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Appeal No. 5 of 1984, decided on 29th April, 1985.

‑‑Ss. 2 (a) & 8 (4), Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, r. 10, Martial Law Order No. 55 (M.L.A. Zone C‑1978), Constitution of Pakistan, 1962, Art. 179, Funda mental Rules, S. 111, Ch. II, rr. 9 (3) (4) & 22‑Ad hoc appoint ment‑Sind Civil Servants Act, 1973 and Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 ‑ Not applicable to appointments retrospectively and no cases can be re‑opened just because they do not conform to requirements of Act and Rules ibid‑Act and Rules ibid have no application in respect of appointments made prior to their coming into force‑Terms and conditions of service of civil servants prior to coming into force of Act and Rules ibid were governed by Fundamental Rules, and they enjoyed Constitutional guarantees under Constitution of Pakistan 1962‑Terms "ad hoc appointment" and "regularisation of appointment" did not exist prior to coming into force of Act and Rules ibid‑Services were of two kinds viz. "temporary" and "non‑tempo rary" and distinction was based on question of Constitutional guarantees not being available to temporary employees by virtue of Art. 179 of Constitution of 1962‑Cadre as defined in r. 9 (4) of Fundamental Rules consisted of strength of service or part of service sanctioned as a separate unit of permanent or temporary posts‑Post sanctioned without time limit a permanent post vide r. 9 (22) of Fundamental Rules and post sanctioned for a limited time was a temporary post as per r. 9 (3) of Fundamental Rules -Appointment to a post could be (i) substantive, or (ii) on probation or (iii) on officiating basis‑Substantive appointment to a temporary post for an undefined period was regarded as non‑temporary and incumbant thereof was not hit by Art. 179 of Constitution of 1962‑Foodgrain Inspector appointed on 28th October, 1972 as Ward Rationing Officer on temporary basis against clear vacancy of direct recruitment by relaxation of prescribed method of recruit ment through Public Service Commission by order of Chief Minister who had powers to relax rules‑Appointment treated as ad hoc on enforcement of M.L.O.‑55 in 1978 and case referred to Public Service Commission for determining fitness‑Commission clearing appointee and notification to that effect issued by Government on 2nd July, 1978‑Appointee given seniority w.e.f. 2nd July, 1978 creating same as regular appointment from that date and service prior to that date nut counted treating same as ad hoc appointment- Entire cadre of Food Department continued on temporary basis from year to year‑Appointment having been against clear substantive vacancy for indefinite time in relaxation of rules, prior to coming into force of Sind Civil Servants Act, 1973, in circumstances, held, could not be termed as "ad hoc" and having continued upto promulgation of M.L.O.‑55 (1978) appointee could claim Constitu tional gurantees under Art. 179 of Constitution of 1962 and terms "ad hoc" and "regularisation" used in M. L. O.‑55 could not adversely affect seniority of appointee countable from date of his initial recruitment as Ward Rationing Officer Plea that initial appointment having been made on temporary basis carried no right or safeguard and could be terminated at any time‑All appointments in Food Department being on temporary basis, plea rejected and nature of appointment, held, has no effect on question of inter se seniority which would be governed by dates of appointment to grade.

Manzoor Ali Khan for Appellant.

Naimatullah Qureshi for Respondents Nos. 4, 8, 14, and 18.

Date of hearing : 23rd April, 1985.

The appellant, a District Food Controller, in N.P.S‑16 has preferred this appeal claiming seniority in the cader as against respondents 3 to 18.

The facts in brief are that the appellant had originally joined the Food Department Government of Sind as a Foodgrain Inspector. ‑He was afterwards appointed as a direct recruit against the clear vacancy of Ward Rationing Officer, N.P.S.‑16 by the Government of Sind, This appointment made by the Government without referring the case for selection under the rules to the Public Service Commission. The Chief Minister, Govern ment of Sind, had the powers to relax the rules in respect of any such post and dispense with prescribed method of recruitment. The order was passed dated 28th October 1972 relaxing the rules regarding the maximum age limit and the method of recruitment in respect of the appointment of the appellant. The order reads as under :‑

"The Government of Sind are pleased to order the relaxation of the maximum age limit to the extent of 8 years. 7 month and 14 days in favour of Mr. Ghulam Sarwar Qureshi, Foodgrain Inspector in the Office of the Ration Controller, Hyderabad, for appointment by initial recruitment against the post of Ward Ration Officer.

The method of recruitment for appointment to the post of Ward Ration ing Officer by initial recruitment is also hereby relaxed as a special case."

By another order of the same date signed by the Secretary to Govern ment of Sind, Directorate of Food the appellant was appointed Ward Rationing Officer against the 25% quota reserved for appointment by initial recruitment.

The appointment was, however, described as temporary and not per manent. Since the appointment was not for a fixed term nor a stop‑gap arrangement the appellant continued to hold this post from 28th October, 1972 onwards.

On 2nd May, 1978 Martial Law Administration, Zone C' for the Province of Sind Promulgated Martial Law Order No. 55. The purpose was to examine all such appointment in existence on this date in the province made in the post by incorrect relaxation of rules. The appoint ment made under orders of the Chief Minister excluding the post from the purview of Sind Public Service Commission was regarded under M.L.O.‑55 as an ad hoc appointment and such appointments were to be referred to Public Service Commission or other appropriate Committees. The cases of Grade‑16 officers whose appointments were termed ad hoc in this manner were to be referred to Public Service Commission for review and the Commission had to give a finding whether the ad hoc appointee was fit to be retained in the post held by him on the basis of initial recruitment. After the ad hoc appointed was cleared by the Sind Public Service Commission, his appointment had to be regularised by appropriate order.

The case of the appellant was accordingly referred to Public Service Commission and his appointment by initial recruitment was duly cleared.

Such notification was issued by the Government on 2nd July, 1978. The Government of Sind, Food Department, thereafter circulated seniority list of officers in N.P.S‑16 of the Food Department as it stood on 1st January, 1983 by notification dated 16th August, 1983. In this list against the name of appellant Ghulam Sarwar Qureshi, the date of regular appointment in N.P.S‑16 was shown as 2nd July, 1978 instead of 28th October, 1972 and he was, therefore, placed below respondents 3 to 18 whose dates of regular appointment in N.P,S‑16 were shown as 5th March, 1978. The appellant then filed his representation with the Government that his appointment as Ward Rationing Officer N.P.S‑16 was with effect from 28th October, 1972 and since it was not an ad hoc appointment, his seniority had to be counted from the date of his initial appointment, and not from the date the Government issued the notification after clear ance of his case by the Public Service Commission under M. L.O.‑55. Having failed to obtain redress of his grievance, the appellant pre ferred this service appeal under section 4 of the Sind Service Tribunals Act, 1973.

The learned counsel on behalf of the appellant has referred to a circular letter of the Service and General Administration Department of the Government of Sind, dated 12th June, 1979, clarifying that the purpose of M.L.O.‑55 was to review appointments which were made in violation of or incorrect relaxation of rules with a view of assessing their suitability for being retained in service. That the seniority of such officers is not to be determined on the recommendation of the Commission. The seniority and other rights of such civil servants will continue to be the same as before and they will not be adversely affected, merely because their case were pro cessed under M.L.O.‑55.

It appears that the confusion has resulted from the use of the term 'ad hoc appointments' and regularisation' used in M.L.O.‑55 and also referred to in 'the Sind Civil Servants Act, 1973'. Section 8 (4) of this Act provides that seniority in the grade shall take effect from the date of regular appointment to a post in that grade, Rule 10 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, which also appears to have been applied to the case of the appellant, lays down that seniority of civil servant shall be reckoned from the date of regular appointment. It has been emphasized by this Tribunal in various decision that the acts or rules referred to above cannot be applied to the cases or appointments retrospectively nor can such cases be re‑opened just because they do not conform to the requirements of the Civil Servants Act, 1973 and the rules made thereunder. The Sind Civil Servants Act, 1973 came into force on 5th December, 1973 and the Seniority Rules made under the Act were promulgated on 2nd October, 1975. The Act and the rules can have no application in respect of appointments made prior to the com ing into force of the Act, and the rules.

Prior to 1973 the Services of Pakistan enjoyed Constitutional guarantees under the 1962 Constitution and their terms and conditions were governed by the fundamental rules. The terms such as ad hoc appointments' and 'regularisation of appointments' did not exist prior to 1973. The services in Pakistan were of two kinds, viz., temporary or non‑temporary. This distinction was based on the question of Constitutional guarantees not being available to temporary employees by virtue of Article 179 of the Constitution of Pakistan, 1962. A cadre is defined by the fundamental rules S. III Ch. 11, rule 9 (4) as the strength of a service of a part of service sanctioned as a separate unit. Each cadre consisted of a certain number of posts which were (i) Permanent, or (ii) Temporary. i permanent post was defined by rule 9 (22) of the fundamental rules as post sanctioned without limit of time. The temporary post on the other band was defined in rule 9 (3) of the fundamental rules to mean a pose sanctioned for a limited time. An appointment to a temporary post could be (i) substantive, or (2) on probation, or (3) on officiating basis. A substantive appointment to a temporary post for an undefined period was regarded as non‑temporary employment and the incumbent thereof would not be hit by Article 179 of the Constitution (1962).

The entire cadre in the Food Department, Government of Sind, was on temporary basis. The duration of posts being subject to extention from year to year. None of' the posts were, therefore, permanent and the appointment orders in all cases mentioned the appointments to be on temporary basis. In the light of what has been described above we may examine the appointment of the appellant. This appointment was not for any fixed period. It was not stop‑gap arrangement. It was against 25 quota of direct recruits. The appointment was against a substantive vacancy. The incumbent had been recruited by the Government as special case by relaxation of rules. This appointment could not, therefore, be termed as ad hoc. On the other hand, the appointment being for inde finite duration and having continued from 1972 to 1978 up to the time of promulgation of M.L.O.‑55 was clearly meant to continue indefinitely, and on this basis the appointee could claim Constitutional guarantees under Article 179. The term ad hoc' and so also the term regularisation' used in M.L O.‑55 cannot, therefore, adveresly affect the seniority o the appellant.

Mr. Naimatullah Qureshi for respondents has pointed out, that the appointment of the appellant being initially on temporary basis carried no rights or safeguards and could be terminated at any time. But all the appointments in the Food Department including the appointments of the respondents by promotion were on temporary basis. The nature of the l appointments did not, therefore, have any effect on the question of seniority inter se. Their seniority would be governed by their dates of appointment in N.P.S‑16.

We accordingly direct that the seniority list in question may be prepared afresh and the appellant may be placed in the list according to the date of his initial recruitment in N.P.S‑16, irrespective of regularisation of his appointment under M.L O‑55. The appeal is allowed with no order as to costs.

A. E

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