1988 PLP (C (PLC(CS))

Assistant Divisional Engineer, on the basis of letter of appointment issued in this respect on 20‑8‑1974.

4. On 19th September, 1974, an advertisement was published under the orders of the Director General, T & T for filling 81 vacancies of Assistant Divisional Engineers on ad hoc basis. At that time, respondents 5 to 19 and 21 to 23 were attached to Telecommunication Staff College, Haripur, under the National Development Volunteer Programme. They were receiving on‑the‑job training at that place. It had, however, been clarified that these respondents will have no vested right for appointment as Assistant Divisional Engineers.

5. It is pertinent to note that simultaneously with the publication of advertisement inviting applications for ad hoc appointments, the Public Service Commission also advertised these posts on 18th September, 1974. The aforesaid respondents who were doing on the job training in the Staff College, Haripur, made a representation to the then Prime Minister for giving them appointment as Assistant Divisional Engineer in the T & T Department. The Prime Minister acceded to the request by his order dated 17‑9‑1974. There was some other recommendation in favour of these respondents by the then Chief Minister of N. W.F.P. and as a result, all these respondents were given the appointments.

6. The appointment of respondents 5 to 23 came for scrutiny under section 12‑A of the Civil Servants Act (LXXI of 1973), and the Government decided that their cases be referred to the Public Service Commission under the provisions of the Federal Public Service Commission (Functions) Rules, 1978. These respondents then obtained a decision in their favour from the President which was to the effect that they may appear before the Commission in the viva voce test only and that they may not be subjected to written examination. This was done so as a measure of concession to them, presumably because they had been undergoing on the job training in the Telecommunication Staff College, Hiripur.

7. The Public Service Commission on 27‑1‑1982 informed the Establishment Division about the suitability of these candidates for appointment as Assistant Divisional Engineers in the T & T Department. It. however, observed that these candidates will take their regular appointment in B‑17 from the date of Commission's recommendations and their inter se seniority shall he in the order laid down by the Commission. The Commission also observed that since the candidates were interviewed without advertising the posts, the 'l & T Department would itself adjust them in the quota of their respective Provinces, and that the excesses and shortages were to be adjusted in due course

8. Finally, the Ministry of Communications, in consultation with the Establishment Division, issued a notification on 15th November, 1982 approving the retention in service of the aforesaid respondents from the dates they were appointed to the post of Assistant Divisional Engineer

9. The appellants are aggrieved by order dated 15‑11‑1982 as .it paces respondents 5 to 23 above the appellants. Their case is that since the appellants had appeared before the Commission in an earlier year, the respondents 5 to 23, who, as a measure of concession, were approved by the Commission much later, cannot be placed senior to them.

10. Lengthy arguments were addressed before us on the date of hearing. The case of the appellants in nut shell is that they being regular appointees through the Public Service Commission on the basis of advertisement issued in 1974, have to rank senior to respondents 5 to 23, who were selected on the basis of a later advertisement and that too by relaxation of rule of written test. The respondents' case, on the other hand, is that they were working on the basis of the order by the competent authority long before the appellants joined the service, and that in this manner they are senior to them. Precisely speaking, the case of the respondent is that although they appeared before the Public Service Commission on a later date, the recommendations of the Commission were confined to judge their suitability alone and that the normal rules in this respect would not apply.

11. The learned counsel for the appellants has referred to certain nothings of the Public Service Commission, the Ministry of Communications and the Establishment Division, wherein the status of the respondents 5 to 23 was examined. To a large extent these Divisions and the Public Service Commission had supported the appellants' case. It was argued before us that notification dated 15‑11‑1982 by which respondents 5 to 23 were appointed retrospectively from the dates they originally joined the service, was ultra vires the law on the subject and that no retrospectively could be given to a notification.

12. Reference has been made to the case of Mrs. Zeenat Parveen Jaffery v. Secretary to Government of Sind, Education Department and 4 others 1983 PLC (CS) 1260, wherein it was held that executive order cannot be amended retrospectively. This case has no bearing whatsoever on the circumstances of the present case, inasmuch as, there was no executive order against respondents 5 to 23 which has been amended. In fact, the first order of the competent Authority was passed long before the Commission's recommendations and that would have remained in force if section 12‑A of the Civil Servants Act had not been enacted. It was, as a result of scrutiny of the respondents' cases that reference was made to the Public Service Commission. Otherwise, the appointments of the respondents having been made by the competent Authority, their status could not be changed. Reference was also made to the case of Muhammad Afzal v. Chief Secretary, Government of Sind and 11 others 1983 PLC (CS) 1284. This case is not at all on point and it only explains the principle of locus poenitentiae. In fact, the respondents could have taken the stand that reference to the Public Service commission of their cases was not justified as their appointments had been made by the competent Authority. It was only, as already stated, by enacting section 12 A in the Civil Servants Act, 1973 that necessity of referring the cases of respondents became desirable to find out if on merits they deserved retention in service. The only function which the Commission was expected to perform was either to approve or disapprove these respondents. It was not within their it function in cases arising out of action under section 12‑A ibid, to make any recommendation with regard to seniority viz‑a‑viz other employees already approved by it.

13. Reference was also made to certain instructions in the ESTACODE, but none of these instructions relates to the peculiar circumstances of the present case which has, as already stated, come up for consideration under section 12‑A ibid. The said section does not provide for the fixation of seniority or postponing the date of appointment. It may be pointed out that when the respondents 5 to 23 were appointed by the order of the competent Authority and the appointment was nether ad hoc nor temporary, none of the notification shows contrary stand f taken by the appellants.

14. Precisely speaking, this is not a case of selection by the Public Service Commission on the basis of two different advertisements. As regards respondents 5 to 23, the Commission had played purely an advisory role to approve the action already taken by the competent authority. The argument of the learned counsel for the appellants that appointments of respondents 5 to 23 being illegal ab initio cannot be taken into consideration is devoid of any force. These respondents had been regularly appointed and would have continued into service with that status if the scrutiny under section 12‑A had not been taken. The appointment made by the competent Authority even if made without the recommendation of the Public Service Commission is not void or illegal and would not, in the ordinary course, divest them of the right that has once accrued to them. A similar question had 1 come up before the Tribunal in the case of Muhammad Ashraf Nadeem v. Establishment Division P L J 1982 Tr. C. (Service) 165 and we had held that appointment made by the Prime Minister without consulting the Public Service Commission is not illegal and that any action taken against a civil servant prior to the enactment of section 12‑A of the Civil Servants Act was illegal.

15. For the foregoing reasons, we are of the view that respondents 5 to 23 have rightly been placed senior to the appellants as they had joined the service on regular bass prior to them and the reference of their cases td the Public Service Commission was only to judge their suitability for retention in the service and not D for making fresh appointments.

16. The result of the above discussions is that we dismiss the appeal. Parties to be informed accordingly. A.A. 408/Sr. F Appeal dismissed.