B. G. N. KAZI (MEMBER).-----Mr. Noorullah Qureshi, Statistical Investigator, Statistics Division, Ministry of Finance, Planning and Economic Affairs, Government of Pakistan, has filed appeal citing besides Secretary to the Government of Pakistan, Ministry of Finance, Planning and Economic Affairs, Statistics Division, Karachi and Secretary to the Government of Pakistan, Establishment Division, respondents Nos. 3 to 105 who are all posted in Statistic Division, Karachi of the Ministry of Finance, Planning and Economic Affairs, as respondents.
2. It may here be stated that besides the instant appeal there are 11 more such appeals in which too the main grounds of appeal are the same. Since the grounds taken are important it was considered fit and proper that these Appeals Nos. 47(K) to 53(K), 55(K), 70(K) and 91 (K) of 1976 should be heard by the Full Bench. The appellants all of whom except Mr. Shamsi were appointed before coming into effect of the Class-III (Technical) Posts Recruitment Rules, 1965, are aggrieved by the final seniority list of Statistical Assistants circulated under No. SD.AP.E(266)/73 dated 14th November, 1975 in respect of their emplacement in the same.
3. Mr. Shamsi's case is however, somewhat different since he was appointed after coming into force of the Class-III (Technical) Posts Recruit--ment Rules, 1965.
4. Appellant Mr. Noorullah Qureshi was appointed as Statistical Assistant by Memorandum No. SCO/Admn/114/2(16)/63, dated 26th March. 1964 and the aforesaid Memorandum admittedly stated that he had been selected for appointment on a purely temporary basis on the terms and conditions mentioned. Condition No. 2 was to the effect that his appointment will be on a purely temporary basis subject to replacement by nominees of C. P. S. C. Establishment Division as and wizen available. He was put on probation for a period of one year extendable by order either before or after its termination by a further period not exceeding six months provided that if no order had been made by the day following the termination of either of the aforementioned probationery periods, the appointment shall be deemed to be held until further orders. Condition No. 7 was to the effect that he will have to sign the undertaking that his employment is temporary and his service may be terminated by the Government, at any rime, without assigning any reasons, by giving a notice for a period not less than 14 days or payment, in lieu of the notice, of a sum equivalent to his pay for 14 days or for the period by which the notice falls short of 14 days.
5. It has been contended on behalf of the appellant that since the word "selected" appears in the Memorandum of his appointment, the same .Vas not purely ad hoc appointment but was appointment, against merit quota on a temporary basis. The contention consists of two parts namely (a) That the appointment was against merit quota and (b) that it was not purely ad hoc appointment because period of probation had been fixed. In the reply can behalf of the respondents both the parts of the contention are denied, with regard to appointment being ad hoc it has been pointed out that even in the Office Order No. 8/68 dated 22nd July, 1968 copy of which is attached as Annexure `C' to the Memorandum of appeal, it is quite clear that his appointment was ad hoc appointment. Condition No. 2 in the order of his appointment also makes it clear that he had been appointed on basis of being replaceable and his appointment did not confer upon him any claim or title to permanent retention in service. With regard to the contention that his appointment was against merit quota, the only fact in support of the contention as pointed out by the learned counsel for the appellant is the use of word `selected" in the order of appointment. It is clear that the selection was not in accordance with the rank obtained in any competitive test or according to marks given by any properly constituted selection committee under the Rules. The mere word `selection" therefore, is not sufficient to substantiate the contention that the appellant was selected against merit quota. As a matter of fact it is emphatically stated on behalf of the respondents Nos. 1 and 2 that no posts pertaining to the merit quota were filled in any of the appointments made before the year 1972. Further the mere fact that the terms and conditions of appointment mentioned that the appellant would be on probation for a particular period is not sufficient to consider that he was not an ad hoc appointee.
6. It has been contended on behalf of the appellant that his appoint--ment was regularised under respondent's order 8/1968 bearing No. CSO/Admn/114/2(92)68, dated the 22nd July, 1968 which pertained also to several other Statistical Assistants who were appointed after 5th April, 1961 till the date of publication of the Class-III (Technical) Posts Recruit--ment Rules, 1965. The regularisation was given effect from 11th October. 1965 and in the seniority list of the Statistical Assistants circulated under respondent No. 1 Circular No. A&P/115/1(16)/72 dated 13th January, 1973 the appellant's name appeared at serial No. 26 in part-II under the heading eligible for confirmation".
The list also included the names of persons appointed on ad hoc basis who were considered ineligible under part-III under the heading "purely temporary". It is emphasised that by afore--said action of the authorities a right was created in favour of the appellant with regard to his service having been regularised which could not be taken away by so-called rectification of the seniority list without giving the appellant an opportunity to show cause. It is, therefore, necessary to determine whether any right was created in favour of the appellant which could be considered to be affected by the, powers of the authority concerned to recede from the position taken as ordinarily competent to make an order has power to undo it but such cannot be withdrawn or rescinded once it has taken legal effect and certain right have been created in favour of any individual. The principle is one stated in section 21 of the General Clauses Act, 1897.
7. Seniority has been stated in the Civil Servants Act, 1973 as one of the terms and conditions of service of civil servants. Subsection (1) of section 8 of the Act provides that for proper administration of service, cadre or grade, the appointment authority shall cause a seniority list of the members for the time being of such service, cadre or grade, to be prepared but nothing therein contained shall be construed to confer any vested right to a particular seniority, in such service, cadre or grade as the case may be. .
8. Subsection (2) is to the effect that subject to the provisions of subsection (1) the seniority of a civil servant shall be reckoned in relation to the other civil servants belonging to the same service, cadre or grade, whether serving in the same Department or office or not as may be pres--cribed.
9. It would be observed, therefore, the emplacement in the seniority list even does not confer any vested right to a particular seniority in service, cadre or grade. In the instant case the order with regard to regularization of appointment can be considered only as one of the aspects the emplacement of the appellant in the seniority list. The principle of locus poenitentiae i.e. The power of receding till the decisive step is taken, is available to the Government or the relevant authority which had passed the order to undo it by rectification of the mistake specially when no vested right of the appellant was involved.
10. The learned counsel for the appellant has pointed out that under subsection (4) of section 8 of the Civil Servants Act, 1973 seniority shall take effect from the date of regular appointment to a post in the grade and therefore regularisation of appointment has special importance in relation to the right to a particular seniority in the grade however, a careful reading of the subsection would show that it pertains to the seniority in the grade to which a civil servant is promoted in the instant case the relevant provision applicable is subsections (2), (3) and (4). Under that promos seniority shall be determined as may be prescribed. No rule in existence before the coming into effect of the Civil Servants Act, 1973 has been pointed out with regard to right to a particular inter se seniority but in view of subsection (2) of section 25 of the aforesaid Act any Rules, orders or instructions in respect of any terms and conditions of a civil servant duly made or issued by an authority competent to make them and enforced immediately before commencement of the Act shall in so far as such rules, orders or instruction are not inconsistent with the provision of the Act, be deemed to be rules made under the Act.
11. It may also here be remarked that it is usual procedure in the preparation of seniority list to make a provisional list and to circulate it amongst the persons concerned. Inviting their objections, if any, to the emplacement and then after full consideration final seniority list is pre--pared. This procedure would appear to have been adheared to in the instant case inasmuch as respondent's Circular No. A&P/115/1(16)/72 dated 1301 January, 1973 in which the appellant's name appeared at serial No. 26 in Part 11 was a provisional list with regard to which objections, if any had been invited by 31st January, 1973 and this was followed by a Circular dated 14th November, 1975 in which it was explained that the finalising of the seniority of Statistical Assistants had been under exami--nation in consultation with the Establishment Division and the seniority list had been re-cast and revised accordingly and was being circulated to all concerned for general information. The aforesaid list is final seniority list prepared by the Statistics Division of the Ministry of Finance. Plan--ning and Economic Affairs. As already stated, therefore, the usual pro--cedure in preparation of final seniority list would appear to have been followed and the entries in the provisional list could not be considered as having created any right, in the appellant to a particular emplacement in ,the seniority list.
12. The final seniority list is also assailed on the ground that the appellants other than Mr. Shamshi were all appointed before the coming into force of the Class-III (Technical) Posts Recruitment Rules, 1965 and therefore their appointments should be regularised without looking into the aforesaid Rules. It is further argued that the validity of the Recruitment Rules cannot be taken retrospectively. On behalf of the respondents it is explained that the Provincial seniority list of Statistical Assistants circulated under respondent number one's Letter No. A&P/115/1(16)/72, dated 13th January, 1973 was found to be correct in that in prepa--ration of the same the instructions contained in the Establishment Division's O.M. No. 25/10/50-SE-I, dated 6th October, 1550 and reiterated in the Class-III (Technical) Posts Recruitment Rules, 1965 with regard to quotas allocated to the different provinces which were to be followed had been infringed. It was, therefore, considered fit and proper to scrap the pro--visional list and to make the final list after strict and scrupulous compliance with the aforesaid instructions.
Conceding that the Recruitment Rules of 1965 had not retrospective effect, it is to be determined as to what were the instructions of the Govern--ment with regard to Recruitment which had been followed upto coming into effect of the rule. As pointed out by the learned counsel for the respondents the very perusal of the Recruitment Rules makes it clear that the aforesaid rules were entirely based on the instructions contained in Establishment Division O.M. No. 25/10/59-EE-1, dated 6th October, 1950 and O.M. No: 25/58/50-SE-1 dated 22nd January, 1963 with regard to vacancies being filed by direct appointment on quotas allocated to the provinces. Rule 5 of the Rules gave distribution as follows :-
(i) Merit 20%
(ii) East Pakistan. 40%
(iii) West Pakistan. 40% Further break up of West Pakistan quota is as under :-
(a) Former Punjab and Bahawalpur 23%
(b) Former Sind, Khairpur, N.-W.F.P. Frontier States and Tribal Areas, Baluchistan and Baluchistan States and Tribal Areas and Refugees from Kashmir15%
(c) Karachi2% A comparison of the quota allocation under the Rules with the afore--said instructions would show that it was exactly the same even as early as 1950. Any regular appointment, therefore, had to conform in respect of the quota system as provided in the earlier instructions which were replaced by the Recruitment Rules which as already stated, are based on those very instructions. The initial appointment of the appellant was, therefore, no doubt "ad hoc appointment" which as defined to clause (a), of section 2 of the Civil Servants Act, 1973 means appointment of a duly qualified person made otherwise than in accordance with prescribed method of recruitment, pending recruitment in accordance with such method. In view of the reasons given above, the rectification of the provisional seniority list is justified. The learned counsel for the appellants Contends that since the order of regularisation of service of the appellant ha s been passed and conveyed to him it had created vested right in the appellant which could not have been taken away in exercise of the principle of locus poenitentiae specially as no show-cause notice had been given. He has cited decision of the Supreme Court reported in PLD 1969 SC 407. The aforesaid decision could, however, be distinguished on the ground that, as already discussed above, n6.Vested right to a particular seniority was created in favour of the appellant and therefore, the rectification of the ,mistake by withdrawing order of regularisation was properly done. It may here be stated that the distinction made by the learned counsel for the appellants between appeal of Mr. Shamsi and those of the other appellants for obvious reasons no longer is of importance inasmuch as the earlier Governmental instructions with regard to requirement to the post of Statistical Assistants ants the Recruitment Rules of 1965 in respect of quota system are identical.
"Seniority" has been mentioned as subject under terms and conditions of service of civil servants in the Civil Servants Act, 1973 and section 8 of tile Act inter alia provides that seniority of a civil servant shall be rockon--ed in relation to other servants belonging to the same service cadre or grade as may be prescribed. Subsection (3) of the aforesaid section provides that seniority of initial appointment to a service, grade or post shall be determined as may be prescribed. In section 2 of the Act "prescribed" has been defined to mean prescribed by rules. The Class III (Technical) Posts Recruitment Rules, 1965 merely lay down the procedure for recruit--ment to the aforesaid posts and section 8 of the Civil Servants Act, makes express provision with regard to seniority in the grade to which a civil, servant is promoted to take effect from the date of regular appointment to a post in that grade but as already stated in the instant case the impugned final list of seniority is not seniority on promotion but on initial appoint--ment. It would, therefore, appear that no rules have yet been prescribed on the subject of seniority on initial appointment. The statutory rules being non-existant on the subject of seniority, Government's power to vary even its previous order cannot be gainsaid in view of the decision reported in PLD 1962 SC 367. The Supreme Court declined to interfere by mandamus with placement of officers in seniority list and observed that mandamus is issued against the Government only in case of "clear viola--tion of some thing" Having force of law.
The learned counsel for the appellant contends that the reservation of vacancies due to allocation of quotas to the various provinces should not come, in the way of fixing seniority of the appellant and others as the same should not extend to the fixation of the seniority or confirmation inter se of 'persons belonging to the same grade. He has relied upon the decision of the Supreme Court in the case of Mr. Khushi Muhammad and 3 others v. The General Manager, Pakistan Western Railways (PLD 1970 SC 203). The decision can, however, ire distinguished as the appellants who were departmental promotees as railway Guards Grade-II had brought a writ petition whereby they challenged list of confirmation-cum-seniority of the personnel of their grade issued by the General Manager of Pakistan Western Railways as illegal and without lawful authority. It is clear that seniority in grade to which they had been promoted was the subject-matter whereas in the instant case admittedly the appellants were ad hoc appointees who under the terms and conditions of their appointments were replaceable and the question is one of their regular appointment to the posts. Subsec--tion (2) of section 2 of the Civil Servants Act, 19 3 inter alia provides that an appointment shall be deemed to have been made on regular basis if it is made in the prescribed manner till such time that the appointments are regularised. There could be no question of reckoning their seniority in relation to the respondents who belong to the same grade.
It has been contended by the learned counsel for the appellants that merit quota was prescribed in the Establishment Division's O. M. No. 25/10/50-SE-I, dated 6th October, 1950 and therefore the presumption is that appellants were selected against that quota. As already stated on behalf of the respondents this has been totally denied and emphatic statement had been made that recruitment against the merit quota was started only is the selection for the year 1972 and thereafter. This assertion is also supported by the fact that according to the respondents the appointments made against merit quota posts and as against the posts reserved for various regions and provinces were made from combined merit list prepared on the basis of competitive examination and interview conducted by duly approved selection committee at Karachi, Hyderabad, Sukkur, Multan, Lahore, Bahawalpur, Peshawer, Rawalpindi, and Quetta. Pre--viously no such procedure was followed and no appointments, therefore had been made against merit quota posts. It is also argued by the learned counsel for the respondents that if the appointments of the appellants had keen against merit quota posts there was no sense in statement that appointments were ad hoc and purely temporary and the appointees were replaceable.
The quota for Karachi being only 2 % under the old instructions issued by the Government and also under the recruitment Rules which replaced the same the appellants have to await their turn for absorption against the quota posts before their appointments are regularised. Since the merit quotas posts have been filled in accordance with the procedure prescribed by the rules there could be no question of absorption of the appellants against those posts, in view of the fact that they did not compete with the others when the posts were advertised. If they had done so they could have had a chance in selection for appointment against the quota of merit posts.
For the reasons given there are no grounds made out for interference by this Tribunal and the appeals Nos. 47 (K) to 53 (K), 55 (K) to 57 (K), 70 (K) and 91 (K) all of 1976 are disposed by this order as dismissed.
Parties to be informed.
N. A. CHOUDHURY (MEMBER).----I agree with my learned brother throughout in the judgment. I would add that it was the mandatory provision of the applicable Government rules that regional quota should be observed in respect of direct appointments. Since this quota was not observed the ad hoc appointments in question were ab initio irregular. This being the case, such appointments did not vest any right in the holders of those posts, while regularising these appointments, the regional quota was again not observed. The result was that these appointments remained irregular throughout. As such, de-regularisation of the appointments did not violate any rule or law.
On a question from the Tribunal, it was categorically stated by the learned counsel for State that all those regular posts which became available right from the date of de-regularisation to December 1976, were utilised in regularising the appointments of the Assistants belonging to the category of the appellants against the regional quota posts till no post of the relevant quota remained available for this regularisation. The obvious conclusion is that even on the basis of equity and administrative justice, the action of the Government is fully justified and we do not find any justification to interfere in the action taken by the Government.