988 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (Chairman).‑‑By ‑this appeal, appellant Jan Muhammad has. impugned the seniority position assigned to him in the final seniority list of Head Masters etc. (Grade‑17) of Hyderabad Region, issued in June, 1983. The appellant's case, as stated in the memo of his appeal, is that while he was serving as High School Teacher, Posts of Sub‑Divisional Education Officer, Head Masters and Deputy Education Officers were advertised in 1972. He was one of the candidates for the said posts and on his selection by the Selection Board his appointment order was issued on 5‑12‑1972 whereupon he resumed duties as Sub‑Divisional Education Officer, Ratadero (Grade‑17) on 9‑12‑1972. Since then he has been continuously working in the said grade without any interruptions. Subsequently his case was referred under MLO‑55 to the Public Service Commission for determining his suitability for the post. After the necessary clearance by the Commission, the Education Department issued a notification dated 9th August, 1987 whereby the services of the officers including the appellant specified in the notification were regularized.

2. Thereafter, tentative seniority list of the Head Masters etc. of Hyderabad region was issued in January 1983 wherein the appellant was shown to have been appointed on 9‑12‑1972 and was assigned seniority position at serial No.99. However, his seniority position was changed from S. No. 99 to S.No. 161 in the final seniority list in which even the date of his appointment was shown as 9‑8‑1978. The appellant's grievance is that he was kept totally in the dark with regard to the above changes as he was not supplied a copy of the final seniority list nor was he given any show‑cause notice before making the said changes in the seniority list. When he came to know his seniority position given in the final seniority list from his colleagues, he preferred departmental appeal. It was by respondent No.l (i.e. Director Education. Hyderabad region) that he was intimated that his appeal had been rejected. Thereafter, he filed the present appeal before this Tribunal. We heard elaborate arguments made at the bar and also went through the whole lot of relevant documents available on the record.

3. The appellant's prayer is that respondents Nos.l and 2 be directed to rectify the date of his entry in grade‑17, from 9‑8‑1978 to 9‑12‑1972 and determine his seniority in the said Grade from the date of his original appointment. As provided in sub‑rule (1) of Rule 10 of the Sind Civil Servants (Probation, Confirmation, Seniority) Rule 1975. (hereinafter referred to as 1975 Rules) seniority of a Civil Servant is to be reckoned from the date of his regular appointment. No doubt the appellant was appointed as Sub‑Divisional Education Officer in Grade‑17 for the first time on 9‑12‑1972. The question for our consideration is whether the appellant's appointment on the said date was regular appointment within the meaning of rule 10 (1) referred to above. A copy of the order refleating the said appointment is not available on record. However, the plea taken by the appellant is that his original appointment with effect from 9‑12‑1972 was a regular appointment. This is disputed by the official respondents in para 1 of the written statement filed on their behalf.

4. The conflict between the parties as regards the nature of the appointment made on 9‑12‑1972 can only be resolved in the terms of the rules then in force. It is admitted on both hands that the rules applicable at time were West Pakistan Education Service (Class II Administrative Branch) (Men Section) Rules 1963. As provided in rule 6 of these rules, initial recruitment to the post to which the appellant was appointed was to be made on recommendations of the Public Service Commission. It is not the appellant's case that his appointment in 1972 was based on the recommendations of Public Service Commission. On the contrary it is clear from para 7(b) of the memo of appeal that appellant's selection was made by same Selection Board. Thus, his appointment was not made in accordance with the aforesaid rules. Consequently his appointment was anything but regular appointment made under the rules. Such appointment was obviously required to be approved by the Public Service Commission.

5. It is an admitted position that like other similar cases, the case of appellant was also referred to the Sind Public Service Commission under MLO‑55 and after the clearance by the commission the Education Department issued notification dated 9‑8‑1978 regularising the services of the officers listed therein. The name of the appellant in the said notification appears at serial No.38. Accordingly his appointment made in 1972 was actually regularized with approval of the Public Service Commission on 9‑8‑1978. As such his seniority in the said Cadre was to be reckoned from the date of regularization of his appointment.

6. It was contended on behalf of the appellant that under MLO‑55 only, fitness of the holder of the post was to be determined, which had nothing to do with the appointment being regular or not. If this argument were accepted in the case of the appellant, it would be worse for him. He would be held to have still continued on ad hoc basis, as ever since his appointment in 1972 no approval of the Public Service Commission was obtained. The Public Service Commission approved his appointment only in 1978. Accordingly we cannot sub‑scribe to the view taken by the learned counsel for the appellant that the result of the assessment of the appellant made by the Public Service Commission under MLO‑55 has no effect of regularising his appointment.

7. The learned counsel for the appellant further submitted that in view of the approval of the Public Service Commission given in 1978, the appellant could be held to have been regularly appointed from the date of original appointment. In support of his argument he relied upon the judgment of the Hon'ble Supreme Court in CP.333‑K185 and CP.334‑K/85 delivered on 21st May, 1986. We have gone through this judgment which is very brief. By the said judgment the appeal preferred against the decision of the Service Tribunal was dismissed. As is clear from the judgment of the Supreme Court, the appeal filed by the respondent Ghulam Sarwar was allowed by Service Tribunal inasmuch as that a direction was given that seniority list of the officers concerned be prepared by the Department and the aforesaid respondent be placed in the list according to the date of his initial recruitment in NP‑16 irrespective of his regularization of his appointment under MLO‑

55. Basing his argument on such direction, the learned counsel submitted that even in the instant case the appellant be assigned seniority position in accordance with the, date of the initial appointment notwithstanding the regularization of his appointment under MLO‑

55. It would appear that the case of Ghulam Sarwar was clearly distinguishable from the present case. In Ghulam Serwar's case the relevant passage from the judgment of the Tribunal has been reproduced in the judgment of the Supreme Court. It is clear from the said passage that respondent had been recruited by the Government as a special case by relaxation of rules and therefore the Tribunal was of the view that such appointment could not be termed as ad hoc and consequently the term regularization used in MLO‑55 could not adversely affect the seniority of the appellant. But that is not the case here. The initial appointment of the appellant was not made in relaxation of the rules nor was his case treated as a special case by the Government. Therefore, the judgment of the Supreme Court in Ghulam Sarwar's case is not applicable in this case.

8. Another case relied upon by the learned counsel for the appellant is of Muhammad Afzal, decided by this Tribunal vide judgment dated 13‑6‑1983 (appeal No:43/81). This case too, to our opinion, is not helpful to the appellant, as the facts of the case were different from those of the instant case. However, the learned counsel for the appellant by referring to the observations made by this Tribunal in the case of Muhammad Afzal submitted that sub‑rule (2) of rule 10 of the 1976 rules being in conflict with subsection (5) of section 7 of the Sind Civil Servant Act 1978 (hereinafter referred to as the said Act) is ultravires of the said Act. In order to appreciate the implications of subsection (5) referred to above, we may reproduce it as under: "(5) Confirmation of civil servant in a service of post shall take effect from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiation, in such service or post, whichever latter,"

9. On careful perusal of the above provision of law, it appears that confirmation of a civil servant in a service or post will take I place from the date of occurrence of permanent vacancy or from the date of continuous officiation whichever is later. Obviously the date of continuous officiation would not help the civil servant if permanent vacancy was not available. Again if a civil servant is appointed in a permanent vacancy, and that too not on ad hoc basis then his appointment will be followed by a period of probation via subsection. (1) of section 6 of the said Act. That is to say that in the case of ad hoc appointment there will be no period of probation. It is only after ad hoc appointment is regularized, that period 'of probation will start. As the period of probation will follow and not precede the regular appointment. Even the period of ad hoc appointment which obviously precedes the regular appointment cannot be counted towards the period of probation. Section 7 (1) of the said Act Provides that one becomes eligible for confirmation only after successful completion of period of probation. Therefore, it cannot be conceived that confirmation can be made retrospectively from the date of ad hoc appointment. We may also refer to definition of ad hoc appointment as given in section 2 (1) (a) of the said Act. It reads as under: "(a) 'ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method or recruitment pending the recruitment in accordance with such method:"

10. The above definition shows that ad hoc appointment is that which is not made in accordance with the prescribed method of recruitment. The prescribed method of appointment is elaborately given in Sind Civil Servants (Appointment, Promotion and Transfer; Rules 1974. As provided in rule 10 of these rules initial appointment to the posts in Grades 16 to 22 is to be made on recommendations of Public Service Commission. So, the ad hoc appointments to the above grades will become regular ones if they are subsequently approved by the Public Service Commission. Therefore, the date of regular appointment cannot be the same as that of ad hoc appointment civil Servant found fit for the appointment by the Public Service Commission on a given date cannot be held to be automatically fit for such appointment even on the date on which he was appointed on ad hoc basis. Therefore, sub‑rule (2) of rule 10 of 1975 Rules carries a lot of sense that ad hoc appointment cannot be regularized retrospectively.

11. In view of the elucidations made above of the various provisions of the said Act and the rules thereunder, the words" continuous officiation" used in subsection (5) of section 7 of the said Act can be construed in literal sense that "continuous officiation" would start from the date of actual appointment regardless of whether the appointment was on ad hoc basis or was a regular one. We are inclined to the view that "continuous officiation" only means officiation after regular appointment. This view finds confirmation also from section 12 of the said act in which officiating appointment is distinguished from the ad hoc appointment. Officiation means to officiate which obviously is not applicable to ad hoc appointment. A person appointed on ad hoc basis cannot be held to be officiating in the post or service. Accordingly the contention of the learned counsel has no force.

12. In view of above discussion, since the appointment of appellant was regularized from 9‑8‑1978 after the clearance from the Public Service Commission, his seniority was to be reckoned from the said date. The seniority position assigned to him in the final seniority list is admittedly based on the date of his regular appointment. Therefore no fault can be found with it, for above reasons the appeal filed by the appellant being without merit is dismissed with no order as to costs. A.A./140/Sr.S Appeal dismissed.