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‑‑S. 4‑Limitation‑Departmental appeal not replied to‑Demons trative act of departmental authority amounts to rejection of appeal -Appellant claiming seniority in departmental appeal ‑ No reply to appeal received‑Order of promotion of junior, in circumstances, could legitimately be taken by appellant as rejection of appeal- Appeal before Tribunal filed within 30 days of such promotion order, held, within time.

Iqan Ahmed Khurrum v. Pakistan P L D 1979 Kar. 610 rel.

(b) Civil service‑---

‑‑Ad hoc appointment though continuous ‑ Confers no right of seniority‑Seniority to count front date of regular appointment to grade‑Appointment through transfer to other Group-Permissible only for regular appointee‑Ad hoc appointees ‑ Not eligible for induction to other Group by transfer in such grade ‑ Officials (respondents) promoted as Section Officer (Grade‑I',) provisionally and temporarily‑Such appointments amounting to ad hoc appoint ment‑Posted in Ministry of Foreign Affairs before creation of Foreign Affairs Group ‑ Appointed to Foreign Affairs Group in Grade‑18 by counting period of ad hoc service in Grade‑17 towards legal requirement of 5 years' service in Grade‑17 ‑ Such officers (respondents), held, would at the most be deemed to have been appointed on regular basis to Grade‑17 in office Management Group units creation (27‑1‑1975) and from such date onwards only could be treated to have been inducted to Foreign Affairs Group by transfer in Grade‑17 and could be eligible for promotion to Grade‑18 after completion of 5 years' service thereafter in Grade‑I7‑Appellant appointed in Foreign Office through competitive examination in Grade‑17 prior to regular appointment of respondents in Grade‑17 in OMG and their induction by transfer through lateral entry in FAG in such grade, held, would rank senior to such respondents -Promotion of appellant after completion of 5 years' service in Grade‑17 delayed till respondents illegally inducted to FAG in Grade‑18‑Action of Ministry of Foreign Affairs and Establishment Division, in circumstances, held, share injustice and adversely commented upon by Service Tribunal.‑ Competent authority directed to reconsider case of appellant for promotion to Grade‑18 from date he completed requisite period of 5 years in Grade‑17 and to be promoted, if found fit by Departmental Promotion Committee, with all benefits of arrears of pay; allowances and increments for relevant period‑Service Tribunals Act (LXX of 1973), S. 4 read, with Civil Servants Act (LXXI of 1973), Ss. 2 (a) & 8 (4), Federal Public Service ,Commission (Functions) Rules, 1973, r. 4 (iii), Explanation and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, r. 9 read with Establishment Division O.M. No. 1 (8)/72‑D dated 4‑5‑1972.

Mian Muhammad Afzal and others v. Government of the Punjab and others 1982 S C M R 408 rel.

M. S. Siddiqi for Appellant.

Syed M. Shahudul Haque for Respondent No. 1.

Bashir Ahmed Ansari for the Remaining Respondents.

Abul Hassan for Respondent No. 17.

Date of hearing : 10th March, 1983.

.‑The appellant, Musa Javed Chohan, hereinafter to be referred to as the "competitioner" (where necessary), joined the Foreign Office on 1‑11‑1971 in Grade‑17 as a result of a competitive examination and became eligible for consider ation to Grade‑18 after completion of five years, service in terms of the Establishment O.M., dated 20th of May, 1974. His promotion to Grade‑18 finally materialised with effect from 4‑9‑1977 vide Foreign Office promo tion order, dated 12‑9‑1977 when, ordinarily, it should have come about on 31‑10‑1976. In other words, the promotion of the appellant was delayed by almost one year.

2. In the year 1977 respondents 3 to 18 hereinafter to be referred to as the "inductees", were placed into the F.A.G. in Grade‑18 and were given seniority above the 1971 batch of competitioners including the appellant.

3. The appellant challenged the induction and promotion of the said respondents by way of a departmental appeal dated 9‑8‑1979 addressed to the Foreign Secretary. He received no reply. He preferred yet another appeal on 16-4‑1980 which, again, elicited no response.

4. Vide promotion order, dated 15‑1‑1981, issued by the Ministry of Foreign Affairs, respondents Nos. 3 to 12 were approved with effect from 7‑1‑1981 for promotion to the rank of First Secretary/Director subject to the availability of vacancies. The appellant interpreted this promotion order to be a rejection of his departmental appeals dated 9‑8‑1979 and 16‑4‑1980. Thereafter he filed his present appeal before this Tribunal on 12‑2‑1981 under section 4 of the Service Tribunals Act, 1973. The main grounds of his appeal were that the appellant be allowed seniority in Grade‑I8 retrospectively with effect from 31‑10‑1976, i.e. after completion of five years' service in the F.A.G when he became eligible to be considered for promotion but was ignored till promoted on 4‑9‑1977 and that the induction of respondents 3 to 18 in Grade‑18 in F.A.G. be either declared null and void or, at any rate, they be allowed seniority in Grade‑17 from the date it was so allowed in their parent cadre and then placed in Grade‑18 accordingly, subject, of course, to .the availability of vacancies in F.A.G.

5. The learned counsel for the respondents in his arguments before us made three points: First, respondents 3 to‑18 had been inducted vide Ministry of Foreign Affairs letter, dated the 4th of January, 1977. (This was not actually so and we have corrected the said learned counsel as may be seen from para. 11 below). The cause of action had, therefore, accrued to the appellant shortly thereafter when the integrated seniority list had been published but the appellant did nothing, said the learned counsel. Second, the appellant preferred his departmental appeal on 9‑8‑1979 and followed it up with another one on 16‑4‑1980. There is no provision of a second appeal in the rules. The appellant who received no reply to his appeal dated 9‑8‑1979, should have come to the Tribunal on or about 9‑12‑1979, whereas he did so on 12‑2‑1981. The appeal is, therefore, hopelessly time‑barred with no application for condonation of delay. Third and last, the appellant came to the Tribunal as a result of promotion order dated 15‑1‑1981 (whereby respondents 3 to 12 were approved for promotion) on the plea that the said promotion order was a rejection of his departmental appeal or appeals which had evoked no response. Since the appellant had not complied with the provision of section 4 (1) (a) of the Service Tribunals Act, 1973, the present appeal was not maintainable, argued the said learned counsel.

6. The learned counsel for the appellant in his reply stated that the respondents were placed above the appellant in 1979 (meaning thereby, that the integrated seniority list which is at Annexure‑E of the appeal appeared in 1979). The departmental appeal was preferred on 9‑8‑1979 followed by a reminder on 16‑4‑1980. In reply to the second point of the respondents counsel, the learned counsel for the appellants said : it was settled law that if a departmental appeal was not replied to but an action was, subsequently, taken by . the departmental authority which could be interpreted as the rejection of the appeal, then an aggrieved person could come to the Tribunal. In the present case, the appeal had been lodged against the induction of respondents and of placing them above the appellant but when the Foreign Office by ignoring the appellant's plaint promoted the respondents then it was obviously tantamount to a rejection of the departmental appeal whereafter he could seek redress from the Tribunal. The said learned counsel argued further that the appellant hard filed 'his present appeal before the Federal Service Tribunal within 30 days of a demonstrative act of the Foreign Office which was the promotion order dated 15‑1‑1981 of respondents 3 to 12, which left the appellant in no doubt that his appeal stood rejected. The preset appeal is, therefore, neither hit by limitation nor lack of com petency. In this connection, he cited a ruling of a Division Bench of High Court, Karachi Iqan Ahmed Khurrum v. Pakistan (P L D 1979 Kar. 610) wherein certain rules were amended which adversely affected the petitioner and when this amendment was followed by the promotion of the respondents "in prefer ence to the petitioner", it was held with reference to an objection similar to the one raised in this case, that the promotion order of the respondents was a "final order" in terms of section 4 of the Service Tribunals Act, and the objection of the respondents was overruled. We do find that there are similarities between the said citation and the present case.

7. The issue of limitation as raised by the learned counsel for the respondents is a pertinacious one and we now proceed' to examine it. We have, first of all to see as to whether the promotion order, dated 15‑1‑1981 (of respondents 3 to 12) is, at all, to be construed as the rejection of departmental appeal dated 9‑8‑1979 before we decide the question of limitation. It is on record that the appellant in his appeal dated 9‑8‑1979 had challenged the induction of respondents 3 to 18. Not only that, he: had also challenged the seniority that had been allowed to the said respondents. The appellant did not receive any reply in the shape of a formal and direct letter of rejection from the Ministry of Foreign Affairs as one would expect. But in our considered view, there can be other forms of rejection of an appeal. We may not dilate on such various forms in this judgment, but we do wish to highlight that if the departmental authority initiates an action which is what an appellant is protesting against thus adding insult to the injury, then on the adage of "a word to the wise is enough", the appellant could construe the departmental action to be the rejection of his appeal and seek appropriate remedy as provided for under the law. In the instant appeal, the action of the Ministry of Foreign Affairs in promoting respondents Nos. 3 to 12 could be legitimately taken to be a rejection of his appeal dated 9‑8‑1979. His second appeal dated 16‑4‑1980 was, however, an exercise in futility because the rules ‑provide for only one appeal. The appellant filed his present appeal within 30 days of the promotion order, dated 15‑1‑1981 of respondents 3 to 12. We shall, therefore, hold the appeal before us to be both competent and in time.

8. An important averment made by the learned counsel for the appellant was that all the respondents less No. 4 were ad hoe and junior to the inductees of the CSS cadre of 1974. The learned counsel for the respondents rebutted this argument orally without any concrete evidence. We shall, however, ourselves advert to this issue at an appropriate place.

9. We have had the benefit of perusal of the relevant record made available to us The details of composition of tug; Foreign Affairs Group are given at pp. 567‑569 of Estacode. For our purpose, two issues are relevant. First, whether respondents 3‑‑I8 could, at all, have been inducted into the FAG and second, how has their promotion to Grade‑18 been brought about, placing them above the appellant despite being prima facie junior to him As to the first issue viz.. induction, para. 1.1 of FAG at p. 569 Estacode is the legal sanction in the form of O.M., dated 8‑4‑1974 which is reproduced : ,

"Secretariat Officers working in Foreign Office.‑There are at present a large number of Grade‑17 and Grade‑18 officers belonging to the former Central Secretariat Service who are working in the Foreign Ministry and in Missions abroad. Some of them who are suitable would be permanently inducted into the Foreign Affairs Group and the rest would be withdrawn in a phased programme."

10. The above quotation clearly lays down the pare‑meter for such officers as were eligible for induction. These were : first, the officers on 8‑51 1974 had to be Members of the former CSS cadre meaning thereby that they had to be Regular. This stipulation, at once and automatically, excluded such officers who were not Regular Members of the CSS on 8‑4‑1974. Ex‑cadre and ad hoc Section Officers were naturally excluded because they did not come within the definition of the first two categories of Section Officers. Second, they had to be either in Grade‑17 or in Grade 18. Third, and presupposing that the first two conditions were fulfilled, they had to be suitable. It would be instructive to see how far the rule of law was honoured.

11. A committee was constituted in the Ministry of Foreign Affairs. This committee, in collaboration with our Missions abroad, examined the cases of the former Section Officers as well as others who were ex‑cadre/ ad hoc appointees despite the latter being clearly ineligible. In the first instance, 29 officers who were categorised "A" i.e. fit for permanent induction immediately, were inducted vide Ministry of Foreigr Affairs Office Order dated 4‑X‑1977. Of this list of 29, only respondents Nos. 3 to 14 were inducted respondents Nos. 15 to 17 were inducted vide Office Order dated 19‑4‑1977. Even if they were found suitable for induction they had to complete 5 years as Section Officers. In this case the condition of 5 years' service was waived on a proposal from the Foreign Ofce and agreed to by the Special Secretary. Establishment Division vide his D.O letter, dated 30‑3‑1977. This was done, presumably, to place the inductees into the F.A.G. in Grade‑18 from the very beginning. It is field by us to be unacceptable under the law. Respondent No. 18 who had been catego rised "B" i.e. to be considered later, was inducted on 9‑5‑1977 on a representation to the Foreign Secretary who recommended her and the Establishment Division approved vide their D. O. letter dated 7‑5‑1977.

12. We now advert to the cases of respondents 3 to 18 to analyse if they could, at all have been inducted into the F.A.G.

13. Respondent No. 3 (S. S. Qureshi).‑‑(a) He was P. S. to Foreign Secretary. He qualified in the first promotional examination held under the CSS (Class 1) Rules, 1965. He was appointed provision ally on a temporary basis and until further orders. To this effect Establishment Division O.M. No. 2‑6‑68‑C. III dated 16‑12‑1968 placing S. S. Qureshi in the Ministry of Foreign Affairs was issued He assumed charge as Section Officer in the Ministry of Foreign Affairs on 19‑12‑1968, and to this‑effect the said Ministry, issued Gazette Notification No. Estt. II‑1/17 68 dated 27‑12‑1968.

(b) While S. S. Qureshi was holding the charge of Section Officer Ministry of Foreign Affairs vide their‑Gazette Notification No. Estt (III)‑1/1/68 dated 26‑1‑1970 appointed him formally as Temporary Superintendent with effect from 19‑4‑1969 until further orders

(c) He continued to be an ad hoc Section Officer and was even pro moted to Grade‑18 on 19‑12‑1973 without being regularised. His lawful regular service in Grade‑17 reckons from 27‑1‑1975 when he was encadered in the OMG. This being so, his regular service in Grade‑18 shall reckon with effect from 27‑1‑1975 and he could 'be considered for Grade‑18 only on 27‑1‑1980 i e. after completion of 5 years' regular service. His seniority shall, therefore, reckon from 2.7‑1‑1975 in grade 17 and with effect from 27‑1‑1980 in Grade 18 if otherwise found fit for promotion.

(d) He was not eligible to be inducted into the F.A.G. but was so inducted in Grade‑18 on 4th January, 1977.

14. Respondent No. 4 Abdul Majid Khan.‑‑‑(a) An‑ Assistant in Foreign Affairs Division. Qualified in the first promotional Examination of Section Officers vide Establishment Division Gazette Notification No. 2/8/68‑C. II dated 27‑12‑1968. He was appointed as Section Officer with no claim for regular retention as Section Officer unless his turn comes for regular appointment against the prescribed quota. Assumed appointment on 27‑12‑1968 in the Ministry of Foreign Affairs vide Foreign Office Gazette Notification No. Estt, III / 18/68 dated 24‑1‑1969.

(b) He continued to' be employed as ad hoc Section Officer. He was promoted to Grade‑18 on 12‑10‑1974 while still ad hoc which was irregular. His regular service in Grade‑17 reckons from 27‑1‑1975 when he was encadered into the OMG. On the basis of his ad hoc service he could not have been promoted to Grade‑18. He could have been considered for promotion to Grade‑18 only after putting in 5 years regular service in Grade‑17 and this fell due on 27‑1‑1980.

(c) He was not eligible fox' induction into the F.A.G. but was so inducted in Grade‑18 on 4‑1‑1977.

15. Respondent No. 5 (Abdul Hamid Awan).‑(a) An Assistant, who was nominated as temporary Section Officer vide Estt. Division O.M.2/8/6‑C‑III dated 25‑1‑1969 and Ministry of Foreign Affairs notification No. Estt. II‑1/5/69 dated nil. He assumed charge of Section Officer in the said Ministry from 27‑1‑1969. This gazette notification of the Ministry of Foreign Affairs was cancelled as it did not bear any date and was declared to be defective bye the Printing Corporation of Pakistan. Later on, Ministry of Foreign Affairs Notification No. Estt‑(11)/5/69, dated 4th March, 1969 was issued which read :

:....on having qualified the first promotional examination Mr. Abdul Hameed Awan, Assistant assumed charge as Section Officer in the Ministry of Foreign Affairs, Islamabad on the forenoon of 27‑1‑1969. His appointment of Section Officer is subject to the condition that Mr. Abdul Hameed Awan will have no claim for regular retention as Section Officer unless his turn comes for regular appointment against the prescribed quota under the said Rules. (i.e. CSS Class 1 Rules, 1965)

(b) He continued ‑to be 3n ad hoc Section Officer and was promoted to Grade‑18 on 27‑1‑1975 while he was encadered into the OMG with effect from the said date. His regular service in Grade‑17 therefore reckons from 27‑1‑1975. On the basis of his ad hoc service he could not have been promoted to Grade‑18. He would be eligible for promotion to Grade‑18 only on completion of 5 years regular service in Grade‑17 with effect from 27‑1‑1975.

(c) He was not eligible for induction into the F.A.G. but was so inducted in Grade 18 on 1‑1‑1977.

16. Respondent No. 6 (G.M. Alvi).‑(a) Qualified in the first promo tional examination under CSS (Class I) Rules, 1965. Appointed provisionally on a temporary basis and until further orders as Section Officer in the Ministry of Foreign Affairs vide Establishment Division O. M. No. 5/8/68‑C. III, dated 25‑1‑1969 on the condition that he will have no claim to regular retention as Section Officer: unless his turn comes for regular appointment against the prescribed quota. He assumed charge of his appointment on 27‑1‑1969.

(b) He continued to be an ad hoc section Officer and was promoted to Grade‑18 on 27‑1‑1975 while he was encadered into the OMG with effect from the said date. His regular service in Grade‑17 therefore, reckons from 27‑1‑1975. On the basis of his ad hoc service he could not have been promoted to Grade‑18. He would be eligible for pro motion to Grade‑18 only after completion of 5 years, regular service in Grade‑17 with effect from 27‑1‑1957.

(c) He was not eligible for induction into the F.A.G. but was so inducted in Grade‑18 on 4‑1‑1977.

17. Respondent No, 7 (Ziauddin Sheikh).‑(a) An Assistant in the Ministry of Foreign Affairs. Qualified first promotion exam. of Section' Officer Appointed as Section Officer in Foreign Office vide Gazette notification No. Estt. (II)‑1. 12/69 dated 25‑7‑1969. Assumed charge on 18‑7‑1969 on ad hoc basis on the condition that he will have no claim for regular retention as Section Officer till his turn comes for regular appointment against the prescribed quota. This was spelt out in Ministry of Foreign Affairs Gazette Notification No. Estt. (II)‑ 1/8/69 dated 2‑3‑1970.

(b) He continued to be an ad hoc Section Officer and was promoted to Grade‑18 on 27‑1‑1975 while he was encadered into the OMG with effect from the said date. His regular service in Grade‑17 there fore reckons from 27-1‑1975. On the basis of his ad hoc service he could not have been promoted to Grade‑18. He would be eligible for promotion to Grade‑18 only on completion of 5 years regular service in grade with effect from 27‑1‑1975. ;; . elf tit;;

(c) He was not eligible for induction into the F.A.G. but was so inducted in Grade‑18 on 4‑1‑1977.

18. Respondent No. 8 (Irshad A Ansari).‑(a) An Assistant in the Ministry of Foreign Affairs Qualified in the first promotional Examination. Appointed vide Foreign Office Gazette Notification No. Estt. (II)‑1/8/69 dated 15‑1‑1970 on adhoc basis assumed charge on 7‑1‑1970 on the following conditions:

appointed subject to the condition that he will have no claim for regular retention as Section Officer unless his turn comes to regular appointment against the prescribed quota under the said rules.'

(b) He continued to be an ad hoc Section Officer and was promoted to Grade‑18 on 27‑1‑1975 while he was encadered into the O.M.G, with effect from the said date. His regular service in Grade‑17 there fore reckons from 27‑1‑1975. On the basis of his ad hoc service he could not have been promoted to Grade‑18. He would, be eligible for promotion to Grade‑18 only on completion of 5 years regular service in Grade‑17 with effect from 27‑1‑1975.

(c) He was not eligible for induction into the F.A.G. but was so inducted in Grade‑18 on 4‑1‑1977.

19. Respondent No. 9 (M.A. Hashmy).‑(a) Was an Assistant in the Ministry of Foreign Affairs. Qualified in the first promotional examination. Assumed charge of Section Officer in Foreign Office on 24‑2‑1970. His appointment was ad hoc on the condition that he will have no claim for regular retention as Section Officer till his turn comes for regular appointment against the prescribed quota vide Ministry of Foreign Affairs Gazette Notification No. Estt. (11) 1/8/69, dated 2‑3‑1970.

(b) He continued to be an ad hoc Section Officer and was promoted to Grade‑18 on 27‑1‑1975 while he was encadered into the O.M.G. with effect from the said date. His regular service in Grade‑17 therefore'': reckons from 27‑1‑1975. On the basis of his ad hoc service he could not have been promoted to Grade‑18. He would be eligible for pro motion to Grade‑18 only on completion of 5 Years regular service in Grade‑17 with effect from 27‑1‑1975.

(c) He was not eligible for induction into the F.A.G. but was so inducted in Grade‑I8 on 4‑1‑1977.

20. Respondent No. 10 (Niazullah Khan).‑(a) A Superintendent in the Ministry of Foreign Affairs. Qualified in the second promotional examination of Section Officers (1969). Appointed Section Officer on temporary basis and until further orders vide Establishment Division Gazette Notification No. 2/1/71‑C‑III dated 4‑5‑1971. Assumed charge of Section Officer on 4‑5‑1971 in the Ministry of Foreign Affairs vide Ministry of Foreign Affairs Gazette Notification No. Estt. (11)‑11/26/71 dated 20‑5‑1971.

(b) He was an ad hoc Section Officer till encadered into the U.M.G. on 27‑1‑1975. He was promoted to Grade‑18 on 4‑5‑1976 which was irregular. His regular service in Grade‑17, however, reckons from 27‑1‑1975. On the basis of his ad hoc service, he could not have been promoted to Grade‑18. He would have been considered for promotion to Grade‑18 only after completing 5 years regular service in Grade‑17 which fell due on 27‑1‑1980.

(c) He was not eligible for induction into the F.A.G. but was so inducted in Grade‑18 on 4‑1‑1977.

21. Respondent No. 11 (Akhlaq Ahmed Hashmi),‑(a) A Cypher Assistant in Ministry of Foreign Affairs. Qualified in 1969 promo tional examination. Appointed as Section Officer on temporary basis and until further orders vide Estt. Division Gazette Notification No. 2/1/71‑C. III dated 4‑5‑1971. Assumed charge of Section Officer in Ministry of Foreign Affairs on 23‑8‑1971 vide Foreign Office Gazette Notification No. Estt. (II)‑1/13/71, dated 30‑8‑1971.

(b) He was an ad hoc Section Officer till encadered into the O.M.G. on 27‑1‑1975. He was promoted to Grade‑18 on 23‑8‑1976 which was irregular. His regular service in Grade‑17, however, reckons from 27‑1‑1975. He could have been considered for promotion to Grade‑18 on 27‑1‑1980 i.e. after completion of 5 years regular service in Grade‑17.

(c) He was not eligible for induction into the F.A.G. but was so inducted in Grade‑18 on 4‑1‑1977.

22. Respondent No. 12 (Khurshid Iqbal).‑(a) A Cypher Assistant in the Ministry of Foreign Affairs. Qualified 1969 Promotional Examination. Appointed as Section Officer on temporary basis and until further orders in the Ministry of Finance vide Estt. Division Gazette Notification No. 2‑1‑71‑C, dated 4‑5‑1971. Assumed charge of Section Officer on 24‑8‑1971 in Foreign Office vide Ministry of Foreign Affairs Gazette Notification Estt. (II)‑1/10/71, dated 28‑8‑1971.

(b) Establishment Division vide their letter No. 2/1/71‑C. III, dated 13‑9‑1971, asked the Ministry of Foreign Affairs to let them know how respondent No. 12 could be posted to Ministry of Foreign Affairs without clearance of the Establishment Division because he had been posted to the Ministry of Finance. Was allowed to stay on in the Ministry of Foreign Affairs.

(c) He continued to serve as an ad hoc Section Officer till encadered into the O.M.G. on 27‑1‑1975 from which date his regular service reckons. He was promoted to Grade‑18 on 24‑8‑1976 which was irregular. He could have been considered for promotion to Grade‑18 on 27‑1‑1980 when he would be deemed to have completed 5 years regular service in Grade 17.

(d) He was not eligible for induction into the F.A.G. but was so inducted in Grade‑18 on 4‑1‑1977. ,

23 Respondent No. 13 (Ghayoor Ahmed.)‑(a) A Cypher Assistant in the Ministry of Foreign Affairs. Qualified in the 1969 Section Officers' promotional examination. Appointed on temporary basis and until further orders A Section Officer in the Ministry of Finance vide Establishment Division Gazette Notification No. 2/1/71‑C‑111 dated 4‑5‑1971.

(b) Establishment Division vide their letter No. 2/1/71‑C. 111, dated 13‑9‑1971 asked the Ministry of Foreign Affairs to let them know how respondent No. 13 could be posted to Ministry of Foreign Affairs without clearance of the Establishment Division because he had been posted to the Ministry of Finance. However, his earlier appointment dated 24‑8‑1971 in the Ministry of Foreign Affairs was regularised vide said Ministry's Notification No. Estt. (11)‑1/9/71, dated 28‑2‑1971.

(c) He was an ad hoc Section Officer till encadered into the O. M. G. on 27‑1‑1975 from which date his regular service reckons. He was promoted to ‑Grade 18 on 24‑8‑1976 which was irregular. He could have been considered for promotion to Grade‑18 on 27‑1‑1980 when he would be deemed to have completed 5 years regular service in Grade 17.

(d) He was not eligible for induction into the F.A.G. but was so inducted in Grade 18 on 4‑1‑1977.

24. Respondent No. 14 (M. Yunus Ghangi).‑(a) A Superintendent, who was allowed to hold current charge of the routine duties of the post of Section Officer in the Ministry of Foreign Affairs in addition to his own duties with effect from 21‑4‑1970 until further orders, this was done vide Ministry of Foreign Affairs Gazette Notification No. Estt. (1I)‑2/9/68, dated 18‑7‑1970. He assumed charge of Section Officer's office on 21‑4‑1970.

(b) Appointed Assistant Director (ad hoc) vide Ministry of Foreign Affairs Gazette Notification No. Estt. (II)‑9/6/72, dated 5‑8‑1972. Assumed the said appointment on 21‑7‑1972.

(c) The above notification was objected to by the Accounts on 16‑9‑1972 on the plea that Mr. Ghangi "was holding the post of Superintendent and not that of a Section Officer with effect from 21‑7‑1970 and that a revised notification was necessary."

(d) Vide Ministry of Foreign Affairs O.M. No. Estt. (II)‑11/56(70, dated 9‑1‑1973 he was appointed as Assistant Director on ad hoc basis.

(e) Vide Ministry of Foreign Affairs Notification No. Estt. (II)‑9/5/72, dated 3‑4‑1973, the F.P.S.C. allowed Mr. Ghangi to continue as Assistant Director in the Ministry of Foreign Affairs and until further orders.

(e) Also appeared in 1969 promotional examination of Section Officers but failed to qualify vide Estt. Division O.M. No. 5/2/72‑C. III (A) (Pt‑1), dated 14‑6‑1972. Promoted to Grade‑18 on 9‑12‑1976.

(f) His name does not appear in any seniority list because of his ad hoc status throughout except that of the F A G to which he had no title under any law and yet was inducted thereto on 4‑1‑1977.

(g) From the record available on the files it is abundantly clear that Mr. Yunus Ghangi was literally thrust down the throat of the F.A.G. It is noteworthy that even though Mr. Ghangi was finally cleared for induction into the F A G, vide Establishment Division D.O., dated 4 3‑1.977 he stood inducted into the F A G already with effect from 4-1‑1977. What greater violation of rules could there be

25. Respondent No. 15 (Mohiuddin).‑(a) He was a Superintendent in Ministry of Foreign Affairs. Qualified in the second promotion examination of Section Officers. Was appointed Section Officer in the Ministry of Foreign Affairs vide Establishment Division Gazette Notification No. 2/1/71‑C‑(III), dated 13‑5‑1971 on temporary basis and until further orders. He assumed charge of Section Officer in the Foreign Office on 25‑3‑1970 vide Ministry of Foreign Affairs Gazette Notification No. Estt. (II)‑1/2/72, dated 13‑4‑1972.

(b) He was an ad hoc Section Officer till encadered into the O M G on 27‑1‑1975 from which date his regular service in Grade‑.17 shall reckon He was irregularly promoted to Grade‑18 on 24‑12‑1976 when according to the rules he could not have been promoted before putting in 5 years regular service in grade and this fell due on 27‑1‑1980.

(c) He was not eligible for induction into the F. A. G. but was so inducted in Grade‑18 on 19‑4‑1977.

26. Respondent No. 16 (Sarfraz Ahmed).‑(a) He was an Assistant in the Ministry of Foreign Affairs. Qualified in the 1969 promotional examination and appointed on ad hoc basis vide Establishment Division Gazette Notification 2/1/71‑C. III, dated 4‑5‑1971. He was not given any right of encadrement in the C. S. S. and was declared liable to be reverted to his original post as soon as regular candidates became available. Reposted to Ministry of Foreign Affairs as ad hoc vide Establishment Division notification of even number dated 5‑5‑1972 in modification of earlier Gazette Notification. He assumed charge on 18‑5‑1972.

(b) He was an ad hoc Section Officer till encadered into the O. M. G. on 27‑1‑1975 from which date his regular service in Grade‑17 shall reckon. He was irregularly promoted to Grade‑18 on 24‑12‑1976 when according to the rules he could not have been considered before putting in 5 years regular service in Grade‑17 and this fell due on 27‑1‑1980.

(c) He was not eligible for induction into the F. A. G. but was so inducted in Grade‑18 on 19‑4‑1977.

27. Respondent No. 17 (Abul Hassan).‑(a) A stenographer in Foreign Office. Qualified in 1969, promotional examination. Vide Establish ment Division Gazette Notification No. 2/1/71‑C. 111, dated 4‑5‑1971 he was posted to Ministry of Finance on temporary basis and until further orders. Then vide Gazette Notification of even number, dated 5‑5‑197'2 he was posted to the Ministry of. Foreign Affairs in modi fication of their earlier notification, dated 4‑5‑1971. Assumed appointment of Section Officer in Ministry of Foreign Affairs on 5‑7‑1972 vide Foreign Office Gazette Notification No. Estt. (11)‑1/7/72, dated 13‑7‑1972.

(b) He was an ad hoc Section Officer fill encadered into the O. M. G. on 27‑1‑1975 from which date his regular service in Grade‑17 reckons. He was irregularly promoted to grade 18 on 17‑2‑1977 when he could not have been considered for this grade till he had put in 5 years, regular service in Grade‑17 and this fell due on 27‑1‑1980.

(c) He was not eligible for induction into the F. A. G. but was so inducted in Grade‑18 on 19‑4‑1977.

28. Respondent No. 18 (Miss Rehana Ahmed)..‑(a) We know very little about her background for want of information from the record. All we have been able to establish is that she became Section Officer on 26‑11‑1960 (equivalent to Grade 17) and later promoted to Grade 18. The Selection Committee of the Foreign Office consisting of Additional Foreign Secretary and two Directors General placed Miss Rehana Ahmed in category B'. This meant that she had not been selected and was to be considered whenever the next selection was made. In this connection Additional Foreign Secretary's D. O. letter No. O & M‑1/23/75, dated 26‑2‑1976 to the Joint Secretary, Establish ment‑Division refers. However, on a representation dated 21‑1‑1977 to the Foreign Secretary, the Foreign Secretary (Administration) vide his letter No. O & M‑1/23176, dated 3‑5‑1977 to the Special Secretary Establishment Division said that even though Miss Rehana Ahmed had not been previously selected for the reason that she required more experience but on her representation, it had been decided to place her in Category A' and induct her into the Foreign Affairs Group immediately. This was approved by the Special Secretary, Establishment "Division vide his D. O. letter, dated 7‑5‑1977 and Miss Rehana Ahmed was inducted into the F. A. G. from 9‑5‑1977.

(b) We have no doubt that this was a case of favouritism. The Foreign Secretary had no authority to overrule the duly constituted Depart mental Selection Committee and favour respondent No. 18 in the manner in which it has been done. We hold the induction of respon dent No. 18 into the F.A.G. to be irregular because she was consider ed unsuitable by the Departmental Selection Committee and shortly thereafter upgraded which could not have happened except after a passage of time which to our knowledge was not allowed to pass in this case.

(c) She was not eligible of induction into F. A. G. but was so inducted in Grade‑18 on 9‑5‑1977.

29. As would be seen from individual analyses of the respondents 3 to 18 given at paras. 13 to 18 above, we have (except respondent No. 18 about whose status we are not sure) no doubt that (except 14, who was ex‑cadre) all other respondents have been ad hoc Section Officers till regularized under the authority of Establishment Division O. M. No. 1/2/75‑A. R. C., dated 27‑2‑1975 as amended by O.M., dated 17‑2‑1970 given at, pages 575 of Estacode.

30. We would now like to define "ad hoc basis" as given in the Civil Servants Act, 1973. Para. 2 (a) defines ad hoc appointment : .

"as an appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method."

31. "Regular basis" as defined in the F.P.S.C. (Functions) Rules. 19.78 reads:

"When used with reference to an appointment means appointment other than on ad hoc basis or on contract or on a 'temporary basis for a specified period."

38. Now, to touch on seniority as defined under section 8 (4) of the Civil Servants Act, 1973 "seniority in the grade to which a Civil Servant is promoted shall take effect from the date of regular appointment to post in that grade;

Provided that Civil Servants who are selected, for promotion to ; higher grade in one batch shall on their promotion to a higher grade retain their inter se seniority as in the lower grade,"

33. We would also like to quote serial No. 134 Estacode page 11 (Estt. Division O.M. No. 1 (8)/72‑D, dated 4‑5‑1972) wherein it has bee clearly laid down that

"ad hoc service does not reckon for purposes of seniority when the ad hoc appointment is later on converted to regular appointment.

Instructions have also been issued in Establishment Division's O. M. No. 3/29170‑D. III, dated 7‑1‑1971 that ad hoc appointees should not be promoted to a higher grade."

All the respondents (less 18) have been found to be ad hoc appointees. Their services were regularised on 27‑1‑1975 once the O M G was created (except respondent 14). Their regular service in Grade‑17 shall, therefore, reckon with effect from the same date viz. 27‑1‑1975 and their promotion to Grade‑18 regulated accordingly as already mentioned in respect of each of the respondents.

34. We would also like to refer to rule 9 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 wherein it is clearly enshrined that;

"Appointment by transfer shall be made from amongst the persons holding appointment on a regular basis in the same grade in which the post to be filled exists.'.',,. .

The induction of respondents in Grade‑18 was transfer through lateral entry. It was expected that the respondents before induction would be holding Grade‑18 appointments on a regular basis but this was not so and hence this rule has been violated.

35. We shall also rely on para. 9 of O M dated 27‑1‑1975 (page 577 Estacode) which lays down :‑

9. Grade 18.‑.Promotion to Grade‑18 will be from amongst Section Officers of Grade‑17 who have rendered at least 5 years of service in this grade in accordance with the provisions of the Civil Servants (Promotion, Appointment and Transfer), Rules 1973."

The above para. may be read with rule 9 at para. 34 above. Also, as already brought out, respondents 3 to 13 and 15 to 17 did not complete 5 years in Grade‑17 with effect from 27‑1‑19.'5 viz. the date of their regular appointment hence their promotion to grade ,has been irregular.

36. We would also quote the learned Supreme Court Judgment cited in Mian Muhammad Afzal and others v. Government of the Punjab and others (1982 S C M R 408). The relevant portion of the judgment at para. 11 reads;

"We propose taking up the question of the nature and effect of ad hoc appointment first because it is common to the first three appellants and to some of the respondents. Their appointments as Assistant Engineers were expressed to be ad hoc, temporary not conferring any right to seniority etc. The word "ad hoc" has the dictionary meaning of "for a particular object". The object as appearing from the appointment of the appellants as well as that of some of the respondents was that their appointments were made and were to last only as long as regular appointments in accordance with the prescribed Rules were not made. The moment the regular appoint ments in accordance with the procedure prescribed were made, such appointments were to terminate. Ad hoc appointment 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 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 would be seen that ad hoc, temporary appointment' as was the case with respondents 3 to 17 (and presumably respondent No. 18) did not confer any right of seniority. Ad hoc appointees for a certain period cannot claim their seniority from their date of appointment whether or not their service was continuous. Right to seniority would have accrued to the respondents only if their appointments/promotions had been held to be valid and in accordance with the rules which is not the case in the appeal before us. Respondents 3 to 13 and 15 to 17 should have had their seniority fixed in Grade‑17 with effect from 27‑1‑1975 as per rules which we have quoted. Respondent No. 14 being ad hoc ex cadre throughout and never regularised, cannot claim any seniority at all. Respondent No. 18 if ad hoc like other respondents shall be treated in the like manner and her seniority fixed in Grade‑17 from the date of her regular appointment.

37. It is well‑known that human organisations usually fall short of the absolute best.‑ That the Foreign Office, for all their much vaunted experience, would fall short of even the minimum required in this simple induction case, dawned onus to our consternation, only after we had gone through the record. If para. 11 (Estacode page 569) became a mere paper law with no application to the Foreign Office world, the induction of the respondents could be termed only as some sort of a radical theory too shocking to win ready acceptance and yet allowed to become legal tender Why the Establishment Division acquiesced in so docilely defies explanation, especially when not a single one of the sixteen respondents should have found a berth (allowing them their previous or ad hoc seniority) in the F G A and yet they did and with a flourish. The inductees have been placed in a very beneficial position through means other than legal and to which the highest echelons in the Foreign Office and the Establishment Division appear to be a guilty party because in putting this perfidious induction plan interoperation, in this manner, they really trifled with the sacred rules. On the other hand and at the same time, an incalculable harm has been done to the just cause of the competitioners. The appellant is, therefore, not wrong in saying that the promotion of his batch of 1971 was stayed by almost a year because the inductees were to be accommodated (he has used the term "smuggled in" which, though expressive, is a rather strong language for a diplomatic service officer ). After what we have seen, we are also not impressed by the written reply of respondents Nos. 1 and 2 when they say :‑

". ...No attempt has been made by the answering respondents to delay the case for promotion of the appellant. The case of the appellant was initiated in October, 1976 but the promotion could not then be effected due to financial constraints and other administrative reasons."

38. The induction of the respondents should have been, rightly, proximate to the rules. At worst, certain ordinary flexible derivatives of the rules could have been tolerated but only within the four corners of the scheme of induction. To our regret, however, we find that there has been a free for all with no holds barred. As a result, the rights of the competitioners have been emasculated beyond recognition, perhaps, because the "necessity" of inducting the respondents knew no law or, at any rate, the Foreign Office and the Establishment Division arrogated to them the choice of imposing their own matrix of law outside and independent of the one laid down by the Government. Such rights of' the competitioners as have been usurped by the inductees through arcane diplomatic methods or someone's sleight of mind have to be restored logically, and in a benefiting manner.

39. The unmistakable conclusion we have arrived at is that respon dents 3 to 17 (less 14) were appointed as ad hoc Section Officers into the C S S from various dates after they had qualified in the two promotional examinations. They remained ad hoc and became regular only with effect from 27‑1‑1975 which was the date of creation of the O.M.G. Their regular service, therefore, counts from 27‑1‑1975 in Grade‑17 but this is only a bold assumption in favour of the said respondents. Whether each one of them was so appointed should be looked into by the Establishment Division. They had to serve in Grade‑17 for a minimum of 5 years before being considered for Grade‑18. The earliest they could be so considered was 27‑1‑1980 subject, of course to the stipulation that they had continued to remain in the O.M.G. Since induction into the F A G in 1977, however, their legal position underwent a radical change from that of the O.M.G. All the respondents (less 14 and 18 whom we do not consider eligible for the F.A.G. under any circumstances) had just about two years of regular service in the O.M.G. when they were inducted into the F.A.G, in 1977. They could only be given Grade‑17 in F.A.G. to begin with. Their future promotion would then onwards be regulated in accordance with their positions in integrated seniority list alongwith the competitioners keeping in view the fact that the inductees would count their seniority as lateral entrants in the F.A.G. from the 1977 dates of induction into the F.A.G. thus disentitling them to their seniority from 27‑1‑1975 which they inherited from the O M.G. In other words their induction in Grade 17 into the F.A.G. from various dates of 1977 would be a fresh start like the lateral entrants. Even though rules did not permit any benefit of seniority to an ad hoc employee, what had happened was that the said respondents were treated as Regular while they were actually ad hoc and their dates of initial ad hoc appointment were taken to be the dates of regular appointment. Due to this illegal action, the inductees were allowed the benefits of ad hoc service construing it to be regular thus causing their names to be placed in the F.A.G. seniority list at far higher positions than would be allowed. Why such a serious mistake should have occurred in the first instance and then allowed to remain uncorrected, we do not know except to impute it to the poor administration of justice. As to the respondent 14, he did not qualify in any promotional examination. His service has been throughout ad hoc and till induction into the F A G he was an ex‑cadre officer. As to the respondent 18, if she belongs to the category either of respondents 3 to 17 (less 14) or of respondent 14, her status has to be determined accordingly and. this should be done by the Office/Establishment Division. None of the respondents, evidently, satisfied the three pre‑requisites outlined at para. 10 above. Respondents 3 to 17 though considered suitable, did not fulfil the requirements of eligibility whereas respondent 18 failed in the test of suitability. In no case, any one of the respondents qualified and their illegal induction into the F.A.G. has deprived the competitioners of their legitimate and vested rights.

40. In view of the legal and factual position recorded already, we accept this appeal and hold that the induction of respondents 3 to 18 is null and void and of no legal effect. They shall be deemed never to have been inducted into the F.A.G., and we direct consequential action accordingly.

41. It is further directed that the appellant whose case for Grade‑18 which was due to be considered on or about 31‑10‑1976 but was stayed due to illegal induction of the respondents 3 to 18 shall be given the benefit of General Principles of Seniority, B (a), (Estacode pages 110‑111) considered again by the D. P. C. and the appellant, promoted with effect from 31‑10‑1976, if found fit on that date. In case found fit, he would belt entitled to arrears of pay and allowances with increments for the relevant period.

42. The seniority list of Grade‑18 officers shall be redrawn within three months of the receipt of this order in the Foreign Office.

43. From among the respondent officials, Nos. 9 and 13 relied their written replies which were identical and which we took into account. Apart from this, the respondents were represented by their counsel as well as the State Counsel..

44. Alongwith this appeal. viz. 57 (R)/1981, we also heard appeals No. 58 (R)/1981 (Tauheed Ahmad), No. 59 (R)/1981 (Sher Afghan Khan) and 60 (R)/1981 (Hassan Sarmad v. Secretary, Foreign Affairs ewe.). Since there are identical facts and law points in all the four appeals, this single order shall dispose of the said three appeals as well.

45. No order as to costs.

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