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Appeal No. 88 of 1983, decided on 17th March, 1985.

‑‑Ss. 8 (4) & 24,‑Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, r. 10 (2) and Sind Government Letter No. SOI‑Reg : (S&GAD) 2/D/2‑77, dated 31st January, 1977‑Ad hoc appointment‑Regularisation of‑Sind Civil Servants Act, 1973 no where states that Government has no powers to regularise ad‑hoc appointment retrospectively‑Matter within plenary powers of Government‑Rule 10 (2) of Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 providing that no ad‑hoc appointment shall be regularised retrospectively and instructions that S. 24 of Sind Civil Servants Act, 1973 should not be invoked in such matters, held, tend to limit scope of application of provisions of Act 1973‑Rules or instructions which are inconsistent with Act 1973 or limit application of its provisions would be ultra vires of Act 1973 and of no legal effect.

Muhammad Anwar Khan v. Secretary, Agriculture Department and 13 others 1974 P L C (C.S.T.) Note 36 ref.

Syed Zawwar Hussain Shah v, Province of West Pakistan P L D 1968 Kar. 693 rel.

‑‑Rules‑Retrospectivity‑Ominus nova constitutio futuris forman imponere debet non praeteritis‑New law affects future transactions not the past‑New law or rules ought to be construed so as to interfere as little as possible with vested rights‑Rule based on justice and expediency on grounds that all deprivation of existing rights is prima facie wrong‑Ad hoc appointment regularized retrospectively by order issued in 1974‑Provisions of rules framed in 1975 that ad‑hoc appointment cannot be regularised retrospec tively, held, cannot be made applicable to orders issued in 1974 Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, r. 10 (2).

‑‑Locus poenitentiae‑Power of receding till a decisive step is taken‑Can be exercised only if no step taken to carry out order in question into effect‑Government cannot withdraw an order where rights already accrued under such order and cannot give effect to a fresh order with retrospective effect‑Notification regularizing ad‑hoc appointment retrospectively issued and seniority fixed accordingly‑Cancellation of such notification because of subsequent promulgation of Rules that ad hoc appointment cannot be regularized retrospectively, held, not open to Government‑General Clauses Act (X of 1897), S. 21.

Shahbaz v. Crown P L D 1956 F C 46 rel.

Manzoor Ali Khan for Appellant.

Hasan Akbar, A. A.‑G. for Respondent No. 1.

Naimatullah Qureshi for Respondents Nos. 3 and 4.

Date of hearing : 7th March, 1985.

‑The appellant has filed this service appeal to claim seniority over the respondents in the grade of Assistant Director, Labour Welfare. The appellant was appointed initially as Assistant Director, Labour Welfare at Karachi on ad‑hoc basis on 16th January, 1971. Thereafter, his appointment was regularised by the Public Service Commission, with effect from 18th March, 1974. Respon dents 3 to 9 were promotee Assistant Directors, Labour Welfare. They were promoted on ad‑hoc basis and later on notifications were issued regularising their appointments from particular dates as under :‑

On 5th December, 1973 the Sind Civil Servants Act, 1973 came into force. Under section 8 (4) of the said Act it was provided that "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". On 2nd October, 1975 Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 were promulgated. Under rule 10 it was mentioned that seniority of a civil servant shall be reckoned from the date of his regular appointment and no appointment made on ad‑hoc basis shall be regularised retrospec tively.

Since the Government bad already prepared and circulated seniority list on the basis of dates of regularisation in respect of the Assistant Directors, Labour Welfare, the appellant felt aggrieved because by that time it was stated under the rules that no regularisation could take place with retrospective effect, although, the appellant's ad‑hoc appointment had been regularised with effect from 18th March, 1974 by a notification issued in May, 1974. The other officers had been regularised with effect froth 9th November, 1973 by notifications issued during September, 1974. Thus, the regularisation notifications in respect of the respondents were issued after the regularisation notifications of the appellant, but their dates of regularisation were shown during 1973, prior to the date of regularisa tion of the appellant, viz. 18th March, 1974. The appellant accordingly took advantage of the rules promulgated on 2nd October, 1975 and called in question the retrospective regularisation contained in the notifications of 1974.

It has been argued by Mr. Manzoor Ali Khan on behalf of the appellant that under section 2 (a) of the Sind Civil Servants Act, 1973 ad‑hoc appointment has been defined as appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method. He has also referred us to rule 19 of Sind Civil Servants (Appointment, promotion and Transfer) Rules, 1974, that the appointment authority could fill a post on ad‑hoc basis for a period not exceeding six months while forwarding a requisition to the Public Service Commission for filling the said post within two months of the ad‑hoc appointment. The learned counsel for the appellant has also pointed out administrative instructions regarding regularisation of ad‑hoc appointments, dated 31st January, 1977. It was mentioned in those circulars that as far as possible while regularizing ad‑hoc appointments, cases of individual hardship should no longer be dealt with under section 24 of the Sind Civil Servants Act as provisions for meeting such cases had been made under rule 13 of the Seniority Rules, etc.

Thus under the revised rules, pending requisition to the Public Service Commission or departmental promotion/selection committee for selection, an ad‑hoc appointment could be made for a fixed period of six months. The requisition was required to be forwarded to the Public Service Commission or the committee within two months of the ad‑hoc appoint ment. But prior to the coming into force of the Civil Servants Act and the Seniority Rules, it was common practice to promote officers or appoint them initially on temporary, offciating or ad‑hoc basis and they continued as such for years until they were found to be suitable and were either regularised or confirmed. The date of regularisation or confirmation was left to the discretion of the appointing authority and they generally followed the recommendations of the Public Service Commission in this respect. In this very case respondent No. 3, S. B. Shuttari, was promoted on ad‑hoc basis on 2nd November, 1971 and was regularised on 1st July, 1978 after nearly 8 years. Respondent No. 9, Mr. Bashiruddin was promoted on ad‑hoc basis on 9th November, 1973 and was regularised on 18th September, 1974.

Since there was no prohibition against appointment of officers on regular basis from prior dates provided, on such dates they were actually officiating in the same grade, such orders were not considered to be irregular or illegal. The appointing authority had the discretion to regularise the appointments either from the date of the order or from earlier dates if the officers were holding posts temporarily from such dates. In the case of Muhammad Anwar Khan v. Secretary, Agriculture Department and 13 others (1974 P L C (C.S.T.) Note 36), it was held that regularisation of ad‑hoc appointments should be made by the departments following consistent policy- Regularisation to be made either from the date of ad‑hoc appointment retrospectively or from date of regularisation in all cases without discrimination.

Similarly confirmations in respect of officiating officers could be made either from the date of the order or from the date of continuous officiation of such officers in the grade against a substantive vacancy. This is provided even under the Civil Servants Act, 1973, section 7 (5) :‑

"Confirmation of a civil servant in a service or post shall take effect from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiation in such service or post whichever is later."

Section 24 of the Civil Servants Act is an enabling section that confers general powers on the Government or the appointing authority to pass any order in respect of the terms and conditions of civil servants that may be considered just or equitable, so that no hardship is caused in individual cases. There is no legal bar imposed on the exercise of Government's discretion in this respect. The Government could, therefore, pass orders of regular appointment of an officer from the date prior to the date of making the order, i.e., retrospectively from a date on which that officer was actually in service in that basic pay scale. This is amply clear from section 7 (5) of the Civil Servants Act. There is no prohibition in the Civil Servants Act against confirming an officer from the date of his continuous officiation in a particular basic pay scale.

The learned counsel on behalf of the appellant has based his case on instructions of S & GAD No. S O I X‑REG : (S & GAD) 2/13/2‑77, dated 31st January, 1977 on the subject of REGULARISATION OF AD‑HOC APPOINTMENTS. In this circular rule 10 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 has been quoted that no appointment made on ad hoc basis shall be regularised retrospec tively. That all orders issued after promulgation of the Sind Civil Servants Ordinance, 1973 converting the ad‑hoc appointment into regular appointment with retrospective effect are invalid and inoperative. That they may, therefore, be modified. That some of the departments had expressed the view that the application of the above‑mentioned provision involves hardship to ad‑hoc appointees who suffer in seniority due to the delay in making regular appointments, as the seniority under the rules is to be reckoned from the date of regular appointment. That the question of application of section 24 of the Sind Civil Servants Act in such cases of hardship was considered and it was agreed that section 24 should not be invoked as a matter of policy as provision had been made under rule 13 of the Seniority Rules to confer protection to senior civil servant who is not promoted on his turn. That in view of the decision taken at a meeting there was no longer any justification for retrospective regularisa tion which by that date (31st January. 1977) be treated as closed. That the cases of hardship should only be dealt with under the Seniority Rules (and not under section 24 of the Civil Servants Act).

The above circular relied upon by Mr. Manzoor Ali Khan for the purpose of this appeal, to say the least, is directly in conflict with the Sind Civil Servants Act, 1.973 as it clearly limits the application of section 24 to alleviate the hardship of ad‑hoc appointees in respect of seniority on regularisation. In the case of Syed Zawwar Hussain Shah v. Province of West Pakistan (P L D 1968 Kar. 693) it was observed by Muhammad Gul and Muhammad Afzal Cheema, JJ. that "plenary powers of Governor or his nominee to make appointments is subject only to express provisions of constitution or law. Instructions/executive orders merely directory or mandatory cannot abridge plenary powers of Governor or his nominee. Such instructions/executive orders do not establish any legal right and do not constitute the terms and conditions of service admissible to a civil servant".

The above considerations would be applicable even in case of the rules made under any enactment.' The purpose of framing rules is to facilitate the implementation of the provisions of the Act. They are procedural in nature and they cannot either enlarge or limit the scope of the enactment. Thus, the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 have been framed in exercise of the powers conferred by section 26 of the Civil Servants Act. Section 26 provides that the Government may make rules for carrying out the purpose of the Civil Servants Act and any rules, orders or instructions in respect of any terms and conditions of service of civil servants shall be considered as rules made under this Act only to the extent that such rules are not inconsistent with the provisions of the Act.

The Sind Civil Servants (Probation, Confirmation and Seniority Rules, 1975 like the instructions quoted above also tend to limit the scope of the application of the provisions of Civil Servants Act. It is nowhere stated in the Civil Servants Act that the Government has no powers to regularise an appointment made on ad hoc basis retrospectively, even in cases of individual hardship. On the other hand, section 24 of the Civil Servants Act gives wide powers to the Government to deal with the case of any civil servant in such manner as may be deemed just and equitable. Therefore, the rules or instructions which are inconsistent with the Act or limit the application of its provision would be ultra vires, void and of no legal effect.

It may also be pointed out that the above Seniority Rules of 19751 came into effect on 2nd October, 1975 and such rules cannot be made applicable to any case retrospectively. Rules are prospective and never retrospective in their effect and operation. This has been the law of the nations from the earliest times. Omnis nova constitutio futuris Forman imponere debet non praeteritis. 'The new law affects future transactions not the past. The new law or rule ought to be construed so as to interfere as little as possible with vested rights. The rule is based on justice and expediency, on the ground that all deprivation of existing rights is prima facie wrong. It has been a well‑recognised rule laid down in re Athlumney Ex parte Wilson : That retrospective operation should not be given to a statute so as to impair existing rights or obligations. It is accordingly beyond our comprehension how a rule promulgated on 2na October, 1975 is being sought to be made applicable to orders or notifica tions made in 1974. Of the seven cases of the respondents, five have been finalized on 18th September, 1974. The only two notifications concerning rest of the respondents are dated 1st July, 1978 and under those notifica tions the dates of regularisation are not retrospective.

In any case there is some sanctity attached to the orders and notifica tions issued by the Government in respect of the terms and conditions of service of the civil servant and such orders or notifications cannot be altered, rescinded or withdrawn subsequently with impugnity. Section 21 of the General Clauses Act gives general powers to the authority issuing notifications, orders etc. to add to, amend, vary or rescind them ; but this power is available to the Government; or authority only till any decisive step is taken towards implementation of such notification or order. If the order has been given effect to or acted upon, this power comes to an end. This rule has been enunciated by the Federal Court in Shahbaz v. Crown (P L D 1956 F C 46) and the rule has been relied upon by the Court in a number of important decisions till the present day locus poenitentiae, or the power of receding till a decisive step is taken, available to the Government under section 21 of the General Act, but this power can be exercised only if no step is taken to carry the order into effect. Where rights have accrued under such order Government cannot withdraw it and give effect to a fresh order retrospective effect, and thus deprive a person of the accrued rights the present case the respondents' seniority, a valuable right for purpose of promotion, got vested in them when the notification was and their seniority was fixed accordingly in the gradation list, It was open to the Government after several years to cancel the notifications because a rule regarding fixation of seniority affecting such rights had promulgated subsequently at a late stage. Thus the notifications regularisation of appointments of the respondents, affecting seniority the appellants, could not be altered, amended or rescinded by Government at the instance of the appellant on the ground that violated a rule framed subsequently.

We, therefore, find no substance in the claim of seniority of the appellant over the respondents and we accordingly dismiss the appeal with no order as to costs.

A. E.

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