Find a Lawyer

Appeals Nos. 54 of 1983 and 44 of 1984, decided on 24th March 1985.

‑‑ S. 4(b)‑Jurisdiction of Tribunal ‑ Appellant promoted from Grade‑17 to Grade‑18 post on ad‑hoc basis against vacancy reserved for direct recruitment till a direct recruit selected by Public Service Commission‑Promotion vacancy occurring and appellant while continuing on ad‑hoc appointment recommended by Departmental Selection Committee to regularise against such vacancy but recommendation not approved by Government and appellant continuing on ad‑hoc basis‑Appellant and three others senior to him subsequently taken by D. P. C. for regular promotion and while three seniors cleared ‑ and promoted appellant not considered because of availability of only three vacancies‑Appellant cleared by D. P. C. subsequently when next vacancy became available and promoted on regular basis‑Appellant's contention that having been continuing on ad‑hoc basis should be considered as regularised and confirmed as being in continuous officiation from date when promotion vacancy had become available‑Order ing promotion of appellant on officiating basis or regular basis, in circumstances, held, outside powers of Tribunal and it was discretion of Government to accept or reject recommendations of D. P. C. Period of ad‑hoc held, not reckonable towards seniority.

Khushi Muhammad's case P L D 1970 S C 203 ref.

Saifuddin v. Secretary to Government of Punjab 1982 S C M R 877 rel.

‑‑ Promotion‑Seniority in higher scale ‑ Mere recommendations of Departmental Selection Committee for promotion‑Does not create any right‑Government not bound by such recommenda tion‑Officer promoted on ad‑hoc basis and while continuing on ad‑hoc basis recommended by D. P. C. for regular promotion Such recommendations not approved by Government ‑ Claim for seniority in higher scale on basis of such recommendation of D. P. C., held, rightly rejected.

Manzoor Ali Khan for Appellant.

Naimatullah Qureshi for Respondents Nos. 4 and 5.

Hassan Akbar A. A.‑G. for the State.

Date of hearing : 17th March, 1985.

‑These are two connected appeals filed by the appellant, a Grade‑18 officer in the Department of Agriculture, Livestock and Fisheries, Government of Sind, regarding regularisation of his ad‑hoc appointment.

The appellant was originally appointed in the Government of Sind on 23rd January, 1953 and this post was subsequently brought in Grade‑17. His case for promotion was considered by the D. P. C. at its meeting held on 9th June, 1975 and he was approved for promotion to Grade‑18 on ad‑hoc basis against a post lying vacant and reserved for direct recruitment, till a direct recruit could be selected by the Sind Public Service Commission. The Government accepted the recommendation and promoted the appellant on ad‑hoc basis under notification dated 30th August, 1975. Subsequently, the D. P. C. at its meeting held on 15th June, 1978 observed that a post in Grad‑18 would be available on 1st June, 1978 due to retirement of Mr. Qutubuddin who was proceeding on L. P. R. with effect from 30th July, 1978 and the ad‑hoc promotion of the appellant be regularised in Grade‑18 against that post with effect from 1st July, 1978. This proposal was not, however, accepted by the Govern ment and the appellant continued on ad‑hoc basis. Since the ad‑hoc officers had no claim to seniority the name of the appellant was not included in the seniority list as seniority list of 20th January, 1983. The appellant, therefore, preferred a departmental appeal dated 28th February, 1983 to the Chief Secretary. After waiting for 90 days the appellant preferred the present appeal before this Tribunal on 21st June, 1983. Thereafter the question of regularisation of promotion of officers to Garde‑18 is Agriculture, Livestock and Fisheries Department was processed to the S&GAD. It was found that in the seniority list of Grade‑17 Officers Messrs Wali Muhammad Ansari, Ajmal Baloch and R. A. Khan were senior to the appellant and they too were not even considered by the D. P. C. in its meeting held on 15th. June, 1978. The above three persons were, therefore, cleared by the D. P. C. for promotion sub sequently and there was no post against which, Mr. Ghalib Hyder could be considered for promotion. Thus, although, Mr. Ghalib Hyder had been working against a Grade‑18 post on ad‑hoc basis and the D. P. C. had earlier recommended the regularisation of his promotion against the next vacant post that occurred, this recommendation was not accepted by the Government and officers senior to the appellant in Grade‑17 were in stead promoted to Grade‑18. After clearance by the D. P. C. at its subsequent meeting the appellant was, however, subsequently promoted to National Pay Scale 18 on regular basis with effect from 8th February, 1984. The appellant became junior to Messrs Zahoor Muhammad Khan, Ghulam Muhammad Memon and Muhammad Nawaz Baloch, respondents, who were promoted subsequent to 1st July, 1978.

It is the case of the appellant that since he was taken up on ad hoc basis in Grade‑18 and he acted against a clear vacancy with effect from Ist July, 1978 he should be assigned his seniority in Grade‑18 with effect from the said date. That in case his post cannot be regularised from the date of his ad hoc promotion with effect from 1st September, 1975 he should be confirmed from the date of continuous officiation against a substantive vacancy‑with effect from 1st July, 1978. The learned counsel for the appellant has relied upon the famous case of Khushi Muhammad (P L D 1970 S C 203), decided by the Supreme Court.

The appellant was admittedly appointed by promotion on ad‑hoc basis as stopgap arrangement against a post reserved for direct recruitment as held by the Supreme Court in the case of Saifuddin v. Secretary to Government of Punjab (1982 S C M R 877), right to seniority cannot be claimed on basis of ad‑hoc appointment. Such appointments being outside the perview the rules cannot for any purpose be treated as conferring a benefit the rules. They cannot even claim their seniority from the date their appointment as on ad‑hoc basis whether the appointment continuous or not.

There is no doubt that the departmental promotion committee recommended the case of the appellant for regularisation against a permanent vacancy, with effect from 1st July, 1978 but the Government did not accept the recommendation of the D. P. C. The case of officers senior to the appellant in Grade‑17 which was the substantive grade of the appellant had not been considered at that meeting. The cannot, therefore, claim seniority simply on the recommendation of D. P. C. The Government is not bound by that recommendation mere recommendation does not confer any rights on the appellant. Nor does the recommendation alter the appointment of the appellant on ad hoc basis to an appointment on officiating basis so as to give him right of confirmation from the date of continuous officiation against a substantive vacancy in Grade‑18. It was, however, the discretion of the Government to have accepted the recommendation of the D. P. C. in view of the fact that the appellant was already acting on ad hoc basis in N. P. S. 18 at a time when the respondents were still occupying Grade‑17 posts. It is not, however, open to the Service Tribunal to order promotion of appellant on officiating or regular basis as under section 4(b) of the Sind Service Tribunals Act, 1973 determining the fitness or otherwise of a person to held a particular post or grade is outside the powers of the Tribunal.

In the result both the appeals are dismissed with no order as to costs.

A. E.

Find a Lawyer Near You

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