1980 PLP 400pp (PLC(CS))

The averments of both the parties would raise the following issues :‑ (1) Whether by order dated 28‑12‑1972 the appellant was promoted to P. C. S. (EB) Grade? If yes, what was the nature of the promotion? (2) Whether the appellant would be entitled to pay prescribed for Grade‑17 with effect from 29‑1‑1973 from which date he has held the post? We have considered all the pros and cons of the matter and we have arrived at a finding that the order dated 28‑12‑1972, was in the nature of award of promotion to the appellant to the grade of P. C. S. (EB)/Assistant Commissioner in Grade‑17 but the same was in the nature of ad hoc basis which was regularized subsequently on 1‑7‑1975. On the second issue, our finding is that the appellant would be fully entitled to the time scale prescribed for Glade‑17 with effect frond 29‑1‑1973. These findings, are the outcome of following reasons :‑ The order dated 1st July 1975, specifically mentions that it was a case of promotion but the same was regularized with immediate effect. This clearly implies that it was a case of earlier promotion which was regularised subsequently. This subsequent regularization would not alter the nature of the assignment to the appellant which was clearly a case of promotion. At any rate it was not a case of a mere holding of current charge within the meaning of the proviso to section 18 of the Sind Civil Servants Act, 1973. The learned Assistant Advocate‑General has produced before us the opinion given by the Law Department in which the entire case has been discussed thereadbare. In this opinion also, the Government have themselves treated this a case of one of promotion and not as a case of holding current charge. The order dated 28‑12‑1972 no doubt contains the words "appointed to" but then the appointment is not to the post of Mukhtiarkar but to the P. S. C. (now Grade‑17). Moreover immediately thereafter it has been clearly mentioned in clause (2) that the officers shall perform all the duties and functions of the post and exercise all the powers. These words definitely denote that the officers mentioned in the order e were `promoted' and were not to hold merely a `current charge'. The order also mentions that in this present case, the officers mentioned in the order shall not claim seniority vis‑a‑vis other Mukhtiarkars who may late on be found to be senior to them. Had it not been the case of a promotion, this condition in the order would appear to be redundant. It is therefore very clear that the order dated 28‑12‑1972, was in the nature of a promotion in favour of the appellant and was not a mere holding of current charge. It is however quite correct that this promotion was in the nature of an ad hoc promotion. Section 2(1)(a) of Act 14 of 1973 defines ad hoc appointment as an appointment of a duly qualified individual made otherwise than in accordance with the prescribed method of recruit ment pending the recruitment in accordance with such method. From this it will be clear that the appellant was quite qualified for this promotion but regularization required to be finalised. There is no doubt that the necessary implications of an ad hoc promotion are that the Government was competent to recall the promotion if and when considered, necessary. Beyond this however there can be no other con sequence of an ad hoc promotion. In fact, the condition No. 1 mentioned in the order, was also only an ad hoc condition which was merely a time gap arrangement to be finalized subsequently. It cannot be inferred that this condition was a fate accompii, it was to be finalized alongwith the regulariza tion of the promotion. The regularization itself may be made effective on any subsequent date but it will certainly not take away the right of the appellant to draw pay prescribed for the post. Issue No. 2.‑We have already discussed the order dated 28‑12‑1972, conferred upon the appellant an ad hoc promotion to Grade‑17, i.e. to the lost of P. C. S. (EB)/Assistant Commissioner. It was not a case of holding current charge. From this it emerges out that the appellant has held the post of the superior grade continuously and has discharged duties thereof and exercised full powers thereof. Our attention has been drawn to section 18 of Sind Civil Servants Act of 1973. Stress has been laid on first proviso thereof and it was urged on behalf of the respondent that the appellant's appointment vide order dated 28‑12‑1972 was in the nature of holding current charge. We have already rejected the plea in issue No. 1 to that extent. However, the section as it reads, does not talk of promotion. It merely reads, "a civil servant appointed to a post . . . . ." In the order dated 28‑12‑1972 we find identical words used and it has been mentioned that the appellant was appointed to the superior post. It therefore follows that even if the appellant was not promoted, under section 18 he would be entitled to the pay sanctioned for the post to which he was appointed. The case of the appellant, however, is in fact on a better footing inasmuch as held by us above he (the appellant) was promoted though on ad hoc basis. The fact remains that the appellant has held the post from 29‑1‑1973 and we are unable to find any other provision of law which disentitles the appellant from drawing salary prescribed for the post he was holding. Even if the appellant was subsequently reverted, he would be entitled to pay of grade 17 for the period he actually hold the post. It may also be mentioned that the Civil Servants Act was promulgated with effect from 4th December 1973 whereas the ad hoc promotion of the appellant was ordered almost a year earlier. In that case, it may contended that the provisions of Civil Servants Act, 1973 would not be applicable to the appellant so far as his promotion and entitlement of salary is concerned. In that case again, the appellant, will have even better case because as the law existed prior to December 1973, the appellant would be entitled to full salary and emoluments of the post held by him as laid down in the case of Ms. Muhammad Hasham (P L D1969 Dacca 254) a Post Master whose case was almost identical to that of the appellant. Even under the Sind Civil Services Rules Manual the very definition of pay in rule 9(39), it has been laid down, that the pay means the amount drawn monthly by a Government servant as the pay . . . . which has been sanctioned for post held by him substantively or in an officiating capacity. The bare reading of the rule would show that a Government servant is entitled to a pay by virtue of holding a posting and if he does hold a post, he would be entitled to the pay sanctioned for the post. In the present case also, there is no dispute that the appellant held the post of Assistant Commissioner from 28‑1‑1973 and, therefore; he would be entitled to the fill pay. We accordingly allow the appeal. Given under our hand and the seal of this Tribunal, this 11th day of December 1976 at Hyderabad. Appeal allowed.