1981 PLP (C (PLC(CS))

I. MAHMUD, J.‑The petitioner, Syed Iqbal Hussain Shah was appointed on 8th March, 1974 as Assistant Accounts Officer on purely temporary basis. The order of appointment stated that his services were liable to termina tion at any time without assigning any reason therefore on 14 days' notice in writing or payment in lieu of notice. The appointment was further subject to the approval of the Sind Public Service Commission in due course, if necessary. The petitioner joined his post at Sukkur on 12th March, 1974. The service record of the petitioner was examine by the Departmental Promotion/Selection Committee in May, 1976, who recommended that the ad hoc appointment of the petitioner and five others be regularised. In consequence thereof, a Notification No. SCK/76‑221 dated 5th October, 1976 was issued by the Additional Member Board of Revenue regularising the ad hoc appointment of the petitioner and others with immediate effect.

2. On the promulgation of Martial Law Order No. 55 Zone C on 7th March, 1978, called the "Ad hoc Appointments Regularisation Order", the Member Board of Revenue (Incharge Settlement Cell), issued a Notification dated 22nd April, 1978 in partial modification of the earlier‑mentioned Notification dated 5th October, 1976 withdrawing the regularisation of the ad hoc appointment of the petitioner and others as Assistant Accounts Officer, stating as a reason therefore, that the Departmental Promotion/ Selection Committee was not competent to recommend regularisation of his ad hoc appointment, being initial appointment in Grade 16, and that his case would be referred to the Sind Public Service Commission for regularisation under M. L. O.

55. The petitioner appeared before the said Commission on 15th May, 1978 for interview. It appears that the Commis sion forwarded its findings to the appointing Authority, that the petitioner was not found fit for holding the post of Assistant Accounts Officer. Pursuant thereto, the Government of Sind, respondent No. 1 through Member Board of Revenue, Sind, issued Notification dated 25th June, 1978 termina ting the services of the petitioner with immediate effect on payment of 15 days' salary under clause (i) of paragraph 7 of the said M. L. O.

55. Being aggrieved by the removal from service, the petitioner has filed this present petition to challenge his removal as being illegal and without lawful authority.

3. The contention of Mr. Aftab Ahmed Shaikh, learned counsel for the petitioner was that the appointment of the petitioner on 8th March, 1974 in the scale of Rs. 350‑35‑525/40‑845 was made by a competent authority. On that date, there was no question of appointment to posts in Grades in the National Scales of Pay, which were made applicable later, on 28th March, 1974, by the Sind Civil Servants (Change in Nomenclature and Abolition of Classes) Rules, 1974. Moreover, the existing pay scale of an Assistant Accounts Officer was not made equivalent to Grade 16 National Pay Scales (Rs. 400‑‑36‑750/50‑1,000) until 27th March, 1974 when the Sind (Gazetted Civil Services (National Scales of Pay) Rules, 1974 were passed. Further, he submitted that the requirement for initial appointment through the Commission to posts in Grade 16 contained in rule 10(1) of the Sind Civil Servants (Appointment, Promotion and Transfers) Rules, 1974 read with rule 3 (i) of the Sind Public Service Commission (Functions) Rules, 1974 came into force on 28th March, 1974, after the petitioner's appointment.

4. We have considered this submission and in our view, it has no force. In the first place, it was a term and condition of the appointment order that the scale of pay of the petitioner was subject to the applicability of National Pay Scale. In the second place, the National Pay Scale became applicable to the petitioner on 27th March, 1974 by the Sind (Gazetted) Civil Servants (National Scale of Pay) Rules, 1974 only a few days after his initial appointment. The petitioner must have drawn the Grade 16 pay for the very first month of March, 1974. No exception can, therefore, be taken to the stand of the respondents that the initial appointment of the petitioner was in Grade

16. That being the position, it is clear that the post of Assistant Accounts Officer was a post in Grade 16 and fell within the purview of the Commission. Therefore, the Department Promotion/Selection Committee was not competent to recommend the regularisation of the) appointment of the petitioner to the said post.

5. Mr. Aftab Ahmed Shaikh also attacked the vires of M. L. O. 55.1 as being ultra vires the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1/1977) as well as on the ground that it was not covered by the doctrine of State Necessity laid down by the Supreme Court in Begum Nusrat Bhutto v. Chief of Army Staff (P L D 1977 S C 657). He also submitted that on the relevant date, Sind Public Service Commission was not validly constituted as its Chairman Mr. Justice (Retd.) Kadir Bux Awan, had already reached the age beyond 68 years and had ceased to function under section 4(4) of the Sind Public Service Commission Ordinance, 1978. These submissions have been fully considered by us in C. Ps. Nos. D‑804/78, 813/78 and 814/78 and have been rejected. It is not necessary to discuss the same again in this petition. For the foregoing reasons, we find no merit in this petition, which is accordingly dismissed with no order as to costs.