Professional Documents
Culture Documents
[Appellate/Review Jurisdiction]
PRESENT:
Mohammad Azam Khan, C J
Ch. Muhammad Ibrahim Zia, J.
Sardar Muhammad Sadiq Khan, J.
Civil Appeal No. 44 of 2010
(PLA filed on 9.10.2009)
1.
Syed
Subtain
Presently
Hussain
posted
at
Kazmi,
Bagh
Tehsildar,
Development
Authority.
2.
3.
VERSUS
1.
posted
at
Office
of
Deputy
3.
Azad
Government
RESPONDENTS
through
its
Chief
Secretary, Muzaffarabad.
4.
5.
his
Muzaffarabad.
office
at
New
Secretariat,
6.
PROFORMA-RESPONDENTS
AMICUS CURIAE:
Maqbool,
Muzaffarabad,
Divisional
Forest
Forest
Division,
Bank
Officer,
Road,
Muzaffarabad.
2. Sh. Abdul
Hameed,
Divisional
Forest
Officer,
VERSUS
1.
Asad
Mehmood
Malik,
Divisional
Forest
2.
RESPONDENT
Complex,
Lower
Chatter,
3.
4.
having
his
office
at
New
Civil
PROFORMA-RESPONDENTS
Raja Muhammad
Khan, Advocate.
Hanif
AMICUS CURIAE:
13.8.2009
whereby
appeal
filed
by
the
the judgment of
Having
involved
the
common
legal
The
controversy in
appeal
No.
44/2010
Whereas
the
appellants
were
firstly
and
of
appellants
i.e
19.3.2007.
In
this
Pakistan
Forests
Institute,
Peshawar.
The
No.1
assailed
the
notification
dated
were
whereby while
treated
as
regular
from
the
dates
of
their
of
issuance
of
the
promotion
order.
To
anti-dated
judgment
promotion
it
also
whereas
appears
that
in
the impugned
the
retrospective
principle
of
law
and
previous
right of promotion
if he is
while assisting
gracefully
conceded
that
in
some
of
the
anti-dated
of
appointments
the
Act
which
which
are
made
speaks
in
the
that
the
prescribed
Conversely,
Sardar
Karam
Dad
Khan
clear which
such
Federation of
10
therefore,
the
review
petition
has
no
substance.
8.
assistance.
He
regular appointment
submitted
that
the
term
seniority,
the
moot
consideration
is
regular
means permanent
after
following the
11
the
arguments,
he
submitted
that
from
the
retrospective
or
anti-dated
Rasool
and
Balochistan
and
Muhammad
Siddique
others
others,
vs.
[2002
Ahmed
Government
PLC
Khan
(CS)
vs.
of
47],
Pakistan
12
the
seniority on
initial
appointment to
in
13
it
refers
only
to
the
Act in
it becomes clear
regular
permanent
excluding
the
appointments
on
acting
14
promotion on officiating
term regular
15
even
though
was
holding
in
this
retrospective
order
effect
itself
that
the
given
to
the
by
the
petitioner
even
was
promoted
to
BPS-18
w.e.f
16
work
charge
basis
cannot
be
to
selection
be
considered
board
when
the
recommended
10.7.2002
and
the
said
cases
titled
Zahid
Mehmood
vs.
vs.
Abdul
Rehman
Abbasi
&
17
The
appellant
was
admittedly
vs.
unambiguously
status
of
Muhammad
disclosed
respondent
Khan
being
Yar
surplus
his
fixed
seniority
keeping
in
was
view
18
Transfer)
Rules,
1973
as
the
establishment
division
absorption
surplus
regarding
of
seniority
Rules,
1993
that
seniority
in
service,
civil
servant
appointment
by
on
transfer
his
would
serving
in
permanent
and
fair
play
because
absorption
continued
to
be
Therefore,
unless
19
transferred
account
and
of
absorbed
on
conscription;
the
appointment
post.
It
against
may
be
eventuality,
he
would
be
promotion,
acting
charge,
officiating
20
such post
officiation,. According to
their
the term
continuous appointment.
12.
This
while
dealing
with
of
the
21
avoid
construction
which
22
2.
to
be
derived
from
4.
The
fundamental
principle
of
23
constitutional
instrument
is
that
construction
provision
and
which
meaningless
must
lean
in
renders
or
any
inoperative
favour
of
make
some
words
idle
and
nugatory.
7.
The
next
rule
in
construing
of
ascertaining
the
The best
meaning
be read in connection
instruments.
Therefore,
24
be
construed
with
regard
to
the
intent
of
the
constitutional
that
two
sections
be
so
including
interpreted
giving
constitution
must
be
effect
presumption
the
to
all
its
parts
and
the
25
this view
has
various
provisions
contained
in
independently
of
all
other
So
was
held
in
statute
should
not
be
read
14.
26
be
on
probation
and
an
of
Manual
of
Audit
27
is
to
be
considered
as
Intizar
Ahmad
and
Muhammad
Mushtaq
Jawaid
were
to
the
Counters/Clerks,
posts
of
cash
depending
on
their
relevant
for
considering
28
Muhammad
Mushtaq
Jawaid
as
passing
29
not
from
the
date
of
his
Engineering
and
others
Officers
v.
State
the
30
should be
provisions of
in
Functional
Unit
shall
be
determined:(1)
(a)
persons
selected
in
later
selection; and
(b)
31
shall
rank senior to
the
younger
person.
(2)
Explanation-I
xxx
xxx
xxx
Explanation-II
xxx
xxx
xxx
Explanation-III
xxx
xxx
xxx.
The
seniority
of
the
persons
vis--vis
otherwise
those
appointed
same,
the
person
appointed
appointed
by
initial
recruitment;
Provided further that inter se
seniority
of
persons
belonging
to
XXX
XXX
XXX
XXX
(underlining is ours)
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
32
the
grade.
Here
again,
the
term
continuous
not been
the
word
continuous
attached
to
the
Uninterrupted;
intermittent
or
unbroken;
occasional;
so
appointment
means
unbroken
regular
33
and in the
Departmental
The
continuous
Rules.
has
not
been
word
defined
which
servant
must
for
the
purpose
of
seniority.
(underlining is ours)
34
effect
such a right on
without
reference
to
35
training
and
remained
ousted
from
Board
vide
order,
dated
be
that
given
no
back
and
it
benefits
was
seniority
which
is
the
real
be inferred
to do the needful.
on duty by
leave without
36
claim
any
benefit
for
the
intervening period.
7..
8.
which
is
reproduced
No.
10925/66-Admn-1/71
(II).
Bakhsh,
resident
of
caste
Dhadar
Raisani,
(Karachi
They
necessary training
will
as direct
undergo
as prescribed
Tehsildari
Departmental
against
two
posts
the newly-created
of
Tehsildars
for
37
Settlement
During the
period, they
training
as
admissible
They
are
under
required
to
On
successful
training
completion
and
passing
Departmental
of
the
Examination
they
the
post
of
Tehsildar.
Before joining
required to:-(1)
Appear before
Board
the Medical
for
Medical
Examination.
(2)
Produce
Certificates
of
38
9.
The
petitioners
neither
were
appointed
as
but
only
their
candidature as Tehsildar
was accepted.
(b)
to
necessary
training as prescribed in
the
West
Pakistan
Tehsildars
and
Naib
Tehsildars Departmental
Examination and Training
Rules,
1969
and
after
only
successful
completion
of
training
and
passing
Departmental
Examination they could
claim
the
post
of
Tehsildar.
(c)
Even
completion
their
after
the
of
training
postings
as
39
bee
conferment
placed
of
retrospective
regarding
seniority
with
effect by Review
in
direction
that
their
to
any
or
damages,
arrears
of
have
been
conferred
40
retrospective
permissible
promotion,
under
the
is
not
Departmental
repealed
by
the
operation
of
41
appearing
in
rule
10
of
the
result
supported
of
by
promotion
any
is
not
authority.
An
The
Seniority
inter
se
of
xxx
xxx
(a)
xxx
xxx
xxx
(b)
xxx
xxx
xxx
(2)
to
continuous
the
date
appointment
to
of
the
grade;
Provided that if two dates are
the same, the persons appointed
otherwise shall rank senior to the
person
appointed
recruitment;
by
initial
42
the
appointment
to
basic
the
requirements
post,
grade
are
or
regular
cadre
and
continuation of it.
17.
for
appointments
appointments.
cannot
be
termed
as
regular
43
speaks as under:22.
or
abridge
the
be construed to
power
of
the
44
the
next
point
which
needs
of
the
Government
under
giving
effect,
even
affects
the
if
it
the
retrospective
same
seniority
of
adversely
other
civil
that this
subject
contained
the
made
Muhammad
to
Iqbal
case
reported
Khokhar
v.
as
The
45
of another civil
Shafi-ur-Rehman
observations
made
in
the
Iqbal
The
remains
to
only
be
question
that
examined
is
by
the
same
subject
are
46
1967
in
manner
to
and is
the supremacy
servant
without
being
seniority
21.10.1969
to
for
the
period
26.2.1975
and
years
service
in
the
promotion
Executive
themselves
to
Engineer
the
post
of
do
not
by
prejudicially
affect
47
violation
of
the
law
but
in
grant
of
seniority
or
appearing as absolute,
object
Federation
of
of
the
law.
See
Pakistan
vs.
Muhammad
Saifullah
1959
166,
SC
Khan
PLD
where
the
the
48
strikes
down
retrospective
regularization,
contravenes
and
1974
but
directly
and
adversely
inductees
and
of
would,
Regional
Information
Office,
observed
that
an
ad
hoc
Mian
Muhammad
Afzal
v.
dealing
with
the
question
of
We
propose
taking
up
the
49
is
common
to
the
first
three
Their
Assistant
expressed
appointments
Engineers
to
be
were
ad
hoc,
appointments
accordance
with
the
in
prescribed
regular
appointments
accordance
with
prescribed
were
the
in
procedure
made,
such
hoc
appointments
truly
so
50
It
appellants
respondents
follows
and
that
some
were
truly
if
the
of
the
ad
hoc
period
Saif-ud-Din
v.
Secretary
to
on
8.5.1994)
and
Ghulam
51
civil
servant
reckoned from
will
be
the date of
from
the
Service
Tribunal
judgment
of
the
reproduced
in
the
that
entertained
the
the
Service
brief
Tribunal
that
powers
under
in a way which is
Khokhars
case,
referred
to
52
No.
Admin./Rules/
685-
is ineffective
to
respondent
No.2.
The
53
to
proforma
or
retrospective
promotion
or
of
Pakistan,
while
dilating
upon
the legal
54
later
promotion
than
the
dates
because
of
actual
valuable
rights
No.
66/2004,
decided
on
12.7.2005]
for
the
respondents
that
has
55
has
not
been
matter,
the
As
promotion
is
for
the
concerned,
anti-dated
it
is
not
As
the
allowed selection
respondents
were
56
is
anti-dated
promotion
is
not
given
notifications whereby
allowed
the
therefore,
the right
they
cases.
meet
The
respondents are
anti-dated
promotion,
are
given
anti-dated
Ahmed
Khan
v.
Syed
Sabir
discretion
authority
to
of
the
award
competent
proforma-
State
of
Jammu
and
Kashmir,
57
by the
either
Manzoor
Ahmed
v.
Azad
not
to
give
an
undue
58
It is further held
another
case
titled
Muhammad
J&K
through
its
Chief
Secretary
promotion
accepted
in
the
case
was
by this Court
59
as to whether
time.
The
anti-dated
the
judgment
of
Service
and
respondents.
The
of
their
anti-dated
Khan,
Circle
Registrar
Co-operative
60
Kashmir
Muzaffarabad
Hussain
Naqvi,
and
Circle
others
v.
Registrar,
Syed
Sabir
Co-operative
The
apex
Court
of
Pakistan
also
while
61
at
length
have
thoroughly
by him in
appointment
on
contract
and
on
therefore,
permanent
basis,
over the
were appointed on
was
on
appointment
contract.
The
regular
from retrospective
date
appellant
would not
make him
find
62
21.
In
the
light
of
hereinabove
discussed
of
residuary
powers
of
the
Government,
such
appointments
normally
are
made
for
be
determined
from
the
dates
of
such
63
reasoning
determine
64
24.
No.
is
concerned,
we
have
hereinabove
Muzaffarabad.
.4.2013
JUDGE
CHIEF JUSTICE
JUDGE