' I. MAHMUD, J.-Constitutional Petitions Nos. 0-1210/78, 0-1211/ 78, D-1212/78, 0-1213/78, 0-1214/78 and 0-1215/78 raise common questions of facts and law and will be disposed of by this judgment.
2. The facts in each of these six petitions are the same except to the extent that the services of Ghulam Rasool Unar (petitioner in C. P. No, 0-1210/78), Ahmed Ali Khokhar (petitioner in C. P. No, D- 1213/78, and Agha Ashfaq Ahmed Pathan (petitioner in C. P. No, 0-1214/78) who were serving as Assistant Commissioners, were terminated under para. 7(1) of M. L.
0. 55, Zone C on 12th September, 1978. Two of the remaining petitioners, namely, Arshad Ahmed Mughal (petitioner in C. P. No, D-1211/78) and Muhammad Usman Manghi (petitioner in C. P. No, 0- 1215/78) were considered not suitable for the posts of Assistant Commissioners held by them but for the lower posts of Mukhtiarkars under paragraph 7(11) of M. L.
0.
55. The last petitioner Atta Hussain Satho, Assistant Commissioner (petitioner in C. P. No, D- 1212/78) was sent on forced leave on 25th April, 1978 as he was not considered suitable for that post, but we are informed by Advocate-General that he has since been given a post of Section Officer of equivalent Grade.
3. Each of the petitioners was appointed as Assistant Commissioner on 24th April, 1975 in Grade 17 on probation for a period of two years with effect from the date of joining, extendable by a period not exceeding two years but in the absence of an order of extension the appointment was to be deemed to be held until further orders. Rest of the terms and conditions were to be as provided in the Sind Civil Servants Act, 1973 and the rules made thereunder. The appointments of the petitioners were notified in the Government of Sind Gazette dated 17th July, 1975. Fifteen posts of Assistant Commissioners were excluded from the purview of the Sind Public Service Commission under Notification dated 23rd November, 1974 by the Chief Minister under powers conferred upon him by rule 5 of the Sind Public Service Commission (Functions) Rules, 1974 read with rule 10(b) of the Sind Civil Services (Appointment, Promotion and Transfers) Rules, 1974 and vacancies in the said posts were to be filled on the recommendations of a Selection Committee consisting of a Chief Secretary as Chairman and Senior Member, Board of Revenue and Additional Secretary (Services & General Administration Departments) as Members. The aforesaid appointments of the petitioner were made to six of such posts on the recommendations of the Selection Committee.
4. After completing their training, they were appointed to various posts. On 12th September, 1977 the petitioners were issued letter advising them that it has been decided to determine their suitability as Assistant Commissioners and they were directed to appear for interview by Sind Public Service Commission along with documentary proof of their qualifications. After issuing the said letters to the petitioners, the respondent No. 1 Government of Sind by Notification dated 28th September, 1977 in exercise of powers to make rules conferred by section 6 of the Sind Public Service Commission Act, 1973 amended the Sind Public Service Commission (Functions) Rules, 1974 by adding a new sub-rule (3) to rule 3 thereof, which provided that "Notwithstanding anything contained in, the rules for the time being in force, the Commission shall conduct tests for assessing the suitability of such civil servants appointed in accordance with rule 5 as may be referred to the Commission not later than 28th February, 1978 by the Government. The petitioners appeared for the interview on various dates in November, 1977. It appears from the averments in the petition that soon after the promulgation of M L. O. 55, Zone-C on 7th March, 1978, the cases of the petitioners were referred to the Sind Public Service Commission under para. 3(i) Part I of the sald Martial Law Order and that the Commission had forwarded its findings to the Government of Sind, respondent No. 1, sometime during 29th March and 25th April, 1978, to the effect that three of the petitioners, namely, Ghulam Rasul Unar, Ahmad Ali Khokhar and Agha Ashfaq Ahmad Pathan had not been considered suitable for the posts of Assistant Commissioners held by them or even for a lower or different posts. With regard to two of the remaining petitioners, namely, Arshad Ahmed Mughal and Muhammad Usman Manghi, they also had not been considered suitable for the posts of Assistant Commissioners held by them but for the lower posts of Mukhtiarkars (Grades 16). It is not clear from the record what were the recommendations with regard the suitability of Atta Hussain Sathe for a different post, who also was considered not suitable for the post of Assistant Commissioner. But learned AG. Informs us that the Commission has considered him suitable for the post of Section Officer of equivalent grade After receiving the findings of the Commission, the petitioners were sent on two months forced leave pending receipt of further orders, which was extended in the case of some petitioners on 25th April, 1978. On 12th September, 1978, the service of the petitioners Ghulam Rasool Unar, Ahmad Ali Khokhar and Agha Ashfaq Ahmed Pathan, were terminated under paragraph 7(i) of M.L.O. 55 with immediate effect on payment of salary of 15 days. On 2nd October, 1978, the services of Muhammad Usman Manghi and Muhammad Arshad Mughal were placed at the disposal of Board of Revenue under para. 7(ii) of M.L.O. 55 for their appointment to lower posts of Mukhtiarkars. The petitioners have, therefore, filed these petitions to question the validity of the Orders passed by the respondent No. 1, Government of Sind, directing them to appear before the Sind Public Service Commission and consequent removal from service and orders for their appointment to lower posts of Muktitiarkars.
5. The submission of Mr. Rehanul Hassan Farooqui, learned counsel for the petitioners, was that the appointments of the petitioners had been validly made on the recommendations of the Selection Committee, under powers conferred on the Chief Minister by rule 5 of the Sind Public Service Commission (Functions) Rules, 1974, without reference to the Commission, long before the amendment introduced by sub-rule (3) of rule 3 of the said Functions Rules. Which cannot operate retrospectively to re-determine the suitability of the petitioners or to re-open past and closed transactions. It is well established that rules made by the executive in the exercise of power of delegated Legislation cannot be made to operate retrospectively in the absence of express power n the enactment to do so. Viewed in this light, the submission of Mr. Rehanul Hassan Farooqi is not without force that the Sind Government could not avail of the amended rule for the purpose of enabling it to issue directions to the petitioners to appear for interview before the Commission for re-assessm ent of their suitability to hold the posts o1 Assistant Commissioners.
6. But, the position under M. L.
0. 55 is altogether different. Under para. 2(a)(iii) of M. L.
0. 55,"an appointment which has been made under the orders af the Chief Minister or in any other authority by excluding the post from the purview of the Sind Public Service Commission", was deemed to be an "ad hoc appointment", notwithstanding anything contained in any other law for the time being in force. The posts in question being Grade 17 Posts, they fell within the purview of the Commission under rule 3 of the Sind Public Service Commission (Functions) Rules, 1974 read with rule 10(a) of the Sind Civil Services (Appointment, Promotion & Transfers) Rules, 1974. The result is that, notwithstanding rule 5 of the Functions Rules, which empowered the Chief Minister to exclude posts from the purview of the Commission, the appointments of the petitioners became "ad hoc appointments" under para. 2(a) (iii) of M L.
0. 55 as therein defined, Therefore, their cases were referable to the Commission under para. 3(1) of Part I of M. L.
0. 55 and so the cases were referred to the Commission by the appointing authority. It is true that the interviews of the petitioners had already been held by the Commission prior to promulgation of M. L. O. 55, which came into force on 7th March, 1978. But, para 6(1) of M. L.
0. 55 enabled the Commission to make assessment of the ad hoc appointees by going through their service records and giving its findings, without interview of the petitioners again. In fact, both the impugned notifications dated 12th September, 1978 and 2nd October, 1978 issued by the Government under sub-paras. (1) and (ii) of para. 7 of M. L.
0. 55 respectively, recite that the cases of directly recruited Assistant Commissioner were referred to the Sind Public Service Commission in pursuance of M. L.
0. 55 and that it had forwarded its findings to the appointing authority. It is also conceded by the petitioners that such findings were forwarded by the Commission during 29th March and 25th April, 1978. In these circumstances, no exception can be taken to the impugned orders.
7. The counsel for the petitioners also challenge the constitution of the Sind Public Service Commission on the ground that on the relevant date, its Chairman, Mr, Justice (Retd.) Kadir Bux Awan had ceased to function under section 4(4) of the Sind Public Service Commission Ordinance, 1978 as he had already reached the age beyond 68 years. We have fully discussed this submission in C. Ps. Nos. D-804/78, D-813/78, and D-8I4/78 and have rejected the same on or interpretation of section 3(3) of the said Ordinance.
8. For the foregoing reasons, we find the petitions are without merit. They are accordingly dismissed with no order as to costs.