1993 PLP (C (PLC(CS))

In this connection reference may be made to the Irrigation and Power Department's notification dated 2nd April, 1990. The relevant portion of the notification reads as under "In pursuance of the instructions contained in the Service and General Administration Department's Notification No. SOR‑I(S&GAD)1/1 57‑(Ptv), dated 22‑5‑1989, the ad hoc appointment of Mr . .................... Assistant Executive Engineer (Mechanical) (BS‑17) made on 25‑8‑1987, vide this Department's Notification No. A‑I/10‑45/87‑III, dated 25‑8‑1987, is hereby regularised under the Sindh Civil Servants (Regularisation of Ad hoc Appointment). Act, 1989 with effect from 22‑5‑1989. (2) .............................................................................

5. As is clear from the above notification the ad hoc appointment of the appellant as well as the private respondents was regularised w.e.f. 22‑5‑1989. This has obviously been done in pursuance of S.3(1) ,of the said Act of 1989 which may be reproduced as under:‑ "3.(1) Notwithstanding anything contained in the Act or rules thereunder, or in any decree, order or judgment of a Court but subject to the, other provisions of this Act a civil servant holding ad hoc appointment against post on or before the 12th day of October, 1988 and continuing as such till the commencement of this Act, shall on orders made in that behalf, be deemed to have been validly appointed to the post on regular basis with effect from the date of commencement of this Act.

6. It would appear that any ad hoc appointment to be regularised under the above section shall be deemed to have been regularised with effect from the date of commencement of the Act of 1989. As the said Act came into force on 22nd May, 1989, the regularisation of the services of appellant and the private respondents also took effect from the said date.

7. Thus the date of regular appointment of the appellant and the private respondents being one and the same, the question would arise how to determine their inter se seniority. In this connection rule 11 of the seniority rules has laid down the necessary guidelines. It is reproduced as under: ‑ "

11. Inter se seniority of civil servants appointed in a batch or on the same date shall be determined‑‑ (a) in the case of persons appointed by initial recruitment, in the order of merit assigned by the selection authority and if such authority is either not competent to assign such order of merit or has omitted to do so and is unable to overcome the omission for reasons beyond its control, the seniority shall be determined by the appointing authority: Provided further that a person selected in earlier selection shall rank senior to a person selected in a later selection. (b) in the case of persons appointed by promotion on the basis of their inter se seniority in the lower grade; (c) in the case of persons appointed by initial recruitment vis‑a‑vis persons appointed by promotion, on the basis that the person appointed by promotion shall rank senior to the persons appointed by initial recruitment; (d) in the case of persons not covered by clauses (a) to (c) on the basis that persons older in age shall rank senior to persons younger in age:"

8. On careful perusal of the above rule, it would appear that this case is covered by clause (d) hereinabove. According to this clause the persons older in age shall rank senior to persons younger in age. As such the appointment of the appellant and private respondents having been regularised with effect from the same date, their inter se seniority would have to be determined on the basis of their age.

9. However, the learned counsel for the appellant expressed a different view. While inviting our reference to subsection (2) of section 5 of the Act of 1989, he contended that continuous date of their appointment was the determining factor for deciding their inter se seniority. According to him, the date on which they joined their duties following their ad hoc appointment was the starting point for computing their seniority as they continued in service since then. This argument was repelled by both the learned counsel for the respondents who were of the view that since their ad hoc appointment was notified on 25th August, 1987, their appointment would be regarded as continuing from the said date irrespective of the dates of joining their duties. Accordingly their submission was that the dates of the appointment of the appellant and the private respondents being the same, their inter se seniority would be determined on the basis of their age and as such the impugned seniority list reflected their seniority correctly.

10. We have given our due thought to the arguments of both the sides. No doubt subsection (2) of section 5 of the Act of 1989 requires the inter se seniority to be determined on the basis of the continuous appointment. But the question is if for the purpose of determining seniority the period of continuous appointment also includes the period of ad hoc appointment. If this view were accepted, then the provision of the Act of 1989 regularising the ad hoc appointment would become redundant and hence meaningless. We have to see why after all the regularisation of the ad hoc appointment was necessary. Obviously because seniority is reckoned only from the date of regular appointment. This is provided both in section 8 of the Sindh Civil Servants Act, 1973 (hereinafter referred of 1973‑Act) and rule 10 of the seniority rules. Neither of these provisions has been overridden by the Act of 1989. As is clear from the preamble and so also from subsection (1) of section 3 of the Act of 1989, the intention of the said Act is to avoid only those provisions of the 1973‑Act and the rules framed thereunder which relate to the procedure prescribed for regularisation of the ad hoc appointment. The other provisions of the said Act and the rules framed thereunder including obviously the provisions with regard to determination of seniority are left absolutely unaffected by the Act of 1989. On the contrary we are of the view that the Act of the 1989 has been enacted in order to ensure the strict compliance of the provisions for computing the seniority.

11. Sub‑rule (2) of rule 10 of the seniority rules states: "No appointment made on ad hoc basis shall be regularised retrospectively". This only means that the period of ad hoc appointment will not be counted for the purpose of determining seniority, which can be reckoned only from the date of regular appointment. As stated above the ad hoc appointment of the appellant and the private respondents was regularised on the same date viz. 22‑5‑1989. This being so, the proviso following section 5 of the Act of 1989, has to be invoked to determine inter se seniority of the appellant and the private respondents. According to the said proviso if the dates of continuous appointment of civil servants are the same, the older in age shall rank senior to the younger in age. This provision is obviously in consonance with clause (d) of rule 11 of the seniority rules. The words "continuous appointment" used in subsection (2) of section 5 and the proviso following it of the Act of 1989, in view of above discussion, cannot be construed to embrace even the period of ad hoc appointment in our opinion the words "continuous appointment" hereinabove refer to continuous regular appointment. Even if the continuous appointment in this case was extended to include the period of ad hoc appointment, still the date of ad hoc appointment of the appellant and the private respondents being the same namely 25‑8‑1987, their inter se seniority will be determined in terms of the proviso following section 5 of the Act of 1989. The dates of joining duties cannot be taken as continuous dates of appointment because following the issuance of the orders of ad hoc appointments, the appointees joined their duties as and when the circumstances permitted them to do so. The fact that they joined their dudes on different dates is a clear proof that they were placed in present situation, otherwise no appointee was expected to make any delay for hours in joining his duties. As such the date of joining duties in a case like the present one, have never been accepted as the starting point of seniority. The case reported as Khushi Muhammad and 30 others v. General Manager, P.W.R. (PLD 1970 SC 203) which has been relied upon by the learned counsel for the appellant in support of his arguments was not applicable in the present case as the facts of the reported case were distinguishable from the facts of the present case.

12. In view of the above discussion we have reached the conclusion that the seniority list dated 1‑8‑1990, which has been impugned in the appeal was correctly drawn on the basis of age‑formula that the older in age will rank senior to the younger in age. Consequently the appeal being without merit is dismissed with no order as to costs. Given under our hands and the seal of this Tribunal on this 11th day of March, 1992 at Karachi. AA./385/Sr.S Appeal dismissed.