2008 PLP (C (PLC(CS))

HAMID ALI MIRZA, J.

These four petitions for leave to appeal are directed against common judgment, dated 13-4-2006 passed by learned Sindh Service Tribunal at Karachi whereby appeals of the petitioners were dismissed, hence these petitions. All the four petitions arise out of same facts and question of law, therefore, are being disposed of by this common judgment.

2. Brief facts of the case are that the petitioners filed service appeals before the Sindh Service Tribunal, wherein they challenged the seniority position assigned to them in the seniority list of Assistant Executive Engineers (Civil) (Graduate) issued by respondent No.2, Secretary to the Government of Sindh, Irrigation and Power Department, vide Notification No.A-II/9-11/98-Vol.V, dated 4th December, 1999, initially the petitioners were appointed as Overseers on different dates. On completion of five years' service they were promoted as Sub-Engineers (BPS-16). Petitioners Mumtaz Ali Narai (in C.P. No.326-K of 2006), Masood Ali Memon, (in C.P. 382-K of 2006), and Gulzar Ali Shah (in C.P. 383-K of 2006) were promoted to the post of Assistant Executive Engineer (B-17) on "acting charge basis" vide Notification, dated 4-8-1986, while petitioner Gopaldas (in C.P. 384-K of 2006) was promoted as such' on 2-11-1998. Subsequently, vide Notification, dated 11-11-1992 the services of the above petitioners were regularized without mentioning the effective date, however, by Notification, dated 26-12-1998 words "on acting charge basis" were deleted and they were promoted on "regular basis" from the dates when they were promoted "on acting charge basis". Subsequent thereto on receipt of opinion of Law Department that where the recruitment rules contain provision of ratio for appointment by direct recruitment and by promotion, every vacancy is to be filled according to the prescribed proportion and the persons appointed beyond the said prescribed proportion are to be treated as "ad hoc" till vacancy 'to the prescribed proportion/quota occurs, the S&GAD vide letter, dated 18-9-1999 directed the Secretary, Irrigation Department to re-cast afresh the seniority list of Assistant Executive Engineers (B-17) in the light of 'the' opinion of the Law Department earlier conveyed vide letter, dated 17-3-1999 and 20-3-1999. In pursuance of such advice, the Government of Sindh vide Notification, dated 16-10-1999 cancelled the earlier Notification, dated 26-12-1998 and fresh final seniority list was issued vide Notification, dated 4-12-1999 wherein all the petitioners have been shown promoted as Assistant Executive Engineers (B-17) on regular basis w.e.f. 11-11-1992. The petitioners after availing departmental remedy which remained unresponded filed appeals before the Sindh Service Tribunal which have been dismissed vide impugned judgment, hence these petitions for leave to appeal.

3. Main contention of learned counsel for the petitioners is that the petitioners were senior to all the private respondents in cadre of Assistant Executive Engineer (BPS-17) as per seniority lists of 1991, 1994, 1995 and further submitted that the Notification, dated 16-10-1999 issued' by respondent No.1 Government of Sindh, Irrigation and Power Department is illegal, ultra vires, hence of no consequence, therefore, the petitioners were the senior Assistant Executive Engineers.

4. Learned counsel for the respondents and the Additional Advocate-General, Sindh who appeared for the Government functionaries submitted that the impugned judgment by the learned Service Tribunal is legal, proper and in accordance with law laid down by this Court in number of cases cited in the impugned judgment so also the Notification, dated 16-10-1999 issued by the official respondents, therefore, no interference is called for by this Court.

5. We do not find any substance and merit in the said contentions of the petitioners and their learned counsel.

6. Admittedly each and every post is to be filled according to the recruitment policy framed for the post. According to the recruitment rules on the subject method of appointment for the post of Assistant Executive Engineer (Civil) as follows:-- (i) Appointment for the post of Assistant Executive Engineers (Civil) is to be made 50% of total posts available. (ii) 30% appointment is to be made by promotion from the Graduate Engineers. (iii) 17% appointment is to be made by promotion of diploma-holders. (iv) 3% appointment is to be made by promotion of (sic) (lions) Sub-Engineers.

7. In the light of above ratio/quota every time when the vacancy becomes available the post is to be filled in the proportion as per ratio for the promotees and direct recruitment, etc, As the petitioners were not appointed according to the ratio/quota of their category, therefore, they could not have been adjusted/appointed against the category of which they did not belong, consequently, they would be ad 'hoc in the respective posts. Mere fact that they were initially appointed on acting charge basis and subsequently inducted on regular basis would not by itself change the rules and the law laid down by this Court. Learned Tribunal has also placed reliance upon the decision of this Court in Federation of Pakistan v. Azam Ali and others 1985 SCMR 386, wherein this Court observed:

"It flows 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 of 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 for 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 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 recruit and such an appointment on the strength of ad hoc appointment qualified ` as 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 in isolation is not in accord with the express provisions of section 9 of the Act."

8. In view of the law laid down by this Court in the above-cited case and subsequent decision in the case of Muhammad Nawaz Khan v. Muhammad Ijaz Rashid PLD 1993 SC 10 and Nasim-ul-Haque Malik v. Chief Secretary, Sindh and others 1991 PLC (C.S.) (sic), the petitioners would be deemed to have been appointed on ad hoc basis being in excess quota reserved for them in the category to which they belonged. Learned Service Tribunal has rightly observed in the impugned judgment that seniority is not a vested right of civil servant and thus, placement of any civil servant in the seniority list over and above other civil servants does not confer any vested right on him to invoke the doctrine of locus poeitentiae, as held by this Court in Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR

497. In the circumstances respondent No. 1 was quite competent in law to issue notification in case ratio between two categories was not in accordance with rules and law laid down by this Court, as such impugned Notification, dated 16-10-1999 is legal, proper, in accordance with law, consequently no interference is called for. The judgment of the Sindh Service Tribunal is based on cogent reasons and case-law laid down by this Court which need no interference of this Court, considering also that no substantial question of law of public importance is involved. No other plea was raised.

9. In view of above reasons and the law, no case for grant of leave to appeal is made but, which is declined and the petitions are dismissed. M.H./M-108/SC Petitions dismissed.