2001 PLC(C (PLP)

DEEDAR HUSSAIN SHAH, J.‑‑‑This order shall govern the above petitions for leave to appeal which have been preferred against the common judgment, dated 9‑12‑1999 passed by learned Division Bench of Sindh High Court involving common question of facts and law.

2. Respondents were appointed as Excise and Taxation Officers on ad hoc basis and their services were to be regularized in terms of requirements of Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 (hereinafter to be referred to as the Act). According to section 3(1) of the Act, respondents would be deemed to have been appointed on regular basis with effect from 28‑7‑1994 upon recommendation of a Special Committee on the basis of scrutiny of documents furnished by the respondents as required under section 3(3) of the Act. Initially a Notification, dated 11‑4‑1998 showing the appointments of the respondents on regular basis was issued but the same was cancelled by a further Notification, dated 18‑2‑1999. Being aggrieved thereby the respondents approached learned Sindh High Court which, after issue of notice to the parties and hearing the learned counsel for petitioners in writ petitions as well as learned Advocate General, Sindh, allowed the Constitutional Petitions, and recalled Notification, dated 18‑2‑1999.

3. Mr. Ainuddin, learned Additional Advocate‑General contends that learned Sindh High Court has not considered that the Special Committee which was to consider the cases of the respondents for verification of antecedents, academic qualifications, experience, age and place of domicile, was not properly constituted as representative from S&GA Department, Government of Sindh, did not attend the meeting.

4. Learned A.A.‑G. next contended that the orders in this regard were to be passed by the Chief Minister whereas in the case of the respondents the same were passed by the Ministry for Excise and Taxation Department. He submits that learned High Court has not considered the above facts and leave to appeal may be granted. He also referred to Muhammad Iqbal Khokhar v. The Government of the Punjab (PLD 1991 SC 35), Ahsanullah A. Memon v. Government of Sindh (1993 SCMR 982) and S.M. Farooq v. Muhammad Yar Khan (1999 SCMR 1039).

5. Section 3 of the Act is reproduced as follows:‑‑ "

3. Regularization of services of certain civil servants.‑‑‑(1) Notwithstanding anything contained in the Act or Rules thereunder, or in any decree, order or judgment of a Court but subject to other provisions of this Act a civil servant holding ad hoc appointment against a post in BS‑16 or above and is in employment on the commencement of this Act shall, on orders trade in that behalf, be deemed to have been validly appointed to that post on regular basis with‑effect from the date of the commencement of this Act. (2) The orders under subsection (1) shall not be made unless antecedents of such civil servants, his academic qualifications, experience, age and place of domicile are scrutinized and cleared by a Special Committee appointed by Government. (3) The Special Committee under subsection (2) shall be headed by the Secretary Incharge of the Department concerned and amongst others shall consist of a representative each from that department and the Services and General Administration Department."

6. Admittedly, the respondents were appointed on ad hoc basis and in pursuance of the provisions of the Act, the cases of respondents were placed before the Special Committee constituted under section 3(3) of the Act which, after scrutinizing their antecedents, qualifications, age, domicile recommended their cases for regular appointment. Record further shows that Secretary, S&GAD was informed by Deputy Secretary, Excise and Taxation Department, through a Letter No.OS (Admn‑1)Ext/12(26)SO‑Estt., dated 17‑3‑1998, showing that antecedents, experience, age and place of domicile of the respondents were verified by the Committee and same were found to be in accordance with requirements of the Act, and as such the Committee cleared the respondents. The non‑participation of the representative of S&GA Department, in our opinion is of no consequence because when a meeting was convened and all the concerned had been informed, it was incumbent on the part of S&GAD to send their representative but it failed. Moreover, the Committee was required to scrutinize the documents as mentioned hereinabove and to make recommendation. The Special Committee after scrutiny of the cases as required under section 3(2) of the Act and deliberation, recommended the cases of the respondents. Consequently orders passed thereafter made the appointments of the respondents to be on regular basis under section 3(1) of the. Act. The learned Advocate‑General has not challenged the recommendation of the Special Committee so far the qualifications, and place of domicile of the respondents. The above provisions of law provide that a person duly recommended by Special Committee is to be appointed on regular basis therefore, the petitioner cannot be permitted to take advantage of the failure of Chief Minister to perform his: duties and obligations ordained by law.

7. In the case of Muhammad Iqbal Khokhar (supra), on the question of seniority, this Court observed that Government cannot flagrantly strike down the very law he was to uphold by its exercise‑‑Order of the Governor relaxing the condition of 5 years` service and promoting civil servant out of turn, contravened the rights of others, promotee having been given forced seniority‑‑Circumstances under which Governor's order would be just and fair stated.

8. In Ahsanullah's case (supra) also, seniority of deputationist and regular appointee was considered whereas in the case of S.M. Farooq (supra), civil servant appointed as Assistant Chief (B‑18), Ministry of Culture and Tourism but was absorbed as Deputy Controller (B‑18) in other Department and the civil servant in seniority list issued by Authority was placed before the opposing civil servant who was not only senior in service to civil servant but was still working in parent department.

9. In the circumstances authorities cited by the learned A.A.‑G. are quite different and distinguishable to the case of the petitioners as such do not advance their case. In the instant petitions, learned High Court has considered the case of the respondents and parawise comments filed by the petitioners and with sound and cogent reasons allowed the petitions and recalled the Notification, dated 18‑2‑1999.

10. We have given our anxious thought and also minutely gone through the authorities. In our opinion, impugned order does not suffer from any illegality/material irregularity therefore, is unexceptionable warranting any interference by this Court. For the facts, circumstances, and reasons hereinabove mentioned, the petitions are devoid of merits and substance consequently leave to appeal is refused and petitions are dismissed. Q.M.H./M.A.K./G‑41/S Petitions dismissed.