1983 PLP (C (PLC(CS))

Usman Ghani Rashid for Appellant. Hassan Akbar, A. A.‑G. for the Government. Date of hearing : 8th June, 1983. MUSHTAK AEI KAZI (CHAIRMAN).‑‑The appellant has filed this appeal under section 4 of the Sind Service Tribunals Act, 1973 for fixation of his seniority in the list of Labour Officers, Grade

16. The appellant was appointed originally as Inspector, Weights and measures by an order dated 26th January, 1962. He was promoted on the recommendation of the Selection Board on ad hoc basis to officiate as Labour Officer on 21st September, 1972. On 30th March, 1974 he was confirmed as Labour Inspector and on 29th May, 1976 he was confirmed ax Labour Officer with effect from 1st June, 1974 that is the date from which his post had been placed on permanent footing by the Finance Depart ment under Notification of Labour Department dated 13th February, 1976. On the recommendation of the departmental promotion committee No. 1 his ad hoc promotion as Labour Officer was regularized with effect from 22nd September, 1972. Under the same Notification Messrs Ahmad Bux, Shakir Hussain and Rabat Ahmad Khan's ad hoc promotions were also regularised. The last named three officers were then promoted as a result of regularization but the case of the appellant for promotion was not considered. He made a representation to the. Director, Labour Welfare, Sind and then filed the departmental appeal on 9th March, 1978. Mean while provisional seniority list of Labour Officers was issued inviting objections on 12th July, 1979. The appellant submitted his objections on 9th August, 1979. But his representation was turned down by the Labour Department on 4th August, 1981. Since seven Labour Officers including four direct recruits appointed after promotion of the appellant were placed senior to him in the pro visional seniority list of Labour Officers simply for the reason that the orders for regularization of the appellant on the recommendations of the departmental promotion committee from the date of his promotion con travened rule 10(2) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 as later on pointed out by the Services and General Administration Department. It was provided under this Rule that the seniority of a civil servant shall be reckoned from the date of his regular appointment and no appointment made on ad hoc basis shall be regularised retrospectively. It has been argued by Mr. Usman Ghani on behalf of the appellant that orders in respect of regularization of the promotion of the appellant as Labour Officer were passed after the approval of Minister for Labour on the summary submitted to him by the Secretary to Government of Sind, Labour Department dated 31st January, 1976. In this summary it was recommended that the suggestion of the departmental promotion committee for regularization of the promotion of the appellant and three others from the date of their actual promotion be approved. The Minister for Labour approved this proposal contained in the summary on 4th February, 1976 and the notification was thereafter issued by the Labour Department on 13th February, 1976: That this notification has not so far been cancelled but has been acted upon as three out of the four officers regularized with effect from dates of their promotion have afterwards been promoted as Assistant Director, Labour Welfare ; but when the time came for promotion of the appellant his case was not considered, because an opinion had been recorded by the S & GAD that the regularization of the appellant with retrospective effect was against the rules. That it was not open to the department to quote this rule in case of the appellant while benefit of regularisation had been given to the three other officers by allowing them the seniority according to the notification dated 13th February, 1976 as this would amount to discrimination. It has next been argued that rule 10(2) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 is in excess of the Sind Civil Servants Act, 1973. These Rules were framed for the purpose of implementing the provisions of Sind Civil Servants Act, but the effect of these Rules was that the Rules contravened the provisions of the Act itself. Under the 1962 Constitution there was no embargo placed on retros pective regularization of ad hoc appointments. Under the Rules then in force before the framing of the 1975 Rules, there was no such prohibition on regularization with retrospective effect and the Rules provided that sen iority in a grade was to be reckoned from the date of continuous officiation in that grade against a substantive post. This position appears to have been repeated in the Sind Civil Servants Act, 1973 as under section 7(5) confir mation of a civil servant in a service or post shall take effect from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiation, in such service or post whichever is later. Now confirmation connotes something more than mere regularization as the person confirmed is placed on a permanent footing. It was open to the Government to mention how and in what manner and with effect from what date confirmations could be made. In a normal course the general rule followed before the promulgation of these Seniority Rules was ;o con firm an officer from the date of his original appointment provided a permanent post was available (Ghulam Hussain v. The Government of West Pakistan (P L D 1959 Kar. 701)). These principles having been continued under the Civil Servants Act, 1973 and the date of continuous officiation against a permanent vacancy having been regarded as the date of confirmation of a civil a servant, the Rules framed under the Civil Servants Act for carrying into effect the provisions of the said Act cannot ignore the provisions con tained in section 7(5) by prohibiting retrospective regularization. This contention of the learned counsel on behalf of the appellant cannot, therefore, be considered to be without force as under the Scheme of the Act there is no section under which retrospective regularisation has been prohibited. The only provision being that 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. When a person is confirmed against a post the question of any further regularization would not arise and confirmation could be made from the date of continuous officiation by a subsequent notification. So that if the Government chose to confirm a person from the date of continuous officiation against a permanent vacancy as in the case of the appellant, the question of regularization of his promotion became immaterial. The learned A. A.‑G. has himself pointed out this discrepancy in the Rules and can offer no arguments against it. Under the circumstances the order of the Labour Department issued after approval of the Labour Minister giving effect to the recom mendation of the departmental promotion committee could not afterwards be termed as irregular by the Services and General Administration Department on the lea that Rule 10(2) of the Seniority Rules, 1975 was against such retrospective regularization. In any case the order confirming the appellant as Labour Officer dated 29th May, 1976 and the earlier order dated 13th February, 1976 regularising the promotion of the appellant as Labour Officer from the date of promotion as such, could not be considered as ineffective or of no consequence without issue of proper show‑cause notice' to the office affected, if the order has been subsequently implemented and acted upon. Under the principle of animus revertendi or locus poenitentiae, an order in respect of an appointment cannot be recalled after it has been acted upon and right gets vested in the appointee as held in a recent decision contained in 1981 S C M R

528. The law laid down on this point in previous decisions of the Supreme Court has been relied upon. These decisions were reported in P L D 1955 F C 46, P L D 1964 S C 503, P L D 1969 S C 407 and 1980 S C M R

268. In the present case, how ever, no show‑cause notice has been issued and the said notification has not been formally withdrawn since it had been acted upon in respect of three out of the four persons whose promotions were regularised retrospectively. The learned A. A.‑G. has pointed out that seniority not being a vested right, the claim for a particular position in the seniority list cannot be entertained by the Service Tribunal as per recent observations of the Supreme Court in 1981 S C M R

554. Mr. Usman Ghani for the appel lant has, on the other hand, pointed out that the Supreme Court has presently admitted several appeals against the decisions that question of seniority did not fall under the expression "terms and conditions of service and the Tribunal had no jurisdiction with respect to it". That the matter being of vital importance is bound to be discussed in detail when it is finally decided by the Supreme Court. The question is not new and has formed the subject‑matter of appeals before the Supreme Court in several earlier decisions also. In P L D 1960 S C 195 it was held that every officer in a graded service has vested right to a proper place in the seniority list. That is of the highest importance to the office as well as to the maintenance of proper discipline and order within the service and consequently to the public interest which is deeply involved in the maintenance of proper spirit of order and discipline within the service. Thus in the above decision the Supreme Court laid down the principle of vested right of seniority. Likewise in P L D 1964 S C 304 it was held that seniority is a right relating to status and it cannot be allowed to be affected by any other consideration. The question of seniority being of vital importance in service matters as an officer's pro motion and future position or status would depend on the question of Seniority. But for determination of his proper seniority he may not even be considered for due promotion. As result of the above discussion we find that so long as the notifica tion of the Labour Department dated 13th February, 1976 regularizing the promotion of the appellant with effect from 22nd September, 1972 and the notification dated 29th May, 1976 confirming the appellant as Labour Officer with effect from 1st June, 1974 remain alt force, the seniority list of Labour Officers should be prepared in accordance with these notifica tions, unless the same are rescinded in accordance with law. The appeal is disposed of accordingly in terms of the above order. No order is made as to costs. A. E. Appeal disposed of.