1993 PLP 609 (SCMR)

"No 10/22/83‑R.2 GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION Rawalpindi, March 20, 1988 OFFICE MEMORANDUM SUB: COUNTING OF AD HOC SERVICE FOR THE PURPOSE OF PROMOTION The undersigned is directed to say that under the existing rules ad hoc service does not reckon for the purpose of seniority. A point has since been raised whether ah hoc service rendered in a post followed by regular appointment to that post may be allowed to be computed towards length of service prescribed for promotion to a higher post. The matter has been considered in the Establishment Division. It has been decided that the service rendered on ad hoc basis in a post under the Federal Government, followed by regular appointment to a post in the same pay scale shall be counted towards length of service prescribed for promotion to a higher post provided there is no break between ad hoc and regular appointment to the post concerned. (2) The above decision may be brought to the notice of all departments/organisations under the administrative control of Ministries/Divisions. (Sd.) HUKAM DAD KIANI, Deputy Secretary." (Underlining is ours). The respondent who appeared in person has also been allowed to place on record copy of the Office Memorandum dated 2‑10‑1990 of the Government of Pakistan, Finance Division (Regulation Wing) on the subject of "Extension of the Principle of Move-over to the Employees of the Pakistan PWD", which Memorandum is also reproduced here:‑‑ "Government of Pakistan Finance Division (Regulation Wing) No.F.7(4)‑imp. 1/88‑1120. Islamabad, 2‑10‑1990. The undersigned is directed to refer to Works Division's O.M. No. F.1(9)/89‑Admn. III, dated 27‑9‑1990 on the above subject and to state that ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed for move‑over also in the next higher scale provided there is no break between ad hoc and regular service. (Sd.) Hayat Mahmood Qureshi, Section Officer. Works Division (Mr. Zamir Ahmed), Section Officer, Islamabad." (Underlining is ours). The aforesaid two Office Memoranda of the Government of Pakistan also support the interpretation that the period of ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed B for promotion or move‑over in the next higher scale. In our view this interpretation is not only reasonable but also correct. The respondent had also relied upon three judgments from Indian jurisdiction out of which two judgments were not relevant but the judgment of Punjab and Haryana High Court in the case of Dharam Singh v. State of Punjab reported in 1985(1) Services Law Reporter 358 supports his case. In that case the Punjab Service of Engineers Rules, 1961 were under consideration which prescribed 7 years experience as executive engineer for promotion to the post of superintending engineer. It was held that service rendered as an ad hoc executive engineer was to be counted towards length of service required for promotion to the post of superintending engineer as rules were silent about counting such service and executive instructions were that such service should be counted. The Federal Service Tribunal also referred to sub‑rule (1) of rule 8‑B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which provides that when the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service, the authority may appoint him to that post on current charge basis. The Tribunal pointed out that when respondent was appointed in BPS‑18 on current charge basis, he was not the senior most officer in BPS‑17 and as such his appointment could not have been on current charge basis. According to the Tribunal, in 1981 when the respondent was appointed on current change basis in BPS‑18 he had completed the requisite number of years in BPS‑17 and as such the making of appointment in presence C of a vacancy on current charge basis was not proper and if a person who had completed the requisite number of years and was otherwise fit for promotion was promoted to the higher post, his promotion would be regular and not on current charge basis. The Tribunal found that the name of the respondent was considered alongwith his colleagues and he was selected for promotion on merit and, therefore, he should have been appointed on regular basis and his promotion on current charge basis was wrong. As observed earlier, the Tribunal accepted this stand of the respondent holding that his promotion shall be deemed to have been made to BPS‑18 on regular basis with effect from 5‑12‑1981. In has not been shown that the view of the Federal Service Tribunal about counting the service rendered by the respondent in ad hoc capacity in PBS‑17 towards length of service for the purpose of promotion to BPS‑18 is against the Civil Servants Act, 1973 or any rules framed thereunder. There is no law or rule against counting ad hoc service towards length of service for promotion to a post in a higher scale. The two office Memoranda of the Establishment and Finance Divisions, Government of Pakistan also support the view taken by the Service Tribunal. It had been submitted by the Deputy Attorney‑General that according to another office Memorandum of the Government, the Office Memoranda issued earlier shall not have retrospective effect but will have effect prospectively. The two office Memoranda which support the respondent, did not lay down any new rule but only clarified/interpreted the law. In the circumstances no question of retrospective or prospective operation of such Memoranda arises. Deputy Attorney‑General had relied heavily on 1982 SCMR 408 and this judgment is also referred in the leave granting order passed in this case. That judgment of this Court related to the question of seniority and it was held that under the concerned rules relating to Agricultural Engineering, Service ad hoc appointments did not confer any right to seniority. The question involved in that case is not relevant to the controversy in the present case; viz. whether the respondent had the required length of service in BPS‑

17. The purpose of the rule regarding length of service, as rightly pointed out by the Federal Service Tribunal, was that the Government servant seeking promotion to BPS‑18 to BPS‑21 should have the. required experience in the lower scale. It has not been denied that the Federal Service Tribunal was competent to pass the order. No case has been made out for interference. We may add here that the only question involved in this appeal was whether the period of ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed for promotion to a higher scale. Decision of this important question of law of public importance by the Federal Service Tribunal in the affirmative has been maintained by us. The other question whether regularisation of an ad hoc appointment in a scale can be given retrospective effect to date back to the time when the ad hoc appointment was initially made in that scale, which would as a consequence affect the incumbent beneficially as regards his seniority, was dealt with by the Tribunal but no effective relief was granted to the respondent for the reason that his appeal for such relief was barred by limitation. As the respondent did not file any appeal against the decision of the Tribunal, we were not called upon to decide this important question of law. This should not be taken to mean that the Service Tribunal had no jurisdiction to grant relief in this regard if the respondents' appeal was not time‑barred to that extent. Another question requiring determination would be whether the Service Tribunal can grant relief to a Government servant under section 23 of the Civil Servants Act, 1973 if F such relief is not granted to him by the President. We are leaving these questions for our final decision in some other appropriate case or cases which come up before us. We may refer to Yamin Qureshi v. Islamic Republic of I Pakistan (PLD 1980 SC 22) where this Court referred to the wide and some exclusive powers of the Service Tribunals created by the appropriate legislatures under the enabling provision of Article 212 of the Constitution. Service Tribunal has wide powers under section 5 of the Civil Servants Act; 1973, as it may on appeal confirm, set aside, vary or modify the order appealed against. We have consciously made reference about this matter as it is common knowledge that in spite of institution of ad hoc appointments unfortunately being deeply entrenched in our service structure and the period of ad hoc service in most cases running into several years like the case of the respondent (8 years' ad hoc service in BPS‑17), ad hoc appointees are considered to have hardly any rights as opposed to regular appointees though both types of employees may be entrusted with identical responsibilities and discharging similar duties. Ad hoc appointments belong to the family of "officiating", "temporary" and "until further orders" appointments. In Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115) it was observed that when continuous officiation is not specifically authorised by any law and the Government /competent authority continues to treat the incumbent of a post as officiating, it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e.g., failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. And in proper cases, therefore, Courts (at that time Service Tribunals had not been set up) are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it. In this judgment various decisions of the Supreme Court were considered. In Abdul Majid Shaikh v. Munshaffe Ahmad (PLD 1965 SC 208), appellants' appointment had been described as "on probation" and "thereafter terminable by giving 14 days' notice" and "temporary" and "until further orders" but the order of termination of his service on the basis that it was temporary until further orders was declared to be illegal. In these and several other decisions, the superior Courts in our country have considered the rights and status of such appointees. These decisions can perhaps be made use of while dealing with the case of ad hoc appiontees seeking regularization before the Tribunal from earlier date/s, in counting seniority. This appeal is accordingly dismissed. There will be no order as to costs. A.A./F‑258/S Appeal dismissed