1993 PLP (C (PLC(CS))

NASIM HASAN SHAH, J: ‑‑This appeal, by leave of this Court, is directed against the judgment of the Sindh Service Tribunal dated 20‑5‑1985 by which the appellant's appeal before the said Tribunal was dismissed. The appellant seeks to challenge the order of the Provincial Government dated 7‑11‑1983 reverting him from a 17‑Grade post to a 16 Grade post. This order was passed pursuant to the recommendation of the Select Committee constituted under Martial Law Order 55 for regularization of ad hoc appointments. The recommendation of the Select Committee was to the following effect: "Mr. Nazir Hussain s/o Ghulam Hussain Solangi (Grade‑17) The service particulars as per prescribed pro forma were examined and it was observed that Mr. Solangi possesses Master Degree in III Division as against the prescribed qualifications of Master's Degree in II Division for the post. As such, the Select Committee did not consider him fit to be retained in the present post. He may, however, be reverted to a Grade‑16 post qualifications in terms of sub‑para. (ii) of para. 6(i) of M.L.O.55." Martial Law Order 55 referred to above was promulgated on 2‑5‑1978 to review ad hoc appointments made, inter alia, in violation or incorrect relaxation of the Rules over the past years. This is evident from the opening of this order:‑ "Whereas a number of ad hoc appointments in violation or incorrect relaxation of rules over past years have been made in various Government Departments and offices, Local Councils and other Autonomous and Semi‑Autonomous Bodies established by Government of Sindh; And whereas it is expedient for the efficient functioning of administration to examine all such ad hoc appointments as in existence on this date in the Province with a view to retain only those appointees who are found suitable for service in Government and other autonomous and semi‑autonomous bodies." In the present case, the order of appointment of the appellant made on 13‑10‑1973 was in the following terms:‑ "Notification No. S.O.(E‑IV)N‑I/64‑73.‑‑The Governor of Sindh is pleased to order the. appointment of Mr. Nazir Hussain Solangi son of Ghulam Hussain as Subject Specialist in Social Studies in relaxation of qualifications as MA. (2nd Division) in the Scale of Rs.450‑50‑1,000 (Administrative Branch Men's Cadre) His appointment is purely temporary arrangement for a period of six months on ad hoc basis or subject to the approval of the Provincial Education Recruitment Board. His services are placed at the disposal of Director School Education, Hyderabad. (Sd.) (Panah Ali Shah), Education Secretary." The main question before us is whether the appointment of the appellant fell within the purview of the Ad hoc Appointments Regularisation Order viz. M.L.O. 55 of 1978. As already noted above, the purpose, inter " of this order was to scrutinize whether the ad hoc appointments made before the promulgation of Martial Law were in accordance with the prescribed method of appointment/service rules and if not whether these were made in violation of or through incorrect relaxation of the Rules. In the present case, the appointment was made after relaxation of the Rules but the relaxation in this case was accorded by the Governor of Sindh, namely, the minimum qualification for appointment as Subject Specialist viz. MA. (2nd Division) was relaxed to accommodate the appellant who was a M.A. in 3rd Division. But this relaxation of the Rules could be invalidated only if it was shown that it was in violation of the Rules. Undoubtedly, the Governor being the competent authority under the Rules could relax the conditions including the conditions with regard to the qualifications of the candidate. The Select Committee while recommending the reversion of the appellant to a Grade‑16 post has based its finding solely on the ground that the appellant possessed a Master's Degree in III Division as against the prescribed qualifications of Master's Degree in 2nd Division for the post and as such he could not be retained in his current post. But this was not what the Select Committee was' required to see. Hence its recommendation was outside the purview of Martial Law Order No.

55. The Select Committee should have addressed itself to the aspect whether .the relaxation made was in violation of the relevant rules or was not justified and was made incorrectly. Instead of scrutinising this aspect of the matter it appears to have confined its investigation only to the aspect that since the appellant possessed a Master Degree in 3rd Division he was not eligible for appointment to the post of Subject Specialist because for such post a Master's Degree in 2nd Division was necessary. However, it overlooked to consider that the rigidity of the qualification had been relaxed by the Governor himself and the question was whether he had done this incorrectly. In the absence of any finding on this aspect of the matter its recommendation stood vitiated. The upshot is that this appeal must succeed. It is, accordingly, allowed and the impugned order dated 21‑11‑1983 passed by the Director Education, Hyderabad Region, Hyderabad, reverting the appellant from the post of Headmaster, Government High School, Bhaladinoabad, District Jacobabad to the post of High School Teacher is hereby set aside. The appellant shall be deemed to have been in Grade‑17 throughout. No costs. A.A./N‑316/S Appeal allowed.