1993 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER): ‑‑This judgment is concerned with the disposal of seventeen appeals under section 4 of the Service Tribunals Act, 1973, taken together because of having given rise to identical questions of law and facts for determination.

2. The appellants were appointed as Lower Division Clerks on different dates during the period from 3‑11‑1966 to 12‑12‑1967. They claim to have been promoted as Upper Division Clerks on different dates during the period from 9‑2‑1970 to 23‑9‑1972. The respondents' pleadings indicate that, at least in some of the cases, promotion as Upper Division Clerks was only on temporary and ad hoc basis and that it was regularized much later on different dates in the case of different appellants. Anyway, the detail of this aspect of the matter need not be gone into, because except for Bhai Khan respondent No.21 and Muhammad Iqbal Khan respondent No.23, it does not have any bearing on the determination of the real questions in controversy between the parties.

3. They are now serving as Assistants in the Planning and Development Division, Government of Pakistan. The claim. which in fact is relevant with reference to the points, in dispute is regarding the nature and dates of their promotion as Assistants. It is that they were promoted as Assistants on the recommendations of the Departmental Promotion Committees on various dates from 30‑10‑1968 to 31‑5‑1975.

4. During the course of arguments,, their learned counsel put them into different categories with reference to their dates of appointments or promotion as Assistants. Because of its importance this aspect deserves a detailed address. The first category is of the following appellants:‑ S. No. Appellants Appeals Nos. Date-of-appointment as Assistant 1 Mr. Abdul Rashid 167(R)/90 2‑12‑1972 2 Mr. Ghulam Shabbir 157 /90 21-2-1972 3 Mr. Safdar Hussain 158(R)/90 18‑10‑1969 4 Mr. Matloob Hussain Shah 159(R)/90 18‑10‑1972 5 Mr. Abdul Majeed 163(R)/90 21‑2‑1973 6 Mr. Muhammad Siddique‑III 168(R)/90 23‑9‑1972 7 Mr. Ghulam Sarwar 167()R/90 2-12-1972 8 Mr. Abdul Jabbar Tahir 170(R)/90 7‑7‑1969 9 Mr. Sher Zaman 171(R)/90 23‑9‑1972 10 Mr. Abdul Khalid 178(R)/90 9‑2‑1970 11 Mr. F.M. Arshad 183(R)/90 30-10-1968

5. These appellants are alleged to have been promoted in the light of the Establishment Division's instructions issued through Office Memoranda No.F.8/1/62‑F.11, dated 24‑11‑1967, No. F.8/1/62‑F.II, gated 22‑1‑1968 and No.18/1/68‑F.II, dated 20‑5‑1969. it is apparently discernible that these appointments or promotions, whatsoever be their nature, were made before the enforcement of the Civil Seri ‑rots Art, 1973. and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.

6. The second category is of the following appellants:‑ S. No. Appellants Appeals Nos.Date of Appointment as Assistant

1. Mr. Muhammad Moinuddin 160(R)/90 2‑3‑1974

2. Mr. Mushtaq Ahmad Siddoo 161(R)/90 31‑5‑1975 3: Mr. Najamuddin 162(R)/90 2‑3‑1974 4.

4. Mr. Shaukat Nawaz 166(R)/90 26‑4‑1975 5.

5. Mr. Muhammad Nawaz 173(R)/90 3‑2‑19746.

6. Mr. Zafar Jalil 184(R)/90 2‑3‑1974 Evidently, the distinction was made on account of the fact that they promoted after the promulgation of the aforementioned Act and the rules of 1973.

7. It may be mentioned at this stage, as a relevant fact that about the first category the argument of the appellants' learned regularised by virtue of the Establishment division instructions imparted through O.M. No. 1/8/73‑ARC, dated 2011‑1973. The contention; regarding the second category is that their appointments stand regularised by virtue of the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.

8. The appellants appear to have made an attempt to cause an impression as if they were promoted as Assistants on regular basis on the recommendations of the concerned Departmental Promotion Committee. Only Para. XIV of the grounds of appeal betrays the correct factual position which is that they all were promoted on ad hoc basis against vacancies fallen in the quota of direct recruits. It was laid down in the order of promotion that they are purely temporary in nature and the officials are liable to reversion without notice to their original appointments either on the termination of the vacancy or on unsatisfactory performance reports. It was also laid down that these appointments are subject to replacement by the nominees of the Federal Public Service Commission or surplus eligible staff and that the promotees will not be entitled to permanent retention in the posts of Assistants.

9. Respondents Nos. 2 to 20 and 22 were appointed on regular posts against direct quota vacancies on different dates during the period from 1975 to 1987. Bhai Khan, respondent No. 21, and Muhammad lqbal Khan, respondent No. 23, were promoted as Assistants on temporary basis respectively on 15‑11‑1984 and 5‑8‑1985. Their appointments as such were regularised with effect from 13‑7‑1987 and 6‑6‑1988 on the ground that they had been regularised as Upper Division Clerks on 19‑3‑1975 and 1‑7‑1976 respectively prior to the regularisation of the appellants as Upper Division Clerks.

10. The appellants' case is that they were shown senior to the respondents Nos. 2 to 6 in the seniority lists issued in 1976 and 1979. The names of respondents Nos. 7 to 23 were not given in those lists because they had not been appointed by the time of their circulation. It is alleged that, for the first time after the issuance of aforementioned lists, a tentative seniority list was issued on 28‑11‑1988 where the appellants were shown junior to respondents Nos. 2 to

23. Objections were filed by them against this Seniority List but they were rejected by the competent Authority on the ground of being time‑barred, which was based on the plea that they had failed to challenge the earlier final Seniority List .of 7‑8‑1985. After their objections against the said list had been turned down, they filed departmental appeals, either on one or two occasions, to the Secretary, Planning and Development Division. The dates of these representations, departmental appeals and their rejection by the competent Authority are not material from any point of view. What in fact is relevant is that in these representations and appeals, the claim was that their seniority had been wrongly fixed, on the plea that they had been promoted as Assistants earlier than tile contesting respondents and that they should have been shown senior to them.

11. The rejection of their departmental appeals ultimately brought them to the Tribunal with the present appeals under section 4 of the Service Tribunals Act, 1973, where the prayer is that "the impugned seniority list and the letters of rejection of objections may be set aside and the appellants be declared senior to respondents Nos. 2 to 23 with all consequential benefits".

12. The defence on merits is that the appellants' promotion was purely on temporary/ad hoc and replacement basis with no right of seniority, confirmation and retention as Assistants. It was clearly mentioned in the promotion order that it would not give any right of seniority to them. Since the contesting respondents had been appointed against 50% direct quota vacancies on regular basis, they were rightly shown as senior to the appellants in the impugned seniority list of 1988.

13. As for the seniority lists of 1976 and 1979 it was pleaded that they were only provisional in character and subject to modification. They were accordingly revised and brought uptodate in accordance with the rules and the relevant instructions. Objections regarding limitation, maintainability and competency of the appeals have also been taken in defence.

14. Separate written statements have been filed by some of the contesting respondents. They have pleaded that at the time of the appellants' promotion as Assistants, no post of promotion quota was available. Being in excess of quota, it did not confer any right of seniority on the appellants. The respondents were senior to them on account of having been appointed by initial recruitment against the vacancies of direct quota. Since their appointments were regular, they were rightly shown senior to the appellants in the impugned seniority lists.

15. We have noticed in the statement of facts that the appellants' learned counsel divided them into two distinct categories with reference to the dates of their appointments. We will deal with the significance of this categorisation at a later stage in the light of the learned counsel's contentions. This apart, he put them in two other groups. In the one he placed Messrs Abdul Jabbar Tahir. Abdul Khaliq and S.M. Arshad respectively of Appeals Nos. 170(R) of 1990, 178(R) of 1990 and 183(R) of 1990. They were promoted as Assistants on ad hoc basis respectively on 17‑7‑1969, 9‑2‑1970 and 30‑10‑1968. The differentiating factor was that they were so promoted before the period from 1‑1‑1972 to 5‑7‑1977. About these appellants, his contention was that they stand regularised as Assistants on i6 'strength of the Establishment Division's instructions imparted through O.M. dated 20‑11‑1973.

16. The other group is of the remaining appellants who were promoted as Assistants, again on ad hoc basis, during the period from 1‑1‑1972 to 5‑7‑1977. About this category the argument of the appellants' learned counsel was that they stand regularised as Assistants on account of the Government's decision to exempt the employees of Grade‑1 to Grade‑15 from the purview of section 12‑A of the Civil Servants Act, 1973. A detailed application to the appellants' pleadings regarding this aspect of the matter is unnecessry and it will be sufficient to say that the aforementioned contention has been relied upon as mainstay in support of their case. The thrust of the arguments of their learned counsel was that since the officials in BPS‑1 to BPS‑15 were exempted by a subsequent decision of the Federal Government from the operation of section 12‑A of the Civil Servants Act, 1973, their promotions as Assistants stand regularised with effect from the dates they were so promoted.

17. In support of this argument, reliance has been placed on a Full Bench ruling of this Tribunal in the case of Muhammad Zakaria Khan v. Secretary, Establishment Division and 23 others cited at the Bar as 1990 PLC (C.S.)

45. In the appellants' own words, the ratio decidendi of Zakaria Khan's case is fully applicable to the present appeals and the appellants would thus be "deemed to have been regularised from the dates of their original appointments by promotion and no separate order was necessary to be passed". It is further pleaded that the Tribunal's judgment in Muhammad Zakaria Khan's case, having gone without challenge, has attained finality and that the Establishment Division, the main respondent in that appeal, had not only accepted the Tribunal's verdict but had also implemented it.

18. In Muhammad Zakaria Khan's case the appellant was appointed as an Assistant on 14‑9‑1976 in the Ministry of Agrarian Management against a post advertised in the press. The appointment, though not ad hoc, was temporary. On the abolition of this Ministry in the year 1977, he was absorbed in the same capacity in the Establishment Division which he joined on 1‑1‑1978 without any break in service. Earlier, during the period from 1969 to 1973, respondents Nos. 2 to 16 of that case had been directly appointed as Assistants in the Establishment Division, whereas respondents Nos. 17 to 24 were promoted as such against direct quota vacancies pending recruitment by the Federal Public Service Commission. Subsequently, however, the cases of respondents Nos. 2 to 16 were considered by the Departmental Promotion Committee concerned in the light of the instructions imparted by the Establishment Division in their O.M. dated 20‑11‑1973 and their appointments as Assistants were regularised by order dated 5‑2‑1985 "in terms of the Establishment Division's O.M. No. 4/4/81‑R‑6, dated 5‑12‑1983". No order for regularisation was passed in respect of respondents Nos. 17 to 24 who had been promoted on ad hoc basis against direct quota basis on the plea that no formal order of regularisation was necessary in their case because the irregularity or infirmity, whatever it was, involved in their appointments stood condoned on account of the Government's decision to exempt the cases of BIOS‑1 to BPS‑15 employees from the purview of section 12‑A of the Civil Servants Act, 1973. It was maintained that, in consequence of this exemption, their appointments stood regularised with effect from the date they were originally promoted on ad hoc basis.

19. It may be mentioned that the Tribunal, after due consideration, gave seniority to the appellant with effect from 14‑9‑1976 which was the date of his initial appointment as Assistant in the Ministry of Agrarin Management. About respondents Nos. 2 to 16 the question was whether after the passage of order of regularisation dated 5‑2‑1985, they should be treated to have been regularly appointed as Assistants with effect from the dates of their original appointments. It was decided on interpretation of the provisions of, the Establishment Division's Office Memoranda dated 20‑11‑1973, 5‑12‑1983 and 27‑12‑1983 that the effect of order dated 5‑2‑1985 was that they will be deemed to have been regularised with effect from the dates of their original appointment and that the appellant's claim of seniority over them was not tenable.

20. While dealing with the case of respondents Nos. 17 to 24 the Tribunal observed that they had admittedly been temporarily promoted against direct quota basis during the period from 1972 to 5‑7‑1977 and that their appointments were required to be regularised. It was held as follows:‑‑ " ... These irregular appointments fell under the purview of section 12‑A of the Civil Servants Act, 1973, and their cases were to be reviewed. But later, officials in Grade‑1 to Grade‑15 were exempted from the purview of the said section. Following that exemption, the respondent‑Establishment Division rightly took the view that the appointments which suffered from one or the other irregularity stood regularised. This decision covered the cases of the respondents named above and, therefore, in our view, no separate order had necessarily to be passed in their cases. Thus, the respondents Nos. 17 to 24 will be deemed to have been regularised from the dates of their original respective appointments and they will take their seniority with reference to those dates."

21. So, the argument on the basis of the Tribunal's decision in Muhammad Zakaria Khan's case is that the appellants' ad hoc appointments as Assistants against direct quota vacancies stood regularised, before the appointments or promotions of respondents Nos. 2 to 23, on the strength of the Government's decision to exempt the cases of employees of Grade‑1 to Grade 15 from the purview of section 12‑A of the Civil Servants Act; that this regularisation will be deemed to have become effective from the date of original promotions on ad hoc basis and that no separate order was required to be passed to produce that result.

22. For appreciation of what was granted by this exemption to the employees of Grade‑1 to Grade‑15, it is necessary to know what had been taken away by section 12‑A of the Civil Servants Act, 1973, obviously because its advantage has to be commensurate with the disability or disadvantage caused by the insertion of this section in 1980. It makes the following reading: "12‑A. Certain Persons to be liable to removal etc.‑‑Notwithstanding anything contained in this Act or in the terms and conditions of a civil servant appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977, the President or a person authorised by him in this behalf may‑‑ (a) without notice, remove such a civil servant from service or revert him to his lower post as the case may be, on such date as the President or, as the case may be, the person so authorised may, in the public interest, direct; or (b) in a case where the appointment or promotion of such a civil servant is found by the President or, as the case may be, the person so authorised to suffer from a deficiency in the minimum, length of service prescribed for promotion or appointment to the higher grade, direct, without notice, that seniority in such case shall count from the date the civil servant completes the minimum length of service in such appointment or promotion, as the case may be." The purpose was to examine the cases of those civil servant who had been appointed or promoted for the period from 1‑1‑1972 to 5‑7‑1977, with a view to find out if those appointments or promotions were the result of favourtism for considerations of political nature. It empowered the President or person authorised by him to remove a civil servant from service or revert him to a lower post, in the public interest, whose appointment or promotion had been motivated by such considerations and was thus irregular and unjustified. It provides that in case the appointment or promotion of such a civil servant was found to have suffered from a deficiency in the minimum length of service prescribed for promotion or appointment to the higher grade, the competent Authority may direct, without notice, that seniority in such case shall count from the date he completes the minimum length of service in each appointment or promotion.

23. Therefore, the only advantage of this exemption was that the employees of Grades 1 to 15 were saved from the consequences of liability caused by this section. Its operation extended only to the scope of section's mischief and by no means did it take away the basic irregularity or infirmity inherent in the appellants' ad hoc and contingent promotions as Assistants. They were promoted as such against posts meant for direct recruits and it was on account of this reason that this was specifically laid down to serve only as ad hoc promotion. It was provided in the order of promotion that it was purely temporary in nature and that the appellants will be liable to reversion to their original posts on availability of recommendees of the Federal Public Service Commission. The exemption enured for the benefit of only those employees who had been appointed or promoted during the aforementioned period for ulterior considerations by nepotism and it served as a blanket cover to save them from demotion or removal from service, regardless of the motive behind their promotions and appointments. Howsoever, the strain on the import of this exemption in so far as the appellants as the appellants are concerned, its effect at the most was that section 12‑A will be deemed to have never been placed on the Statute. In the situation emerging from the exemption, they remained in enjoyment of the status conferred upon them by ad hoc promotions. The result was that it did not bring about any improvement in their positions and the infirmity of ad hocism remained imbibed in the incidence of their promotions. In this view of the matter, the Establishment Division's view taken in Zakaria Khan's case to that the irregularities inherent in the promotions of Assistants stood regularised by virtue of this exemption, was clearly fallacious and untenable.

24. We are thus constrained to hold, with respect to contrary views expressed by the learned Members, that the decision in Muhammad Zakaria's case did not lay down good law. Nor are we prepared to agree with the appellants' learned counsel's contention that it had attained finality even in respect of the parties to these appeals merely because it went without a challenge and was implemented by the Establishment Division. The judgment in that case was not a judgment in rem and it did not affect the rights and liabilities of the parties in the present appeals, who were not before the Tribunal in the earlier case. Even otherwise, we are within our jurisdiction to revise the earlier decision in case we came to the conclusion that the views expressed in it did not represent the correct legal position.

25. We have taken notice of the fact that the appellants' learned counsel divided them into two distinct classes with reference to the dates of their appointment. The first group includes eleven appellants whose promotions on ad hoc basis were made before the enforcement of the Civil Servants Act, 1973. The argument in their case was that their ad hoc appointments stand regularised by virtue of the Establishment Division's O.M. dated 20‑11‑1973 and O.M. dated 5‑12‑1983, regardless of the unsoundness or otherwise of the Tribunal's decision in Muhammad Zakaria Khan's case. Reliance is placed on paragraph 2 of O.M. dated 20‑11‑1973 which is to the following effect:‑‑

2. According to the rules framed under the Federal Public Service Commission Act (LXVI of 1973), the functions of the Commission have now been confined to initial recruitment to posts in Grades‑16 and above. Initial recruitment to posts in Grades‑15 and below, therefore, will be made in future by the Ministries/Divisions themselves through Departmental Promotion Committee in accordance with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and the administrative instructions contained in Cabinet Secretary's Circular D.O. Letter No. 1/9/73‑F.IV, dated the 22nd October, 1973. As for Government servants who are already serving in Grade‑15 and below on temporary/ad hoc basis and who would have ordinarily been replaced by nominees of FPSC their appointment would require to be regularised before they are considered/eligible for confirmation. The great majority of staff in this category is ministerial staff in Ministries/Divisions and their Attached Departments who were recruited against direct recruitment quota independently of the Commission or those who were permanent is lower grades and were promoted in excess of the promotion quota against vacancies reserved for direct recruitment. It has been decided that these ad hoc/temporary appointees in Grade‑15 and below may be considered eligible for confirmation provided they possess the prescribed minimum educational and other qualifications prescribed for the post and have put in a minimum of five years' satisfactory service, as on 31st December, 1973, in the respective grades Their suitability for retention in service on regular basis. and their fitness far confirmation will be determined by departmental Committees in the light of their ACRs. and service recd. Since these individuals were holding posts in direct recruitment quotas, their retention in service on regular basis would be subject to observance of the prescribed provincial and regional quotas. If vacancies reserved for a particular province or region cannot be filled from the temporary/ad hoc employees already serving in a particular Ministry/Division the posts should be advertised and filled by appointment of persons from the province/region for which the vacancies are reserved"

26. It may be pointed out that this O M was meant to deal with confirmations and not regularisations, which undoubtedly have different connotations. As we see from its opening paragraph, its purpose was to undertake and finalise the job of confirmations. Even subsequent sub paragraphs (d), (e), (f) and (j) also speak of confirmations. Therefore, the intention was to finalise the cases of confirmations of those who were serving on regular basis. However, the expression namely, "that these ad hoc/temporary appointees in Grade‑15 and below may be considered eligible for confirmation provided they possess the prescribed minimum educational and other qualifications prescribed for the post and have put in a minimum of five years satisfactory service, as on 31st December, 1973, in the respective grades", implies that the O.M. also dealt with the question of regularisation. I maintain that this expression, if read in the context of entire O.M. tends to convey message different than which had been intended. It said that the ad hoc/temporary employees may be considered eligible for confirmation provided they possess certain qualifications. The defect intrinsic in this decision, taken on its face value, was that it spoke of confirmation without prior order of regularisation.

27. This aspect of the matter apart, assuming that the aforementioned expression was deliberate and that it had in fact been decided to confirm those employees if they were eligible and in possession of the required minimum educational qualifications and had served for the minimum prescribed period. Even in that eventuality this decision did not amount to automatic regularisation and confirmation of the ad hoc/temporary promotees and it required the Passage of specific order to that effect, which was dependent upon certain conditions. It had to be seen, in the case of each ad hoc promotiee, that he was in possession of minimum educational and other qualifications prescribed for the post and had satisfactorily served for the requisite duration by 31‑12‑1973. Before passing an order of regularisation or confirmation, the Departmental Promotion Committee concerned had to determine their suitability for retention in service on regular basis and fitness for confirmation in the light of their Annual Confidential Reports. It is nobody's case that this was done in respect of the appellants. Their ad hoc promotion cannot, therefore, be deemed to have been regularised without an overt order, merely on the strength of O.M. dated 20‑11‑1973, particularly when there is no evidence to show that they were in possession of the minimum educational qualifications at the relevant time, when the matter of their regularisation could be taken into consideration. It will be worthwhile to mention that the minimum educational qualification for direct recruitment as Assistant was enhanced from Intermediate to BA. after this post went out of the purview of the Commission with the enforcement of FPSC Act, 1973. None of the appellants was however, in possession of this qualification and eligible for the post. I am not inclined to agree with the contention that the minimum qualification of Intermediate in vogue before the year 1973 will be applicable to the appellants' case.

28. Even the O.M. of 5‑12‑1985 does not promote their case. It lays down that "the ministerial employees possessing five years' continuous service in a grade/post in a particular office as on 20‑10‑1978 may be considered for regularisation by the respective DPC/DSC on the basis of their past service record/ACRs. subject to the fulfilment of following conditions, namely that: "(a) the employee concerned possesses the minimum educational and other qualifications prescribed for direct recruitment to the respective post; (b) the concerned employee is adjusted against the available vacancy of direct recruitment quota of the province/region to which it stands allocated." Here again a specific order for regularisation was required to be passed in case the appellants were in possession of the aforementioned qualifications. No such order has so far been passed and the prayer for grant of seniority is evidently out of place.

29. Yet another aspect of the matter requires consideration. It becomes available from the provisions of section 9(1) of the Civil Servants Act, 1973, which make the following reading: "

9. Promotion.‑‑(1) A civil servant possessing minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs." Nothing can be more clear to indicate that the appellants could claim regular promotions only against vacancies reserved for departmental promotions and not against those meant for direct recruitments. There is no dispute about the fact that only 50% of the posts of Assistants were to be filled by departmental promotions and that the remaining 50% were to be filled by direct recruits on the recommendations of the Federal Public Service Commission and on those of the DPC/DSC after framing of new rules in 1973. This being so, under the provisions of section 9(1) of the Act, the posts required to be filled by initial recruitment had to go to the direct appointees and the appellants' promotions in excess of the departmental quota were bound to remain ad hoc in nature and they could not be regularised on the strength of administrative instructions issued in violation of the statutory provisions. In this view of the matter, I am inclined to hold that the Establishment Division's O.M., dated 20‑11‑1973 and O.M. dated 5‑12‑1983 are ultra vires of section 9(1) of the. Civil Servants Act, 1973 and, therefore, ab initio void and of no effect,

30. The second category is of those appellants who are alleged to have been promoted on the recommendation of the concerned DPC against the direct recruitment quota after the enforcement of the Civil Servants Act, 1973. About them it was contended that their promotions stand regularised by virtue of the Civil Servants (Appointment Promotion and Transfer) Rules, 1973. Reliance in support of the contention is probably upon rule 7 of the said Rules which provides that: "Promotions and transfers to the posts in basic pay scales 2 to 18 shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in Grades‑19 to 21 shall be made on the recommendations of the Central Selection Board." We are unable to understand how this rule can be of any help to the appellants' case. No doubt that the promotions were to be made on the recommendations of the appropriate Departmental Promotion Committee under this rule, it is impossible to hold that this recommendation could be made regardless of the provisions of section 9(1) of the Act, that promotions could be effected only against posts, for the time being reserved under the rules for the departmental promotions in the service or cadre. Therefore, the mere fact that the appellants were promoted on the recommendations of the Departmental Promotion Committee would not cure the defect resulting from the fact that it was in excess of promotion quota.

31. The provisions of rule 7 of the said Rules were examined by the Supreme Court with reference to section 9(1) of the Civil Servants Act, in the case of Federation of Pakistan v. Azam Ali and others, reported in 1985 SCMR

386. The following observations are in point:‑‑ '"It fellows from section 9 of Act, which provision the Tribunal failed to even take note of, that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent. in favour of the direct recruits. The departmental candidates were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some time in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of the definition of ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of rule 7 in isolation is not to accord with the express provisions of section 9 of the Act.

32. It should therefore, be taken as settled law that there can be no regularisation of ad hoc appointments made in excess of departmental promotion quota, after the enforcement of the Civil Servants Act, 1973. The appellants' learned counsel relied upon the Supreme Court's ruling‑in Khushi Muhammad's case cited at the bar as PLD 1970 SC 203, it is, however, distinguish able because it was decided on the basis of the rules prior to the promulgation of the Civil Servants Act, 1973. I would, therefore, hold that the appellants' promotions as Assistants were as hoe in nature on account of having been made in excess of promotion quota; that they have never so far been regularised and that respondents Nos, 2 to 20 and 22 having been regularly appointed against initial recruitment quota were rightly shown senior to them in the impugned seniority list.

33. Advertence may be made to the fact that the appellants' prayer is that they may be declared senior to respondents Nos. 2 to 23 on setting aside the impugned seniority list. Under the circumstances mentioned above, this cannot possibly be done unless their ad hoc appointments are first regularised, which can be possible only with effect from the date of availability of promotion quota posts and after observance of necessary formalities by the Departmental Promotion Committee concerned. In support, reliance can be placed on section 8(4) of the Civil Servants Act, 1973, which provides that seniority in a post, service or cadre, to which a civil servant is promoted, shall take effect from the date of regular appointment to that post.

34. It may be mentioned that facts in respect of Bhai Khan, respondent No. 21 and Muhammad Iqbal Khan, respondent No. 23 are distinguishable. They were promoted as Assistants on temporary basis on 15‑11‑1984 and 5‑8‑1985 respectively Their appointments were regularised on 13‑7‑1987 and 6‑6‑1988, according to the Establishment Division's case "because they were regularised as UDCs. before Abdul Rashid appellant's regularisation as such on 1‑10‑1981. Despite this difference in facts, I hold the view that the appeals cannot succeed even against them. They have been grouped with the other respondents who have been recruited against direct quota vacancies. The appeals against them should have been based on different factual foundation. This could possibly be done if the appellants had challenged the validity of their promotions and their regularisation in separate departmental appeals on different grounds, before coming, to the Tribunal. .

35. We might as well take notice of the respondents' objections regarding limitation, competency and maintainability of the appeals. Objection regarding limitation is based on the allegations that a final seniority list of regular Assistants was circulated on 7‑8‑1985 and the appellants did not file any objection against that list, in spite of the fact that their names had not been mentioned there. As already noticed, their representations and departmental appeals were also rejected as time‑barred because they had failed to represent against the earlier seniority list of 7‑8‑1985.

36. The appellants' case in this respect is that the seniority list of 1985 was not circulated and that, in any case, it did not come to their notice, with the result that they could not take any exception to it. But this assertion seems to be factually incorrect. It appears from their representations addressed to the Administration Section of the Division that the seniority list of 1985 had come to their notice. Whatever the reasons, the respondents are factually correct in saying that they failed to twice any exception against that seniority list.

37. However, despite the aforementioned circumstance, the appeal: cannot be dismissed on the ground of limitation. There are two reasons it support of this view. First, the appellants decided to assail the subsequent list of 28‑11‑1988 and filed departmental appeals against it. The present appeal: are within time with reference to the date of rejection of those appeals. The second is that the appellants should not be turned out of the Court merely of the ground of limitation, because of the nature and importance of the matte: involved for determination and the consideration that it will affect a large number of employees. It should, in the interests of justice, be decided on merits.

38. Irrespective of the fore mentioned view, however, I maintain that the appellants' failure to file objections against the final seniority list of 7‑8‑1985 cannot be altogether ignored. It justifies the conclusion that they waived their rights regarding seniority and accepted that list as correct. They were aware of the circulation of this list and their failure to raise any objection against it, amounts to a positive proof of the fact that gave up their rights regarding seniority. They are now estopped from claiming that their names were wrongly omitted from the list of 1985'and that they are senior to the respondents. I am, therefore, of the view that there is substance in the contention that the present appeals are not maintainable.

39. The objection regarding competency of the appeals is also there. It is pleaded that since the appellants failed to file representations against the seniority list of 1985, the appeals are incompetent under section 4(1)(a) of the Service Tribunals Act, 1973. I have already pointed out above that the appellants chose to challenge the validity of subsequent seniority list of 28‑11‑1988. Even in their appeals the relief sought is that it may be set aside and that they should be regarded senior to the contesting respondents. So far as this list goes, the appeals are competent because they have been filed after fulfilment of the requirements of section 4(1)(a) of the Act.

40. We might also take notice of the contention that the appeals are incompetent because the relief sought is beyond the scope of the prayer made. in the departmental appeals and representations. But there is no factual basis for this contention. No doubt that in the representations addressed to the administration section, the prayer was that the appellants' ad hoc appointments may be regularised against direct quota posts. In the departmental appeals addressed to the Secretary, however, it was requested that their seniority may be reckoned from the dates of their original promotion and that they may be shown senior to the contesting respondents in the seniority list of 28‑11‑1988. This being so, I hold that the appeals are within the scope of departmental appeals and, therefore, competent.

41. For the abovementioned reasons, the appeals are dismissed as being without any force. There will be no order as to costs.

42. SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑I have availed advantage of reading the judgment initiated by the learned Member Ch. Hasan Nawaz. I would like to record my reasons for deciding the issue of seniority involved in the appeals; which are identical in nature and were heard together.

43. The appellants, 17 in number, who have preferred these appeals, are serving as promotee Assistants in the Planning and Development Division. The respondents, whose number varies in large number of appeals, with the exception of two, namely‑‑Bhai Khan and Muhammad Iqbal Khan, were directly appointed as Assistants during the period from 1975 to 1987. M/s. Bhai Khan and Muhammad Iqbal Khan, who figure as respondents in Appeals Nos. 156, 157, 159, 160, 161, 162, 166 and 167(R)/90, are promotees. Name of respondent Bhai Khan also appears in the fist of respondents in Appeal No.163(R)/90; and the name of Muhammad Iqbal Khan appears as one of the respondents also in Appeal No. 159(R)/90. They were promoted on temporary basis on 15‑i1‑1984 and 5‑8‑1985 respectively and their promotions as Assistants were regularised with effect from 13‑7‑1987 and 6‑6‑1988.

44. The case of the appellants, briefly stated, is that they were promoted earlier than the appointments/promotions of the respondents, and are senior to them. They have placed reliance in support of their claim on the seniority lists published in the years 1976 and 1979. Their grievance is that their seniority position was lowered down and they were placed below the names of the respondents in the seniority list issued on 28‑11‑1988. After rejection of their departmental representations, they preferred these appeals on different dates for declaration that they stood senior to the respondents.

45. The respondents have resisted the appeals. The main respondent in the appeals is the Secretary, Planning and Development Division, Government of Pakistan, Islamabad. The other respondents are those whose seniority has been assailed in the appeals and will be referred to hereinafter as the contesting respondents. The contention of all the respondents is that the appellants were never promoted as Assistants on regular basis and they could not claim seniority on the basis of their temporary/ad hoc promotions, whereas they, except M/s. Bhai Khan and Muhammad Iqbal Khan, were directly appointed as Assistants, and M/s. Bhai Khan and Muhammad lqbal Khan were given retrospective promotions on the basis of their earlier promotion as UDCs. on regular basis. They have also taken the plea that the seniority lists issued in the years 1977 and 1979 were provisional and a final seniority list was issued in the year 1985 and they were shown in that list above the appellants and that seniority list was not challenged by them and it was too late for them to challenge the seniority list issued in the year 1988 and their appeals are time‑barred too. The Planning and Development Division have supported their case.

46. The learned Member has mentioned the dates of the promotion of the appellants as Assistants in the chart drawn in paragraph 4 of the judgment. It would appear that they were promoted on different dates ranging between the period December, 1972 and May, 1975. The learned counsel for the parties placed the appellants in two categories as reflected in paragraph 4 of the judgment initited by the learned Member. The categorisation of the appellants was necessitated as there had been radical change in the service set up under the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution). Article 240 of the Constitution lays down that the appointments to and the conditions of service of persons in the service of Pakistan shall, subject to the Constitution, be determined in the case of the services of the Federation or the posts in connection with the affairs of the Federation and all‑Pakistan Services by or under the Act of Majlis‑e‑Shoora (Parliament). In pursuance of the Constitutional provision, the Parliament made la called the Civil Servants Act, 1973 to regulate the terms and condition of service of the civil servants and the Act received the assent of the President on the 26th September, 1973 and was published in the Gazette of Pakistan Extraordinary, Part I, September 29, 1973. The first category of the appellants comprised those appellants who were promoted as Assistants before the enactment of the Civil Servants Act, 1973 (hereinafter mentioned as the Act); and the second category consists of those appellants who were promoted as Assistants after the enactment of the Act.

47. The learned counsel for the appellants urged that the first category of the appellants stood regularly promoted by virtue of the Establishment Division instructions issued under Office Memorandum dated 24‑11‑1967, 22‑1‑1968 and 20‑5‑1969; whereas the promotions of the second category of the appellants stood regularised by the Establishment Division vide O.M. dated 20‑11‑1973 read with O.M. dated 5‑12‑1983 and, therefore, they are entitled to reckon seniority from the dates of their promotions as Assistants.

48. On the other hand, the learned counsel for the respondents contended that none of the appellants was regularly promoted but their promotions were on temporary/ad hoc basis and that too against the posts in the direct recruitment quota and their promotions were never regularised and hence they could not claim seniority on the basis of such promotions. As regards the respondents, Bhai Khan and Muhammad Iqbal Khan, it was urged that they were promoted as Assistants on temporary basis on 15‑11‑1985 and 5‑81985 and their promotions were regularised with effect from 13‑7‑1987 and 6‑6‑1988 respectively on the basis that they were regularised as UDCs on 19‑3‑1975 and 1‑7‑1976.

49. All the appellants had entered service in the Planning and Development Division as Lower Division Clerks in sixties and they were promoted as UDCs. before the Act came into force. The appellants in Appeals Nos. 156, 157, 158, 159, 163, 167, 168, 170, 171, 178 and 183(R)/90 were even promoted as Assistants before the coming into force of the Act. Only the appellants in Appeals Nos. 160, 161, 162, 173 and 184(R)/90 were promoted as Assistants after the coming into force of the Act. The mode of appointments of the LDCs./UDCs. and Assistants, before coming into force of the Act, was selection through the Central Public Service Commission; whereas after the coming into force of the Act, the appointments of all the three categories are to be made through the Departmental Promotion Committees (DPCs). The ad hoc appointments of the appellants were necessitated, until the commencement of the Act, because the Central Public Service Commission did not make recruitments. To provide relief to the employees, who were languishing on ad hocism, the Government issued O.M. No. 1/8/73‑ARC, dated 20th November, 1973 on the subject `confirmations'. It provided the modality for regularisation of service of such civil servants. The relevant provision is contained 'n paragraph 2 thereof, which has been reproduced by the learned Member and is also reproduced hereunder for convenient reference: "

2. According to the rules framed under the Federal Public Service Commission Act (LXVI of 1973), the functions of the Commission have now been confined to initial recruitment to posts in Grades‑16 and above. Initial recruitment to posts in Grades‑15 and below, therefore, will be made in future by the Ministries/Divisions themselves through Departmental Promotion Committee in accordance with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and the administrative instructions contained in Cabinet Secretary's Circular D.O. Letter No. 1/9/73‑V.IV, dated the 22nd October, 1973. As for Government servants who are already serving in Grades‑15 and below on temporary/ad hoc basis and who would have ordinarily been replaced by nominees of FPSC their appointment would require to be regularised before they are considered/eligible for confirmation. The great majority of staff in this category is ministerial staff in Ministries/Divisions and their Attached Departments who were recruited against direct recruitment quota independently of the Commission or those who were permanent in lower grades and were promoted in excess of, the promotion quota against vacancies reserved for direct recruitment. It has been decided that these ad hoc/temporary appointees in Grade‑15 and below may be considered eligible for confirmation provided they possess the prescribed minimum educational and other qualifications prescribed for the post and have put in a minimum of five years satisfactory service, as on 31st December, 1973, in the respective grades. Their suitability for retention in service on regular basis and their fitness for confirmation will be determined by departmental Committees in the light of their ACRs. and service record. Since these individuals were holding posts in direct recruitment quotas, their retention in service on regular basis would be subject to observance of the prescribed provincial and regional quotas. If vacancies reserved for a particular province or region cannot be filled from the temporary/ad hoc employees already serving in a particular Ministry/Division the posts should be advertised and filled by appointment of persons from the province/region for which the vacancies are reserved." The aforesaid O.M. thus made provision for regularisation in service of those Government servants who were already serving in Grade 15 and below on temporary/ad hoc basis and who would have ordinarily be replaced by nominees of FPSC and their appointment was required to be regularised before ‑ they were considered eligible for confirmation and they could be considered for confirmation provided they possessed the prescribed minimum educational and other qualifications prescribed for the post and had put in a minimum of five years' satisfactory service as on 31st December, 1973. Subsequently, benefit of regularisation and confirmation envisaged under the aforesaid O.M., dated 20th November, .1973 was extended vide O.M., dated 5th December, 1983, to the ministerial employees who had put in five years' continuous service in a grade/post in a particular office as on 20‑10‑1978 subject to their possessing minimum educational and other qualifications prescribed for direct recruitment to the respective posts and the employee could be adjusted against the available vacancy of direct recruitment quota for the province/region to which it stood allocated. It also provided relaxation in counting the five years' service as on 20‑10‑1978 by reckoning the service in the same office in the lower formation. It would appear that the O.Ms. dated 20‑11‑1973 and 5‑12‑1983 made provision for regularisation of the employees who were appointed ‑in lower formations earlier than 20‑10‑1973 against the vacancies in the direct recruitment quota, provided they fulfilled the requisite conditions of qualifications etc. Neither of these two Office Memoranda envisaged any promotion or regularisation of any promotion made subsequent to the coming into force of the Act and any regularisation made thereunder did not offend the provisions of section 9 of the Act. In my opinion, both the O.Ms. constituted equitable and valid dispensation of departmental justice to the employees who were serving at the altar of ad hocism for number of years and they did not offend any provisions of the Act and the rules made thereunder. As mentioned above, the appellants in the appeals in the first category had held the posts of Assistants before the coming into force of the Act and the regularisation of their holding the posts against the direct recruitment quota could be made under the provisions of the said O.M. dated 20‑11‑1973 read with O.M. dated 5‑12‑1983.

50. As regards the second category of the appellants, their appointments as Assistants were made after the coming into force of the Act and they did not fall within the compass of O.Ms. dated 20‑11‑1973 and 5‑12‑1983 and their cases were to be regulated under the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. They have sought protection under section 12‑A of the Act which provides that 'the President or person authorised by him in that behalf, may remove, without notice, from service or revert to lower post a civil servant appointed or promoted during the period from 1‑1‑1972 to 5‑7‑1977 etc. Subsequently, the civil servants in Grades 1 to 16 were excluded from the purview of the said section 12‑A. This aspect of the case was examined by a Full Bench of this Tribunal in Appeal No. 296(R) of 1986 filed by Muhammad Zakaria Khan and it was held that appointments/promotions made in the Grades 1 to 16 during the period from 1‑1‑1972 to 5‑7‑1977, which were excluded from the purview of section 12‑A, did not require any scrutiny for regularisation. It was stated at the hearing, of the appeals, without refutation that the judgment was given effect to and the Establishment Division .had issued instructions to implement the judgment. Whether exemption from scrutiny of the cases under the provisions of section 12‑A of the Act afforded blanket cover to the irregularities in the appointments or promotions made during the relevant period between 1‑1‑1972 to 5‑7‑1977 is a question of interpretation of the relevant provisions. Of course, another Bench of the Tribunal of equi‑composition can dissent from the earlier decision but it would be exceeding the conventional norms of propriety in overruling the earlier decision or making disparaging remarks on that decision and I do not subscribe to the violent expressions made by the learned Member on the said judgment in Muhammad Zakaria Khan's case at paragraphs 24 and 25 of the judgment initiated by him. The view adopted in Muhammad Zakaria Khan's case was followed by the competent Authority and such instructions were issued by the Establishment Division and the judgment cannot be made a target of attack by a Bench of this Tribunal unless it is set aside by the Supreme Court. Adopting the decision in Muhammad Zakaria Khan's case, I am of the view that any irregularity in the promotions of the appellants in the second category of the appellants stood condoned. Their promotions were actually made by the Departmental Promotion Committee.

51. There is yet another aspect of the case on the point of time from which regularisation of appointment could be reckonable. There is difference between appointment simpliciter and regularisation in service. `Regularisation' implies consideration for continuity in service and unless expressly provided otherwise, the regularisation is reckonable from the date of appointment/promotion. In the cases of the appellants, no date was specified for the regularisation of their service and regularisation of their promotions are supposed to have been effective after they had put in at least five years' service up to 20‑10‑1978 and that exercise will have to be made at the departmental level.

52. Adverting to the preliminary objections advanced by the respondents, the main objection is that of limitation. This objection has been raised on the ground that the seniority position of the appellants stood reversed in the seniority list that was issued in the year 1985 and that was not objected to by them. That seniority list was issued under Memo. dated 7‑8‑1985. The appellants' contention is that they were not aware of the publication of that seniority list. This contention is hardly believable. These appeals are directed against the tentative seniority list circulated on 28‑11‑1988, whereunder objections were invited. The appellants submitted objections in December, 1988. They were informed vide Memo. dated 27‑12‑1989 that their representations could not be entertained as their claim had become time‑barred and they did not file any objections against the final seniority list issued vide memo. dated 7‑8‑1985. They then preferred departmental representations/appeals in January, 1990. They filed these appeals within thirty days after the expiry of statutory period of 90 days to await decision on the appeals. The provisional seniority list issued in 1988 reopened the case for contesting the seniority position reflected in that list and the appellants had added reason for asserting their claim for seniority on the basis of the decision of this Tribunal in the case of Muhammad Zakaria Khan v. Secretary, Establishment Division and others (Appeal No. 296(R)/86), reported in 1990 PLC (C.S.)

45. Of course, no appeal lies against the provisional seniority list but they made representations in pursuance of the objections invited against the provisional seniority list and on rejection of their representations they did have the cause for filing these appeals and the case could be re‑examined in the light of the developments which took place after the publication of the seniority list in 1985 and the claim of the appellants did not stand neutralised by acquiescence. This discussion covers also the objection of non‑maintainability of the appeals. The appeals, therefore, do not suffer either by limitation or for non maintain ability.

53. With utmost regard for the reasons and findings arrived at by the learned Member Ch. Hasan Nawaz, I do not subscribe to his views for the reasons recorded above and I allow the appeals and set aside the orders of rejection of their representations and direct that the representations of the appellants for seniority shall be considered on merits following the decision recorded on the legal issues of seniority as propounded in my judgment. No order is made for costs. S.M. ISHAQ (MEMBER).‑‑‑Without dwelling or harping on the question of interpretation of section 12‑A of the Civil Servants Act, 1973 on which there are divergent views, I feel inclined to adhere to the views expressed by the Hon'ble Chairman and two of my learned brothers in their judgment in the case of Muhammad Zakaria Khan as that judgment has already been implemented by the Establishment Division without challenging it in the Supreme Court. The judgment thus has attained finality. Different views on the interpretation of section 12‑A apart, I am of the view that since the judgment in Muhammad Zakaria Khan's case has been given effect to, I agree with the Chairman that these appeals may be decided keeping in view that decision. I, therefore, entirely agree with the views of the Chairman. ORDER OF THE TRIBUNAL In pursuance of clause (a) to subsection (2) of section 3‑A of I L the Service Tribunals Act, 1973, the decision of the Tribunal by majority view is that the appeals are allowed and the respective orders of rejection of their representations are set aside and it is directed that the representations of the appellants for seniority shall be considered on merits following the decision on legal issues of seniority recorded in the judgment by the Chairman. A.A./776/Sr.F Appeals allowed.