1991 PLP (C (PLC(CS))

do-(since expired) 6.Mr. A.B.M. Shah Alam (opted to serve)

7. Mr. Taslimuddin Khan (Bangladesh)

8. Mr. Mahmood Rab 31-7-1965 (Promoted as E.E.) 9.Mr. Nisar Ahmad 23-8-1965 (Now A.E.E.) The Ministry had desired that the deputationist may also be included and after Mr. Abdul Rashid Khan, the names may be shown in the order of seniority; vide their U.O. referred to above. The following A.Es were on deputation to some other organizations:- Name Date of Apptt as A.E Remarks

1. Mr. Muhammad Saeed Sethi 1-7-1961 (promoted as E.E.)

2. Mr. Khurshid Muhammad 22-11-1961 -do -

3. Mr. Zafar Iqbal 21-4-1962 on deputation to C.DA.

4. Mr. M. Muzaffar Khan. 17-11-1962 -do- As per Government decision all the graduates and A.M.I.E. initially appointed as A.Es, including those who were appointed on ad hoc basis, were upgraded as A.E.Es (Grade 17) with effect from 17-5-1971. Some of them had later been promoted as E.Es while one had left the Department and two of them opted to serve in Bangladesh. The Works Division, vide their Letter No.F.l (65)/73-Ell dated 26-11-1973, forwarded a copy of the office Memo. dated 10-11-1973, of P.M's Inspection Team together with a copy of representation of Mr. Nisar Ahmad AEE for comments of this office. The position of the case was intimated in detail to the Works Division requesting them to regularise the services of all the ad hoc appointed A.Es (already upgraded as A.E.E. w.e.f. 17-5-1971) irrespective of the fact whether they were serving in the Department or they were on deputation to other organisations Works Division asked for some other information vide their Letter No.F.l(65)/73-Ell,dated 26-2-1974, to enable them to examine the matter further. The requisite information was furnished to them vide this office letter of even number dated 16-4-1974, a copy of which was also endorsed to the P.M's Inspection Team. The Works Division, in turn, informed this office that they had not understood as to why the reference was made to them when this office was now competent to deal with the cases of A.E's. On receipt of another representation from Mr. Nisar Ahmad through the Works Division, the position was again explained in detail to them vide this office letter of even number dated 28-1-1975, wherein they were specifically informed that the regularisation of ad hoc appointment was required to be processed by them and not by this office. The Works Division vide their Letter No.F.11(347)/65-EII, dated 27-2-1975, intimated that at the time of initial constitution of the former CES (Class II) service they had regularised the ad hoc appointments of some of the officers in Grade-16, in consultation with the FPSC, but, thereafter, it was for this office to take action to regularise further ad hoc appointments. They further observed that if appointments made on ad hoc basis in the year 1965, were not regularised, the responsibility lay with this Department. A reference was therefore made to the FPSC vide this office letter of even number dated 31-7-1975, explaining the case in detail for their approval and regularisation of ad hoc appointment of 12 A.Es named therein. The Works Division was also informed vide this office letter of even number dated 31-7-1975, that further action would be taken in the light of the reply of the Commission. The FPSC in reply to this office letter dated 31-7-1975, informed that they were not competent to regularise the ad hoc appointment and were not so even before the enforcement of the existing Service Rules, and it was not their function to regularise past irregularities. The Works Division was apprised of this position vide this office letter of even number dated 22-10-1975 and requested to advise whether in view of the existing position, the ad hoc appointment might be regularised without further reference to the FPSC and in consultation with the Establishment Division, if necessary. A copy of this office letter was also endorsed to the P.M.'s Inspection Team, vide this office letter of even number dated 13-11-1975. The Works Division, vide their letter No. F.11(34)/65-EII, dated 7-6-1976, advised this office to study Rules 2 and 3 of the CES (Class II) Recruitment Rules in the context of which the FPSC's decision was communicated to this office vide their letter No.F.l(59)/63 EII VOl.IIIA, dated 15-12-1906. The Works Division was informed vide this office Letter of even number dated 24-1-1977, that the case of regularisation of ad hoc appointment of A.Es was examined carefully with reference to Rules 2 and 3 read with FPSC decision conveyed to this office vide their letter dated 15-12-1966. They were further informed that all the graduate A.Es. had already been granted class 1 status with effect from decision to upgrade all the Graduate Engineers to Class I and some of them had been promoted as E.Es. They (including Mr. Nisar Ahmad) had been adjusted against the vacancies under part IV of the Recruitment Rules as per approved roster and their appointments were proposed to be regularised from their date of appointment as per draft notification sent to Works Division for their perusal and return. The Works Division vide their letter dated 2-3-1977 stated that since the C.E. was the appointing authority in the case of Grade-16 posts, they had no comments to offer on the draft. This office was, however asked to ensure that the action taken was in accordance with the Recruitment rules, the ruling given by the FPSC, the roster of vacancies in the service and the relevant rules and regulations on the subject. They further asked that this long outstanding case should be decided. In this connection, it is also stated that the FPSC had ruled that they were not competent to regularise the ad hoc appointments and it was not their function to regularise past irregularities. The Works Division to whom this position was explained had made no comments and reiterated that the C.E. being the appointing authority, was the authority competent to decide this case. In view of the ruling given by the FPSC, the Works Division's reply, P.M's Inspection Team persistent reminder and the fact that all of them had already been upgraded to Grade-17 and some of them were already promoted to Grade-18, as E.Es, this office notification of even number dated 13-4-1977 and 30-8-1977, were issued to close this old matter. The Ministry would kindly appreciate that, in the past this office had not been successful in persuading the FPSC to agree to the recommendation of this office regarding the regularisation of the appointments of the above-mentioned persons. In case it is. still considered necessary to obtain the approval of the FPSC, it is requested that the Ministry may kindly use their good offices with the Commission to have the matter set right in view of the position that ad hoc appointees have been continuing for the last 13 to 17 years. With regard to the specific case of Appeal No.27(K)/76, of Mr. BA. Memon v. Government of Pakistan and others, it is stated that Mr. B.A. Memon was appointed as Asstt. Engineer through the FPSC on 4-8-1970. In the first list of Asstt. Engineers appointed by the FPSC, the names of M/s. M. Saeed Sethi and Abdul Rashid did not appear, but in another list of Asstt. Engineers, who were appointed under Part IV of the Rectt. Rules, on ad hoc basis, the names of M/s. M. Saeed Sethi and Abdul Rashid appeared at S.No.1 and 6, respectively. The appointment of Mr. Sethi, A.E. was regularised w.e.f. 1-7-1961 and that of Mr. Abdul Rashid, A.E. from 15-11-1963 by this office as stated above. As the ad hoc appointment of both the Assistant Engineers has been regularised in the same cadre with effect from their dates of appointment i.e 1-7-1961 and 15-11-1963, respectively, they are senior to Mr. BA. Memon, whose date of appointment as Assistant Engineer is 4-8-1970. This issues with the approval of the Deputy Chief Engineer. Your obedient servant, (Sd.) (ABDUL HAI ANSARI), ADMINISTRATIVE OFFICER. PAKISTAN P.W.D., KARACHI

7. The events stated in the aforesaid letter dated 27-3-1979 reveal that the respondent No.3, Abdur Rashid Khan, was appointed as an Assistant Engineer on ad hoc basis on 15-11-1963; and the respondent No.4 Mohammad Saeed Sathi was appointed as an Assistant Engineer on ad hoc basis on 1-7-61; and their service continued to be on ad hoc basis until orders of regularisation of their service were issued in the year 1977. The case of regularisation of their service was referred to the Federal Public Service Commission. The Commission declined to regularise their appointments. The Ministry of Works also declined to settle the matter and the responsibility of regularisation of the ad hoc service was laid on the Chief Engineer. It is indicated in the aforesaid letter dated 27-3-1979 that the respondents Nos.3 and 4 were placed on regular service under the provisions of Part-IV of the Recruitment Rules. The Recruitment Rules are called the Central Engineering Service Class-I, Recruitment Rules, 1951. The mode of appointment to the service is laid down in Rule 3 as under: (i) By Competitive Examination held in Pakistan in accordance with the Part-II of the Rules. (ii) By promotion in accordance with Part-III of the Rules. (iii) By transfer or appointment in accordance with Part-IV of the rules of an officer in Government service in Pakistan. (iv) By direct appointment in accordance with Part-V of the Rules.

8. Part-IV of the Rules reads as under- "PART-IV. RECRUITMENT BY TRANSFER OR APPOINTMENT OF AN OFFICER IN GOVERNMENT SERVICE IN PAKISTAN

22. The Governor-General may, in special cases and after consulting the Commission, transfer an officer in Government Service in Pakistan to any post in the Service: Provided that an officer who belongs to any of the following Services or who belonged formerly to the Indian Service of Engineers or the Indian Service of Royal Engineers may be appointed to a post borne upon the cadre of the Service without consultation with the Commission:- (1) Civil Engineering Department (2) Electrical Engineering Department (3) Signal Engineering Department (4) Stores Department of the Pakistan Railway Service (5) Military Engineering Service (Class-I) Of the Pakistan Railway Service of Engineers." The service of the respondents Nos.3 and 4 could not be regularised under Part IV of the rule reproduced above as they did not belong to the service specified in Part IV reproduced above. Their service could be regularised only in consultation with the Pakistan Public Service Commission as provided under Rule 23 in Part V of the Rules. The Pakistan Public Service Commission declined to be a party in the case. The regularisation of the ad hoc service of the respondents Nos.3 and 4 which remained oscillating between the Ministry of Works and the Pakistan PWD, a subordinate department, was ultimately done by issuing a notification of regularisation of service of the ad hoc appointees at the level of the Chief Engineer. Seniority is reckoned from the date of regular appointment to a post, which in the case of the respondents were 13-4-1977 and 30-8-1977 as disclosed in the letter dated 27-3-1979 reproduced above.

9. The appellant was appointed on regular basis on 4-8-1970 and he reckoned the seniority as an Assistant Engineer from that date and by virtue of the ungradation of the posts of Assistant Engineers as Assistant Executive Engineers vide Notification dated 5-6-1971, he became the Executive Engineer in the Pakistan PWD. The respondents Nos.3 and 4, who were ad hoc appointees and whose services were supposedly regularised in the year 1977 could not supersede him. The decision of the department to consider the respondents No.3 to 4 senior to the appellant was thus palpably erroneous.

10. Although the appellant has a good case yet he cannot succeed on account of serious legal defects in his case. His appeal is directed against the orders of the promotion of the respondents Nos.3 and 4 which did not relate to him directly. Indeed, he was apprehensive of his supersession by ad hoc appointees and he did make representation dated 29-5-1975 to the Secretary, Ministry of Works but it did not fetch him any fruit. It seems that he had also made representation earlier on 24-2-1975 and then made an application dated 12-9-1975 to the Secretary, Ministry of Works for orders on his representation. He did not receive any order. Thus, there are two legal lacunae in his appeal, firstly that there is no original appellate order which gave him cause of grievance to prefer this appeal, and secondly the appeal filed on 13-3-1976 is time barred counting the period of limitation at least from 12-9-1975 when he made an application to the Secretary, Ministry of Works that his representation dated 24-4-1975 be treated as departmental appeal against the order of promotion of the respondent No.3, Abdur Rashid Khan. The appeal is therefore, hit by section 4 of Service Tribunals Act, 1973, which lays down that jurisdiction of the Tribunal can be invoked only by a civil servant, who is aggrieved of an original or appellate order, which is final, and that can be done within thirty days of the communication of that order; and in case departmental appeal/representation is made under relevant rules, within thirty days of receipt of the appellate order, and where appellate order is not received within. thirty days after the .expiry of ninety days from the day of preferring departmental appeal/representation. Neither there is an order which the appellant could seek to be set aside, nor has the appeal been filed within the prescribed period of limitation, as discussed above. Of course, the appellant has made an application for condonation of delay but the ground advanced therein that be counted the period of limitation from 13-11-1975 when his application dated 12-9-1975 was forwarded did not afford him condonation in the period of limitation. Even the relief sought for by the appellant that the orders of promotion of the respondents Nos.3 and 4 be set aside is not admissible to him as he could seek relief of his promotion if it were wrongly denied.

11. For the reasons recorded above, the appeal is not only time-barred but is also not maintainable and is dismissed as such, with no order as to costs. M.Y.H./558/Sr. F Appeal dismissed.