1984 PLP (C (PLC(CS))

BRIG. ABDUR RASHID (MEMBER).‑The appellant joined the post of Lecturer in the Federal Government College H‑9, Islamabad, on 20th April, 1978 after qualifying through the Federal Public Service Com mission. Gazette Notification of the Ministry of Education dated 13th July, 1978 to this effect is reproduced: "On the recommendation of F.P.S.C., Mian Inayatullah has been appointed as Lecturer in Statistics (Grade‑17) in the .N.P.S

in the Federal Government College for Men, Sector H‑9, Islamabad and that he assumed the charge of the post with effect from 20th April, 1978 (F. N.) in the College. (2) He will be on probation for a period of one year. (3) He is allowed joining time for 6 days from 14th April, 1978 to 19th April, 1978."

2. Respondent No. 2 (with whom the appellant has this contest of seniority) joined the Federal Government College for Men H‑9, Islamabad as Lecturer in Statistics w. e. f. 29th April, 1975, on ad hoc basis for a period of six months or till the nominee of the F.P.S.C. became available whichever was earlier. This appointment bad been made by Ministry of Education vide their Notification No. F‑8.4/75‑CEI, dated 6th May, 1975, His period of ad hoc appointment was extended from time to time, the last extension being from 29th October, 1977 (for six months) which had been approved of by the Establishment Division vide their U. 0 No. D. 1065/77‑D.111 dated 26th November, 1977. In the meantime, the F.P.S.C. had been approached for selection of a Lecturer in Statistics The F.P.S.C. selected the appellant, who joined w. e. f. 20th April, 197E and in respect of whom, the relevant gazette notification has been reproduced at para. 1.

3. The service of respondent No. 2 stood terminated w. e. f. 20th April, 1978 as per condition of his ad hoc appointment and as stated is U. O. No. F. 5‑149/76‑CA, dated 25th April, 1978 addressed by the Deputy Director (Colleges) to the Deputy Secretary (IW) Ministry o1 Education, Islamabad.

4. Thereafter, respondent No. 1 who had qualified through the F.P.S.C. joined the Federal Government College of Commerce Islamabad as Lecturer w. e. f. 25th April, 1979 vide Ministry of Education Gazette notification No. F. 7‑17/78‑CEI, dated 27th May,1979. During the period from 20th April, 1978 to 24th April, 1979 respondent No. 2 remained out of job.

5. On 3rd May, 1977 a meeting of the Provincial Education Ministers was held under the Chairmanship of the then Federal Minister of Education. A proposal, among others, discussed in the said meeting was: ‑ "(c) The ad hoc lecturers appointed in the Federal Government Educational Institutions be regularized." The decision with regard to the above proposal was:

the ad hoc lecturers of the Federal Government be treated on the same basis as in the provinces:"

6. There is on record a summary, dated 21st January, 1980 from the Ministry of Education to the Establishment Division. The portion relevant to the appeal before us reproduced: ‑ Subject: Reinstatement/Regularisation of the services of ad hoc Lecturers of the Federal Government Colleges, Islamabad. Reference ‑Establishment Division Office Memorandum No. 5/1/78‑R. III, dated Ist January, 1980 on the above subject. (2) In accordance with the decision taken in the Education Minister's Conference held on 3rd May, 1977 services of ad hoc lecturers who were in service on 30th June, 1975 and were borne on the strength of the Federal Government Educational Institutions on 3rd May, 1977 were to be considered for regularisation. This criterion was followed while regularising the services of Mrs. Raana Kamal, Miss Tasneem Bokhari and Miss Nasreen Fatima. (3) The following two lecturers fall within the same category and are accordingly recommended for regularisation with effect from 3rd May, 1977: ‑ (i) Mr. Anwar Ali Khan.‑He was appointed as Lecturer in Statistics on ad hoc basis in the Federal Government College for Men, Islamabad, on 24th April, 1975 (F. N.) and was relieved of his duties on joining of Mr. Inayatullah a Com mission nominee on 20th April, 1978. He was again appointed as Lecturer in Statistics on the recommendation of the Commission in the Federal Government College for Men, with effect from 25th April, 1979. Thus, there is a break of more than one year in his service. This will have to be treated as extraordinary leave without pay. (ii) Miss Nasreen Iqbal

(4) The above proposal has the approval of Education Minister. (5) Approval of the Establishment Division with regard to the pro posal in para. 3 is requested." The Establishment Division reply, dated 18th March, 1980 with reference to the above summary is reproduced: ‑ "Subject:‑ Re‑instatement/regularisation of the services of ad hoc lecturers of the Federal Government Colleges, Islamabad. The undersigned is directed to refer to the Ministry of Education U. O. No. 8/14/73‑CE.1, dated the 21st January, 1980 on the above subject, and to state that the competent authority hag accorded his approval to the proposals made in para. 3 of the summary, namely: ‑ (i) Mr. Anwar Ali Khan and Miss Nasreen 1qbal may be deemed to have been regularised in their appointment of lecturer with effect from the 3rd May, 1977 and adjusted against an existing or supernumerary vacancy; and (ii) The period from 20th April, 1978 to 24th April, 1979 in respect of Mr. Anwar Ali Khan may be treated as extraordinary leave without pay and allowances."

8. As a result, the Ministry of Education gazette notification No. F. 8‑t4/73‑CEI, dated 31st March, 1980 was published which is reproduced: ‑ "In pursuance of the Establishment Division's D.O. letter No. 512/78 ". 11, dated 19th June, 1979 and O. M. of even number, dated 18th March, 1980 Mr. Anwar Ali Khan and Miss presently working as Lecturers in the Federal Government College

Islamabad, are regularized in their appointment w. e. f. 3rd May, 1977. (2) The period from 20th April, 1978 to 24th April, 1979 in respect of Mr. Anwar Ali Khan is treated as extraordinary leave without pay and allowances."

9. In the seniority list circulated by the Ministry of Education vide their letter, dated 30th November, 1981 respondent No. 2 was placed at serial 67 with seniority as a "regularised" appointee w. e. f. 3rd May, 1977 i. e. the date on which the Education Ministers Meeting took the decision which has been reproduced. The appellant appears at serial 72 of the same list. Aggrieved by the wrong fixation of his seniority the appellant preferred an appeal, through proper channel, to the Secretary, Ministry of Education on 13th January, 1982. The said appeal was forwarded by the Principal on 16th January, 1982 vide endorsement No. 78/78/38 FGCM. The appellant did not receive any reply to his departmental appeal. Thereafter, the present appeal was filed, in time, on 10th April. 1982. It was admitted for regular hearing on 5th May, 1982 and is being disposed of by this order.

10. We heard the learned counsel from both sides. The appellant and respondent No. 2 were also given a hearing.. The learned State counsel, in his preliminary objections before us, urged that the appeal was time‑barred. We shall first deal with this important issue. In this connection; we reproduce 'Second appeal' dated 3rd December, 1981 addressed by the appellant to the President of Pakistan; ‑ Subject:‑ Appeal against seniority/confirmation of Mr. Anwar Al Khan, Lecturer in Statistics notified by the Ministry o Education. Sir, In continuation of my earlier appeal, dated 9th August, 1981 of the subject, most reverently, I have the honour to state that I way appointed as a Lecturer in Statistics through F,F.S.C. in 1978 and joined w. e. f. 20th April, 1978 in F. G. College for Men, H‑9, Islamabad against a clear post but the Ministry of Education has declared me junior to Mr. Anwar Ali Khan, Lecturer in Statistic due to his anti‑dated regularization of services w. e. f. 3rd May, 1977 in spite of the following facts: ‑ (1) That prior to his selection by the F.P.S.C. (1979) Mr. Anwar Ali Khan had been working on ad hoc basis upto 19th April, 1978 and his services were terminated on 19th April, 1978 conse quent upon my joining, on 20th April, 1978 as F.P.S.C. selectee in F. G. College, H‑9, Islamabad. (2) That Mr. Anwar Ali Khan was selected by the F.P.S.C. in 1979 against the advertisement of lien post of F. G. College, H‑8. (No. 1), Islamabad and joined on 25th April, 1979. (3) That Mr. Anwar Ali Khan remained jobless during the period from 20th April, 1978 to 24th April, 1979 and did not serve in any Federal Government institution till his selection by F.P.S.C. in 1979 against the lien post of H‑8 College. (4) In spite of above facts, the Ministry of Education Islamabad regularised the services of Mr. Anwar Ali Khan w. e. f. 3rd May. 1977 on 31st March, 1980 due to which he has affected the seniority of persons senior to him including myself i.e. Selectors of F.P.S.C. for the years 1977, 1978 and 1979. His above‑men tioned regularization has affected also my seniority/confirmation against the clear post of Lecturer in H‑9, College, Islamabad where I originally joined on 20th April, 1978 as F.P.S.C. Selectee and replaced Mr. Anwar Ali Khan. (5) In addition to the above according to the general principles of seniority, the ad hoc service and E. O. L. absence period after termination cannot be included towards seniority but he is to be treated as junior to me in the light of following Federal Government Rules of Seniority as notified vide publication "ESTA. CODE" page 110 (photo copy enclosed). Keeping in view of the above facts, it is requested that the concerned quarters may very kindly be advised to do justice with me and seniority list already published may kindly be rescinded and declare me senior to Mr. Anwar Ali Khan by adjusting him against the laison post of H‑8, College, Islamabad for which he was actually selected by F.P.S.C. in 1979 w. e. f: 25th April, .1979 (date of his joining as F.P.S.C. selectee) or w. e. f. 31st March, 1980 i.e. from the date of issue of notification of the Ministry. The Ministry of Education may also be directed to confirm my services against the clear post of H‑9, College for which 1 was really selected by the F.P.S.C. in 1978. It is added, in the last, that I was informed nothing about my previous appeal and hope that your good offices will favour me with a reply at least. Thanking you and waiting far justice."

11. The above‑quoted appeal was dealt with vide Ministry of Educa tion letter, dated 6th February, 1982 which is also reproduce "No. F‑5‑48/78.CA (DFGEI) Government of Pakistan Ministry of Education Islamabad, the 6th February, 1982. Subject:- Appeal against seniority/confirmation of Mr. Anwar Ali Khan, Lecturer in Statistics notified by the Ministry of Education. The undersigned is directed to refer to the application, dated 31st December, 1981 of Mr. Mian Inayat Ullah, Lecturer in Statistics, F. G. College for Men, H‑9, Islamabad, received through the President/C.M.L.A's. O. M. No. 3027/ML‑Cell/81, Dated 7th December, 1981 on the above subject and to say that the seniority assigned to him is precisely covered under section 8(I) of the Civil Servants Act, 1973 and if at all he felt aggrieved he should have approached the Service Tribunal in the matter. He had no right to submit any application to President /C. M.L.A. under the orders of the Establishment Division contained in O. M. No, 1 /43/78‑D‑I1, dated 27th November, 1978 reproduced at page 523 of the ESTA CODE. (Sd.) (MAQBOOL WARIS), Assistant Educational Adviser To Mian Inayat Ullah, Lecturer in Statistics, F. G. College for Men, H‑9, Islamabad." (The correct date of appeal to the President by the appellant is 3rd December, 1981 and not 31st December, 1981 as mentioned by the Ministry).

12. It will be observed that the appellant had a standing grudge against the wrong fixation of his seniority. He, therefore, appealed to the President on 9th August, 1981. He did not receive any reply and pursued his case by addressing a 'second appeal' on 3rd December, 1981. The Ministry upbraided the appellant for addressing the President of Pakistan while, at the same time, rejected his said appeal. This was a chapter past and closed. We find that seniority list of 1981 was circulated vide Ministry of Education Letter No. F. 6‑9/78‑C‑II, dated 30th November, 1981. The appellant preferred a specific departmental appeal against the said seniority list, which we reproduce: "The Secretary, Ministry of Education, Government of Pakistan, Islamabad. Subject: Representation against provisional seniority list of Lecturers working in the Federal Government Colleges for Men, Islamabad. Sir, Reference No. F‑6‑9/78‑CTI, dated 30‑11‑1981. Respectfully I have the honour to bring in your kind notice that due to the regularization of services of Mr. Anwar Ali Khan, Lecturer in Statistics, my seniority has been affected as a matter of injustice and due to this reason I could not be confirmed during the recent confirmation. In this connection I submit the following points for consideration and revision of seniority of Mr. Anwar Ali Khan: ‑‑ (1) That Mr. Anwar Ali Khan standing at Serial No. 67 of the above‑mentioned seniority list was selected by the FPSC in 1979 against the advertisement of lien post of F, C

3. College, H‑8 Unit Islamabad and joined on 25th April, 1979. (2) That prior to his selection by the F.P.S.C. (1979) Mr. Anwar Ali Khan had been working on ad hoc basis up to 19th April, 1978 and his services were terminated on 19th April, 1978 consequent upon my joining on 20th April, 1978 as F.P.S.C. selectee in F. G. College, H‑9, Islamabad. , (3) That Mr. Anwar Ali Khan remained jobless during the period from 20th April, 1978 to 24th April, 1979 and did not serve in any Federal Government Institution till his selection by F.P.S.C. in 1979 against the lien post of H‑8, College. (4) In spite of above facts, the Ministry of Education Islamabad regularised the services of Mr. Anwar Ali Khan, w.e.f. 3rd May, 1977 on 31st March, 1980 due to which he has affected the seniority of persons senior to him including myself i.e. selectees of F.P.S.C. for the years 1977‑78 and 1979. His above‑mentioned regularization has affected also my seniority/confirmation against the clear post of Lecturer in H‑9, College, Islamabad where I originally joined on 20th April, 1978 as F.P.S.C. Selectee and replaced Mr. Anwar Ali Khan. (5) In addition to the above according to the general principles of seniority, the ad hoc service and E.O.L. absence period after termination cannot be included towards seniority but he is to be treated as junior to me in the light of following Federal Govern ment Rules of Seniority as notified vide publication "ESTA CODE" page‑110 (photo copy enclosed). In view of the above facts I strongly protest against the unjustified protection of seniority of Mr. Anwar Ali Khan and request your honour that he may kindly be allowed seniority benefits only w. e. f. the date of his joining as F.P.S.C. Selectee i.e. w. e. f. 25th April, 1979 or from the date of notification of this regularization f. e. 31st March, 1980. It is, therefore, requested that I may very kindly be notified as senior to him in the light of my justified and genuine claim. Hoping for favourable consideration and an early reply. Yours obediently, (Sd.) (MIAN INAYAT ULLAH), Lecturer in Statistics F. G. College for Men H. 8, Islamabad. OFFICE OF THE PRINCIPAL, FEDERAL GOVERNMENT COLLEGE (MEN) SECTOR H‑9, ISLAMABAD. No. 78/78,138 EGCM, dated 16‑1‑1982. Forwarded for necessary action. (Sd.) PRINCIPAL, Federal College (Men), H/9, Islamabad."

13. The above‑quoted departmental appeal was preferred well within time laid down by the Ministry. The appellant received no reply and after exhausting the waiting period of 90 days, he came up in appeal before the Tribunal on 10th April, 1982. His appeal was admitted for regular hearing on 5th May, 1982. There is therefore, no substance, whatever, in arguments of the respondent Ministry that the appeal before us is hit by limitation: It is well‑within time and hence competent.

14. There are two cut and dried issues in this appeal. First Whether or not a civil servant can be given advantage of ad hoc service for the purpose of seniority. Before the advent of Civil Servants Act, 1973, and vide O. M., dated 4th May, 1972 (General Principles of Seniority), a person holding a post on ad hoc basis had to court his seniority from the date of recommendation by the F.P.S.C. The O. M. Mid lays down that ad hoc service does not reckon for purposes of seniority when the ad hoc appointment is later on converted to regular appointment. Since the advent of the Civil Servants Act, 1973, the principle of seniority as enshrined in subsection (4) of section 8 of the Act ibid lays down "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

" There are numerous judgments of the learned Supreme Court as well as of the Federal Service Tribunal, wherein it has been held, unambiguously, that ad hoc service does not count toward seniority. The law on this issue is well‑settled in the light of which, respondent No. 2 could not had been given the advantage of his ad had service from 29th April, 1975 t 19th April, 1978. We can, therefore earnestly say that the Establishment Division have gone as wrong as it is possible to go within and without the limits of this simple rule of seniority which is now well‑established and is beyond any doubt.

15. The second issue and a ludicrous one at that is, whether a man ill the street could be granted extraordinary leave without pay. It is an admitted position that respondent No. 2 has been rendered jobless from. 20th April, 1978 onwards (after the appointment of the appellant). He was, subsequently, selected by the F.P.S.C. and appointed as a lecturer w. e. f. 25th April, 1979. . In other words, respondent No. 2 was just a man in the street from 20th April, 1978 to 24th April, 1979. We are alarmed to discover that the Ministry of Education recommended the grant of extraordinary leave without pay to respondent No. 2 from 20th April, 1978 to 24th April, 1979 and the Establishment Division readily obliged the said Ministry. As a consequence of this untenable act of the Establishment Division, respondent No. 2 was not only "regularised" as a lecturer w. e. f. 3rd May, 1977 against ALL rules, he was also deemed to be in continuous service including the period when he was a man in the street. He was, thus, shown to be continuous employment till his regular appointment through the F.P.S.C. on 25th April, 1979. We are not aware of any law whereby the Government could extraordinary leave to a man Like respondent No. 2, who did not hold any job in any Government Department and was a man in the street. Even if the respondent No. had been in continuous employment, his seniority could not have reckon] before the date of his selection by the F.P.S.C.

16. The departmental representative stated before us that the services of such ad hoc. Lecturers who were in employment on 3rd May, 1977 the date of Education Minister's decision, had to be regularised. Since respondent No. 2 was holding an ad hoc appointment on the said date, his services stood regularised w. e. f. the said date, if we were to go by such arguments, which reflect culpable lack of knowledge of the basics of Service Law, then some of those who may have been ad hoc Lecturers on 3rd May, 1977 but had subsequently left their jobs, ought to be treated as "regular lecturers" only on the basis of the decision of 3rd May, 1977 so that without regularisation of their cases they could come back years afterwards to claim regular seniority w. e. f. 3rd May, 1977.

17. The decision, dated 3rd May, 1977 taken in the meeting of the Education Ministers Conference, to regularize the services of ad hoc Lecturers was an executive decision. This decision, by itself, could not be used as a vehicle for regularising services of the ad hoc Lecturers as has been done. Once the said decision had been taken, it had to be implemented after due process of law in respect of those who were still in employment on the dates on which their regularisation cases were initiated.

18. Another issue agitated by the appellant was that of his confirma tion. In this, connection we reproduce the Government of Pakistan Directorate of Federal Government Educational Institutions (Colleges letter No: F. 5‑36/74‑CA (DFGEI), dated 22nd December; 1980 addressed to the appellant and placed in the memo. of appeal. Subject :‑Confirmation. Sir, I am directed .to inform you that a Notification of Lecturers of F. Government Colleges for Men at Islamabad regarding confirmation has been issued vide No. F. 5‑36/80‑CA(DFGEI), dated 21st December, 1980. (2) The Directorate appreciates the urgency of speedy confirmation of Lecturers. Thus, we communicate, with a feeling of regret, that you could not be confirmed for the reason that you are working against a lien vacancy. We share your likely con cern but, at the same time, hope that you will understand that as per rules you could not be confirmed. However, we desire and intend to confirm yon as soon as a clear post in your subject is available.

3. We assure you that this Directorate would move fast and meaning fully to substantiate your welfare. Your obedient servant, (Sd.) (MUHAMMAD AKRAM), Deputy Director"

19. We would like to point out, with regret that the worthy Deputy Director, who signed the above‑quoted letter, did not have his facts right either deliberately or through an oversight. In any case we hold him responsible for distortion of truth. It is an admitted position that the appellant had been recruited through the F.P‑S.C. against a Clear vacancy of Lecturer. He should, therefore, have been confirmed as such. This would be done now without any further delay.

20. As a result of the foregoing analysis, we accept the appeal and order that the appellant with his seniority w. e. f. 20th April, 1978 would be placed senior to respondent No. 2 (Mr. Anwar Ali Khan) and the seniority list recast immediately. Respondent No. 2 would reckon his seniority as a Lecturer, w. e. f. 25th April, 1979 and not before. The Ministry of Education gazette notification, dated 31st March, 1980 reproduced at para. 8 above in so far as it relates to respondent No. 2, is set aside as being unlawful and of no legal effect. A fresh gazette notification in respect of respondent No. 2 shall be issued based on this order of the Tribunal.

21. No order as to costs. A.B Appeal accepted.