1993 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑Two appeals bearing Nos. 29/92 and 34/92 respectively filed by M/s. Waheed Ahmed and Ghulam Muhammad involve identical questions of law and fact and therefore they are being disposed by this common judgment. In both the appeals, the appellants' prayer is that "the Fisheries Department's order dated 21‑11‑1991, whereby the private respondent Mr. Anwar‑ul‑Islam has been regularised as Deputy Director retrospectively w.e.f. 22‑10‑1985, be set aside. The brief facts leading to the passing of the impugned order may be summarised as follows. To begin with, the appellants as well as the private respondent were appointed in the Grade‑17 posts, as Assistant Directors, Fisheries on ad hoc basis. The appellants' case is that they after due clearance by the Public Service Commission, were regularised in the said posts but the similar appointment of the private respondent was never regularised, as he allegedly did not possess the requisite qualification for the post of Assistant Director. In 1984 two posts of Deputy Directors, Fisheries were advertised for direct recruitment. Consequent upon the selection by the Departmental Selection Committee, the two appellants were accommodated in the said posts on ad hoc basis. In the meantime the private respondent also managed to get himself appointed Deputy Director, Fisheries on ad hoc basis vide Fisheries Department's order dated 18‑10‑1982. Since he was not eligible for appointment in the said post, he moved an application for relaxation of the academic qualifications to enable him to appear before the Public Service Commission. He was allowed relaxation vide order dated 24‑9‑1986 but by that date, the examination of the Public Service Commission scheduled to be held on 8‑7‑1986 had already been over. Thereafter the private respondent, according to appellants' case, repeatedly attempted to appear before the Public Service Commission for its clearance but without any success. His services were ultimately regularised in the post of Deputy Director under section 24 of the Sindh Civil Servants Act, 1973 (hereinafter referred as the said Act) vide order dated 22‑6‑1988. However, the appellants' appointment as Deputy Director was regularised earlier on 5‑10‑1986, following the clearance by the Public Service Commission. In an obvious attempt to gain seniority over, the appellants, the private respondent once again moved the departmental authorities to give retrospective effect to his regularisation. Accordingly by the impugned order mentioned above the respondent's regularisation in the post of Deputy Director was allowed retrospectively w.e.f. 22‑10‑1985. It is this order, which aggrieved the appellants who therefore challenged it first in the departmental appeal and then before this Tribunal. We heard the arguments of Mr. Muhammad Aqil Awan for the appellants, Mr. Niaz Ahmed for the private respondent and Mr. Ali Bux Laghari on behalf of the official respondents. We also carefully went through the relevant record and the precedent cases cited at the Bar. It would appear that the appellants' target of attack is the Fisheries Department's order dated 21‑11‑1991 which is reproduced, for the sake of convenience, as under: "No. SO (FISH‑50)1(58/89), with the approval of the competent authority, the ad hoc appointment of Mr. Anwar‑ul‑Islam as Deputy Director, Fisheries (BS‑18) is regularised with effect from 22‑10‑1985." In course of his arguments, the appellants' learned counsel took serious exception to the above order, contending that not only the said order was made in utter violation of the law and rules but also the private respondent did not deserve the concession allowed to him through that order. According to the learned counsel, the private respondent did not possess the basic qualification both for lower‑grade post of Assistant Director and higher post of Deputy Director with the result that regularisation of his appointment in the said posts could not be secured through normal channel i.e. on recommendations of the Public Service Commission. He submitted that the private respondent had to lean on political‑cum‑beaurocratic influence, first for relaxation of his academic qualification for the post of Deputy Director and then for regularisation of his appointment in that post. As for the impugned order, his argument was that it was wholly unjustified. The learned counsel did not think that the case of private respondent fell in the category of hardship cases, so that, exceptional powers under section 24 of the said Act were required to be invoked to overcome any such hardship. He cited several authorities in support of his arguments. We have given our best thought to the arguments made at the Bar. Our first endeavour should be to ascertain if the impugned order had the necessary legal backing and if so, whether it was justified also on merits. We have perused the order carefully. It does not disclose the law/rule under which it was passed. On the contrary our attention was drawn to sub‑rule (2) of Rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred as the seniority rules) which reads as under: "(2) No appointment made on ad hoc basis shall be regularised retrospectively." In view of the above provision in the seniority rules, the regularisation of the private respondent's ad hoc appointment in the post of Deputy Director could not be given retrospective effect. It may be true that the Chief Minister, being a rule‑making authority is not prohibited from making an order not in conformity with the rules, but his order in contravention of any provision of the statutory law would certainly be declared invalid. In this connection we may refer to subsections (3) and (4) of section 8 of the said Act, which are reproduced as under:‑‑ "(3) Seniority on initial appointment to service, grade or post shall be determined as may be prescribed. (4) 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." It is thus clear from the above provisions of the statutory law that seniority of direct recruit was to be determined in the prescribed manner and that of promotee from the date of his regular appointment. As stated above the seniority rules contain the prescribed procedure, which clearly shows that seniority was reckoned from the date of regular appointment, which could not be given retrospective effect. In clarification of the position explained above, even the Sindh Government in the S&GAD had issued general Circular No. S.O. APLS (S&GAD) 2‑107/87, dated 5th June, 1992 for guidance of the Administrative Secretaries. Apart from above, we cannot overlook the Agriculture Department's Notification No. SO (A‑II) 3‑7/88 (F‑11)F, dated 22nd June, 1988 whereby the private respondent, Mr. Anwar‑ul‑Islam's ad hoc appointment as Deputy Director, Fisheries was regularised from the date of the notification. It reads as under: "In exercise of the powers conferred by section 24 of the Sindh Civil Servants Act, 1973 and in relaxation of the rules on the subject, the Governor of Sindh is pleased to regularise the ad hoc appointment of Mr. Anwar‑ul‑Islam, Deputy Director, Fisheries (B‑18) against one of the promotion posts of Deputy Director, Fisheries (B‑18) with immediate effect." The above notification has left us wondering how the private respondent's ad hoc appointment as Deputy Director made by initial recruitment was regularised against the post reserved for promotion. It is the respondent's own case that he was appointed in the post of Deputy Director by initial recruitment and not by promotion. In this connection it may perhaps be advantageous to borrow the relevant portion of para. 7 of his written statement and reproduce the same as under: "The fact is that in 1982 the Department advertised 3 posts of Deputy Director Fisheries for appointment on ad hoc basis‑‑‑Respondent No 3 also applied for the post. On the recommendations of Departmental Appointment Committee and with the approval of the Competent Authority (Chief Secretary) respondent No. 3 alongwith others was appointed as Deputy Director Fisheries on ad hoc basis.' The private respondent's ad hoc appointment having been made by initial recruitment against the post reserved for direct recruits could normally be regularised only on recommendation of the Public Service Commission in the very post he was holding on ad hoc basis. But as has been explained by him in para. 8 of his written statement, he was not called for interview by the Public Service Commission because he did not possess the requisite qualifications which had, by then, changed from those prescribed at the time 'of his ad hoc appointment. In the same para. he goes on further to explain that although the changed qualifications were subsequently dropped in case of promotees, they continued to apply to direct recruits and hence he was constrained to apply for relaxation of the qualifications which was ultimately allowed to him. Despite that he could not get clearance of the Public Service Commission. The appellants' allegations are that in spite of making repeated attempts, the private respondent failed to secure the approval of the Public Service Commission for regularisation of his appointment. In para. 9 of his written statement, the private respondent has admitted the appellants' above allegation only to the extent: "The fact is that answering respondent had appeared for interview before the Federal Public Service Commission only once." In any case the private respondent could not get the clearance of the Public Service Commission even during his admitted solitary appearance before the Commission. Having failed to secure regularisation of his ad hoc appointment through Public Service Commission, he applied for regularisation under section 24 of the said Act as a case of hardship. Accordingly his ad hoc appointment was regularised as hardship case but not in the post he was holding but against the post reserved for promotion. The question arose whether in the circumstances explained in the foregoing paragraphs, the case of regularisation of the private respondent's ad hoc appointment was a hardship case justifying the exercise of exceptional powers conferred by section 24 of the said Act? To answer this question, the views expressed by us (Service Tribunal) on similar point in the case of Ahsanullah Memon (1992 PLC (C.S.) 1157) are reproduced as under:‑‑ "In our opinion neither section 24 hereinabove nor the aforementioned precedent cases seem to concede power to the Government to substitute itself in place of the Selection Commission/Board for the purposes of determining the fitness of the private respondent for the job in question. If such power is allowed, it may be misused and thereby create unnecessary misunderstanding against the Government. Moreover, if power of making selections on merits is vested in Government it is likely to be repeatedly used rendering the selection authorities such as Public Service Commission and Departmental Committees/Board absolutely redundant." Apart from above it was to be examined if it was legally permissible to c regularise ad hoc appointment made by initial recruitment against the post reserved for promotion. In this connection it may be pointed out that the mode of regularisation of ad hoc appointment made by initial recruitment is totally different from that made by promotion, as in the latter case regularisation is made on recommendations of Departmental Promotion Committee whereas in the former case it is made on recommendations of Public Service Commission or, as the case may be, on recommendations of Departmental Selection Committee. Since the private respondent was not promoted to the post of Deputy Director, the question of regularisation of his such promotion did not arise. Moreover, the procedure for regularisation of ad hoc promotion was never followed in his case, as he was not considered for regularisation by the Departmental Promotion Committee. Above all this, we are at a loss to understand what prevented the departmental authorities from regularising his ad hoc appointment in the very post to which he was appointed on ad hoc basis and which he had been holding until this regularisation against the promotional post. Despite our above views we need not disturb the regularisation of the private respondent's ad hoc appointment by initial recruitment against the post reserved for promotion, because the appellants have grievance only against the order by which the respondent's regularisation has been given retrospective effect. Reverting to the impugned order, we have already pointed out that there was no indication at least in the order itself under what law or rules it was passed. We have also carefully gone through the written statement filed on behalf of the official respondents. In reply to grounds (ix), (x) and (xi) taken to the memos of appeals, it is stated in the said written statement as under:‑‑ "That section 24 is meant to afford relief to a Government servant under a hardship case and the case of the respondent No. 3 was treated as hardship case and he was allowed regularisation of ad hoc appointment in B‑18 as such." From the above reply it appears to us that for the limited purpose of regularisation, the respondent's case was treated as a hardship case. This is evident from the order of regularisation itself, wherein section 24 of the said Act has been mentioned to show that the said order was passed under that section. But so far as the impugned order is concerned, section 24 does not find mention in it nor does it show that the private respondent's case was treated as a hardship case for the purpose of giving retrospectively to regularisation of his ad hoc appointment. However, the learned counsel for the private respondent submitted that since the case of his client was a hardship case, it was presumed that even the impugned order was passed in pursuance of the powers conferred by section 24 of the said Act. In support of his arguments the learned counsel I relied upon some cases decided by this Tribunal and one Indian case (AIR 1991 Supreme Court 518). The Indian case was obviously not helpful to the learned counsel for the reason that service laws in force on the other side of the border were not known. Moreover, the view taken in that case that the period of ad hoc, service can be taken into account in determining seniority was alien to the service law applicable in our country. Coming to the Tribunal's own cases, the Tribunal has no doubt taken the view in its earlier judgments that section 24 of the said Act was invoable in hardship cases, but we were not convinced by the learned counsel for the private respondent that the latter's case was a case of hardship for the purpose of giving retrospectively to regularisation of his ad hoc appointment. On the other hand both in the memos of appeals and in course of the arguments, the appellants and their learned counsel have depicted the private respondent's case as a case of political favouritism. According to them the history of his case described above would show that almost at every stage of his service career he was shown undue favour. In any case, the appellants' learned counsel ad hoc, the private respondent had absolutely no case, muchless the case of hardship for the purpose of giving retrospective effect to regularisation of his ad hoc appointment. According to the learned counsel, the said respondent should have been satisfied with the regularisation of his ad hoc appointment which was allowed to him despite the fact that he did not possess the requisite qualification for the post of Deputy Director which he got relaxed under section 24 of the said Act and furthermore he could not secure the clearance from the Public Service Commission for regularisation of his appointment which too was ordered by invoking exceptional power under section 24 of the said Act. He submitted that the impugned order had nothing to do with any hardship caused to the private respondent but it was rather aimed to give him an edge in seniority vis‑a‑vis the appellants. In his support the learned counsel invited our reference to the case reported as Capt. (Retd.) Abdul Qayyum, Executive Engineer v. Muhammad Iqbal Khokhar and others PLD 1992 SC

184. In the above‑reported case the question of law of public importance required to be answered was as to whether the Governor could exercise his powers under section 23 of the Punjab Civil Servants Act (i.e. section 24 of Sindh Civil Servants Act) in a manner to relax rule 8 of the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974 so as to affect the seniority of a number of other civil servants. It was held by the Honourable Supreme Court as under:‑‑ ' "As regards the residual remedial power of the Governor contained in section 23 of the Punjab Civil Servants Act, the bounty and the generosity of the Governor has been placed under a limit. It is not to be exercised so as to infringes impair or curtail any of the statutory rights of the beneficiary himself. This is the recognition and effect of Article 4 and Article 240 of the Constitution. The argument that the exercise of this power can ride rough over the statutory right of others would amount to negation of rules of law, going beyond the Constitutional parameters, subordinating of statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by the law as any one else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and considers just and fair but not at the cost of others, not even at the slightest cost of the statutory right already granted to the beneficiary. This is a power of redressal, of providing a relief and not of impairing statutory right of anyone." In another case reported as Mian Shafiuddin and 4 others v. Surat Khan Marri and 41 others (1991 SCMR 2216), it was held: "Respondent could not have been allowed such date of regularisation so as to adversely affect seniority right of others which had become vested." We are in respectful agreement with the above views expressed by the Supreme Court and hold that the residual power conferred by section 24 of the said Act can be exercised even liberally so as to grant as much benefits as are considered just and fair but not at the cost of others, and not even at the slightest cost of statutory right already granted to the beneficiary and that the said power is of redressal of providing relief and not of impairing statutory right of anyone. It is an admitted position that both the appellants following the approval of the Public Service Commission were regularised in their appointment as Deputy Director on 5‑10‑1986, whereas the private respondent was regularised under section 24 of the said Ad as a hardship case on 22‑6‑1988. Thus the appellants had become senior to him in the cadre of Deputy Director. The impugned order, however, sought to disturb their inter se seniority. We see no justification for the view that hardship would be caused to the private respondent if he was not made senior to the appellants in Deputy Directors' cadre. The only argument advanced in support of the said view by the learned counsel for the private respondent was that the latter's ad hoc appointment in the said post was made earlier than the ad hoc appointment of the appellants. We see no force in this argument because the ad hoc appointment did not entitle him to any right to seniority. On the contrary it is expressly provided in the seniority rules that seniority will be reckoned from the date of regular appointment and that ad hoc appointment cannot be made regular retrospectively which only means that period of ad hoc service would not be counted for computing the seniority. The upshot of the above discussion was that the impugned order was not sustainable which is accordingly set aside and the appeals are allowed with no order as to costs. H.B.T./405/Sr.S Appeals allowed.