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Appeal No. 62 (R) of 1982, decided on 23rd April, 1983.

‑‑‑‑Ss. 2 (1) (f) & 2 (2) read with Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, r. 7‑Regular appointment‑Appoint ment whether by promotion or otherwise made in prescribed manner Appointment once made on regular basis cannot subsequently be converted into ad hoc appointment‑Appointment made by promotion on recommendations of appropriate departmental promotion committee‑Subsequently treated as on ad hoc basis on grounds that same was in excess of promotion quota prescribed by relevant rules‑‑Such treatment, held, not sustainable‑Service Tribunals Act (LXX of 1973), S. 4.

---‑‑Seniority ‑ Direct recruits versus promotees‑Ratio of direct recruitment and departmental promotion merely relates to policy of recruitment‑Not to be extended to fixation of their seniority‑All incumbents to be treated at par in matter of their seniority in respective grade after they enter it‑No rule that incumbent holding a post in particular grade in temporary or officiating capacity should rank lower in seniority to one appointed later against a reserved post in same grade.‑Concept that direct recruits should be deemed to have been appointed from date from which vacancies in their quota was to be filled, held, fallacious -Extended meaning of word "regular" given in Establishment Division O. M. No. 1/16/69‑D‑II dated, 31‑12‑1970, held, repugnant to provisions of S. 2 (2) and S. 8 (4) of Civil Servants Act, 1973, hence not applicable after promulgation of Act ‑ Seniority of a promotee to take effect from date of regular appointment regardless of promotion being in excess of promotion quota‑Civil Servants Act (LXXI of 1973), Ss. 2 (2), 8 (4) & 25 (2) read with Establish ment Division O. M. No. 1/16/69‑D‑II, dated 31‑12‑1970.

B. A. Ansari for Appellant,

Syed M. Shahudul Haque, State Counsel for Respondent No. 1.

M. S. Siddiqui for Respondents Nos. 2 to 18.

Date of hearing : 24th March, 1983.

It is the case of the appellant that he then a Foreman in the P.O.F., Wah, was promoted in the prescribed manner by the competent authority with effect from 14‑4‑1976 as Assistant Works Manager. In the seniority list issued thereafter on 2y‑10‑1976 the appellant was shown at serial No. 37 and his seniority as Assistant Works Manager was counted from 14‑4‑1976. However, in the subsequent seniority list issued on 15‑6‑1980 the appellant was treated as having been promoted on ad hoc basis, and was shown junior to the direct entrants up to the year 1978. The appellant filed an objection which was rejected as conveyed to him vide letter dated 26‑8‑1981. He thereafter filed a departmental representation dated 20‑10‑1981 which too was rejected as conveyed to him vide letter dated 17‑3‑1982. He then filed the present appeal in this Tribunal on 7‑4‑1982. It is mainly con tended that the appellant was promoted to the post of Assistant Works Manager by the competent authority in the prescribed manner and as such his promotion was regular. The action of the ic.spondent‑Depart ment to treat the regular appointment of the appellant to be on ad hoc basis is contrary to the Civil Servants Act and Rules framed thereunder, and to treat him junior to the incumbents who were appointed later in point of time, is also wrong and against the established principle of law laid down by the superior Courts.

2. A preliminary objection about the maintainability of appeal was taken on behalf of respondents 2 to 18 contending that the appeal is hopelessly time‑barred as the limitation to file the appeal in the Tribunal started running from 26‑8‑1981, the date on which departmental appeal of the appellant was rejected. The objection is simply misconceived and untenable. For, it was the objection of the appellant to the‑provisional seniority list and not his departmental appeal which was rejected by the letter dated the 26th August, 1981. Feeling aggrieved whereby the appellant had a right to prefer a representation/appeal as provided by section 22 of the Civil Servants Act, 1973, which remedy was availed of by him by filing his representation dated 20‑10‑1981, which was rejected by letter dated 17‑3‑1982. He then filed the present appeal within the prescri bed time. The appeal is thus well in time and the objection of the respon dents in this respect is overruled.

3. On merits, the case of the respondents is that, according to the relevant recruitment/promotion rules, induction/promotion on the posts of Assistant Works Manager is to be made on the basis of 75%U direct induction quota and 25% departmental promotion quota. The P.O.F. have been endeavouring to do their utmost to stick to the above quota but because of poor response in the direct induction field they had been compelled, from time to time, to exceed the promotion quota. The appellant was promoted in excess of promotion quota but, of course, in the prescribed manner. In the seniority list dated 29‑10‑1976 the seniority of the appellant was counted from 14‑4‑1976, the date when he assumed the charge of Assistant Works Manager. But it was subsequently found that the said seniority roll was not based on general principles of seniority laid down in the Establish ment Division O. M, No. 1‑16/69 D. II, dated 31‑12‑1970. The same was, therefore, revised and the appellant was given seniority from 25‑2‑1980, the date from which the promotion quota vacancy became available while from 14‑4‑1976 to 24‑2‑1980 he had to be treated a an ad hoc appointee.

4. We have given our anxious consideration to the submissions made by the parties. It is first to be seen that according to subsection (2) of the Civil Servants Act, 1973, an appointment whether by promotion or otherwise shall be deemed to have been , made on regular basis if it is made in the prescribed manner. Section 2 (1) (f) of the. Act defines 'prescribed' as to mean prescribed by rules. The manner for making appointments by promotion is prescribed by rule 7 of ‑the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which provides, inter alia, that promotion to posts in Grades 2 to 21 shall be made on the recommendation of the appropriate Departmental Promotion Committee/Special Selection Board. The appointment of the appellant as Assistant Works Manager, having been made in the prescribed manner; was therefore, doubtlessly a regular appointment. We are also quite clear that an appointment once made on regular basis cannot be subsequently converted into an ad hoc appointment. Indeed, the regular promotion of the appellant to the post of Assistant Works Manager, by no stretch of law or imagination, could be treated as an ad hoc appointment. We are, therefore, clearly of the view that the action of the respondent Department to treat the appellant's appointment on the post of Assistant Works Manager from 14‑4‑1976 to 24‑2‑1980 as ad hoc one is quite erro neous, patently illegal and deserves to be quashed.

5. Again, by placing the direct recruits as senior to the appellant, a departmental promotee, in spite of the fact that the latter was appointed to the post earlier than the former, the impugned seniority list deems, by way of a fiction, that the direct recruits were the holders of the posts reserved for them 75% ‑ 25 % basis, though they were not actually appointed to those posts yet whenever appointed they should be deemed to have been appointed from the date from which the vacancy of their quota was to be filled. In other words, vacancies arising in their quota are deemed as vacancies permanently reserved for them, although, in the meanwhile, departmental promotees have been appointed against those vacancies. The latter have, nevertheless, to be relegated to the position of juniority as against the direct recruits whenever appointed to the vacancies reserved for persons from their quota. However, it is wholly against all notions of justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 75 : 25 between the direct recruits and the departmental promotees merely relates to the policy of their recruitments to the posts and is not to be extended to the fixation of their seniority. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. Also, no rule has been .shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade.

6. Adverting to the General Principles of seniority contained in the Establishment Division O. M. No. 1/16(69‑D‑II, dated 31‑12‑1970, the provision relied upon by the respondent is reproduced below :‑

"(iii) The seniority of departmental promotees to the higher grade shall count from the date of their regular promotion to the higher grade. The word regular implies

(a) that the promotions to higher grades were made in vacancies reserved for departmental promotion to accordance with the prescri bed roster ; and

(b) that the promotions to higher grades were made in accordance with the prescribed Recruitment Rules i. e. on the recommendation of the Departmental Promotion Committee or the Selection Board (and in consultation with the FPSC where such consultation was necessary under the Consultation Regulations) and with the ,approval of the authority competent to make these appointments ; anal

(c) the promotions to higher grades were kept within the maximum quota ‑prescribed in the Recruitment Rules for Departmental Promotion. In the event of the prescribed Departmental Promotion quota being exceeded in any particular case or cases, the seniority of the person or persons promoted in excess of the quota shall not count from the date from which the promotion or promotions were actually made, but from the date or dates from which they would have been made, if the quota had been properly followed."

It is quite clear that extended meaning of the word regular' given in (a) above offends the provisions contained in subsection (2) of section 2 of the Civil Servants Act, 1973. It is to be further seen that subsection (4) of section 8 of the Act by necessary implication, provides that seniority in the grade to which a civil servant is promoted should take effect from the date of regular appointment to a post in that grade, regardless of the promotion being in excess of the promotion quota. The principle contained in (c) above is, therefore, repugnant to the provision of subsection (4) of section 8 of the Act. We are thus quite clear that the principles contained in (a) and (c) above make unlawful that which the Act says is lawful. The said principles, therefore, being inconsistent with the provisions of the Act, are not covered by subsection (2) of section 25 of the Act and, therefore, ceased to be applicable after promulgation of the Act. The stand of the respondent‑department has, therefore, no leg to stand on and cannot be sustained.

7. In view of what we have said above, appeal is accepted and it is directed that the appellant shall be given seniority from 14‑9‑1976, the date from which he is holding regular appoint ment.

8. No order as to costs.

9. Parties to be informed accordingly,

Appeal accepted.

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