1995 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑This appeal has been filed by Dr. Rafique Ahmad Kolachi, a Medical Officer (BPS‑17). He has targeted the Health Department's Notification No. SOI (II) 2‑2/92(M), dated 25th May, 1992, whereby as many as 472 Medical Officers (BPS‑17) have been promoted as Senior Medical Officers (BPS‑18) in the upgraded posts. His grievance is against the omission of his name from the aforesaid notification. As stated in the memo of his appeal, his case is that he initially joined as Medical Officer on adhoc basis vide his appointment order dated 1‑11‑1978. Following the clearance of the Public Service Commission, his services were regularised by Health Department's Notification, dated 21st June, 1986. The Establishment Division of the Pakistan Government by its Memo No.10/22/83‑R.2, dated 20‑3‑1988 allowed adhoc service preceding regular appointment to be counted towards length of service prescribed for promotion provided there was no break between adhoc and regular appointments. The aforesaid memo was adopted by the Government of Sindh vide its letter No. SOR‑I(S&GAD)11/62.82 (pt.1), dated 23‑12‑1990. On the basis of above circular letter, the appellant made application for his promotion, through proper channel. His request went unheeded, even though 472 Medical Officers (BPS‑17) were promoted to higher posts of Senior Medical Officers (BPS‑18) as mentioned above. Aggrieved by the Health Department's above Notification of promotion of 472 Medical Officers, he preferred departmental appeal dated 21‑6‑1992 to the Chief Minister. Since the said appeal remained undecided for the statutory period of 90 days, the appellant filed the present appeal on 18‑10‑1992. Subsequently the appellant moved an amendment in his appeal by application, dated 6th December, 1993 accompanied by his affidavit, seeking to join Dr. Capt. Saifullah Khoso as party because he was promoted to higher post of BPS‑18, though he was junior to the appellant. Accordingly the said Dr. Capt. Saifullah Khoso was joined as party and he submitted his written statement. We heard the arguments of Mr. Manzoor Ali Khan for the appellant and Mr. Abdul Latif Ansari, A.A.G. on behalf of the official respondents. The private respondent Dr. Saifullah Khoso, did not turn up for the arguments. The material part of the appellant's prayer reads as under: "(b) After hearing the parties, order that the appellant be considered for his promotion to the post of Senior Medical Officer (BPS‑18), by the appropriate Departmental Promotion Committee and be promoted after his clearance/approval by the D.P.C. with effect from the due (date) in accordance with his seniority position BPS‑17 to be reckoned in accordance with the dictum of the Supreme Court of Pakistan and Government of Sindh's own precedences quoted hereinabove and appellant's name be included in the impugned order dated 25‑5‑1992:" It would appear from the appellant's above prayer that he focused mainly on his promotion to higher post of Senior Medical Officer. This Tribunal derives its jurisdiction from section 4 of the Sindh Service Tribunals Act, 1973. But the proviso (b) to the above section `expressly bars our intervention in cases involving determination of fitness or otherwise of a person for appointment/promotion to a particular post. Despite such prohibition we are empowered to adjudicate in the case of a civil servant who was not considered for promotion on his turn even though he was otherwise eligible and did not suffer from any defect or infirmity. We have carefully gone through the appellant's memo of appeal and have also attentively heard his counsel's arguments. Now here in the memo of appeal or in course of the arguments it was pointed out that the appellant was not considered for promotion on his turn. It is an admitted position that the notification under challenge in this appeal contains promotions, which were not cleared by the relevant Departmental Promotion Committee. As such the question of non -consideration of the appellant for promotion by such committee did not arise. But the omission of his name from the said notification clearly showed that he was not promoted. It was contended on behalf of the appellant that even though Dr. Saifullah Khoso was junior to the appellant, yet he was promoted and his name appeared at S. No. 257 in the impugned notification To prove his seniority vis a the said Medical Officer, the appellant relied upon the Public Service Commission's communication dated 29‑4‑1986 wherein the names of the selectees whose selection was made in 1986 were mentioned in order of merit. No doubt the name of the appellant appeared at S. No. 250, above the name of Dr. Saifullah Khoso at S. No. 291 in the said communication. The question arose how then the Junior Medical Officer (i.e. Dr. Saifullah Khoso) was given preference over the Senior Medical Officer (i.e. appellant, Rafique Ahmed Kolachi) in promotion? While replying to this question the learned A.A.G. referred us to the Ordinance No. IV of 1978 promulgated on 28th January, 1978 by Ministry of Law and Parliamentary Affairs (Law Division), Islamabad. It may be advantageous to reproduce section 9‑A inserted in the compulsory service in the Armed Forces Ordinance, 1971 through the aforesaid amending Ordinance of 1978. The said section 9‑A reads as under:‑ "9‑A. Concessions to medical practitioner released from service with the Armed Forces‑‑‑Notwithstanding anything contained in any other law for the time being in force, a medical practitioner who, following his release from service with the Armed Forces after having rendered satisfactory service under this Ordinance for a period of not less than two years, enters employment of the Federal Government or a Provincial Government, shall be entitled to count towards his seniority in such employment the period of service rendered by him under this Ordinance and to his pay in such employment being fixed after giving his credit for the service so rendered. Explanation‑‑In this section, 'medical practitioner' has the meaning as in section 3." The above provision clearly entitled the medical practitioners, who had rendered satisfactory service for not less than two years with the Armed Forces, to count towards their seniority the period of such service. The learned AA: G. produced a certificate of the G.H.Q., Rawalpindi, signed by Maj. (H) OIC., M. Iqbal Janjua, indicating that Dr. Saifullah Khoso served in Army Medical Corps, as Commissioned Officer from 5th April, 1981 to 14th June, 1983. It was after his release from Army Service that he joined the provincial service of Government of Sindh. Accordingly the learned AA: G's. argument was that in view of the benefit extended to him by the Ordinance hereinabove, Dr. Saifullah Khoso was entitled to count his Army Service towards his seniority in Government Service. That was precisely the reason, he added, of his becoming senior to the appellant for the purpose of promotion. We are inclined to agree with the above views of the learned A.A.G. as regards the inter se seniority of the appellant and Dr. Saifullah Khoso. The consolidated seniority list of Medical Officers (BPS‑17) produced before' us also supported the learned A.A.G., as the name of Dr. Saifullah Khoso was mentioned at S. No.401 much above the name of the appellant which appeared at S. No.1025 in the aforesaid list. For above reasons we have no hesitation in holding that Dr. Saifullah Khoso, after getting the benefit of Army Service, became senior to the appellant in the cadre of Medical Officers (BPS‑17). The next argument of the appellant's learned Counsel was that in view of the dictum laid down by the Supreme Court in the case of Federation of Pakistan v. Rais Khan (1993 SCMR 609), the appellant was senior for the purpose of promotion clue to his length of service. In support of this argument reference may also be made to the appellant s plea taken in para. 10 of his memo of appeal. The said para. is reproduced as under:

10. That it is categorically submitted that in accordance with the Government of Pakistan, Cabinet Secretariat, and Establishment Division's Office Memo No.10/22/83‑R.2, dated 20‑3‑1988 (Annexure `C' hereto), on the subject `counting of adhoc service for the purpose of promotion', provisions of which have been adopted by the Government of Sindh/respondent No.1, as is evident from Director, Health Service, Sindh at Hyderabad's Circular Memo No. DHSS/G‑V/(4)/1652/1934, dated 31‑1‑1991 (Annexure `D' hereto), appellant's adhoc service from 8‑i1‑1978 to 21‑6‑1986 is to be computed and counted towards the length of service prescribed for promotion to a higher post provided there is no break between adhoc and regular appointment to the post concerned. Appellant's service has no break between adhoc and regular appointment. As such, as on the date of consideration of BPS‑17's Medical Officers by the Departmental Promotion Committee for promotion to BPS‑18 on the post of Senior Medical Officer, the appellant had put in over 13 years' service, which far exceeds the prescribed length of service in BPS‑17 for promotion to BPS‑18." No doubt the Supreme Court in its above judgment approved the principle enunciated by the Pakistan Government in the Office Memorandum No.10/22/83‑R.2, dated 20‑3‑1988 in the following words: "The aforesaid two office memorandum of the Government of Pakistan also support the interpretation that the period of adhoc service followed by regular service in the same scale shall be counted towards length of service prescribed for promotion or move over in the next higher scale. In our view this interpretation is not only reasonable but also correct." The Supreme Court's above view should not be misconstrued to mean that promotion could be made on the basis of sheer prescribed length of service without having regard to seniority of the person to be promoted nor would it mean that the combined period of adhoc and regular service would have the effect of improving or advancing the seniority of the said person. We regret to say that the reliance of the appellant's learned counsel both on office memorandum of Government of Pakistan and the Supreme Court authority hereinabove was misplaced inasmuch as that the learned counsel had confused the eligibility for promotion with the seniority for that purpose. This has been made abundantly clear even by the Supreme Court in its above judgment. In this connection we may refer to the Supreme Court's observations as under: "In this connection, reference may be made to section 8 of the Civil Servants Act, 1973 which relates to seniority. Subsection (4) of section 8 provides that seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post. Accordingly for the purpose of seniority in a particular grade, regular, appointment is the determining factor." Clearly the Supreme Court has ruled out the possibility of counting the period of adhoc service for determination of seniority. Moreover, we are of the view that the above judgment of the Supreme Court cited by the appellant's learned counsel in support of his argument has absolutely no relevance to the point agitated in this appeal. This will be further clear from the Supreme Court's observations reproduced hereunder :‑‑ "We may add here that the. only question involved in this appeal was whether the period of adhoc service followed by regular service in the same scale shall be counted towards length of service prescribed for promotion to a higher scale. Decision of this important question of law of public importance by the Federal Service Tribunal in the affirmation has been maintained by us. The other question whether regularization of an adhoc appointment in a. scale can be given retrospective effect to date back to the time when the adhoc appointment was initially made in that scale, which would as a consequence affect the incumbent beneficiary as regards his seniority, was dealt with by the Tribunal but no effective relief was granted to the respondent for the reason that his appeal for such relief was barred by limitation. As the respondent did not file any appeal against the decision of the Tribunal, we were not called upon to decide this important question of law. This should not be taken to mean that the Service Tribunal had no jurisdiction to grant relief in this regard if the respondent's appeal was not time‑barred to that extent." It would thus be clear that Supreme Court had not held in its judgment cited above that the combined of adhoc and regular appointments would improve the seniority. On the contrary it was held that the Tribunal had given no relief in this regard because the respondent's appeal to that extent was barred by limitation. It was further held that as the respondent did not file appeal, the Supreme Court was not called upon to decide the said important issue. Nevertheless the appellant's learned counsel laid his emphasis on the Supreme Court's last mentioned observations namely, "this should not be taken to mean that Service Tribunal had no jurisdiction to grant relief in this regard. In the light of these observations the learned counsel submitted that Tribunal could, if it so desired, allow the regular appointment to take effect retrospectively from the date of adhoc appointment. We are sorry for not subscribing to this view of the appellant's learned counsel. If regular appointment was allowed to take effect from the date of adhoc appointment, the material difference between these two kinds of appointments would disappear and in consequence many provisions of law and rules dealing with these appointments would come redundant. In other words the Tribunal would assume the role of legislating under a cloak of interpreting. In our opinion there was a lot of wisdom in treating adhoc and regular appointments as two different appointments with totally different attributes. The material difference between the above two appointments is that in case of adhoc appointment, the appointee is not made to go through the rigours of the process of selection in which not only his eligibility is considered but also his fitness for the appointment involving a number factors such as his antecedents, his present and past performance etc. is determined. Moreover, the selection is made by a different body independent of the appointing authority. Normally the appointing authority is bound by whatever recommendations are made by selection authority such as Public Service Commission, Departmental Selection/Promotion Committee etc. Thus, by devising such process for appointment/promotion, effort has been made to avoid the arbitrariness of a single authority namely the appointing authority. So, at the time of his adhoc appointment, fitness is not tested and that too by independent authority. Subsequently if the date of regular appointment is merged with the date of adhoc appointment, its logical effect will be that both these appointments which are statutory appointments distinctly recognized as such appointments by the statutes and rules framed thereunder would come into force from one and the same date, obviously giving rise to an absurd situation. Even otherwise the person found fit at the time of regular appointment/promotion, would not necessarily enjoy same kind of fitness at the time of his adhoc appointment. The intervening period between the two appointments plays its part inasmuch as that it provides the incumbent opportunity to improve his performance and efficiency. Therefore, we are of the view that barring some exceptions, the Person declared fit at the time of regular appointment/promotion could not be held as equally fit even at the time of his adhoc appointment. Even otherwise there is an express legal bar on retrospective regularization of adhoc appointment/promotion. Of course in cases of hardship section 24 of the Sindh Civil Servant Act, 1973 could be invoked to provide the much needed relief. In view of above discussion we hold that eligibility for promotion should not be confused with seniority for that purpose. Promotions are made in accordance with section 9 of the Sindh Civil Servants Act, 1973. It reads as under:‑‑ "9. ‑‑ (1) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in the higher grade or the service or cadre to which he belongs. (2) A post referred to in subsection (1) may either be a selection post a non‑selection post to which promotion shall be made as may be prescribed"‑‑ (a) in the case of a selection post, on the basis of selection on merit; and ' (b) in the case of a non‑selection post on the basis of seniority‑cum fitness." It follows from above section that promotions are normally made in accordance with seniority excepting the promotions of meritorious persons who are given preference particularly in filling the selection posts. Thus, when any person is ripe for promotion and his case is under process for that purpose, it was then that his eligibility for promotion had to be ascertained. That is to say it had to be found if he possessed the minimum prescribed qualifications such as prescribed length of service as in the instant case. Thus, in face of above prescribed procedure for promotion, it was absurd to accept the argument of the appellant's learned counsel that appellant should be considered for promotion merely on the strength of prescribed length of service. At the Bar we were informed that promotions which are under challenge were confined to the Medical Officers selected upto 1984 and as such the appellant who was selectees of 1986 was not yet ripe for promotion. Dr. Ali Akbar s/o Hap Ghulam Hussain Soomro was last promotee as per the impugned notification. His name. appears at S. No.693 in the seniority list, showing that his regular appointment was made on 9‑8‑1984. After him 59 more Medical Officers were approved by the Public Service Commission for regularization in 1984. The last man whose services were regularized in that year (1984) was assigned S. No.752 in the seniority list. Thus a number of Medical Officers whose services were regularized in 1984 still remained to be promoted before the Medical Officers cleared by Public Service Commission in 1985 and 1986 are taken up in hand for promotion. We are afraid the appellant who is selectee of 1986 had to wait for quite some time until his turn came for promotion and then alone he could be considered for promotion. In the meantime we see no merit in his grievance as contained in his appeal which is therefore dismissed with no order as to costs. H.B.T./578/Sr.S Appeal dismissed