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Civil Appeal No. 77 of 1984, decided on 22nd March, 1986.

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

‑‑Art. 212(3)‑‑Martial Law Instruction No.21, dated 8‑8‑1977, Art.3‑ Punjab Civil Servants Act (VIII of 1974), S. 22‑‑Leave to appeal granted to examine whether Punjab Service Tribunal had correctly, held, that appointment of respondent as Excise and Taxation Officer in relaxation of all rules applicable for appointment to that post was not in accordance with Martial Law Instruction 21 an ad hoc appointment and actionable under procedure prescribed therein.

‑‑S. 22‑‑Martial Law Instruction No. 21, dated 8‑8‑1977, Art.3‑ Appointment‑‑Direct appointment by Governor‑‑Relaxation of rules relating to initial appointment /direct recruitment‑‑Appointment reviewed and revoked under Martial Law Instruction No.21‑‑Order impugned‑‑Service Tribunal accepted appeal on view that appointment order having been competently passed by Governor, it could neither be considered an ad hoc appointment, nor could be revoked by Secretary to Government‑‑Appeal to Supreme Court‑‑Held: Appointment being in relaxation of all rules applicable to initial recruitment, would fall under deeming Article within ambit of ad hoc appointment and was actionable under M.L.I. 21‑‑Expression "purported exercise" refers not only to substantial and real exercise of power but also professed exercise of power‑‑Action having been taken in accordance with M.L.I. 21 by authorities entrusted with responsibility under those instructions, was not open to question‑‑View taken by Tribunal not being legally supportable, appeal allowed and impugned judgment of Tribunal set aside.

Shakeel Faiyaz v. Province of Sind 1981 P L C (C . S .) 90; Allah Bakhsh Baluch and others v. Province of Sind and 3 others 1981 PLC (C.S.) 92 and Muhalhmad Shabbir v. Province of Sind and 3 others 1981 P L C (C.S.) 566 distinguished.

The Province of Punjab and others v. Muhammad Akram Shah PLD 1984 S C 409 rel.

M. Nawaz Abbasi, Assistant Advocate‑General instructed by Rao M. Yousaf Khan, Advocate‑on‑Record (absent) for Appellant.

Kh. M. Farooq, Advocate Supreme Court and Rana M.A. Qadri, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 22nd March, 1986.

‑Leave to appeal was granted to the Secretary to the Government of Punjab, Excise and Taxation Department, under Article 212(3) of the Constitution to examine the question whether the Punjab Service Tribunal had by its judgment, dated the 29th of June, 1983 correctly held that the appointment of the respondent as Excise and Taxation Officer in relaxation of all the rules applicable for appointment to that post was not in accordance with Martial Law Instruction 21 an ad hoc appointment and actionable under the procedure prescribed therein.

The respondent joined Government Service in the Agriculture Department in 1957. In 1976 he was in NPS‑16 and holding the post of Administrative Officer in the Agriculture Department and then as Private Secretary to Minister for Irrigation and Power. On the 28th of February, 1976 the following order was issued by the Secretary to the Government of Punjab, Excise and Taxation Department.

The Governor of the Punjab is pleased to appoint Mr. Safdar Hussain, B. A.LL. B. presently working as Private Secretary to Minister for Irrigation and Power, Punjab as Excise and Taxation Officer in grade 17 in the Excise and Taxation Department Punjab with immediate effect, in relaxation of all provisions of relevant Rules, relating to appointment against the direct recruitment quota.

On his appointment, he is posted as Excise and Taxation Officer, Lahore against an existing vacancy."

On 8th of August, 1977 Martial Law Instruction No. 21 was issued which required that all ad hoc appointments should be reconsidered and reviewed. Such a review was undertaken by the appellant in consultation with the Public Service Commission and by an order, dated 5‑9‑1977, the appellant revoked with immediate effect his appointment as Excise and Taxation Officer and reverted him to his parent department i.e. the Agriculture Department. The respondent represented against it and his representation was finally rejected on 26‑12‑1982. He filed an appeal before the Service Tribunal on 16‑1‑1983.

The Service Tribunal, by the impugned judgment, took the view that the revocation order passed by the appellant was illegal as the appointment order of the respondent as Excise and Taxation Officer by relaxation of the rules of recruitment by the Governor was competently passed could not be considered under Martial Law Instruction No.21 to be an ad hoc appointment and was outside its pale for the purpose of review and revocation. Besides, according to the Service Tribunal, an order competently passed by the Governor could not be revoked by the Secretary, his subordinate. There was no locus poenitentiae available with the Government to revoke the appointment and the respondent was not heard in the matter. The Tribunal accepted the appeal, set aside the impugned order and directed that the respondent should be considered to be Excise and Taxation Officer since the date of his appointment as such by the Governor.

The learned Assistant Advocate‑General appearing for the appellant has contended that the appeal was hopelessly time bared before the Tribunal as it was filed in January, 198;1 and challenged the revocation order passed on 5‑9‑1977. On merits he contended that the appointment of respondent as Excise and Taxation Officer squarely fell within the definition of 'ad hoc appointment, under the deeming clause contained in Article 3 of M.L.I. 21 and his case had been properly reviewed by the competent authority and the revocation had taken place in terms of M. L. I. 21.

The learned counsel for the respondent, on the other hand, pointed out that M. L. I . 21 was not applicable at all to the appointment of the respondent as under section 22 of the Civil Servants Act, the Governor. had ‑ the power to relax the rules of appointment, had competently relaxed it and made the appointment. The respondent had undergone the necessary training and had performed his duties to the complete satisfaction of his superiors. His appointment, therefore, could on no principle of interpretation be described as ad hoc particularly if the minutes of the meeting held on 5‑10‑1977 with regard to the scope of these instructions is kept in view to clarify the misunderstandings that existed in its interpretation and application.

Article 3 of Martial Law Instruction No. 21 is re‑produced hereunder:‑

"Martial Law Administrator Punjab Zone 'A' further directs that all appointments, whether by initial recruitment or by promotion, made otherwise than in accordance with the prescribed method of recruitment/ promotions, shall be deemed to have been made on ad hoc basis notwithstanding 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."

It will be clear on a reference to the appointment letter of the respondent, dated 28‑2‑1976 that his appointment by the Governor to the post of Excise and Taxation Officer in relaxation of all the rules applicable to initial recruitment would fall under this deeming Article within the ambit of ad hoc appointment and was actionable under M.L.I. 21. The expression "purported exercise" refers not only to substantial and real exercise of power but also professed exercise of power.

The minutes of the meeting, dated 5‑10‑1977 are of no avail for the purposes of interpreting or applying a legal instrument. The minutes deal with specific problems and functioning within the department and cannot by their words either enlarge or rectifier squarely fell within the definition of ad hoc appointment, under the deeming clause contained in Article 3 of M: L.I. 21 and his case had been properly reviewed by the competent authority and the revocation had taken place in terms of M.L.I. .21.

The learned counsel for the respondent, on the other hand, pointed out that M. L.I. 21 was not applicable at all to the appointment of the respondent as under section 22 of the Civil Servants Act, the Governor had the power to relax the rules of appointment, had competently relaxed it and made the appointment. The respondent had undergone the necessary training and had performed his duties to the complete satisfaction of his superiors. His appointment, therefore, could on no principle of interpretation be described as ad hoc particularly if the minutes of the meeting held on 5‑10‑1977 with regard to the scope of these instructions is kept in view to clarify the mis‑understandings that existed in its interpretation and application.

Article 3 of Martial Law Insch is not legally supportable because of two reasons. In the first place, it paraphrased Article 3 of M.L.I. No. 21 in clause 2 of Para. 7 of its judgment and in doing so somehow the important words got omitted. This omission of the deeming clause resulted in a conclusion which 'is not in conformity with the exact words of Article, 3 of M.L.I. 21. The other reason appears to be that it heavily relied on three cases decided by the Sind High Court reported in Shakeel Faiyaz v. Province of Sind 1981 P L D (C.S.) 90; Allah Bakhsh Baluch and others v. Province of sind and three others 1981 PLC (C.S.) 92 and Muhammad Shabbir v. Province of Sind and three others 1981 P L C (C.S.) 566. In these cases not M.L.I. 21 but similar provisions made in M.L.0.55 came up for interpretation. The distinguishing feature of these decisions and M.L.O. 55 is that they do not dealt with a deeming clause like Article 3 and the decisions do not deal with a situation envisaged by it. It is under the deeming clause that the respondents case acquired the character of an ad hoc appointment and not independently of it.

As regards the question of limitation, we find that in fact the respondent had represented against the revocation order and his representation was not rejected on the ground that it was time barred or incompetent but on merits, on 26‑12‑1982 and from that date the appeal filed on 16‑1‑1983 was within time.

As regards the duty to hear the respondent and the locus poententiai available to the appellant or the appellant being a subordinate to the Governor these questions do not arise because the action taken was in accordance with M.L.I.21 by authorities entrusted with the responsibility under those instructions. Action so taken under M.L.I. 21 is not open to question as held by this Court in The Province of Punjab and others v. Muhammad Akram Shah P L D 1984 S C 409.

The result is that this appeal is allowed, the judgment of the Service Tribunal is set aside and the appeal of the respondent before the Service Tribunal is dismissed. No order as to costs.

M.I. Appeal allowed:

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