑ Notification, dated 19‑6‑1984 being in derogation of R.9 (1) (a) of 1967 Rules, would be void ab initio and was correctly withdrawn through subsequent notification, dated 27‑1‑1985‑‑Civil servants who have been given Class I status or inducted into Class I are not entitled to any seniority in Class I unless promoted to Class I‑‑Withdrawal of notification, dated 19‑6‑1984 being justifiable appeal of civil servant would merit dismissal.

(b) Punjab Irrigation Engineers Class I Rules, 1967‑‑-------

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R.

9(1)(b)‑‑Promotion to Class I‑‑Requirement‑‑S.D.Os. of Irrigation Department, held, could only be promoted to Class I under R.9(1)(b) of 1967 Rules however, a promotee in Class II, being a member of Regional Sub‑Cadre, would not be entitle to take benefit under 8.9(1) (b)‑‑In R.9(1)(b) there is positive condition of Engineering Graduates, which a non‑Graduate promotee could not fulfil.

(c) Punjab Irrigation Engineers Class I Rules, 1967‑‑-----

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R.

9(1)(a)‑‑Induction into Class I‑‑Mode of‑‑Under 1967 Rules, S.D.O. of Irrigation Department, held, could only be promoted to Class I in accordance with method prescribed under Rules through Departmental Promotion Committee or Public Service Commission.

Ch. Mushtaq Masood for Appellant.

Masud Ahmad Riaz for Respondents Nos. 20, 45 and 81.

Haroonur Rashid Cheema, District Attorney for the Government.

.---‑‑Muhammad Saghir, Sub‑Divisional Officer/ Assistant Executive Engineer, Irrigation Department, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and Messrs Jaffar Kabeer Ansari and 143 others as respondents.

2. By virtue of this appeal he has prayed that the appeal be accepted and notification, dated 27‑1‑1985, Annexure 'A‑7' be set aside and notification, dated 19‑5‑1984 whereby the appellant has since been placed at serial No.7‑A of the seniority list issued on 18‑8‑1982, be restored.

3. Brief facts of the case are that the appellant having passed two years Diploma Course from the Government School of Engineering, Raul in the year 1955, was initially appointed as Overseer in Quetta Region of former West Pakistan in the year, 1956. The appellant', passed the departmental professional examination on 27‑8‑1966, and thus become eligible for promotion to the rank of Sub‑Divisional Officer. The appellant was, promoted to the rank of Sub‑Divisional Officer firstly on ad hoc basis on the recommendations of the Divisional Recruitment Board Quetta during 1969. The case of the appellant for regular promotion to Class II was submitted to the Public Service Commission in the year 1970. In the meantime the appellant was repatriated to Punjab during December, 1972. The case of the appellant for regular promotion as Sub‑Divisional Officer Class It was approved by the Baluchistan Public Service Commission in the year 1974, and Notification No.S.O. (A) A‑1‑74, for promotion, w.e.f. 9‑9‑1969, was issued on 12‑11‑1974. The appellant aggrieved against the same, filed representation to the Government of Baluchistan and submitted therein that the appellant's promotion was due with effect from the ,date of availability of the posts after the appellant had passed the departmental examination and that factually many vacancies of Sub‑Divisional Officers were available since 1965‑66, and that the appellant was eligible to one such vacancy. The case of the appellant was duly scrutinized by the Baluchistan Government and the Governor of Baluchistan in its capacity being the competent authority and was pleased to allow pro forma promotion as Sub‑Divisional Officer Class II, w.e.f. 27‑8‑1966. Meanwhile the appellant improved his qualifications in the year 1979 and qualified A.M.I.E., which is equivalent qualification to the graduation in Civil Engineering. Resultantly by the Notification NO.EStt.I/PR‑1/82, dated 22‑2‑1983, the appellant was inducted into regular Grade‑17 (Class‑I), w.e.f. 1‑8‑1979. The appellant was granted pro forma promotion , w.e.f. 27‑8‑1966 as Sub‑Divisional Officer (Class‑II) by the Baluchistan Government, after which the appellant submitted a representation to the respondent No.l for grant of Class I Junior. Consequently the Government of the Punjab was pleased to induct the appellant in Class I Junior, w.e.f. 22‑7‑1971, in accordance with the provisions of Rule 9(1)(a) of the Punjab Irrigation Engineers Class‑I Rules, 1967, and placed him at serial No.7‑A of the seniority list issued by the Department, vide its No. Estt‑I/R‑3/82, dated 18‑8‑1982. However, certain members of service Messrs Rao Irshad Ali, Muhammad Azam Sohail, Muhammad Jamil Bhatti, Tariq Jamil Chaudhry, Abdul Hafeez, Bashir Ahmad, Sh. Muhammad Akhtar and Tariq Bashir Dar, made a representations to the respondent No.l and also filed appeals titled Sajjad Naseem etc. v. Secretary Government of the Punjab I&P etc. and Rao Irshad Ali etc. v. Secretary, Government of the Punjab, I&P Department etc. While these appeals were pending before this Tribunal another notification, 'dated 27‑1‑1985 was issued by which the earlier notification was rescinded. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the notification, dated 19‑6‑1984, having since been made effective there remained nothing towards its implementation in the nature of a decisive step. According to the learned counsel for the appellant the principles of locus poenitentiae and animus revertendi were fully applicable to the case of the appellant and the benefits of service having since been given by the competent authority to the appellant could not be taken away by the impugned notification. It was further argued that even for the sake of argument, the respondent had no jurisdiction to rescind the notification and the said jurisdiction could only be exercised by issuing a show‑cause notice to the appellant in whose favour vested rights had since been created by the impact of the notification, dated 19‑6‑1984. In this manner it has been argued that the second notification by which the earlier notification has been rescinded, was an act of mala fide on the part of Secretary, Irrigation and Power, Punjab, Lahore, and the same should be struck down.

6. On the other hand learned District Attorney has refuted the claim of the appellant and has submitted that the appeal would not be maintainable in view of bar of jurisdiction contained in section‑4 of the Punjab Service Tribunals Act, 1974. Learned District Attorney has further submitted that the appellant stood transferred to the Province of Punjab, w.e.f. 1‑7‑1970' and consequently he was a civil servant of Punjab Government and the Baluchistan Government had no jurisdiction to pass any order, particularly notification No. SOAI‑264/83/5481, dated 25‑4‑1984, regarding pro forma promotion to the appellant, was absolutely without jurisdiction. He has vehemently argued that this promotion was not given to the appellant with the approval of the Public Service Commission and for that reason also it was not a regular promotion but was only at the most an ad hoc promotion. He has analysed the term 'induction' by submitting that it does not involve either appointment or promotion. According to him, a member of Class II service could only be promoted to Class I under the Service Rules through regular procedure of promotion or appointment, as the case may be. Therefore, by use of such vague term as 'Inducted' the appellant did not stand promoted to Class I, as regular procedure of promotion and appointment as prescribed under the Rules, was not adopted. He has referred to the representation of the appellant to the Secretary, Irrigation and Power Punjab, Lahore, which was decided as under:‑--

"He is entitled to Class I status, w.e.f. 22‑7‑1971 the date on which all classes were inducted through the General Order."

In this manner it has been argued that the notification, dated 19‑6‑1984, was issued in this context and even by this notification the appellant was not promoted to Class I. This notification itself says that 'he is hereby inducted into Class I, w.e.f. 22‑7‑1971'. It has been pointed out that even at this stage neither the approval of the Departmental Promotion Committee nor of Punjab Public Service Commission was obtained because it was again not a promotion but 'grant of status of Class I under the General orders of the Government regarding Class I status of Graduate Engineers as well as A.M.I. Es. He has forcefully challenged the status of the appellant by submitting that he had failed to fulfil the pre‑requisite condition as laid down by the Government which runs as under:‑--

"They will not, however, become Members of Class I service of the respective Departments unless they acquire the A.M.I.E. qualification. "

According to the learned District Attorney as well as learned counsel for the respondents, the appellant acquired A.M.I.E. qualification on 1‑8‑1979, and was not an A.M.I.E. on 2‑7‑1971, therefore, he was not even entitled to Class I status on 22‑7‑1971, by induction. In this way it has been argued that notification, dated 19‑6‑1984, wets, on the face of it, illegal and erroneous and that is why it was found to

be erronous and withdrawn by Government, vide notification, dated 27‑1‑1985. In the end it was argued that according to law laid down by the Supreme Court in various cases, it is open to the Government to correct such inherent errors and to withdraw illegal orders. It has been argued that there is no other provision of rules by which notice was imperative to be served on the appellant before the said notification was withdrawn

as being erroneous on the very‑face of it.

7. We have given our anxious thought to the arguments advanced by the parties and find that by notification, dated 19‑6‑1984, the appellant had been inducted under Rule 9 (1) (a) of Class I Rules, 1967. It will be useful to reproduce Rule 9 (1) (a) which reads as under:‑

"9. Post‑1963 posts no& filled substantive‑

(1) Eighty per cent of the posts referred to in Clause (c) of Rule 6 shall be filled:‑

(a) initially by absorption of suitable Class II Officers and Temporary Engineers holding corresponding posts in the Department."

The terms "Class II Officers" and "Temporary Engineers" as used in Rule 9 (1) (a) have been defined in Rule 2 as follows:‑

"Class II Officers" means such holders of Class II or equivalent posts in the Department as, at the time of the coming into force of these rules, were holding and have since continued to hold, in an officiating or temporary capacity, the posts in the Department corresponding to the cadre posts."

"Temporary Engineer" means the Temporary Engineers in the Department as at the time of the coming into force of these rules were holding and have since continued to hold, in an officiating or temporary capacity, the posts in the Department corresponding to the cadre posts;"

What we find is that the appellant did not ll in any of the above definitions of Class 11 Officer and Temporary Engineer as he was not in Class II on 20‑3‑1967. Again, under Rule 9 (1) (a) only such Class II Officers or Temporary Engineers were entitled to be inducted into Class I who were holding the posts in the Department corresponding to the "Cadre posts" has been defined in Rule 3 (2) as follows:‑

"3(2) The cadre posts of the service shall be the posts of Chief Engineers, Superintending Engineers, Executive Engineers and Assistant Executive Engineers in the Department and such other Class i posts as may be sanctioned by Government for the Department from time to time."

The cumulative effect of all these Rules is that the benefit of induction in Class I as contained in Rule 9 (1) (a) was only meant for those "Class II Officers" and "Temporary Engineers" who were, at the time of coming into force of these Rules i.e. 20‑3‑1967, holding Class I posts in the Department i.e. Officiating Executive Engineers or Assistant Executive Engineers. Since the appellant was neither in Class 11 on A 20‑3‑1967 nor was holding posts of Officiating Executive Engineer or Assistant Executive Engineer on 20‑3‑1967, therefore, he was not entitled to induction into Class I under Rule 9 (1) (a) which was not applicable to him. From this point of view, we are of the considered opinion that the notification, dated 19‑6‑1984, was a void ab initio and it was correctly found to be erroneous and was withdrawn through impugned notification, dated 27‑1‑1985. It is also a settled law that those who have been given Class I status or inducted into Class I are not entitled to any seniority in Class I unless they are promoted to Class I. In this manner the appellant is not entitled to seniority in Class I via‑a‑via the contesting respondents who have been selected by the Public Service Commission in Class I on merit and were regularly appointed as Assistant Executive Engineers in the year 1975‑76. It was clearly a deviation from the above position that the assignment of seniority to the appellant on the basis of his induction in Class I as a result of General Order and without his regular promotion through the Departmental Promotion Committee or Public Service Commission was also void ab initio.

8. We have further analysed the case of the appellant and find that as a matter of fact the S.D.Os. could only be promoted to Class I under Rule 9 (1) (b) of Class I Rules, 1967, but the appellant being a g promotee in Class II, was a member of Regional Sub‑cadres and to such members of Regional sub‑cadres Rules 9 (1) (b) was only applicable. But in Rule 9 (1) (b) there was a positive condition of Engineering Graduate, which he did not fulfil. Moreover, he was not even senior most in the Regional sub‑cadre to be considered for promotion to Class I from 22‑7‑1971.

9. With regard to the claim of the appellant that there were vacancies in Class I so available, we find that there was no vacancy in Class against which the appellant could be promoted or inducted. Without vacancies no promotion or induction was at all possible. It is established on record that notification, dated 19‑6‑1984, was illegal because it wasl contrary to the provisions of the very rules under which it was purported to have been issued, it was correctly withdrawn by subsequent notification, dated 27‑1‑1985. Rule 9 (1) (a) of Class I Rules, 1967, and notification, dated 4‑10‑1976, under which the appellant was inducted into Class I was not at all applicable in his case. There is no other provisions under which an S.D.O. could be inducted into Class I. Under Class I Rules of 1967, an S.D.O. could only be promoted to Class I in accordance with the method prescribed under the Rules through the Departmental Promotion Committee or the Public Service Commission. The appellant acquired requisite qualification of A.M.I.E. on a subsequent date; therefore, his subsequent improvement would not be helpful in his case. We also find that according to law laid down by the Supreme Court of Pakistan, it would be open to Government to correct the inherent errors and withdraw the notification.

10. In view of the above analysis of the case, we are of the considered opinion that the appellant has got no case and the authority was fully competent to withdraw or rescind the notification, when it so found I that the same has suffered from inherent defect. Resultantly the appeal is dismissed as being without any merit. There will be no order as to costs.

A. A. Appeal dismissed.

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