1988 PLP (C (PLC(CS))

The case of direct recruits/appellants is more or less identical. Consequent upon their selection by the Public Service Commission, they were inducted in the posts of Section Officers by initial recruitment. The appellants Muhammad Yousuf Bhatti and Oadir Bux Shaikh assumed their office as Section Officers on 10-7-1972 and appellants Aijaz Hussain Kazi and Ghulam Sarwar Khero who were selected in the competitive examination held by Sind/Baluchistan Public Service Commission in 1972, were appointed as Section Officers by S&GAD's Notification No. SOV(S&GAD)-I-8/73, dated 6-11-1973. However, by two Notifications of same No. S&A(S&GAD)-2(3)/71, dated 23-9 1972 and 7-11-1972 some Superintendents of defunct-Government of West Pakistan and Sind Secretariat were promoted as Section Officers purely on temporary and ad hoc basis until the availability of direct recruits. Their promotion was subsequently regularized by Notification No.S.O.V.(S&GAD)2 3/71, dated 8-3-1974 retrospectively from the dates mentioned against their names in the said Notification. The contention of the appellants was that such regularization of the respondents' ad hoc promotions was m contravention of the law and rules and hence illegal and inoperative, and therefore, they could not be shown as senior to them in the impugned seniority list. On the basis of this plea the appellant Aijaz Hussain claimed to be senior to respondents Nos. 2 to 40 mentioned in the memo of his appeal. Similarly appellant Ghulam Sarwar Khero claimed seniority over respondents Nos. 2 to

40. Again appellant Muhammad Yousuf Bhatti claimed to be placed above respondents Nos. 2 to 22 appellant Qadir Bux claimed to be shown senior to respondents Nos. 2 to 27 Accordingly being aggrieved by the impugned seniority list they preferred Departmental appeals to the Chief Minister/M.LA. Zone `C' and as no decision was taken by the said appellate authority within 90 days, they have come in the present appeals. The case of promotee/appellant, Syed Mahfooz Ali is that he joined Government Service as senior scale Stenographer on 6-11-1954 and was promoted as Superintendent on 2-4-1974. Subsequently by Notification No.S.O.X.(S&GAD)1-8/83, dated 27-9-1975 he alongwith the 11 other persons, was promoted as Section Officer on regular basis though temporarily until availability of direct recruits. Despite this he was shown at ";.No.125, as junior to the respondents (mentioned in the memo of his appeal) in the provisional seniority list of Section Officers issued on 20-1-1981. He challenged the said seniority list but he was neither heard nor any order was passed on his representation/objections. Ultimately final seniority list was issued on 1.2-9-1981 in which his name was wrongly placed at S.No.97, on basis of regularization of his promotion on 17-4-1978, though he was actually promoted on regular basis on 27 9-1975 as stated above. Accordingly the appellant pre learned departmental appeal but the same was rejected vide letter dated 17-4-1982 communicated to him by respondent No.2. The appellant therefore, filed the present appeal claiming seniority over respondents Nos.3 to

76. The case of the appellant Muhammad Yousuf Khan is that he was promoted from his substantive post of Superintendent to that of Section Officer on 27-3-1974. Subsequent to his promotion several persons were appointed as Section Officers by direct recruitment. Though they were junior to him, they have been placed above the appellant in the impugned seniority list The appellant claims to be placed at serial No.45 instead of serial No.73 m the said seniority list. As such he preferred departmental Appeal on 8-10-1981 but the same was rejected. He was informed about the rejection of his appeal by the Order No.S.O.X (S&GAD)3-(313)/79, dated 17-4-1982. Thereafter, he has filed the present appeal. The last two appeals (Appeal No.39 of 1982 and Appeal No 40 of 1982) were allowed by the Service Tribunal mainly on some concessions made by the then Assistant Advocate-General vide two separate judgments dated 21st March. 1983 and 22nd March, 1983 respectively. The said judgments were however challenged in Supreme Court which by its judgment dated Ird September, 1085 disposed of both the appeals by consent and remanded the cases back to the Service Tribunal for decision on merits. We heard the arguments of the parties and their counsel at great length. We also minutely examined the documents produced in all the appeals. It would appear that the appellants are not satisfied with the seniority position assigned to them in the impugned seniority list In order to resolve their dispute with regard to seniority it would be pertinent to refer to the relevant law and rules. No doubt the impugned seniority list published on 12th September, 1981 was drawn up and issued in accordance with the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter to as Seniority Rules, 1975). These rules came into force with effect from 2nd October, 1975. Rule 10 of the Seniority Rules, 1975, which has a great bearing on the appellant's cases, is couched in the following words: "10. (1) Subject to the provision of rule 11, the seniority of a civil servant shall be reckoned from the date of his regular appointment. (2) No appointment made on ad hoc basis shall be regularized retrospectively." Keeping in view the requirements of the above rule, correct seniority position to which the appellants as well as respondents would be entitled in the cadre of Section Officers, can only be determined by reference to the date of their regular appointment to the said cadre. In other words it has to be seen on what dates they entered the cadre by way of regular appointment. "Regular appointment" has been mentioned in contradistinction of "Ad hoc appointment" in the Sind Civil Servants Act, 1973 (hereinafter referred to as the said Act). It is applicable to the parties inasmuch as it regulates their terms and conditions of service. As defined in clause (a) of subsection (1) of section 2 of the said Act, "Ad hoc appointment" means an appointment made otherwise than in accordance with the prescribed method of recruitment. Conversely if an appointment is made in accordance with the prescribed method, it would obviously become a regular appointment. The next question that arises for our consideration is as to what was the prescribed method of recruitment when the appellants as well as respondents entered the Section Officer's cadre and whether that method was followed in their appointments. So far direct recruits/ appellants are concerned, they are all selectees of the Public Service Commission. At the time of their selection as well as their induction in the posts of Section Officers, the said Act or the rules framed there under had not come into force but West Pakistan Secretariat (Section Officers) Service Rules, 1962 (hereinafter referred to as the 1902-Rules) still occupied the field. Rule 5(1) of these Rules which is relevant here reads as under:- "

5. Method of recruitment.--(1) Recruitment to the service shall be made as follows-- (a) Fifty per cent of the vacancies shall be filled by initial recruitment on basis of the result of the competitive examination held by the Commission. (b) The remaining fifty per cent of the vacancies shall be filled by selection on merit with due regard to seniority from among the Superintendents of the West Pakistan Secretariat (Ministerial) Service, or if no such Superintendents are considered suitable for appointment to the service from among Assistants of the West Pakistan Secretariat (Ministerial) Service." It is clear from the above rule that prescribed method of recruitment in case of initial appointment was the result of competitive examination held by the Public Service Commission. Since that method was followed in case of Direct recruits/appellants, their appointment to the post of Section Officers was regular appointment. Consequently their seniority in the Section Officers' cadre was to be reckoned from the dates of their initial appointment. The argument that they should count their seniority from the date of their confirmation in the said posts was not only mis-conceived but also erroneous as it was not based on any provision of law or rules. On the contrary subsection (3) of section 8 of the said Act provides that seniority on initial appointment to a service, grade or post shall be determined as may be prescribed." As pointed out above, rule 10 of Seniority Rules, 1975 prescribes that seniority of a civil servant is to be reckoned from the date of his regular appointment. The period of probation that precedes the confirmation of a civil servant is a part of his regular service because he is invariably confirmed right from the date of his appointment. In any case the period of probation does not fall within the definition of ad hoc appointment so that it should be excluded for determining the date of his regular appointment having arrived at this conclusion we hold that the appellants Aijaz Hussain Kazi and Ghulam Sarwar Khero entered the cadre of Section Officers on 6th November, 1973 and appellants Muhammad Yousuf Bhatti and Kadir Bux Shaikh entered the said cadre on 10th July, 1972 by way of regular appointment and as such their seniority in the Section Officers cadre would be reckoned from the said dates. All these Section Officers who were appointed after the above dates would be junior to the said appellants. The above four appellants have claimed to be senior to the promotes/respondents as mentioned by them in their respective memos of appeals. Most of the said respondents have been dropped by the appellants, as they have either retired, died or left the cadre otherwise, leaving respondents Aziz Rehman, Ansar Ahmad Khan, Hidayatullah Memon, MA. Khan, Habib Ahmad, S. Abbas Raza Zaidi, Mushtaq Ahmad Afidi, Mirza Anwar Baig, Rafiquddin Momin and Abdul Aziz who are said to be still in service. The aforesaid respondents were promoted as Section Officers by two Notifications; one dated 23-9-1972 and another dated 7th November, 1972. However, the names of Azii Rahman and Abbas Raza Zaidi do not transpire in these notifications but it is not denied that like other respondents they too were promoted on ad hoc basis and subsequently their promotion was regularized retrospectively. On perusal of the above notifications it would appear that promotions mentioned therein werc made purely on temporary and ad hoc basis pending the finalization of their case of promotions as Superintendents. It was further made clear in the said notifications that the promotees would not claim seniority over their seniors who were not considered for appointment earlier or might be appointed thereafter and that their promotions were only a stop gap arrangement and they were liable to be reverted to their own substantive rank on determination of seniority or when the direct recruits or officers of other services were available for appointment as Section Officers. Their promotions were however, regularised by subsequent Notification No.S.O.V. (S&GAD)-2-3/71, dated 8th March, 1974 retrospectively from the dates mentioned against their names. The appellants and their learned counsel attacked the regularization of ad hoc promotions of the aforesaid respondents mainly on two grounds; first, that retrospective regularization of ad hoc appointments was not permissible under the rules and second, that the said respondents were admittedly promoted against the posts reserved for direct recruits, and as such their promotions could not be regularised in the quota of direct recruits. In support of their arguments, they placed reliance on Supreme Court authority reported as Federation of Pakistan v. Azam Ali and others 1985 S C M R

386. On the other hand it was submitted on behalf of the respondents that when regularization of respondent's promotions was made, the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (hereinafter referred to as the 1974 Rules) as well as Seniority Rules, 1975 Were nothing in sight, further, submission on their behalf was that there was no bar on retrospective regularization of ad hoc appointment under the 1962 Rules which were actually in force at the time of respondent's ad hoc promotions and the regulation thereof. It was also stressed on the respondent's behalf that the Regulation was made with the approval of the Chief Minister, who besides being rule-making authority, was designated as Government in the 1973 Constitution. Accordingly in their view even if the retrospective regularization suffered from any defect, such defect stood cured. As for the argument that respondents promotions could not he regularized in the posts reserved for the direct recruits, the respondents' reaction was that for the purpose of determining seniority such argument was untenable 1n this connection reference was made to the Supreme Court authority reported as Khushi Muhammad and 3 others v. General Manager, P.W.R. P L D 1970 S C

203. We have given our due consideration to the arguments of both sides and have also perused the authorities relied upon by the parties. There was no controversy on the point that the aforesaid respondents were first promoted as Section Officers on ad hoc basis. The bone of contention between the parties was whether their ad hoc promotion could or could not be regularized retrospectively As stated above the regularization of their promotions was made by notification dated 8th March, 1974. It is true that by that date the Seniority Rules of 1975 which were promulgated on 2-10-1975 had not come into force. Similarly 1974 Rules were enforced on 28-3-1974 i.e. 20 days after the above notification of regularization was issued. Nevertheless, the said Act had already come into being as it was published on 5th December, 1973. As provided in subsection (4) of section 8 of the said Act: "seniority, in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade." The word "regular appointment" used in this subsection is an appointment other than "ad hoc appointment" as defined in section 2(1)(a) of the said Act. Obviously both appointments cannot be made on one and the same date. In our opinion the intention of subsection (4) hereinabove appears to be that the date of regular appointment is the date on which such appointment is made or ad hoc appointment is regularized. Keeping in view the definition of ad hoc appointment we find that appointment made on ad hoc basis can convert into regular appointment only after due compliance of the prescribed procedure. As stated above the 1974 Rules which prescribed the procedure for appointment by promotion had not been enforced by the date the respondents' regularization of ad hoc promotion was made. In such a situation resort had to be made to subsection (2) of section 26 of the said Act which reads as under: "(2) Any rules, orders or instructions in respect of any terms and conditions of service of Civil Servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." Accordingly 1962 Rules would be deemed to be alive for the purpose of regularising the ad hoc promotion; of the respondents. As provided in clause (b) of sub-rule (1) of rule 5 of these Rules reproduced above, fifty per cent of the. vacancies shall be filled by selection on merit with due regard to seniority from among the Superintendents. For selecting suitable Superintendents (non-gazetted post) for promotion as Section Officers (Gazetted post) consultation with Public s "If an `order' is made by a competent authority which has the effect (amending previous rules, which are capable of being so amended, the; the efficacy of such an `order' is not diminished merely because it do not in so many words specify that it is an `order making i rule'. We must look at the substance and not merely the form of the `order." Thus, the regularization of ad hoc promotions with approval of the Chic, Minister, in our opinion, did not violate the provisions of subsection (1) of section 9 of the said Act and hence, was perfectly in order. But as has been held above such regularization could not be allowed to take effect retrospectively. Taking up the appeal of appellant Syed Mahfooz Ali, it is found that h, was promoted as Section Officer by Notification No.S.O.X (S&GAD) I-8/73, dated 27th September, 1975 alongwith eleven others. The learned counsel for the appellant argued that since the appellant was promoted on regular basis his seniority in the Section Officers' cadre was to be reckoned from the date of the said notification. The argument was based on the recital in the notification, that Departmental Promotion Committee No. 1, was consulted prior to the appellant', promotion as Section Officer. According to the learned counsel the word', "on purely temporary basis" mentioned in the notification were redundant and had no bearing on the promotion of the appellant being regular. On the other hand the learned counsel for the respondents contended that since the promotion of the appellant was on temporary basis, his seniority could not be determined with that of permanent employees. Their further argument was that the appellant was not holding even the lower post of Superintendent on regular basis at the time of his promotion as Section Officer and, therefore, his promotion to higher post could not be regarded as regular promotion. In this connection our attention was drawn to the two Notifications; one bearing No. E&A(S&GAD) 8(11)/70, dated 2nd May, 1974 t)~ which the appellant, Syed Mahfooz Ali alongwith 17 others were promoted to officiate as Superintendents in Grade-16 purely on temporary and ad hoc basis and second bearing No. S.O.X.(S&GAD)-3-264/78, dated 13th April, 1978 by which the ad hoc promotions of the appellant and others as Superintendent tGradc-16) was regularized. His name appears at serial No 22 in part I of the latter 'Notification. The perusal of the above two Notifications leaves us in no doubt that on 27th September, 1975 on which the appellant was promoted as Section officer obviously from the post of Superintendent he was holding the latter post only on ad hoc basis. Of course there was no bar to promote the ad hoc Superintendent to higher post of Section Officer, but such promotion could not be regarded as regular promotion. No doubt the Departmental Promotion Committee was consulted for appellant's promotion as Section Officer. But the choice of the Committee was limited to only those Superintendents who were not only duly qualified but also were eligible in all respects for promotion to the posts of Section Officers. Thus, the Committee was required to consider only those Superintendents who, inter alia, were holders of the posts on regular basis. By clearing the Superintendent working on ad hoc basis for regular promotion to higher post, the Committee had exceeded the power vested in it. 1-lowever, we feel that the Committee was perhaps conscious of the appellant's status at the time of clearing him for promotion for the post of Section Officer. That is why he was cleared by the Committee for purely temporary promotion. In any case since the appellant's promotion even to the lower post of superintendents was regularised much later on 13th April, 1978, it was not possible to hold his promotion to higher post as Section Officer made about three years earlier on 27th September, 1975 as regular promotion. We were not shown any separate notification issued subsequently to the appellant's regular promotion as Superintendent notified in April, 1978, whereby the appellant's promotion as Section officer was regularized against substantive post. Nevertheless he was shown in the impugned seniority list to have entered the cadre of Section Officers with effect from 17th April, 1978. As stated above, the appellant's promotion to the post of Superintendent was regularized on 13-4-1978. We have already held that his promotion to the post of Section Officer prior to that date could not be made on regular basis. Accordingly since fresh notification was not issued with regard to his promotion to the post of Section Officer after regularization of his promotion as Superintendent we hold that he stood promoted on regular basis as Section officer immediately on regularization of his promotion to the lower post of Superintendent. This is because he was already approved by the Departmental Promotion Committee and as such there was no need to refer his case to the said Committee again after regularization of his promotion as Superintendent. Consequently the date of his entry in the Section Officers' cadre would be 13th April, 1978 and not 17-4-1978. The only argument for showing appellant's entry in the said cadre on 17 4-1978 was that the promotion of appellant's colleagues to the posts of Section Officers was regularized by Notification No. S.O.X.(S&GAD) 3-237/77, dated 17-4-1978 but somehow due to oversight the appellant's name was not included in the said notification. We have perused the notification dated 17-4-1978 carefully, but we find that this notification does not include any of the appellant's eleven colleagues who were promoted with him by notification dated 27-9-1975. Therefore, the question of omission of the appellant's name from the said notification did not arise. Even otherwise if the omission was due to oversight it was necessary to issue written clarification. It has obviously not been issued. In absence of such corrigendum we cannot agree that the appellant's date of entry in the Section Officer's cadre was 17-4-1978. Consequently as has been held above the seniority of the appellant in the Section Officers' cadre became effective from 13-4-1978. According to the appellant's own schedule attached to his memo of appeal all direct recruits appointed as Section Officers were admittedly appointed before the above date of regularization of his promotion as Section Officer, and as such they would all rank senior to him. So far promote Section Officers are concerned, those whose regular appointment to the posts of Section Officer took effect subsequent to the above date (13-4-1978) of regular appointment of appellant to the said post, would have to be shown junior to him in the impugned seniority list. Lastly we come to the case of appellant Muhammad Yousuf Khan who, in view of his pending superannuation in October 1988, has apparently lost interest in the result of his appeal. Irrespective of what his feelings are we must examine the merits of his case and pronounce our verdict as in other connected cases. His grievance is also against the same seniority list of Section Officers which was published on 12th September, 1981. As is clear from the memo of his appeal his own admissions are: firstly that he was promoted to the post of Section Officer on 27-3-1974 (as per order filed by him as Annexure `B') on purely temporary and ad hoc basis pending finalization of the case of promotion of Superintendents and secondly that the promotion of the appellant was notified on regular basis with effect from 17-4-1978. This is borne out by the two Notifications available on record; one bearing No.S.O.V (S&GAD)-2(3)/71 dated 27th March, 1974 and second bearing No. S.O.X.(S&GAD)3-237/77, dated 17th April, 1978. In view of our findings in other connected appeals as discussed in the foregoing paragraphs, the seniority of the appellant in the Section Officers, cadre would be reckoned from 17th April, 1978, the date of his regular appointment to the said cadre. Accordingly all the Section Officers appointed. by direct recruitment in the years 1975, 1976 and 1977 would rank Senior to him. Even the promotee-Section Officers if any, whose date of entry on regular basis in the said cadre was earlier than 17th April, 1978 would be treated as senior to the appellant. As a result of above discussion the appeals of Direct Recruit appellants namely Aijaz Hussain Qazi, Ghulam Sarwar Khero, Muhammad Yousuf Bhatti and Oadir Bux Shaikh are allowed with no order as to costs. As for the promotee appellant Syed Mahfooz Ali his seniority in the Section Officers cadre would be reckoned with effect from the 13th April, 1978 and not from 17th April, 1978 as 1 mentioned in the impugned seniority list. Subject to this correction to be made in the said list his appeal is dismissed with no order as to costs. Similarly the appeal of promotee appellant Muhammad Yousuf Khan is also dismissed with no order as to costs. A.A./174/Sr.S Order accordingly.