1981 PLP (C (PLC(CS))

N. A. CHOUDHURY (MEMBER).‑This order will dispose of the appeals of the above named appellants as the identical question of law and facts is involved in the appeal under disposal. First of all, we take up the appeal filed by Mr. Mohammad War, Aerodrome Officer. His grievance is against the departmental order dated 4th May, 1978 regarding the seniority of Aerodrome Officers. An appeal was made to the Secretary, Ministry of Defence on 3rd May, 1978 against the emplacement of seniority contained in the above letter. No reply has been given to the appellant, who has been waiting for ninety days and then within one month has (fled the said appeal before us on 30th September, 1978. The appellant was appointed as Assistant Aerodrome Officer through Federal Public Service Commission on 1st August, 1963 and was confirmed against that post on 15th October, 1968. He was appointed as Aerodrome Officer again through the Public Service Commission on 29th March, 1974. The respondents shown in the list numbering 22 were also holding the posts of Assistant Aerodrome. Officers before their appointment to the posts of Aerodrome Officers/Airport Managers, Grade III. According to the applicable rules, the posts of Aerodrome Officer and Airport Manager Grade III were Class 11 till 21st February, 1967 and were filled by promotion from the existing Assistant Aerodrome Officers: These posts were reclassified as Class‑I in 1967 with retrospective effect from 1st December, 1962 and were then filled through the Public Service Commission upto August, 1970 and thereafter in accordance with the Recruitment Rules framed by the Department in this behalf. On 28th September, 1969 the respondents 4 to 7 alongwith four others were appointed to the posts of Aerodrome Officers on ad hoc basis, Similarly, respondents 9 to 13 were. appointed on ad hoc basis as Airport Manager Grade III. These ad hoc appointments were extended from time to time till 14th September; 1973 although there was no provision for such extension in the Recruitment Rules framed in August, 1970. On 14th September, 1973 Ministry of Defence ordered the regularisation of eight Assistant Aerodrome Officers with retrospective effect from 28th September, 1969 to the post of Aerodrome Officers. The six Airport‑ Managers Grade Ill were still ad hoc appointees and were regularised on 23rd July, 1974 with effect from 28th September, 1969. In May, 1971 the Federal Public Service Commission advertised 19 posts of Aerodrome Officers. The selection was made in September, 1971 and nine officers including the appellant (S. Nos. 13 to 21 of the list) were approved by the Government in August, 1972 for appointment to the Aerodrome Officers. The appointment was not, however, notified by the Director‑General, Civil Aviation, allegedly with male fide intentions till 1st April, 1974 when the Government directed him to notify the satrap.. Six more Assistant Aerodrome Officers from S. Nos. 10 to 12 and 22 to 24 of the seniority list were also promoted as Aerodrome Officers with effect from 1st April; 1974. A combined seniority list was issued on 21st June, 1976 which was further modified on 1st February, 1978. The final seniority list of the Aerodrome Officers was issued on 4tb May, 1978. This list excludes the Airport Manager Grade

111. In this seniority list, 12 promoted Aerodrome Officers have beer; shown senior to the appellant who is a direct recruit. Similarly, six selectees Aerodrome Officers from 13 to 18 have been shown senior to the appellant. The basic point agitated in the appeal is that the appellant along with other directly appointed candidates for the post of Aerodrome Officers was approved by the Public Service Commission in September 1971 and orders were passed by the Government for their appointment as direct recruits against the posts of Aerodrome Officers on 14th September, 1972. In the circumstances, the promotee officers whose promotion was ordered on 14th September, 1973 should not be made senior to the appellant and other officers of his category. The rule applicable to determine their seniority as admitted by both the parties, is that promoted officers rank as a class senior to the directly recruited officers, provided both are appointed in the same calendar year. The argument of the appellant is, therefore, that the directly recruited officers in whose favour orders of appointment were passed in September, 1972 should not be placed junior to the promoted officers who orders were issued in 1973 in terms of the above orders of the Government to determine the seniority of two category of officers because their appointment has not been made in one calendar year. During today's hearing, Mr. D. M. Awan learned counsel for the appellant (Mohammad Zafar), argued that according to the Recruitment Rules during the first two years 50% posts in the Aerodrome Officers' grade were to be filled by promotion and the remaining 50% by direct selectees After expiry of two years, 75 /a posts were to be filled by direct recruitment and only 25% by promotion. Accordingly after initial appointment of eight officers ordered on 14th September, 1973 with retrospective effect from 28th September, 1969 from the promotion quota, there was or vacancy available for this category of officers to be filled in during the future Consequently, six posts which were filled on 1st April 1974 on the plea that six vacancies becoming then available were on account of wastage belonging to the category of promotion quota, is not covered by any rules. The plain interpretation of the quota rule is that every time a vacancy becomes available in the grade of Aerodrome Officers, the same has to be filled in the proportion of 50% from each category if available during the first two years of the promulgation of Recruitment Rules and on the basis of 75% and 25% after the expiry of two years as contemplated in Rule 3 of the Recruitment Rules. It is nowhere laid down that a particular vacancy becoming available on wastage of one category of incumbent would be filled by the same category of the incumbent. It was further argued by the learned counsel that the appointment of five respondents (9 to 13) as Aerodrome Officer is also not regular because they belong to the category of Airport Manager Grade III. The post of the Airport Manager Grade III has been brought within the purview of the promotion by issue of amendment dated 5th May, 1973. The amendment should not be operated with retrospective effect. Moreover, the amendment does not govern the case of these respondents because the pre‑conditions laid down in that am‑amendment to qualify for promotion for the Aerodrome Officers post were that Airport Manager Grade III concerned should be holding that post on regular basis arid not on ad hoc basis. Moreover, the appointments should be made by approval of the Public Service Commission. Since these respondents were holding the post from 1969 to 5th May, 1973 on ad hoc basis and were regularised only by virtue of an order issued on 14th September, 1973, the pre‑condition is not fulfilled. They were also not appointed through Public Service Commission. These respondents should ‑not, therefore, have been placed Senior to the appellant and other officers of his category. The learned counsel further pointed out that inter se seniority of the direct recruits and the promotees has to be regulated after taking into consideration the Probation, Training and Seniority Rules to be issued by the Government. This was the commitment of the Government made on the recruitment on selection of the appellant. Since these rules have not been framed so far, the seniority of the two category of officers has to be governed by normal applicable rules, which means that the seniority in the lower grade should be the determining factor for the inter se seniority after. the promotion till the rules for Probation, Training and Seniority are framed and put into operation, In the circumstances, the seniority given to the promoted officers over the direct recruits is not justified. The learned counsel further argued that the amendment dated 5th May, 1973 should not be made applicable retrospectively because there are various authorities of the superior Courts that the Statutory Rules have the status of rules made under the Constitution and cannot have retrospective effect in their application. He particularly referred to Dr. Habibur Rahman's case (P L D 1973 S C 144). The learned counsel closed his arguments on making a reference to the judgment of the Service Tribunal issued in case of Bashir Ahmad Kazmi v Auditor‑General of Pakistan, which is further based on the judgment of the Supreme Court that if a civil servant is prevented from holding a higher post through no fault pf his, he should not be made to suffer on account of the fault of the Government Administration. He, therefore, urged that the appellant should be entitled to all the payments accruing on account of such an appointment with effect from the date the original orders were passed by the Government on 14th September, 1972 with all consequental benefits also, because he was prevented from holding a higher post by the Government Administration. The learned State Counsel briefly explained that although the promoted officers were originally appointed on ad hoc basis on 28th September, 1969 their appointment were regularised by the competent authority with retrospective effect from the date they were originally appointed on ad hoc basis and the orders of the regularisation were issued on 14th September, 1973. The Government has all powers to regularise the ad hoc appointment with effect from any date. Since these eight officers stand regularised with effect from 28th September. 1969 then have to be treated as promoted officers considered to have been regularly appointed to the post of Aerodrome Officers with effect from that date. They would thus rank senior to the directly recruited officers whose orders for appointment were issued on 1st April, 1974. He also argued that the orders of the directly recruited officers who were selected by the Public Service Commission against the direct recruitment quota were, no doubt, passed by the competent authority on. 14th September, 1972 but the same were not issued by the head of the Administration (Director‑General, Civil Aviation). The orders were actually issued on 1st April, 1974 whereas the promoted officers were notified on 14th September, 1973 and as such, under the applicable rules according to the admitted position, the promoted officers would rank senior to the direct recruited officers including the appellant. The learned State counsel, however, could not establish through any reference to relevant record that the six officers appointed after 5th May, 1973 against promotion quota were appointed against any available vacancy of that quota. In fact, he admitted that there was no vacancy of this category after the above‑men tioned date. After hearing both the parties, the following analysis of the issues becomes clear The Government has filled eight posts on regular basis with effect from 28th September, 1969 by virtue of an order issued on 14tb September, 1973. All these posts cannot be reserved for the quota of promotees, who could claim 50% of the posts and only four posts could be filled by promotion and remaining four by direct recruitment. The respondents 4 to 7 have been appointed against 'promotion quota without any sanctity of the rules and they have to be reverted to take chance from the dates the vacancies of promotion quota become available on subsequent dates. The seniority list has to be revised accordingly. The four senior most directly recruited officers would thus be promoted against their quota posts with effect from '28th September, 1969 and paid accordingly, and also given seniority just below the four promotees regularised with effect from 28th September, 1969. ,This decision is based on the declaration of the Government contained in the written comments that promotions made prior to 8/70 have to be regularised in the light of Recruitment Rules of August, 1970. The six posts filled against the promotion quota with effect from 1st April, 1974. were also not regular and not, covered by the applicable rules, because the posts of promotion quota were not available to them. The plea of the Government that the posts vacated by the officer belonging to the promotion quota should necessarily be filled by the same category of officers is not acceptable, because the same is not covered by any rules. The only interpretation, of quota rules that can be accepted is that every time a vacancy becomes available in the grade of Aerodrome Officers, the same shall have to be, filled in equal proportion between the direct recruits and the promotees during first two years. Thereafter, proportion of 75% and 25% has to be maintained. All promotions made uptodate have to be recalculated on that basis. The whole recruitment process has to be revised as follows: ‑ 8 vacancies filled with effect from 28th September, 1969. 4 posts to promoted officers 4 posts to directly recruited officers. 8 vacancies filled with effect from 1st April, 1974 (by direct recruitment.) 2 posts to be given to promoted and 6 posts to the directly recruited officers. These appoint ments have to be antidated to 14th September, 1972 when orders were passed by Govern ment. 6 vacancies filled with effect from 1st April, 1974. 2 posts would go to promoted and 4 posts to direct recruits. 5 vacancies filled with effect from 23rd July, 1974 by appointment of Airport Managers. 1 post would go to the promoted and 4 to direct recruits. Since the Airport Managers can only be promoted as the Aerodrome Officers on transfer, which means that they would be appointed as Aerodrome Officers only if five posts in the promotion quota are available on that date, otherwise would hold the posts on ad hoc basis till the quota posts become available. Their regularization with effect from 28th September, 1969 without availability of promotion quota posts is irregular and has to be cancelled by the Government. The serious infringement of observance of quota proportion done by the Government has to be corrected immediately. After revision of the recruitment on the above lines, the inter se seniority would be fixed again. It' on a given date, candidates belonging to one category of quota are not available, their posts can only be filled on ad hoc basis by the candidates of the other category or kept vacant. They can, in no circumstances, be given to others category on regular basis. The remaining four directly recruited officers (except the four who would be appointed with effect from 28th September, 1969) were ordered to be appointed by the competent authority on 14th September, 1972 and their taking over was delayed by the Director General, Civil Aviation, without any authority. They are, therefore, entitled to promotion with effect from the above date with all benefits of pay and C allowances, etc. on the analogy of the judgment of this Tribunal in case of Bashir Ahmad Kazmi v. Auditor General of Pakistan, quoted above. It has been admitted that this promotion has been denied to the officers through no fault of theirs and the responsibility for delay entirely rests with the Government Administration. Order accordingly.