1987 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑This appeal arose from the facts and circumstances briefly stated as follows; In 1974 while the appellant was working as Senior Clerk, he applied for the post of Assistant Industrial Development Officer in the Directorate of Industries and Mineral Development, Government of Sind. As he possessed the requisite eligibility he was appointed in the said post (Grade‑11) vide order of Secretary to Government of Sind, dated 15th July, 1974. Following the promulgation of MLO‑55, the appellant's case was referred to the Divisional Select Committee, set up under the said MLO, for regularisation. By the letter No.s‑Ind./E‑3(29)/79/ 2358‑60, dated 20‑2‑1979 which was received by the appellant on 1‑4‑1979, he was informed that consequent upon approval accorded by Divisional Select Committee, his appointment as Assistant Industrial Development Officer was regularized w.e.f. 29‑7‑1978. Since the appellant was appointed about four years earlier, he was not satisfied with the order of his delayed regularization. Accordingly he made a representation to the Director, Industries, Government of Sind, wherein he took the plea that his appointment having been made with approval of the Chief Minister was deemed to be regular and as such it was not covered by MLO‑

55. The said representation was forwarded to the S&GAD whose decision was conveyed to the appellant by the letter of the Director, Industries dated 7th May, 1985 intimating him that his seniority would be reckoned from the date of regularization of his appointment under MLO‑55 and not from the date of his original appointment. Accordingly respondents Nos. 4 to 7 who were junior to the appellant were shown as senior to him. In this appeal the above decision of the S&GAD has been called in question by the appellant who has prayed for setting aside the same. His consequential prayer is that his seniority be reckoned w.e.f. the date of his original appointment and not from the date of regularization thereof. We heard the arguments of the learned counsel for the appellant as well as of the learned Government counsel (Mr. Rasheed Akhtar Qureshi). We also referred to the relevant documents. As provided in sub‑rule (1) of rule 10 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, hereinafter referred to as 1975‑Rules. Seniority of a civil servant is to be reckoned from the date of his regular appointment. The argument of the learned counsel for the appellant was that the appellant's appointment as Assistant Industrial Development Officer by order dated 15th July, 1974 was made with approval of the Chief Minister and therefore it was a regular appointment for the purpose of determining his seniority. Consequently his seniority was to be reckoned from the above date of his appointment. In order to ascertain if the appellant's appointment by above order was regular one, we may reproduce the said order with advantage. It reads as under: "GOVERNMENT OF SIND INDUSTRIES AND MINERAL DEVELOPMENT DEPTT. Karachi, dated the July 15, 1974. No.S.O.(I)‑1‑45/74 Mr. Shafi Muhammad son of Wali Muhammad, presently working as Senior Clerk, in the Industries Directorate, Karachi is appointed as Assistant Industrial Development Officer in the National Pay Scale No.11 (Grade‑II) in the Industries Directorate, Sind, Karachi, with immediate effect. This is in relaxation of orders of the former Chief Minister contained in his Note dated 2‑3‑1973 and also in relaxation of the Services and General Administration Department's letter No B‑A(S&GAD)‑1(Su)/72, dated 29‑6‑1974. Sd/‑ (BASHIR AHMED MORIANI) SECRETARY TO GOVERNOR OF SIND" There is nothing in the above order to show that it was issued with approval of the Chief Minister, nor the learned counsel for the appellant referred to any other document disclosing that appointment of the appellant had the blessings of the Chief Minister. On the other hand the plea taken be the respondents in the written statement is that the appointment of the appellant was made without complying with the prescribed formalities. Further submission of the learned counsel for the appellant was that the appointment order referred to above does not mention the appointment to be ad‑hoc appointment and in absence of any such indication it could be treated as regular appointment. In reply to this argument it may be pertinent to refer to the definition of ad‑hoc appointment as given in clause (a) of subsection (1) of section 2 of the Sind Civil Servants Act 1973. It reads as under: "'Ad‑hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method " Whether the appellant's original appointment was on ad‑hoc basis or not could only be decided in terms of above definition. If the appointment was made otherwise than in accordance with prescribed method of recruitment, then it was an ad‑hoc appointment. The prescribed method of appointment is spelt out in the Sind Civil Servant (Appointment, Promotion, Transfer) Rules, 1973 hereinafter called 1973‑Rules. As per Rule 11 of these rules, initial appointment to posts in Grades 3 to 15 shall be made on the recommendations of the Departmental Selection Committee after the vacancies in these grades have been advertised in newspapers. The post Held by the appellant was admittedly in Grade‑11 and, therefore, it was to be filled in; accordance with the prescribed method given in rule 11 mentioned above. It seems the requirements of the said rule were not fulfilled before appointing the appellant in the said Grade‑11 post. Neither any advertisement was made in the newspapers nor the appellant was cleared for the appointment by Departmental Selection Committee. Therefore, his appointment was made otherwise than in accordance' with the prescribed method and as such his appointment was only ad‑hoc appointment. Merely because it was not so expressed in the appointment order, it could not become regular appointment. Having arrived at the conclusion that the appellant's initial appointment was only ad‑hoc appointment, it would follow that it required to be regularized. It is an admitted position that the Divisional Select Committee set up under MLO‑55 after considering the appellant's appointment had recommended for its regularization. It was accordingly regularized by order dated 20‑2‑1979 which reads as under.?? GOVERNMENT OF SIND DIRECTORATE OF INDUSTRIES AND MINERAL DEVELOPMENT BLOCK N0.22, FRERE ROAD, KARACHI. No. S‑IND‑E‑3(2)/79/2358‑66, dated 20‑2‑1979. OFFICE ORDER????? Consequent upon approval of the ad‑hoc appointment by the Divisional Select Committee constituted under MLO‑55 vide Commissioner Karachi's letter No. CK/CNS‑1(2)/78, dated 10th August, 1978 the appointment of Mr. Shafi Muhammad is, regularised as A.I.D.O. with effect from 29th July, 1978 under para‑7, sub‑para (iv) of Martial Law Order, 55 dated 9‑3‑1978.., Sd/‑ (A.A.I. KIZILBASH) DEPUTY DIRECTOR (ADMINISTRATION) for Director of Industries & Mineral Development, Government of Sind, Karachi. It was next contended by the learned counsel for the appellant that even though the appellant's appointment was regularized by above order, yet his seniority would be reckoned from the date of his original appointment. As stated above the seniority would count from the date of regular appointment. Therefore, if the above arguments were accepted, the initial appointment of the appellant would have to be regularized retrospectively. However retrospective regularization is expressly prohibited by sub‑rule (2) of rule 10 of 1975‑Rules. The said sub‑rule reads as under: "(2) No appointment made on ad‑hoc basis shall be regularized retrospectively." In view of above rule the contention of the learned counsel for the appellant has no substance. In view of the express bar contained in the above sub‑rule, the initial ad‑hoc appointment of the appellant could not be regularized retrospectively. Consequently his seniority would be reckoned from the dale of his regular appointment i.e. from the date of regularization of his ad‑hoc appointment under MLO‑

55. For above reasons this appeal cannot be legally upheld and, therefore, it is dismissed with no order as to coals. A.A./125/Sr.S.