Find a Lawyer

Civil Petition No. 405 of 1979, decided on 26th May, 1982.

(From the order dated 8‑3‑1979 of the Punjab Service Tribunal passed in Appeal No. 29/931 of 1979).

‑‑‑ Ss. 6 & 7‑Confirmation‑Seniority‑Petitioner civil servant rendered surplus on disintegration of One‑Unit and given ad hoc appointment on a post meant for direct recruitment‑Appointment not possible to be regularised without approval of Public Service Commission‑No rule cited to show confirmation in a vacancy being possible during subsistence of lien of another person on such vacancy Ad hoc appointment continuing as such until regularised in accordance with rules, i.e. after receipt of a favourable advice from Public Service Commission in case in hand, such appointment, held, does not confer any right to seniority from date of such appointment and seniority to be given on basis of regular appointment.‑[Civil service].

Muhammad Afzal v. Government of the Punjab 1982 S C M R 408 ref.

----- S. 4 read with Policy Letter dated 1‑9‑1972 dealing with absorption of surplus Gazetted Government employees‑Appointment‑Similar posts‑Posts of Public Relations Officer and Regional Manager‑Not similar posts‑Qualifications for recruitment to such two posts not same‑Petitioner appointed against a vacancy meant for direct recruitment through Public Service Commission, petitioner's case, held, not covered by letter dated 1‑9‑1972 and his case had to be referred to Commission for their approval to appointment.‑[Civil service].

Ch. Khalil‑ur‑Rehman, Senior Advocate Supreme Court for Petitioner.

M. A. Bajwa, Advocate Supreme Court, instructed by. S. Abid Nawaz, Advocate‑on‑Record for Respondents.

Date of hearing : 26th May, 1982.

‑This is a petition for leave to appeal from the order of the Punjab Service Tribunal dated 8‑3‑1979, whereby the petitioner's appeal against seniority assigned to him in the seniority lists published on 27‑6‑1975 and 30‑12‑1976 was rejected.

2. The petitioner bad entered service as a Labour Inspector in the Provincial Department of Labour. On his selection through the Public appointed as Public Relations Officer in the Department against the vacancy of one Inayat Ullah who had joined another Department but still retained lien on that post. However, in the result of the re‑organization of the Department, the post of Public Relations Officer was withdrawn from the Department with effect from 1‑6‑1971. The petitioner thus became surplus but was absorbed on ad hoc basis as Manager, Employment Exchange Class II in the same Grade, Le. No. 16, against a vacancy meant for direct recruitment. The appointment was subject to the approval of the Punjab Public Service Commission. Simultaneously, therefore, his case was referred to the Provincial Public Service Commission for according their approval. It appears that the petitioner in the meantime applied for the post of Industrial Development Officer/Purchase Officer, a Junior Class I Post, in the Industries Department, for which he was selected by the Commission on 23‑10‑1972. Unfortunately, the appointment did not materialize and the Labour Department was advised by the Services and General Administration Department on 31‑5‑1974, to move the Commission for regular absorption of the petitioner against the post of Regional Manager held by him. The Commission was accordingly approached and on receipt of its advice on 21‑9‑1974, the petitioner' appointment as Regional Manager was regularized with effect from that date against a post meant for direct recruitment but the seniority of the petitioner was left to be determined in accordance with the rules and regulations on the subject. The petitioner made representation claiming seniority from 21‑9‑1968, that is from the date of his appointment as Public Relations Officer. However, in the seniority lists published on 27‑6‑1975 and 30‑12‑1976, he was given seniority on the basis of his regular appointment on 21‑9‑1974, against which he appealed to the Tribunal.

3. The case of the petitioner before the Tribunal was that the delay occasioned in the regularization of his appointment by the Department could not operate against him and that after the expiry of six months of his ad hoc appointment as Regional Manager, he should have been appointed on probation and after the expiry of a further period of one year, be must be deemed to have regularly appointed as Regional Manager from the date of his initial appointment to the post, i.e. 1‑6‑1971. The Tribunal, however, came to the view that the Department had shown consideration in accom modating the petitioner, who bad been rendered surplus, by giving him ad hoc appointment that as the post was meant for direct recruitment, the petitioner's appointment could not be made regular unless cleared by the Public Service Commission ; that the Commission's approval having been accorded on 21‑9974, he could not be appointed earlier and that as such he bad been rightly assigned seniority on the basis of his regular appointment on 21‑9‑1974.

4. Chaudhry Khalil‑ur‑Rahman, appearing for the petitioner, contended that as Inayat Ullah in whose vacancy the petitioner was appointed never returned, the petitioner should be deemed confirmed in that vacancy right from 21‑9‑1968. The contention is neither tenable nor relevant. Firstly, it bad not been raised before the Tribunal. Secondly, no rule has been cited to support that a confirmation in a vacancy is possible during the subsistence of a lien of another person on that vacancy. Moreover the post itself ceased to exist in the Department after its withdrawal and the petitioner had thereby been rendered surplus.

5. It was next contended that as the post of Regional Manager, to which the petitioner was appointed after withdrawal of the post of Public Relations Officer, was a similar post and in the same Grade, no reference to the Public Service Commission was required in view of the policy letter dated 1‑9‑1972 dealing with "Absorption of Surplus Gazetted Government Employees" and as such the petitioner's appointment as Regional Manager must be held to be a regular appointment ab initio. The instructions contained in the said letter dated 1‑9‑1972 are that the Government Gazetted surplus Officers "who were approved by Public Service Commission against similar posts as are now lying vacant but were declared surplus on the dismemberment of One Unit and are still in the surplus pool, may be absorbed by their respective Administrative Departments against the vacant posts" and that "in such cases a reference to the Public Service Commission would not be necessary". There is no finding that the post of Public Relation Officer and that of the ‑Regional Manager were similar posts, nor is there any reason to hold so because as pointed out by the other side the prescribed qualifications for recruitment to the two posts were not the same. According to the showing by the other side, the qualification required for the post of Public Relations Officer was a degree in Economics or Sociology or Commerce; whereas the qualification required for the post of Regional Manager was a Graduate's degree with three years' experience and the initial recruitment was to be made through a Competitive Examination to be he alongwith competition for PCS (Executive Branch). The petitioner' appointment, as the order dated 1‑7‑1971 at page 27 of the paper‑book shows, had been against a vacancy meant for direct recruitment, which could made only through the Public Service Commission. The petitioner': case, therefore, was not covered by the letter dated 1‑9‑1972 and his case had to be referred to the Public Service Commission for their approval to the appointment.

6. The main argument, however, was that even if the appointment be on an ad hoc basis, the delay caused in securing the Commission's approval was not on account of the petitioner and as such he should not be made to suffer for it and should be considered regularized after the expiry of the period of six months within which, according to the relevant Departmental instructions, the formalities of regularization should have been completed. In this connection, counsel referred to the circular letters dated 13‑10‑1966 and 20‑10‑1966 issued by the Services and General Administration Department. The intention of these letters is to discourage making of ad hoc appointments and to restrict the duration of such appointments to a period not exceeding six months within which period the Departments were advised to secure the Commission's advice for regularization of the appointments. No rule has, however, been cited to support that an ad hoc appointment can be deemed regularized by mere efflux of time. This is also not the intention of the aforesaid circular letters dated 13‑10‑1966 and 20‑10‑1966. An ad hoc appointment continues as such until it is regularized in accordance with the rules which in this case means after receipt of a favourable advice from the Public Service Commission. An ad hoc appointment, therefore, will not confer any right to seniority from the date of such appointment. A reference may be made in this connection to the observations of this Court in Muhammad Afzal v. Government of the Punjab (1982 S C M R 408):

"Ad hoc appointments truly so called being not in accordance with the Rules applicable to the service cannot receive either recognition or protection by reference to any of the Rules because they do not imply appointments to the service as such. Such appointments being outside the purview of the Rules cannot for any purpose be treated as conferring a benefit under the Rules. It follows that if the appellants and some of the respondents were truly ad hoc appointees for a certain period they cannot on the basis of Rules claim their seniority from that date whether it was continuous or not."

It is, no doubt, unfortunate, that the Commission's advice was not made available earlier, for, as already mentioned, a reference to them had already been made in July, 1971, but the legal position remains that a right to seniority cannot be claimed on the basis of an ad hoc appointment.

7. We, therefore, find no valid ground to interfere with the decision of the Tribunal and accordingly dismiss the petition.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.