1991 PLP (C (PLC(CS))

When the seniority list in question was drawn up, the Sindh Civil Servants (Probation, Confirmation and Seniority Rules 1975 (hereinafter referred as the Seniority Rules) were in force. As such the seniority list was to be prepared, in ordinary course, in accordance with the said rules. Rule 10 of seniority rules reads as under:-- "10(1) Subject to the provision of rule 11 the seniority of a civil servant shall be reckoned from the date of his regular appointment. (2) No appointment' made on ad hoc basis shall be regularized retrospectively." It would appear from the above rule that regular appointment is not same as ad hoc appointment. Both these appointments are explained in the Sindh Civil Servants Act, 1973 (hereinafter referred as the said Act). As defined in clause (a) of subsection (1) of section 2 of the said Act, "ad hoc appointment" means appointment made otherwise than in accordance with the prescribed method of appointment. In subsection (2) of the same section regular appointment is clarified as an appointment made in the prescribed manner. Thus appointment made in accordance with prescribed procedure is designated as regular appointment and appointment made otherwise than in that manner is called ad hoc appointment. As stated in para 6 of the memo of appeal, all the private respondents were first appointed on ad hoc basis vide Education Department's Notification No.SOE(III)- 1/65-72, dated 5-12-1972. Out of these respondents, the appellant has withdrawn his case against Abdul Rahim Channa, Rasheed Ahmad and Gulbahar, as the first mentioned respondent does not fall within the category of the ad hoc appointees and the other two have since died. So far respondent Khair Muhammad is concerned, his name is missing from the above notification. Nonetheless in the written statement filed on behalf of the official respondents it is admitted that the said respondent Khair Muhammad too was appointed on ad hoc basis (vide para 3 under caption `facts'). The said respondent has not contested the appeal even though he was served with notice. Accordingly we hold that the private respondents were initially appointed on ad hoc basis. Having arrived at the above conclusion, it would be necessary to ascertain the date of regularization of their service because as pointed out above seniority is reckoned from date of regular appointment 'The appellant's case is that on recommendations of the Sindh Public Service Commission the services of the respondents were regularized on 9-8-1978 (vide para. 7 of memo. of appeal). In support of his plea our reference was invited to the Education Department's Notification No.SO(E-1)-1/78(REG), dated 9th August, 1978 which reads as under:- "In accordance of the advice of the Sindh Public Service Commission, the Government of Sindh are pleased to regularize the services of the following officers of the Education Department under Martial Law Order 55 .." As many as 76 officers are mentioned in the above notification whose services were regularized. The names of at least two respondents namely Khair Muhammad and Lal Dino are missing from the list of the officers appalling in the above notification. As for Khair Muhammad we have already held that he has not contested the appeal. Even respondent Lal Dino did not turn up to contest the appeal even though he was served with notice. However, the official stand with regard to the regularization of service of the respondents is given in paras. 4 and 5 of the written statement filed by the learned AA.-G. The relevant portions of the said paras are reproduced below:- "4 The appellant is ignorant of the real position with regard to the regularization of officers of Grade-17 of Education Department ... The Notification No. SO (E-1)-1/78(REG), dated 9-8-1978 under MLO-55 confirms only the previous position with regard to the regularization of the officers of Grade-17, mentioned in the notification w.e.f. 9-12-1972 as a result of review of the cases ... it is submitted that the real position is that the officers of Grade-17 mentioned by the appellant in the case were appointed on ad hoc basis under Government of Sindh, Education Department Notification No. SO (E-III)-1/65-72, dated 5-12-1972 The appointments/promotions of the officers, appealed against, were regularized by the Governor Sindh who was competent authority under Notification No. SO (E-1)/35-37, dated 18-12-1973 . Thus it is clear from the written statement filed on behalf of the official respondents that the services of the private respondents were actually regularized by the Notification dated 18-12-1973 and that the subsequent Notification dated 9-8-1978 was issued only in confirmation of previous notification. We have perused the notification, dated 18-12-1973. By that notification, the Governor of Sindh had regularized the appointment of the respondents not only retrospectively w.e.f. 9-12-1972, the date of their ad hoc appointment but also without approval of the Public Service Commission. The question arose if the Governor could do that in relaxation of the relevant rules. Of course seniority rules had not come into being by that time. So also the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 were not promulgated. However, the Sindh Civil Servants Act, 1973 (said Act) had already come into force with effect from 5th December, 1973. We have to see if the Governor's order of regularization of the respondents' service as per Notification dated 18-12-1973 is in consonance with the said Act. As provided in subsection (3) of section 8 of the said Act, "Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed." The word "prescribed" as defined in clause (9) of subsection (1) of section 2 of the said Act means prescribed by rules. By virtue of subsection (2) of section 26 of the said Act, West Pakistan Education Service (Class II) (Administrative Branch) (Men Section) Rules, 1963 (hereinafter referred as 1963-rules) held the field, when the Governor made the aforesaid order. Rule 6 of these rules required that initial recruitment to the posts to which the respondents were appointed was to be made on recommendations of the Public Service Commission. It is an admitted position that names of the respondents had gone through the usual test of the Public Service Commission prior to regularization of their service order issued, in 1973. That was precisely the reason for ordering their regularization in relaxation of the relevant rules. Rule 13 of 1963 Rules which permits relaxation of rules reads as under: "

13. Relaxation.-- Any of these rules may, for reasons to be recorded in writing, be relaxed in individual cases, if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned: Provided that whenever such relaxation involves a question on which consultation with the Commission is mandatory, the Commission shall be consulted before the relaxation is made. Obviously the order of Governor dated 18-12-1973 was passed under the above rule. We therefore see nothing illegal in the order. The subsequent order of regularization dated 9-8-1978 was apparently inconsequential. After having regularized the appointment of the respondents by order dated 18-12-1973, their reference to the Public Service Commission, five years hence, was uncalled for and an exercise in futility. We have therefore, come to the conclusion, that the seniority list has been correctly prepared, showing the respondents senior to the appellant. Apart from above, the appeal is badly hit by limitation. It is not denied that impugned seniority list almost reflects the same position as was given in the seniority list issued in June, 1983. however, the appellant did not agitate for assignment of proper seniority position at that time. Our attention was drawn to the case reported as Jan Muhammad S. Bhutto v. Director, School Education 1988 P L C (C.S.) 146 in which the appellant figured as one of the respondents. In that case Jan Muhammad had challenged the seniority list issued in June, 1983. If the appellant had any grievance against the said list he, could wake up for his seniority rights even at that stage but he admittedly did not stir and remained quiet. Although the impugned seniority list was circulated by letter dated 7-6-1987, yet the present appeal was filed after the delay of more than two years, on 25-2-1989. The appellant's contention is that he came to know about it only when it was sent to him on 24-10-1988. It is difficult to believe that the appellant remained in the dark about the seniority list even after its circulation amongst the officers concerned, by letter dated 7-6-1987. Our belief finds support from the appellant's lack of interest shown by him on the previous occasion when the seniority list was issued in June, 1983 and thereafter he was dragged in litigation instituted in respect the said seniority list. We are of the view that present appeal is belated one and the long period that the appellant has wasted before coming to this Tribunal has remained totally unexplained. For above reasons appeal is without merit and is accordingly dismissed with no order as to costs. M.Y.H./234/Sr.S Appeal dismissed.