1991 PLP 1252 (SCMR)

2. The admitted facts are that the appellant was appointed as Assistant Director Food by an Order dated 5th of March, 1977 alongwith others, in anticipation of the amendment to be made in the Service Rules applicable to the Assistant Directors Food which did not then provide for direct recruitment. The rules were in fact amended on 21st of May, 1977. Subsequently, in the Balochistan Civil Servants Act, 1974, section 12‑A came to be enacted in the following words:‑‑ "12‑A. Certain persons to be liable to removal or reversion Notwithstanding anything contained in his terms and conditions of service, a civil servant appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977 may be removed from service or reverted to his lower post, as the case may be, without notice, by the Governor or a person authorised by him in this behalf, on such date as the Governor or, as the case may be, the persons so authorised may, in the public interest, direct."

3. A Selection Board was constituted under Rule 18(2) of the Rules of "` Business which revivified the selection of the appellant and by Order of the Governor the following notification was issued:‑‑ "On the recommendations of the specially constituted Board, the Governor Balochistan is pleased to approve the retention in service of the following Assistant Directors Food on the date as noted against each and on the terms and conditions as prescribed in this Department letter No. SOG/64/Estt: dated the 5th March, 1979:‑‑ (1) Mr. Tamizuddin s/o Shamsul Haque. 5‑3‑1977 AN. (2) ............................................... (3) ............................................... (4) ............................................... (5) .............................................

4. The seniority list which aggrieved the appellant made certain promotees promoted prior to 21‑5‑1977 senior to the appellant though their promotion had, taken place after the fifth of March, 1977, the date of appointment of the appellant. The appellant took his grievance to the Service Tribunal which held as hereunder:‑‑ "The appellant's appointment as an Assistant Director, Food, was made in disregard of the then prevailing rules and was void ab initio. The authority making initial appointment of the appellant ought to have kept the rules in view. Amended rules could not take effect retrospectively and Government could not order regularization of his case with retrospective effect."

5. The learned counsel for the appellant has taken up three grounds for maintaining this appeal. Firstly, it is said that the order of the regularization passed by the Governor and reproduced above on the advice/recommendations of the Selection Board on the 25th of October, 1979 regularised the appointment. of the appellant from fifth of March, 1977 and seniority had to be allocated to him from that date and no other. Secondly, it was contended that the promotion of the respondents Nos. 2 to 5 who were competing in seniority with the appellant was itself irregular and was awaiting regularisation. That having been not done, they could not rank senior to the appellant. Thirdly, it was stated, in an identical case the Governor under the same law and in similar circumstances passed an order and the Supreme Court had taken a different view. He referred to the judgment of this Court in C.P.S.LA. Nos.Q‑10 and Q‑12 of 1983 delivered on 1‑6‑1983.

6. The Government's case on the issues involved in the case finds mention as hereunder in the Concise Statement:‑‑ "Mr. Tamizuddin was appointed ‑as Assistant Director Food by initial recruitment on the recommendations of the Board specially constituted in March, 1977. There. was no provision for initial recruitment of Assistant Director Food in the service rules (Annexure R‑1/B). Amendment in the rules providing for initial recruitment of Assistant Director Food was made on 21‑5‑1977 (Annexure R‑1/C). The seniority of the officer who was appointed by initial recruitment was, therefore, recognised from the date of issue of the amendment to the rules i.e. 21‑5‑1977. The respondents Nos. 2 to 5 were promoted before 21‑5‑1977. Therefore, they have been shown senior to Mr. Tamizuddin (Annexure R‑1/D):,

7. It is not disputed that when the appointment of the appellant was made, there was a properly promulgated service rule which prohibited direct recruitment to the post of the Assistant Director Food. The appointment was made in anticipation of the amendment of the rules: Amendment came on 21‑5‑1977: What was in breach of the rules could not, therefore, be considered to be either regular or of avail in the matter of determining the seniority. The order of his retention in service from 5‑3‑1977 had not the effect, directly or indirectly, of making his appointment regular and in accord with the rules applicable. It is only when the Rules permitted such a recruitment that the service rendered could be of avail to him.

8. The reference to the Supreme Court judgment in C.P.L.A. Nos.Q‑10 and Q‑12 of 1983 is not very useful because in that case though the other factors were the same, the rules! applicable were not so stringent, nor had they been amended m the manner in which it was done in this case.

9. As regards the promotion of the respondents and it being ‑irregular, there was no such ground taken and no finding has been recorded that the promotion of the respondents suffered from and legal infirmity, Such a ground cannot be taken up for the first time before us.

10. No ground is made out for interference with the order of the Tribunal and appeal is dismissed. A.A./T‑76/S Appeal dismissed.