1993 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑This judgment will dispose of two appeals; namely Appeal No. 44/1991 filed by Pir Maqsood Hussain Sarhandi and Appeal No. 45/1991 filed by Ghulam Ali Memon, involving identical question of law and facts.

2. Briefly stated the appellants' case is that they joined Government service as Ward Rationing Officers (hereinafter referred as WROs). following their selection as direct recruits by the Departmental Selection Committee vide Food Department's Notification No. SOF(1)/AD/G/235, dated 19th May, 1973. The private respondent Ghulam Nabi Mughal was however inducted in the similar post also on the same date viz. 19th May, 1973 but by way of promotion vide Food Department's Notification No. SOF (1)‑AD‑G‑235/70, dated 19‑5‑1973. On introduction of the National Pay Scales, the post of WRO was‑ placed in Grade‑16, retrospectively w.e.f. 1‑3‑1972. Consequently the case of private respondent was referred to the Departmental Promotion Committee and it was after the said Committee's approval, that his promotion was regularised by Food Department's Notification No. SOF(1)‑AD‑2(ii)6(a)/74, dated 5th March, 1978. On the other hand on promulgation of MLO‑55 in 1978 the appointments of the appellants were reviewed by the Public Service Commission and on the basis of its recommendations they were regularized by the Food Department's Notification No.SOF‑V‑2(182)/78, dated 2nd July, 1978. But as had been clarified by the Government Circular dated 12‑6‑1979, the seniority and other rights of civil servants were not to be adversely affected merely because their appointments were reviewed under MLO‑

55. Despite the appellants' claim to be senior to the private respondent in the cadre of WROs, they were shown junior to hint in the two seniority lists of the said cadre issued on 16‑8‑1983 and 18=6‑1989. Aggrieved by the said seniority lists the appellants preferred departmental appeals and after waiting for usual period of 90 days for decision of the said appeals, they came up in the present appeals before this Tribunal on 13‑6‑1991. We heard elaborate arguments of Mr. Manzoor Ali Khan for the appellants and of Mr. Sabihuddin Ahmad for the private respondent and of Mr. Habib Rasheed on behalf of the official respondents. With the assistance of the said learned counsel, we carefully went through all the relevant material available in the case files.

3. Mr. Manzoor Ali Khan made the following submissions on behalf of the appellants: (a) That the Chief Secretary having decided the appellants' appeals by his order dated 13‑6‑1990 with regard to their seniority vis‑a‑vis the private respondent, he became functus officio, left with no jurisdiction to entertain and decide the subsequent departmental appeal of the private respondent and as such the impugned order passed by him was corum non judice. (b) That the private respondent's departmental appeal before the Chief Secretary was uncalled for, because instead of filing such appeal he should have challenged the said' authority's appellate order passed in appellants' departmental appeals, before this Tribunal. (c) That since the private respondent was not cleared by Departmental Promotion Committee, his promotion from 19‑5‑1973 was only on ad hoc basis and he could cot count his seniority from the said date until his promotion was regularized w.e.f. 5‑3‑1978. (d) That the appellants' initial appointments w.e.f. 19 5‑1973 having been made on recommendations of the Selection Committee was obviously on regular basis and therefore subsequent review of their appointments by the Public Service Commission under MLO‑55 had no effect of disturbing the position of their seniority. (e) That the judgment of this Tribunal dated 29‑4‑1985 in Appeal No. 5/84 and the judgment of the Supreme Court dated 21‑5‑1986 upholding the said judgment of the Service Tribunal, support the appellants' case.

4. It would be noticed that the appointments of the two appellants and one private respondent as WROs were notified on the same date viz. 19‑5‑1973, with the only difference that the appellants were appointed as direct recruits whereas the appointment of the private respondent was made by promotion, Admittedly by the said date of their appointments, the Sindh Civil Servants Act, 1973, was nowhere in sight. It is however common ground that the West Pakistan Food Department (Gazetted Posts) Recruitment Rules, 1973 (hereinafter referred as thy said Rules), held the field at the relevant time. In these rules the posts of WROs appear at Serial No. 7 of column 2 of the Appendix `A'. The method of recruitment .to such posts is specified in rule 5 of the said under:‑‑ "(b) twenty‑five per cent. of the vacancies arising in the posts of...........Ward Rationing Officers shall be filled by initial recruitment on the recommendations of the Commission and the remaining vacancies in such posts shall be filled by promotion."

5. The appellants' appointments were admittedly made not no recommendations of the Public Service Commission as required by above rule, but on recommendations of the Selection Committee. The said rules would show that the Selection Committee was not authorized to make the selection for appointment to the WROs' posts. Nevertheless some times the appointments to be made in the nature of stopgap arrangement or purely on ad hoc or temporary basis are made by selection through Selection Committee or Board specially constituted for the purpose. Accordingly the appointments of the appellants made on recommendations of the Selection Committee could not be treated at par with the appointments approved by the Public Service Commission in fulfillment of the requirements of the said rules. It is true that `ad hoc appointment' as distinguished from the regular appointment received statutory recognition for the first time in the Sindh Civil Servants Act, 1973. As such the appellants' appointments made on recommendations of the Selection Committee may not be ad hoc appointments in the sense such appointments have been assigned meaning by the above Act. But at the same time they cannot be called the appointments made in accordance with the said Rules. If the appointments were not made under the said rules, appointees namely the appellants would obviously not be entitled to claim their seniority from the date of such appointments.

6. However, after promulgation of MLO‑55 the appellants' appointments were referred to the Public Service Commission and after the Commission cleared such appointments, they were regularized by the Food Department's Notification dated 2nd July, 1978. But the contention of the appellants' learned counsel was that the scrutiny of the appellants' appointments by the Public Service Commission did not adversely affect the date of their initial appointments for the purpose of their seniority. In this connection the learned counsel relied upon this Tribunal's judgment in Appeal No. 5 of 1984 dated 29‑4‑1981 and the pronouncement of the Supreme Court in C.P.S.LA. Nos.333‑K/85 and 334‑K/85 whereby the above decision of the Tribunal was upheld. He also placed reliance on the circular letter dated 12th June, 1979, issued by the S&GAD. As pointed out above the appellants' initial appointments were not made on recommendations of the Public Service Commission as required by the said rules. Hence their seniority was firmed up only after their appointments were regularized with approval of the Commission under MLO‑55 . in 1978. This is confirmed even by the Government's Circular letter dated 12th June, 1979 hereinabove relied upon by the appellants' learned counsel. The last five lines of the said circular letter being pertinent are reproduced as under: "But in case ad hoc appointees were not regularized even otherwise their seniority will be determined with effect from the date of their regular appointment after clearance under MLO‑55 in accordance with rules."

7. Although statutory concept of ad hoc appointment was not in vogue at the time of appellants' initial appointments, yet in literal sense ad hoc appointment was nothing‑but the appointment not made in accordance with the relevant law/rules. Since appellants' initial appointments were not made in accordance with the said rules and hence they were merely in the nature of ad hoc appointments, it was necessary to regularise them and as such their regularization under MLO‑55 was perfectly in order. Precisely for these reasons, the Tribunal's judgment and that of the Supreme Court referred and relied upon by the appellants' learned counsel in course of his arguments were not applicable in this case. We are therefore of the view that the appellants' Seniority in cadre of WROs was to be determined w.e.f. 2nd July, 1978 when their appointments were regularized under MLO‑55, following the recommendations of the Public Service Commission.

8. As for the mechanism for promotion to the post of WRO, we have meticulously gone through the said rules. There is no indication in the said rules that such promotion was to be cleared by any Departmental Promotion Committee or had to be made with approval of the Public Service Commission. Accordingly we have no hesitation in holding that the private respondent could count his seniority from the date of his initial promotion made from 19‑5‑1973. Despite our such findings, our attention was drawn to the Food Department's Notification, dated 5th March, 1978, whereby the private respondent's allegedly ad hoc promotion was purported to have been regularized on recommendations of the relevant Departmental Promotion Committee. It was however not made clear to us as to what made the authorities to treat the private respondent's initial promotion as ad hoc so that it was subsequently got regularized. May be his initial promotion was not within the quota reserved for promotees, hence it was notified as purely temporary. This may be the reason for treating it as ad hoc promotion. The learned counsel for the private respondent was correct in pointing out that even if the private respondent's regular promotion was held to have taken place w.e.f. 5th March, 1978 as per Food Department's notification referred to above, his induction in the cadre of WROs, would still be from the date earlier than the date of appellants' entry in that cadre, i.e. from 2nd July, 1978. Therefore we are in agreement with him that in either case the respondent would be senior to the appellants in the cadre of WROs. Consequently the, impugned order was unexceptionable, not calling for any interference.

9. We now proceed to take up the technical objection raised in course of the arguments addressed at the Bar. According to the appellants' learned counsel the impugned order was without jurisdiction, as the Chief Secretary who had passed that order had already exhausted his jurisdiction by deciding the departmental appeals preferred to him by the appellants on the same issue namely the inter se seniority of the parties in the WROs' cadre. It is true that the appellants have taken the plea in para. 9 of their memos of appeal that as they were shown junior to the private respondent in the seniority list of WROs issued first on 16‑8‑1983 and then on 18‑6‑1989, they preferred departmental appeals to the Chief Secretary. This is admitted in the corresponding para. of the written statement filed on behalf of the official respondents. As disclosed in the Food Department's notification dated 13th June, 1991 the appellants' departmental appeals were allowed and they were given seniority from their initial date of appointments and thereby made senior to the private respondent in both the aforesaid seniority lists. It was this very notification which was called in question by the private respondent in his departmental appeal addressed to the same authority namely the Chief Secretary, in addition to the Secretary; Food Department and it was in consequence of acceptance of his said appeal that he was given seniority over the appellants. This raises a question if the Chief Secretary was competent to entertain and decide second appeal against his own order also passed in departmental appeals previously filed by the appellants.

10. The argument of the learned counsel for the appellants was manifestly based on misconception inasmuch as that the departmental appeal filed by the private respondent was second departmental appeal before the Chief Secretary as he had already decided first such‑appeal of the appellants. It goes without saying that the respondent was aggrieved for the first time by the appellate order dated 13‑6‑1990 passed by the Chief Secretary in the appeals filed before him by the appellants. He was therefore within his right to challenge that order in his own departmental appeal. Because without availing such departmental remedy as required by provision ' of section 4 of the Sindh Service Tribunals Act, 1973, he could not approach this Tribunal if at all the need arose for him to bring his case to this Tribunal seeking the desired relief. But as per Appeal Rules, the order passed by the Chief Secretary had to be challenged before the Chief Minister. No doubt the private respondent's appeal was addressed to both the Chief Secretary and Secretary, Food Department. Presumably it should be intended for the appropriate appellate authority in case they had no jurisdiction to deal with the same. Although the notification dated 16th May, 1991 whereby the private respondent's departmental appeal was accepted and the desired relief was granted to him, was issued by the food Department over the signature of the Secretary of that Department, yet it was made clear in the said notification that the appeal was decided by the Appellate Authority. As stated above the Chief Minister was the Appellate Authority in respect of the order contained in the notification dated 13‑6‑1990 which had been challenged in the departmental appeal filed by the private respondent. Accordingly we have no reason to doubt that the order contained in the notification dated 16th May. 1991 was passed by the Appellate Authority other than the Chief Minister. Therefore there was no question of the Chief Secretary having entertained and decided second departmental appeal or revised his own order, which he had no jurisdiction to do.

11. For the same reasons hereinabove there was also no force even in the contention of the appellants' learned counsel that the private respondent instead of filing departmental appeal against the Chief Secretary's order, should have come up in appeal before this Tribunal.

12. Apart from above, these appeals are not legally maintainable for the reason that they have been filed without first complying with the mandatory provision of proviso (a) to section 4 of the Sindh Service Tribunals Act, 1973. It is clear that appellants have impugned the orders contained in the Food Department's Notification dated 16‑5‑1991. As required by the proviso referred to above, it was compulsory for the appellants to have first resorted to departmental remedy before filing present appeals before this Tribunal. Since the impugned orders were presumably passed by the Chief Minister, the appellants should have, as a' first step, filed review petitions to the said authority. It is an admitted position that no such petitions had been made prior to filing of the present appeals. Accordingly such omission occasioned failure on the part of the appellants to make compliance of the mandatory legal requirements. Thus the appeals being premature, are not legally maintainable.

13. In view of the above discussion the appeals are not only premature but are also without any merit and as such they are dismissed with no order as to costs. A.A./383/Sr.S ???????????????????????????????????????????????????????????????????????? ??????????? Appeals dismissed.