1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from order dated 15-4-1980 of the Central Service Tribunal, whereby the petitioner's appeal under section 4 of the Service Tribunals Act, 1973, was dismissed.
2. The petitioner was serving as Assistant Incharge in the Ministry of Science and Technology when on 1st March, 1973, he was appointed promoted as Section Officer "temporarily on ad hoc basis" for a period of sic months, or "till the availability of regular candidate, whichever is earlier without prejudice to the right of his seniors". It vas clarified in the appointment order that the petitioner would have no right on the basis of this ad hoc appointment "to be encadred in the Central Secretariat Service or claim for seniority in the grade of Section Officers." It appears that no regular candidate was appointed to relieve the petitioner from his ad hoc appointment as Section Officer and he continued in this capacity till 1975 when some administrative reforms were introduced.
3. Para. 6 of office memorandum dated 27th January, 1975, in this behalf, it is an admitted position, dealt with the cases of persons like the present petitioner. It reads as follows :- "6. Placing of ad hoc Section Officers on Regular Posting.-Ad hoc Section Officers other than those mentioned at clauses (IV) and (v) of para. 4 above, are liable to be replaced by F. P. S. C. Qualified Section Officers. Such of them as are not replaced will be required to take Section Officer (Qualifying) Examination to be conducted by the F. P. S. C. Not more than two chances to clear the examination will be allowed. Final clearance will be given after taking into account the marks obtained by them in the Qualifying Examination, service record and the vacancies available at the time. Such of them as are cleared finally will be placed on regular footing. Those who do not clear it, will be reverted."
4. The petitioner availed himself of the chance to qualify the first examination conducted by the Public Service Commission in 1975, but did not succeed. The second similar examination was held in November, 1976, but the petitioner could not participate therein because of illness. As the petitioner could not qualify despite the two chances having been given to him (though the second of which he could not avail of on account of illness) he was reverted to his previous post of Assistant Incharge with effect from the 1st of October, 1977. He challenged his reversion through a review petition to the Minister for Establishment, but the same was rejected on 20th January, 1979.
5. He also preferred a regular departmental appeal to the President, which having been duly forwarded to the Establishment Division, was rejected on 22nd May, 1979. It may be mentioned that although the petitioner's appeal was formally rejected, the Establishment Division agreed to consider the appellant for another chance to appear in the qualifying examination when held. The petitioner then filed an appeal before the Service Tribunal, which having been dismissed on 15th April, 1980, on the ground that he had no right to continue as Section Officer on ad hoc basis without passing the qualifying examination, he has now sought leave to appeal.
6. Learned counsel has contended that the petitioner on promotion, even if on ad hoc and purely temporary basis, held a post in Grade 17, therefore, under the relevant rules, he could be reverted as Assistant Incharge only by the Prime Minister (the reversion took place on Ist October, 1977) and because, according to the Rules of Business, the functions of the Prime Minister were being performed by the Chief Martial Law Administrator at the relevant time, the order should have been passed by him. On the contrary, the order was passed by a Secretary, therefore, it was anullity that the appeal to the President was also dismissed by the Establishment Secretary, which was not permissible under the relevant rules that the Service Tribunal failed to consider the question with regard to the competence of the authorities concerned, in so far as the appellate order and the order of reversion are concerned that the petitioner could lie reverted only if she bad failed to clear the qualifying examination after availing of the chance to appear in the second examination and because he could not take part in the second examination because of serious illness beyond his control, the condition for directing his reversion was not satisfiedthat according to the condition of reversion, the petitioner could be replaced only by a nominee of the Federal Public Service Commission, but this condition was also not satisfied ; that the petitioner should not have been adverted so long as there were persons junior to him, who could be reverted on the principle of last come first go that nearly sixty per cent of the employees who have not qualified the examination are still holding posts of Section Officers ; and that the petitioner has been discriminated against.
7. We agree that if the petitioner would have been allowed to continue as Section Officer in the discretionary exercise of powers by the Government, on account of the reason that he was unable to take the qualifying examination due to reason beyond his control, the act of the Authorities might not have been invalid. But that, by itself, does not furnish a right to the petitioner to retain the post of Section Officer on ad hoc basis on the grounds as urged, like the one that others have been allowed to continue in somewhat similar circumstances. The fact that the petitioner could no take the qualifying examination on account of illness does not dilute the effect of the reality that the two chances having been offered, he was unable to pass the examination. The relevant memorandum does not make an exception for a person who does not take the examination when an opportunity is offered, for one or the other reason. The Establishment Division has, on compassionate ground, taking note of the circumstance beyond the control of the petitioner, allowed him the third opportunity t take the examination when held, but that also does not furnish the petition with a right to continue as Section Officer on ad hoc basis. It is, however, observed that if, while allowing him this opportunity, and that too for good reason, he would have been allowed to continue as Section Officer like his other colleagues, on ad hoc basis, there would have been no impediment but that, by it self again cannot be a ground for this Court to interfere. It was and is for the Authorities concerned to consider that aspect of the matter, which furnishes only a compassionate and not legal support to the claim of the petitioner. With these observations we find no justification for interference, in so far as the finding of the Tribunal to the effect that the petitioner had no right to hold the post of Section Officer on ad hoc basis, is concerned.
8. The other arguments advanced by the learned counsel in support of this petition were not urged before the Tribunal. Even in the grounds of appeal, the question of competency of the authority passing the order of C reversion was raised indirectly. We would, therefore, in the circumstances of this case, not grant leave to appeal on grounds which were not urged before the Service Tribunal.
9. This petition, accordingly, is dismissed with the observations earlier made with regard to the competency of the Authorities concerned to act on compas--sionate ground, as distinguished from legal one.