1981 PLP (C (PLC(CS))

AJMAL MIAN, J.‑In the above five petitions the petitioners have claimed identical reliefs and since the above petitions involve common questions of facts and law, we intend to dispose of the same by this common judgment. As each of the petitioner has prayed for identical reliefs, it will suffice to quote herein below reliefs prayed for in C. P. D‑710/80, which read as follows: "(i) That in these circumstances if is prayed that this Honourable Court will be pleased to issue appropriate Writ declaring that the appointment of petitioner as Instructor (Islamic) at Government Commercial Training Institute on regular basis by Notifications dated 17‑1‑1974 and confirmation on 7‑4‑1977 Annexures 'B' and 'C' respectively are effectively in force and not subject to review by the respondents on the facts and grounds mentioned above and that the entire proceedings before respondent No. 4 are void and without lawful authority and have no legal sanctity, not binding on the petitioner ; (ii) Allow this petition with costs; (iii) Any other appropriate writ deemed fit may also be granted." (2) The facts leading to the filing of the above petitions are that each of the petitioners was appointed on ad hoc basis for a period of six months in the capacities and w.e.f. dates mentioned herein below (i) Petitioner, Allahbux Baloch, in Petition No. D‑710 of 1980, was appointed as Instructor, Islamiat on 21‑3‑68. (ii) Petitioner Abdul Hakim, in Petition No. D‑711 of 1980, was appointed on 26‑12‑73 as Instructor, Islamiat. (iii) Petitioner Ashfaque Ahmed, in Petition No. D‑712 of 1980, was appointed as Instructor, English on 14‑6‑65. (iv) Petitioner Asrar Hussain, in Petition No. D‑713 of 1980, was appointed on 6‑2‑75 as Lecturer, Mathematics. (v) Petitioner Mohd. Abdul Wahab Siddiqui in Petition No. D‑1105 of 1980, was appointed on 28‑7‑69 as Instructor, Islamiat.

3. On account of satisfactory performance the Petitioners' appointments were regularised/confirmed on the following dates through notifications mentioned herein below: ‑ (i) (Petition No. D‑710 of 1980). Petitioner Allahbux Baloch's appointment was regularised through Notification No. SOE (I)‑I‑35‑73 dated 18‑12‑73, gazetted on 17‑1‑74 at serial No. 38, with effect from 3‑4‑68 and confirmed, through Notification No. SOE (E & T)‑5/70‑74 (P‑II) dated 16‑2‑7 7 gazetted on 7‑0‑77 at Serial No. 4. with effect from 1‑7‑74. (ii) (Petition No. D‑711 of 1980). Petitioner Abdul Hakim's appointment was regularised through notification No. SO(E‑1)‑1/35‑73 dated 9‑12‑75, gazetted on 8‑1‑76 at serial No. 38 with effect from 1‑1‑74. (iii) (Petition No. D‑712 of 1980). Petitioner Ashfaq Ahmed's appointment was regularised through Notification No. .SO(E‑1)‑1/35‑73 dated 18‑12‑73 gazetted on 17‑1‑74 at' serial No. 34, with effect from 18‑4‑65. (iv) (Petition No. D‑713 of 1980). Petitioner Asrar Hussain's appoint?ment was regularised through notification No. SO(E‑1‑35‑73 dated 9‑12‑75 gazetted on 8‑1‑76, at serial No. 26, with effect from 1‑3‑75. (v) (Petition No. 1105 of 1980). Petitioner Abdul Wahab Siddiqui's appointment was regularised through Notification No. SO (E‑1)‑1/35‑73 dated 18‑12‑73 gazetted on 17‑1‑74 at serial No. 12, with effect from 27‑11‑72 and confirmed through Notification No. SO (E & T)?5/70‑74 dated 9‑12‑74 at serial No. 11 with effect from 1‑7‑

74. It has been averred in the petitions that respondent No. 1 and/or respondent No. 4 despite of regularisation/confirmation of the petitioner's appointments under the aforesaid notifications and without amending or superseding the above notifications, initiated the move for the review of the appointments made without reference to the Sind Public Service Commission, and that through the letters mentioned in the petitions asked the petitioners to appear before the Sind Public Service Commission, Hyderabad, for interviews on the dates and the times specified therein. It has been further averred that in pursuance of the above directions the petitioners appeared before the Sind Public Service Commission comprising of Justice (retired) Kadir Nawaz Awan as Chairman and other members. It has also been averred that the directions of the respondent No. 3 to appear before the respondent No. 4 and proceeding of the said interviews by respondent No. 4 are all without lawful authority, void having no legal effect and the same are not binding on the petitioners, and that the present petitioners' cases are at par with Messrs Shakil Faiyaz, Mohd. Shakil and Tanveer Ahmed Rizvi the petitioners in C. P. 1122, 1247 and 1328/78 respectively, which petitions were allowed by a Division Bench of this Court on 7‑8‑79 declaring that the initiation of proceedings for review of the appointments of the three petitioners in the aforesaid three petition: under Martial Law Order 55 was invalid and without lawful authority. In these circumstances the petitioners in the above 5 petitions in question have prayed the reliefs quoted hereinabove.

5. It may be observed that the petitioner's appointment in Petition Nos. D‑710 and D‑1105/80 were not only regularised, but were also confirmed as pointed out hereinabove. However, the above distinction between the petitioners in Petitions Nos. D‑710 and D‑1105/80 on the one hand and the remaining petitioners in the remaining three petitions is of no significance. The sole question for determination is as to whether the petitioner's cases fall within the compass of the Martial Law Order 55 issued by Martial Law Administrator, `C' Zone which reads as follows: ‑ "Martial Law Order 55.‑Where as 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 Sind; 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; Now, therefore, in pursuance of Martial Law Order No. 3 issued by the Chief Martial Law Administrator, 1, Lieutenant‑General Muhammad Iqbal Khan, S. Bt., Martial Law Administrator, Zone 'C' hereby promulgate the following Martial Law Order: ‑ (1) This Martial Law Order shall be called "Ad hoc Appointments Regularisation Order" and come into force at once and shall have effect notwithstanding anything contained in any other law for the time being in force. (2) In this Martial Law Order, unless there is anything repugnant in the subject or context‑ (a) "ad hoc appointment" means and includes‑ (i) appointment which has not been made in accordance with the prescribed method of appointment/service rule; (ii) appointment, where no prescribed method is laid, down which has been made in the case of initial recruitment without advertising the post, and in the case of promotion or transfer without obtaining clearance from a Selection or Promotion Board or Committee; (iii) appointment which has been made under the orders of the Chief Minister or any other authority by excluding the post from the preview of the Sind Public Service Commission; (b) "Appropriate Committee or Board" means Selection or Promotion Committee or Board set up or required to be set up under the rules and, if no such rules exist as may be set up by the Local Councils or autonomous or semi‑autonomous bodies, as the case may be, for the purpose of this order."? (3) The cases of ad hoc appointments in which the appointees possess such qualifications and experience as have been prescribed or hereafter be prescribed if not already prescribed by rules, shall be referred by the appointing authorities as follows: ‑ Part I??? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . Part II? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . (4)??????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . (5)??????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . (6)??????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . (7)??????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . (8)??????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? . (9)??????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .?????????? .

6. It may be observed that under clause (2) (a) of the above Martial law Order, an ad hoc appointment has been defined as means/includes an appointment, which has not been made in accordance with the prescribed method or appointment/service rules of appointment in respect of which no prescribed method was provided/made without advertising the post and in case of promotion or transfer without obtaining clearance from the Selection or Promotion Board or Committee, or appointment made under the orders of the Chief Minister or under the orders of any other authority by excluding the post from the purview of the Public Service Commission. In the instant case it is true that the original appointments were made on ad hoc basis for the limited period specified in the appointment letters, but once these appointments were regularised by competent authority, namely, Governor of Sind, through notifications mentioned hereinabove, the ` petitioners no longer can be treated as ad hoc appointees within the purview of Martial Law Order 55 quoted hereinabove. The learned Additional Advocate‑General Mr. Abdul Sattar Shaikh, was unable to point out to us any illegality/irregularity in the regularisation/confirmation of the petitioner's services through the aforesaid notifications. However, it may be pertinent to mention that in the judgment relied upon by the petitioners' counsel given in Petition Nos. 1122/78, 1147/78 and 1328/78, a Division Bench (comprising of I. Mahmood and Zafar Hussain Mirza, J.) has adverted to the relevant service rules of 1962 dated 7‑1‑

63. It may be observed that rule 6(1) provided that the recruitment, be made in consultation with the Public Service Commission. Whereas, rule 13 conferred the power on the Government to relax any of the Rules if the Government was satisfied that strict application of the rules would cause undue hardship to the individual concerned. In the instant cases the, Governor of Sind, who was the competent authority relaxed the relevant rules, while regularising the petitioners' appointments. It may be pertinent to quote the operative portion from one of the above notifications which reads as follows: ‑ "The Governor of Sind is pleased to regularise the appointment/promo?tion of the officers mentioned below, from the date mentioned against each name, in relaxation of the provisions of the relevant Service Rules, conditions of appointment and/or the decision to refer these cases to the Provincial Education Council." From the above‑quoted extract from the notification, it is evident that the Governor, had relaxed the relevant rules at the time of regularising the peti?tioners' appointments. In the cases of two of the petitioners, even confirma?tions notification were issued as pointed out hereinabove. We see no compelling reason to dissent from the aforesaid D. B.'s judgment dated 7‑8‑1979 given in Petition Nos. D‑1122, 1247 and 1328 of 1978. We, therefore, allow the instant petitions and declare that the notifications for regularisation/confirma?tions in the petitions are affectively in force and that the petitioner's cases do not fall within the ambit of Martial Law Order 55 issued by Martial Law Order Zone `C' quoted hereinabove in para

5. However, there will be no order as to costs.