1994 S C M R 759

[Supreme Court of Pakistan]

Present: Nasim Hasan Shah, CJ., Saeeduzzaman Siddiqui and Fazal Ilahi Khan, JJ
JAMAL KHAN JAFFAR and another---Appellants
versus
RAHIM SHAH and 3 others---Respondents
Civil Appeals Nos. 743 and 744 of 1992, decided on 8th February, 1994.
(On appeal from the judgment of Balochistan Service Tribunal, Quetta, dated 12-8-1992, passed
in Service Appeals Nos. 8, 12 and 14 of 1978).
(a) Constitution of Pakistan (1973)---
----Art. 212(3)---Civil service---Seniority---Leave to appeal was granted to consider whether
civil servants (respondents) could legally be given seniority from the dates of their selection
when the entire proceedings before the Selection Board had been quashed, civil servants, had
been reverted to their parent cadre and without working on the post on which they were selected,
as promoted officers during the interregnum.
(b) West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962---
----R. 8---Appointment of a person as acting Tehsildar was subject to the condition of his passing
the departmental examination provided under the Rules and that until such time he passed that
examination, he could not claim any permanent appointment against the post of
Tehsildar---Services of such persons were dispensed with on 30-5-1973 before he could qualify
the departmental examination or even the period prescribed for training under the Rule could
elapse---Such person therefore was never appointed as Tehsildar and was still a trainee candidate
for the post of Tehsildar when his services were dispensed with---Promotion of such person to
post of Tehsildar from the post of Naib-Tehsildar took place on 29-1-1975 and as such his
induction in the cadre of Tehsildar could not be treated earlier to 29-1-1975 in circumstances.
(c) West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962---
----R. 8---West Pakistan Tehsildari and Naib-Tehsildari Departmental Examination and Training
Rules, 1969, R. 53---Seniority---Direct selection for the post of Tehsildar (of a person who was
already working as Naib-Tehsildar) was though made by the Board of Revenue in the year 1972
but such selection did not amount to the appointment as Tehsildar as in spite of exemption
granted by the Board of Revenue from two years training period prescribed under the Rule, he
was still required to pass the departmental examination before being appointed as
Tehsildar---Before the termination of services of such appointee he had neither qualified the
departmental examination nor competent authority had exempted him from appearing in the
examination---Such person having entered the cadre of Tehsildar in the year 1975 by promotion,
b,1 could not claim seniority over those who were either recruited directly or were promoted
earlier in service as Tehsildar.
Arshad Saeed v. Pakistan and others 1986 SCMR 1953 ref.
(d) Civil service---
----Seniority---Held in case of initial recruitment, seniority or induction into service could not be
taken earlier to actual, selection or taking over the post.
Arshad Saeed v. Pakistan and others 1986 SCMR 1953 quoted.
(e) Balochistan Civil Servants Act (IX of 1974)------
----S. 8---Seniority---Passing of order of Governor---Competency---If the order passed by the
Governor interfered with the rights of any other employee of the Government, such order could
be scrutinized in appropriate proceedings, and if it was found contrary to the provision of law, it
could be -struck down.
(f) Balochistan Civil Servants Act (IX of 1974)---
----S. 8(4)---Seniority---Seniority of a civil servant in the post, service or cadre to which a civil
servant is promoted takes effect from the date of his regular appointment to the post or the cadre
subject to the condition that if more than one civil servants are selected for promotion to a higher
post in one batch they will retain their inter se seniority-as in the lower grade.
(g) Balochistan Civil Servants Act (IX of 1974)----
----S. 8---Constitution of Pakistan (1973), Art. 212---Seniority in service is also one of the terms
and conditions of the service of a civil servant---Dispute regarding seniority raised by a civil
servant is amenable to the jurisdiction of the Service Tribunal established under the
Constitution---If the competent authority on a wrong basis and contrary to the provision of the
law fixes the seniority of a civil servant such order is not immune from attack by the aggrieved
civil servant.
Section 8(1) of Balochistan Civil Servants Act, 1974, has declared that a civil servant has
no vested right to a particular seniority in service, but this only means that where a competent
authority passes an order with regard to seniority competently, it cannot be interfered with.
However, if the competent Authority on a wrong basis and contrary to the provisions of the law
fixes the seniority of a civil servant such order is not immune from attack by the aggrieved civil
servant. Service Tribunals set up under Article 212 of the Constitution of Islamic Republic of
Pakistan have been conferred exclusive jurisdiction to decide the disputes relating to terms and
conditions of a civil servant. Seniority in service is also one of the terms and conditions of the
service of a civil servant. A dispute regarding seniority raised by a civil servant is amenable to
the jurisdiction of the Service Tribunal established under the mandate of Article 212 of the
Constitution by the Act of a Provincial Government.
(h) Balochistan Civil Servants Act (IX of 1974)---
----Ss. 4 & 8---Constitution of Pakistan (1973), Art. 212---Seniority---Terms and conditions of
service of civil servant---Service Tribunal can give relief in respect of a grievance brought before
it by a civil servant relating to his terms and conditions---For enforcement of such right, it is not
at all necessary that the right must be vested one---Notwithstanding the fact that seniority in
service of civil servant has been specifically declared under S. 8 of the Act as not vested right of
the civil servant, a civil servant who has been wrongfully denied his rightful seniority in service
is entitled to seek redress before the Service Tribunal in properly instituted proceedings.
There is nothing either in the language of Article 212 of the Constitution or section 4 of
the Balochistan Service Tribunals Act, 1974, to indicate that the Tribunal cannot give relief in
respect of a grievance brought before it by a civil servant relating to his terms and conditions of
service, unless such grievance is founded on a right recognised by the service law as a `vested
right'. Vested rights only means "rights which are not dependent on any contingency". However,
for enforcement of a right, it is not at all necessary that the right must be a vested one. If a person
is wrongfully deprived of something or is denied something to which he is entitled to or his title
to something is wrongfully affected he is said to have suffered a legal grievance and if a forum is
provided for redress, he can successfully impugn the wrongful action. Notwithstanding the fact
that seniority in service of a civil servant has been specifically declared under section 8 of the
Act as not a vested right of the civil servant, a civil servant who has been wrongfully denied his
rightful seniority in service is entitled to seek redress before the Service Tribunal in a properly
instituted proceedings.
Baste' Ahmad Ansari, Advocate Supreme Court with Khan Imtiaz Muhammad Khan,
Advocate-on-Record for Appellants (in both Appeals).
Munir Peracha, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for
Respondent No.l (in both Appeals).
M. Aslam Chishti, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate- on-Record
for Respondent No. 2 (in both Appeals).
Date of hearing: 19th January, 1994.
JUDGMENT
SAEEDUZZAMAN SIDDIQUI, J.----The abovementioned Civil Appeals are filed by Jamal
Khan Jaffar and Muhammad Ramzan, respectively, with the leave of this Court to call in
question the judgment of Service Tribunal of Balochistan, Quetta, dated 12-8-1992 whereby the
learned Service Tribunal dismissed their Service Appeals and maintained the order of Board of
Revenue allowing seniority to Rahim Shah and Abdul Ghaffar (respondents Nos.l and 2 in the
above appeals). For the sake of convenience, I will refer the two appellants and respondents
Nos.l and 2 in the above appeals by their respective names.
The relevant facts of the case are that Muhammad Ramzan, appellant in Civil Appeal No.
744 of 1992 and Jamal Khan Jaffar, appellant in Civil Appeal No. 743 of 1992, joined the
services under the Government of Balochistan as Naib-Tehsildar on 1-9-1962 and 25-10-1962
respectively. Rahim Shah and Abdul Ghaffar, respondents Nos.l and 2 in the above appeals, were
appointed as Naib-Tehsildars on 13-10-1967 and 17-3-1970 respectively. Jamal Khan Jaffar was
promoted as Tehsildar on 21-1-1973 while Muhammad Ramzan was first promoted as Tehsildar
in 1971 and thereafter he was again promoted on 14-9-1973. Rahim Shah and Abdul Ghaffar
were appointed direct Tehsildar vide order of Board of Revenue, Balochistan, dated 21-9-1972
alongwith 16 other candidates. The two years training period prescribed for candidates for the
post of Tehsildar under the West Pakistan Tehsildari and Naib-Tehsildari Departmental
Examination and Training Rules, 1969 (hereinafter to be called as `the Training Rules' only) was
dispensed with by the Board of Revenue in respect of Rahim Shah and Abdul Ghaffar keeping in
view their service as Naib-Tehsildars in the Revenue Department vide Notification dated
15-3-1973 & 23-11-1972, respectively. The services of Rahim Shah and Abdul Ghaffar
alongwith 16 others directly appointed Tehsildar, were subsequently terminated under the orders
of the Governor of Balochistan vide Notification dated 30-5-1973 with the result both Rahim
Shah and Abdul Ghaffar were reverted as Naib-Tehsildar. Against the order dated 30-5-1973
Rahim Shah made a representation to the Governor of Balochistan which was rejected on
5-7-19973. Abdul Ghaffar did not appear to have made any representation against the order
dated 30-5-1973. Rahim Shah was later promoted as Tehsildar by the Board of Revenue on
29-1-1975. Abdul Ghaffar was also given accelerated promotion and was consequently promoted
as Tehsildar on 23-6-1975 by the Board of Revenue: It appears that in the case of Rahim Shah a
summary was moved before the successor Governor for reconsideration of his case. The
Member, Board of Revenue, in his note, recommended him to be given seniority as Tehsildar
from the date of his first selection, namely 21-8-1973. Governor of Balochistan on 21-8-1975, on
the summary of Rahim Shah passed the following orders:-----
"After having considered facts of the case, the Governor is pleased to allow seniority as
Tehsildar to Mr. Rahim Shah from the 21st of March, 1973, the date he was first given
promotion as such. Mr. Rahim Shah will be entitled to pay as Tehsildar from the date he
actually works as such; he will claim no arrears of pay as Tehsildar from the date of
demotion. He also is exempted from undergoing training of Tehsildar, because he is
being promoted from the lower rank of N.T.
MBR may kindly take further action in. the matter:'
(The underlining is by us)
After orders were passed on the summary of Rahim Shah, another summary was submitted to the
Governor of Balochistan in the case of Abdul Ghafoor and it was recommended that his case was
identical to that of Rahim Shah and he may also be allowed seniority in the same manner as was
granted in the case of Rahim Shah. The Governor of Balochistan on the summary relating to the
case of Abdul Ghafoor passed following order:--
"In view of observation made by MBR(I) in the last sentence of para. 7 of the summary
submitted for perusal of Governor, the Governor is pleased to allow his original seniority
to Mr. Abdul Ghaffar Gichki as Tehsildar:"
On the basis of the abovementioned 2 orders passed by the Governor on the summaries of the
cases submitted in respect of Rahim Shah and Abdul Ghaffar, the Board of Revenue allowed
them seniority to Rahim Shah and Abdul Ghaffar in the cadre of Tehsildar from 31-3-1973 and
30-5-1973 vide orders dated 26-1-1978 and 25-3-1978 respectively. Both Jamal Khan Jaffar and
Muhammad Ramzan challenged the orders passed by Board of Revenue, Balochistan, assigning
seniority to Rahim Shah and Abjul Ghaffar in the cadre of Tehsildar from the aforesaid dates
before Service Tribunal, Balochistan. The Service Tribunal, Balochistan, by its order dated
12-4-1980 allowed the appeal filed by Jamal Khan Jaffar and Muhammad Ramzan and directed
the Government of Balochistan to assign them seniority as reflected in the seniority list prepared
by the department on 28-2-1975. Rahim Shah and Abdul Ghaffar challenged the order of Service
Tribunal date: 12-4-1980 before this Court which was alloev-3 on 10-10-1988 and the case was
remanded to the Service Tribunal with the direction to reconsider the case of seniority of Abdul
Ghaffar and Rahim Shah in the light of the orders of the Governor of Balochistan passed on their
summaries as well as to consider whether Rule 8 of West Pakistan Tehsildari and
Naib-Tehsildari Service Rules, 1962 (hereinafter to be referred to as 'the Rules' only), were duly
complied with before their claim to seniority could be entertained or contested in the context of
the orders of the Governor restoring their seniority. The judgment of this Court in the case of
Abdul Ghaffar and Rahim Shah is reported in 1989 SCMR page 70. On remand of the case by
this Court, as aforesaid, the Service Tribunal dismissed the appeals of Jamal Khan Jaffar and
Muhammad Ramzan and upheld the orders of Board of Revenue restoring seniority of Abdul
Ghaffar and Rahim Shah, as under:-- .
"We uphold the Board of Revenue Order No. 10264-67/33-Admn. 15/74 dated 23rd
August 1974 restoring promotion as Tehsildar granted to Mr. Rahim Shah Abdullahzai, a
Naib-Tehsildar of Quetta with effect from 21-3-1973 and the Order No.33 A 15 dated
26th January 1978 assigning seniority position as Tehsildar from 31-3-1973 to Mr.
Rahim Shah a direct Tehsildar, and placing his name at S. No. 98A i.e. between the
names of M/s. Ghulam Nabi and Muhammad Ramzan in the tentative seniority list of
Tehsildar as it stood on 28-31975, and Order No. 114-Admn. 12/72 dated 30th January
1976 restoring original selection and seniority of Mr. Abdul Ghaffar Gichki,
Naib-Tehsildar as Tehsildar candidate w.e.f. the 30th May, 1973 and Order No. 87 A 14
dated 25th March 1976 assigning seniority position as Tehsildar from 30-5-1973 to Mr.
Abdul Ghaffar Gichki, a direct Tehsildar and placing his name at S. No. 98-B i.e.
between the names of M/s. Rahim Shah and Muhammad Ramzan in the tentative
seniority list of Tehsildar as it stood on 28-5-1975."
Leave was granted in the case against the above order of the Tribunal to consider whether Rahim
Shah and Abdul Ghaffar could legally be given seniority from the dates of their selection when
the entire proceedings before the Selection Board had been quashed, the respondents reverted to
their parent cadre of Naib-Tehsildar' and without working as Tehsildar during the interregnum.
The learned counsel for the appellants contended before us- that Rahim Shah and Abdul
Ghaffar having been promoted as Tehsildar on 29-10-1975 and 23-6-1975 respectively, they
could not rank senior to Jamal Khan Jaffar and Muhammad Ramzan who were promoted as
Tehsildar on 21-11-1973 and 14-9-1973. It is also contended by the learned counsel for the
appellants that the Tribunal while deciding the appeals filed by Jamal Khan Jaffar and
Muhammad Ramzan fell into error in considering the earlier selection of Rahim Shah and Abdul
Ghaffar as promotion from Naib-Tehsildar to the cadre of Tehsildar while in fact the said
selection was a direct requirement on the applications of Rahim Shah and Abdul Ghaffar which
could not be equated with their promotion from the post of Naib-Tehsildar to the post of
Tehsildar, The learned counsel for the respondents on the other hand contended that the services
of Rahim Shah and Abdul Ghaffar were terminated by the Governor of Balochistan without any
basis which resulted in a serious wrong to them and this wrong was rectified by the successor
Governor of the Province by passing appropriate order granting them seniority from the date they
were appointed Tehsildar and as such this order of the Governor could not be interfered with in
view of the provisions of section 23 of Balochistan Civil Servants Act, 1974 (hereinafter to be
called `the Act' only). It is also contended by the learned counsel that unlike the Province of
Punjab, Civil Servants in Balochistan do not have vested right in respect of seniority and as such
the order passed by the Government giving seniority to Rahim Shah and Abdul Ghaffar in the
seniority list, could not be made subject of challenge before the Tribunal. We have heard the
learned counsel for the appellants at. length and our conclusions are as follows:--
The selection of Rahim Shah and Abdul Ghaffar on 21-9-1972 as Tehsildar was
undoubtedly a direct recruitment as would appear from the orders of Board of Revenue dated
21-9-1972, which reads as follows:----
"BOARD OF REVENUE
BALOCHISTAN.
Dated Quetta the 21st Sept. 1972
ORDER
No. 7795-7806/66-Admn-1/71(II). The Board of Revenue, Balochistan is pleased to accept the
following as direct Tehsildar candidates subject to the condition that they are declared medically
and physically fit and their antecedent and character is verified:--
1. Mr. Rahim Shah s/o Mr. Dost Muhammad. (Zhob District).
2. Mr. Abdul Aziz s/o Mr.Khair Muhammad. (Zhob District).
3. Mr. Nasir Khan s/o Muhammad Sharif. (Chagai District).
4. Mr. Abdul Ghaffar s/o Mir Ibrahim Khan Gichki. (Mekran District).
5. Mr.Muhammad Abdullah s/o Mir Ghulam Nabi. (Kalat District).
6. Mr. Ali Akbar s/o Mir Lal Bakhsh. (Kalat District).
7. Mr. Nazir Ahmad s/o Haji Mir Rasool Bakhsh. (Mekran District).
8. Mr. Zahir Khan s/o Mr. Abdul Razaq. (Qta/Pishin District).
9. Mr. Abdul Hafeez s/o Mr. Abdul Majeed (Qta/Pishin Distt.)
10. Mr. Muhammad Ali s/o Mir Kamal Khan (Sibi District)
11. Mr. Ali Ahmad s/o Mr. Ali Dost Bugti. (Sibi District)
During the period of training, they will be entitled to such pay and allowances as are admissible
to them under the rules from time to time,
Orders regarding their training etc. will be issued shortly."
It is, therefore, quite clear that the first appointment of Rahim Shah and Abdul Ghaffar as
Tehsildars was not a case of promotion as has been observed by the learned Tribunal while
deciding the appeals of Jamal Khan Jaffar and Muhammad Ramzan. No doubt, Rahim Shah and
Abdul Ghaffar both were subsequently exempted by the Eoard of Revenue from the training
prescribed for candidates for the post of Tehsildar but under rule 8 of the Rules read with the
`Training Rules' besides condition of undergoing training of 2 years period, the candidates were
also required to pass a departmental examination prescribed under the `Training Rules' before
they could be appointed as Tehsildar. It will be relevant to reproduce here rule 8 of the Rules,
which reads as follows:-
8. Training and departmental examination.--- A person selected for appointment to the service
shall, before his appointment to the service, be required to complete successfully such training
and pass such departmental examinations and produce such certificates within such period or in
such number of attempts as may be prescribed by Government from time to time.
13. Relaxation. Any of these rules may, for reasons to be recorded in writing, be relaxed iii
individual cases if Government is satisfied that a strict application of the rule would cause undue
hardship to the individual concerned;
Provided that wherever such relaxation involves a question on which consultation with
Commission is mandatory the Commission shall be consulted before the relaxation is made:'
In this connection, we may also mention here that the order exempting Ratum Shah from
undergoing 2 years training as prescribed under rule 8 ibid was not totally unconditional as
would appear from the order of BOR dated 15-3-1973, which reads as follows:--
"No.2797/9-Admn-3/70. Since Mr. Rahim Shah Abdullahzai a Selected Tehsildar
Candidate has worked as Naib-Tehsildar in the Revenue Department for six years and
gained sufficient experience in Revenue, judicial work and on treasury side, the Member,
Board of Revenue, Balochistan is, therefore, pleased to exempt him under Rule, 53 of the
West Pakistan Tehsildari and Naib-Tehsildari Rules, 1969 from two years training
subject to the condition that he will pass the departmental examination of the Tehsildar
Candidates as and when held and is further pleased to post him on purely temporary as
Acting Tehsildar, Killa Saifullah on the following terms and conditions:--
(i) He will not claim permanent appointment till he passes the departmental examination;
(ii) Nor will he claim any seniority from the date of his appointment taking over charge as
Tchsildar;
(iii) He will not be invested with powers of a Second Class Magistrate and Assistant Collector
Grade I: and
(iv) Hen will not claim any exemption from the departmental examination of Tehsildar
candidates as required under the provision of West Pakistan Tehsildari and Naib-Tehsildari
Departmental Examination and Training Rules, 1969 at any stage and under any pretext."
From reading the above order of Member, Board of Revenue, it is quite clear that the
appointment of Rahim Shah as acting Tehsildar, Killa Saifullah was subject to the condition of
his passing the departmental examination provided under the training Rules and that until such
time he passed that examination, he could not claim any permanent appointment against the post
of Tehsildar. The Services of Rahim Shah as well as Abdul Ghaffar were dispensed with on
30-5-1973 before they could qualify the departmental examination or even the period prescribed
for training under the rules could claps. It is, therefore, quite clear that both Rahim Shah and
Abdul Ghaffar were never appointed as Tehsildar and were still trainee candidates for the post of
Tehsildar when their services were dispensed with. Their promotion to the post of Tehsildar from
the post of Naib-Tehsildar took place on 29-1-1975 and 23-6-1975 respectively and as such the
induction in the cadre of Tehsildar could not be treated earlier to these dates. The seniority of
Rahim Shah and Abdul Ghaffar in the cadre of Tehsildar, therefore, could be fixed only with
reference to their date of induction in that cadre. The learned Tribunal while upholding the order
of Board of Revenue wrongly assumed that the earlier selection of Rahim Shah and Abdul
Ghaffar for the post of Tehsildar by the Board of Revenue in 1972 was a promotion to the post of
Tehsildar from the post of Naib-Tehsildar which is evident front the following observations of
the Tribunal in the impugned judgment:-----.
"17. To meet the end of justice and fairplay the Board of Revenue obtained the approval
of the Governor in restoring the promotion exclusively on merits in case of the two
Naib-Tehsildars for their promotion as Tehsildar."
18. ...........................................
19. The orders issued by the Board of Revenue for -restoring the promotion and
subsequent appointment as Tehsildar and also their exemption from training has been
made in accordance with the laid down Rules and prescribed procedure. We, therefore,
turn down the S.A. No.8, 12 and 14 of 1978."
We are, therefore, of the view that though Rahim Shah and Abdul Ghaffar were directly selected
for the post of Tehsildar by the Board of Revenue in the year 1972 but this selection did not
amount to their appointment as Tehsildars as in spite of exemption granted by the Board of
Revenue in their cases from two years training period prescribed under the Training Rules, they
were still required to pass the departmental examination before being appointed as Tehsildar. It
is not contended on behalf of Rahim Shah and Abdul Ghaffar that before their services were
terminated they either qualified the departmental examination or that the competent Authority
exempted them from appearing in the examination. Rahim Shah and Abdul Ghaffar, therefore,
having entered the cadre of Tehsildar in the year 1975 by promotion could not claim seniority
over those who were either recruited directly or were promoted earlier in service as Tehsildar.
From the perusal of the order passed by the Governor on the summaries submitted to him in the
cases of Rahim Shah and Abdul Ghaffar, it is quite clear that the Member, Board of Revenue in
his note presented to the Governor that Rahim Shah and Abdul Ghaffar were not the direct
recruits but were departmental promotees and as such they were wrongly grouped with the other
direct recruits whose services were terminated in wholesale- on 30-5-1973. The Governor acting
on the note of Member, Board of Revenue, assigned Rahim Shah and Abdul Ghaffar seniority
from the date of their selection as Tehsildar on the assumption that they were promoted to the
post of Tehsildar from the cadre of Naib-Tehsildar, which was absolutely a wrong assumption.
As stated earlier Rahim Shah and Abdul Ghaffar were never appointed as Tehsildars on regular
basis prior to their promotion as Tehsildars in 1975. Rahim Shah and Abdul Ghaffar, therefore,
having entered in the cadre of Tehsildar much later than Jamal Khan Jaffar and Muhammad
Ramzan could not claim seniority over them on the basis of their mere selection as
Naib-Tehsildar in 1972 which was never regularized and was finally, terminated under the orders
of the Government. This Court in the case of Muhammad Arshad Saeed v. Pakistan and others
(1986 SCMR 1953) ruled that in case of initial recruitment seniority or induction into service
cannot be taken to a date earlier to actual selection or taking over the post. There is nothing on
record to, show that Rahim Shah or Abdul Ghaffar were posted as Tehsildar before termination
of their selection as Tehsildar. The acting appointment of Rahim Shah on 15-3-1973 was clearly
made subject to his passing the departmental examination and was also clarified that this
appointment would not give him any right to claim seniority from the date of taking over charge.
The learned counsel for the respondents, however, contended that in view of section 8 of the Act,
a civil servant cannot claim vested right in respect of his seniority in service. It is also contended
by the learned counsel that the power conferred on the Governor by virtue of section 23 of the
Act is all embracing and the Governor under the said provisions of law could pass any order to
redress the grievance cat any Civil Servant which would not he subject to scrutiny by any other
authority Residual power vesting in the 'Governor by virtue of section 27 of the Punjab Civil
Servants Act, which is identical to section 23 of the Act, came up for consideration before this
Court in the case Capt. (Retd.) Abdul Qayyum v. Muhammad Iqbal Khokhar (PLD 1992 SC
184). This Court while deters-ring the scope of the power of Governor under section 22 of the
Punjab Act, observed as follows:-----
"6. As regards the residual remedial power of the Governor contained in section 23 of the
Punjab Civil Servants Act, the bounty and the generosity of the Governor has been placed
under a limit. It is not to be so exercised so as to infringe, impair or curtail any of the
statutory rights of the beneficiary himself. This is the recognition and effect of Article .4
and Article 240 of the Constitution. The argument that the exercise of this power can ride
rough over the statutory rights of others would amount to negation of rule of law, going
beyond the constitutional parameters, subordinating of statutory rights to executive fiat.
What follows is that like all authorities, the Governor in the exercise of residual power is
as much to be guided and bound by the law as anyone else except that his bounty and
generosity has been made limitless. He can grant as much benefits as he wants to and
considers just and fair but not at the cost of others, not even at the slightest cost of the
statutory rights already granted to the beneficiary. This is a power of redressal, of
providing a relief and not of impairing statutory rights of anyone."
The scope of section 23 of Civil Servants Act, 1973 which applies to all Federal Government
employees and is worded in the language similar to sections 22 and 23 of Punjab and Balochistan
Civil Servants Acts respectively, was considered by this Court in the case of Major (Retd.)
Muhammad Matlub Khan v. Government of Pakistan and others, Civil Appeal No. 258 of 1991
decided on 22-12-1992 (1993 SCMR 798), as follows:------
------------------
Reliance on section 23 is also inapt. While construing section 22 of the Punjab Civil
Servants Act, 1974 which is para materia with section 23, in Muhammad Iqbal Khokhar
v. Government of the Punjab (PLD 1991 SC 35) it has been maintained that the Governor
has to act justly and fairly. The grant of seniority in exercise of the powers vesting in him
under section 22 which was in violation of the rights of the others, conferred on them by
law, was not held permissible. It has already been observed that the appellant's permanent
absorption and grant of seniority to him w.e.f. 1-7-1978 is not countenanced by service
laws. Moreover, section 23 confers powers on the President and there is nothing on the
record that the orders on which the appellant's claim is founded had also the blessings of
the President."
A petition was filed by the appellant in Civil Appeal No. 258 of 1991 to seek review of the above
judgment dated 22-12-1.992 on the ground that the seniority in service is not vested right in
relation to the civil servants of the Federation. This Court by judgment dated 17-1-1994
dismissed the review petition.
We are, therefore, of the view that if the orders passed by the Governor in the cases of Rahim
Shah and Abdul Ghaffar interfered with the rights of any other employee of the Government,
such order could be scrutinized in appropriate proceedings and if it was found contrary to .the
provisions of law, it could be struck down. Subsection (4) of section 8 of the Act provides that
the seniority of a civil servant in the post, service or cadre to which a civil servant is promoted
takes effect from the date of his regular appointment to the post or the cadre subject to the
condition that if more than one civil servants are selected for promotion to a higher post in one
batch they will retain their inter se seniority as in the lower grade. In the case before us Jamal
Khan Jaffar and Muhammad Ramzan were promoted as Tehsildars in 1973 while Rahim Shah
and Abdul Ghaffar were promoted as Tehsildars in 1975. Therefore, in accordance with the
provision of section 8(4) of the Act Rahim Shah and Abdul Ghaffar could not claim seniority
over Jamal Khan Jaffar and Muhammad Ramzan. The order of the Governor of Balochistan,
allowing seniority to Rahim Shah and Abdul Ghaffar on the basis of their selection as Tehsildars,
in 1972 was passed on a wrong assumption that Rahim Shah and Abdul Ghaffar were promoted
as Tehsildar in 1972 from the lower cadre of Naib-Tehsfdar. As stated earlier Rahim Shah and
Abdul Ghaffar were selected directly as Tehsildars candidates in 1972. This selection was of no
consequence in so far their claim of seniority in the cadre of Tehsildars was concerned. Firstly,
they did not fulfil the requirement of rule 8 of the Rules without which they could not get regular
appointment as Tehsildars; and secondly, their selection as direct Tehsildars never matured in
their regular appointment in that cadre as the order of their selection as Tehsildars was
subsequently terminated by the Governor. In these circumstances assignment of seniority to
Rahim Shah and Abdul Ghaffar in the cadre of Tehsildars from a date earlier to their induction in
the cadre of Tehsildar on the basis of the order of Governor of Balochistan, which proceeded on
a wrong assumption that Rahim Shah and Abdul Ghaffar were promoted as Tehsildars from the
post of Naib-Tehsildar in 1972, was not legally sustainable and the learned Service Tribunal
should have ignored the same. The respondents lastly contended that the right of a civil servant
to a particular seniority in service is not recognised as a vested right under the Act and as such a
grievance by a civil servant that he is entitled to a particular seniority in service is not justifiable.
No doubt, section 8(1) of the Act has declared that a civil servant has no vested right to a
particular seniority in service, but this only means that where a competent authority passes an
order with regard to seniority competently, it cannot be interfered with. However, if the
competent authority on a wrong basis and contrary to the provisions of the law fixes the seniority
of a civil servant such order is not immune from attack by the aggrieved civil servants. Services
Tribunals set up under Article 212 of the Constitution of Islamic Republic of Pakistan have been
conferred exclusive jurisdiction to decide the disputes relating to terms and conditions of a civil
servant. It is not disputed that seniority in service is also one of the terms and condition of the
service of a civil servant. We are, therefore, of the view that a dispute regarding seniority raised
by a civil servant is amenable to the jurisdiction of the Service Tribunal established under the
mandate of Article 212 of the Constitution by the Act of a Provincial Government.
There is nothing either in the language of Article 212 of the Constitution of section 4 of the
Balochistan Service Tribunal Act, 1974, to indicate that the Tribunal cannot give relief in respect
of a grievance brought before it by a civil servant relating to his terms and conditions of service,
unless such grievance is founded on a right recognised by the service law as a `vested right'.
Vested rights only means `rights which are not dependent on any contingency.' However, for
enforcement of a right, it is not at all necessary that the right must be a vested one. If a person is
wrongfully deprived of something or is denied something to which he is entitled to or his title to
something is wrongfully affected he is said to have suffered a legal grievance and if a forum is
provided for redress, he can successfully impugn the wrongful action. We are therefore, of the
view that notwithstanding the fact that seniority in service of a civil servant has been specifically
declared under section 8 of the Act as not a vested right of the civil servant, a civil servant who
has been wrongfully denied his rightful seniority in service is entitled to seek redress before the
Service Tribunal in a properly instituted proceedings.
As a result of the above discussion the appeals succeed which are, accordingly, allowed and the
impugned order of the Service Tribunal is set aside. The Authorities are directed to fix the
seniority of Rahim Shah and Abdul Ghaffar in the cadre of Tehsildar from the date of their
promotion in 1975 as Tehsildar. In the circumstances of the case, we will make no order as to
costs.
M.BA./J-108/S Appeal allowed.