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Civil Petition No. 1160 of 1983, decided on 5th February, 1984.

(On appeal from the judgment dated 29‑6‑1983 of the Punjab Service Tribunal in Appeal No. 21/10/1983).

‑‑ Art. 212‑Martial Law Instructions (M. L. A. Lone 'A'), No. 21 Leave to appeal granted to consider questions whether all appointments whether by initial or direct recruitment made otherwise than prescribed method of recruitment /promotion were to be deemed to have been made on ad hoc basis notwithstanding they have been made in purported exercise of power of relaxation of Rules and whether such appointment was covered by Martial Law Instruction No. 21 and deemed to be as ad hoc appointment.‑[Civil service].

Art. 212‑Civil Service‑Grant of leave to appeal to department Employee already stood relieved from one department and notification to that effect issued‑Such employee reporting for duty to other department before any order of status quo, was passed by High Court---Other department neither issuing any posting order in his favour nor paying any salary‑Supreme Court ordered suspension of notification relieving employee from said department with instruction that employee be given a posting immediately and paid all salary due to him for period for which salary not paid.‑[Civil service].

Tanvir Ahmad Khan, Assistant Advocate‑General, Punjab and Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioner.

Ch. Khurshid Ahmad, Advocate Supreme Court and Rana M. A. Kadri, Advocate‑on‑Record for Respondent.

Date of hearing : 5th February, 1984.

The respondent, Sardar Hussain, was an Administrative Officer in the Agriculture Department and was working as Private Secretary of Mr. Dreshak Minister of Irrigation and Power in the Punjab Government in 1976. Mr. Dreshak was very pleased with his work and recommended that he may be appointed as Excise and Taxation Officer in relaxation of all provisions of Service Rules against an existing/next available vacancy meant for direct recruitment. The Chief Minister approved his recommendation on 2‑1‑1976 and the respondent was appointed as Excise and Taxation Officer in Grade 17 in relaxation of all the provisions of Service Rules on order of the Governor of the Punjab vide notification issued op 20‑2‑1976.

After the change‑over on 5‑7‑1977, the Martial Law Administrator Zone "A" promulgated on 8‑8‑1977 Martial Law Instruction No. 21 enable scrutiny of ad hoc appointments made during the previous regime. Such appointments were to be scrutinized afresh by the Public Service Commission and only if found to have been made properly and regularly were to be maintained, otherwise the appointees were to be reverted to the original rank.

The case of the respondent was also referred to the Public Service Commission treating him to be an ad hoc appointee. The Public Service Commission found him ineligible to hold the post of Excise and Taxation Officer vide their advice contained in letter, dated 1‑9‑1977. Accordingly, the ad hoc appointment of the respondent was revoked and he was reverted to his parent Department i.e. Agriculture Department vide order of the Secretary to Government of the Punjab, Excise and Taxation Department, dated 5‑9‑1977. The respondent challenged the above order of reversion by an appeal before the Punjab Service Tribunal.

The learned Service Tribunal held that the respondent could not be con sidered as ad hoc appointee and, therefore, not within the ambit of Martial Law Instruction No. 21. The Tribunal was of the view that Martial Law Instruction No. 21 covered only such cases wherein any person had not been appointed without following prescribed method. This, according to the Tribunal, was not the case here, as the Governor could, under the law, relax any of the conditions of service in any individual case. Hence the appointment of the respondent must be deemed to by an appointment in the prescribed manner and he could not be considered to be an ad hoc appointee. The appeal of the respondent was, accordingly accepted and it was directed that the respondent be considered to be an Excise and Taxation Officer since the date of his appointment. This order was passed on 29‑6‑1993.

The respondent, after the above order was passed, got himself relieved Administrative Officer in the Agriculture ‑Department on 2‑7‑1983 and reported himself for duty to the Secretary to Government of the Punjab, Excise and Taxation Department, Lahore on 3rd July, 1983 for being given a posting as Excise and Taxation Officer.

The Provincial Government, however, filed this petition for leave to appeal against the order of the Tribunal and a Judge in Chambers granted an order status quo on 5‑11‑1983.

The petition for special leave to appeal has come up for hearing today. The learned Assistant Advocate‑General has, in support thereof, submitted that the learned Service Tribunal has overlooked the following part of the Martial Law Instruction No. 21, namely:‑

"Martial Law Administrator Punjab, Zone "A", further directs that all appointment, whether by initial recruitment or by promonion, made otherwise than in accordance with the prescribed method of recruitment/ promotion, shall be deemed to have been made on ad hoe basis not withstanding that they have been made in the purported exercise of power of relaxation of rules and their cases will also be regulated according to policy given in para. 2 above."

He, therefore, argued with some force that all appointments whether by initial or direct recruitment made otherwise than prescribed method of recruitment/ promotion are to be deemed to have been made on ad hoc basis notwithstand ing they have been made in the purported exercise of power of relaxation of the rules. Consequently, the appointment of the respondent was covered by the terms of the above Martial Law Instruction and, according to it, was to be deemed as an ad hoc appointment.

The question 'raised requires further consideration. Leave is, accordingly, granted.

The appeal shall be made ready on the present record, with liberty to the parties to add further documents, if any and put up for hearing at a very early date.

So far as the stay matter is‑ concerned, the learned counsel for the respondent pointed out that the respondent already stood relieved from the Agriculture Department and a notification to that effect was issued on 2‑7-1983 and he reported for duty to Excise and Taxation Department on 3‑7‑1983 before any order of status quo was passed, but the Excise and Taxation Department has not only not issued any posting order in his favour but has also not paid any salary so far.

We consider that in all the circumstances the best course would be to suspend the notification, dated 2‑7‑1983 relieving the respondent from the Agriculture Department. The effect of this will be that the respondent shall stand reverted again to Agriculture Department, where he should be given a posting immediately. He should also be paid all the salary due to him for all months for which salary has not been paid to him so far. This should be done within two weeks at the latest.

M. Z. M. Leave granted.

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