1. M. SALEEM CHAUDHRY (CHAIRMAN).-In this appeal the appellants who where directly recruited as Assistant Agricultural Engineers claimed seniority over the respondents Nos. 2 to 6, the departmental promotees. The appellants were recruited to the posts of Assistant Agricultural Engineers in pursuance of a scheme called : "The Development of Land and provisions of Machinery for Augmenting the Water Supply in West Pakistan Training of Assistant Agricultural Engineers" framed by the Government of West Pakistan in the year 1965 by modifying the West Pakistan Agricultural Engineering Service (Class II) Rules, 1965. According to the modified procedure the Public Service Commissions were required to select 46 candidates by interview only, who were at least B. Sc. Agriculture, IInd Division. The selected candidates were to undergo a course of two years at the Agriculture University Lyallpur for eventual appointment as Assistant Agricultural Engineers during which period they were to get a stipend ot Rs, 150 p. m. The successful trainees were to go through a probationery period of one year and were also obliged to execute a bond in the sum of Rs, 12000 binding them to serve the Agriculture Department for a period of at least five years. The appellants along with approximately 600 other candidates appeared for selection before the West Pakistan Public Service Commission as a consequence of which 46 persons including the present appellants were selected and were in the first instance given training of 2 years at the Lyallpur Agricultural University. However, before the completion of the training of 2 years in the Agricultural Engineer University at Lyallpur by the appellants there arose a dispute as to whether it was necessary for the appellants to reappear before the Public Service Commission for selection for appointment as Assistant Agricultural Engineer. The West Pakistan Government were of the view that it was necessary for the appellants to reappear before the West Pakistan Public Service Commission but the appellants resisted the same and claimed that they hadalready been selected through the Commission and thus were entitled to be appointed as Assistant Agricultural Engineers on the basis of the aforesaid selection. On refusal by the Government, the controversy was taken to the West Pakistan High Court (Lahore Bench) in writ proceedings who rejected the appellants case. But on appeal the Supreme Court of Pakistan vide their judgment reported as PLD 1971 SC 846 observed :- "Thus the order of the Governor dated the 1st June, 1965 by which he approved the method of selection of candidates for appointment as Assistant Agriculture Engineers after their successful completion of the training is an order having the statutory force. Clause (2) of Article 178 of the 1962 Constitution empowers the Governor to make rules relating to recruitment of Civil Service and Civil posts in connection with the affairs of the Province. This clause does not provide that the recruitment rules are to be made in any particular manner, nor does it require previous publication of the rules in the official gazette. That being so, the Governor, order dated the 1st June, 1965 prescribing the special method for appointment of 46 candidates to the posts of Assistant Agricultural Engineers was as operative as the Recruitment Rules themselves made by the Governor on the 18th Jun 1963."
2. On the above finding the declaration was granted to the appellants that 11 ...... ...The appellants have satisfied the terms and conditions laid down by the Government for their appointment as Assistant Agricultural Engineers and are, therefore, entitled to be appointed as such and that they are not required to appear again before the Public Service Commission for fresh interview for such appointment."
3. In the meantime the Government decided to make ad hoc appointments of the appellants in November, 1968. Subsequently the respondents 2-6 were also promoted as Assistant Agricultural Engineers Class II on regular basis during April, May and July, 1969.
2. Seniority list (Annex 'E' to this appeal) was issued as it stood on 1st July, 1971 according to which the respondents 2-6 were shown as regular appointees, and the present appellants were shown as ad hoc appointees. Some of the appellants made representations (Annex. G) on 10th January, 1972 and claimed seniority with effect from 11th June 1968 on the date they qualified the 2 years Diploama Course. The Government of Punjab rejected their representations but issued the notification appointing the appellants on regular basis with effect from 18th March, 1972. The Government also issued, on 20th May 1974, an inter se seniority list in which respondents 2 to 6 were shown senior to the appellants and also Messrs Abdul Ghani and Gul Muhammad Malik, who were officers from Agricultural Machinery Organization, T. D. A., and were appointed by transfer to the provincial Agriculture Department, were assigned seniority above the appellants. The appellants again represented on 25th June, 1974 against the aforesaid seniority list. But the Government of Punjab vide their letters dated 25th January 1975 and 18th March, 1975 held that the period of their ad hoc appointments would not be counted towards seniority and they could claim seniority only with effect from the date of their regular appointments, i,e, 18th March, 1972. The appellants questioned the aforesaid decision of the Government by this appeal preferred before us on the 9th of April, 1975.
3. In the first instance it was contended that the judgment of the Supreme Court of Pakistan had not been complied with by the Government and it was submitted that according to the ratio of the aforesaid judgment, rule 7 of the West Pakistan Agricultural Engineer (Class II) Service Rules of 1963 was substituted and rule 8 was modified only to the extent of reducing the probation period to one year instead of two years and rule 9 thereof relating to seniority was kept intact. According to rule 9(2) continuous officiation in service was to determine the seniority. It was thus claimed that the appellants had been continuously officiating in the aforesaid posts of Assistant Agricultural Engineers since 1968 whereas the respondents came to join later. According to the appellants the Supreme Court judgment entitled them to be appointed to the posts of Agricultural Engineers immediately after the successful completion of two years Diploma Course, 1. e. June 1968. The so- called ad hoc appointments made by the Provincial Government were due to the erroneous stance adopted by the Government. Thus the appellants could not be made to suffer on that account.
4. According to the appellants after the Supreme Court judgment, the complexion of the case was materially changed and notwithstanding the initial order of appointment on ad hoc basis their appointments had to be treated as regular and on probation under rule 8 ibid, and on the successful completion of the probation period their appointments have to be deemed to be regular. In the alternative it was submitted that in any event they should be deemed to have been appointed on regular basis from the date of their appointments to the service on ad hoc basis. Dr. Khalid Ranjha, Advocate, appearing for appellants 1, 6, 20 and 21 submitted that he would not suggest any alternative but he rather contended that there was only one course open to the Government, I. e. To appoint the appellants immediately after the declaration of their result to the post of Assistant Agricultural Engineers, on regular basis. According to the learned counsel Article 189 of the Constitution of Pakistan clearly enjoined a duty upon the Government to act in aid of the Supreme Court judgment and the action of the Government was in violation as the aforesaid provisions of the said Article. Mr. Masud Ahmad Riaz, the learned counsel appearing for some of the appellants argued that vide Notification No, SOAE-11/1st July 1971 dated 18th March 1972 (Annex. N at page 50 of the record) the appointment of the appellants stood converted from ad hoc to regular appointments from the very inception. He argued that the terms of notification evidently supported the contention above. According to him the notification dated 18th March 1972 has been misconstrued inasmuch as the purpose of specifying the ad hoc appointments in the said notification was also to the same effect. He also argued that there was no legal sanction for keeping the appellant one ad hoc basis. The learned counsel also invited or attention to Annex. 'D'
5. (at page 27 of the record) and argued that the impression of the Government was that the posts in question were yet to be filled up by initial recruitment through the Public Service Commission but this view as held to be incorrect by the Supreme Court and thus the appellants stood authentically appointed on regular basis after the successful completion of the course, and it was obligatory upon the Government to revise the terms of appointment Order accordingly. He also referred to 0 & M Manual (Establishment) revised pages 49-51 to show to us the characteristics of the ad hoc appointment as contained in instructions dated 1st October 1969 paras 6 and 9 printed thereat.
6. According to the learned counsel the appointment order (Annex at page 17 of the file) did not answer any such characteristics. He submitted that according to the concluding para of the Supreme Court judgment referred to above, there was no choice with the Government but to make the appointments of the appellants on regular basis. According to the learned counsel the action of the departmental authorities was highly unjust and discriminatory. He also placed reliance upon In re : Jajfar All v. Akhtar Yousafzai v. The Islamic Republic of Pakistan, to contend that the character of appointments could be determined by the Courts in appropriate cases. It was also contended that once the regular appointment bad been made, the Government had no right to revise the terms of the appointment and to change its character. The appellants also submitted that since the Government had failed to perform a public duty it was open the Courts to correct the Government. He went on to argue that the Government had power to change the scheme sanctioned by the Governor of West Pakistan in 1965 which had the force of rule according to which the petitioners stood appointed on one-year probation under rule 8 of the West Pakistan Agricultural Engineering Service (Class II) Rules, 1963. He also argued that. The judgment of the Supreme Court declared the rights as then existed under the relevant rules and had to be given effect from the date the appellants qualified the examination. The appellants also argued that the1 seniority was vested right which could not be taken away by a subsequent order by the Government. With these submissions the appellants pressed for the acceptance of the appeal.
7. Ch. Abdur Rehman, the learned counsel for the respondents argued that the appellants were misconstruing the scope of the judgment of the Supreme Court. He submitted that the appellants themselves had moved the contempt application before the Supreme Court against the Government which was dismissed by the aforesaid Court on 4th October, 1976 with the observation- Having in vain tried to convince us about the alleged violation of this Court's judgment, the learned counsel considered it safer to withdraw the petition."
8. The learned counsel argued that the contempt application was sought to be supported on the same pleas as contained in this appeal but the same was rejected as withdrawn. He also submitted that the Government was the sole Judge as to the mode of the appointment and according to the learned counsel the appellants were themselves party to the Agreement by which it was clearly stated that the Government did not accept the responsibility to provide the appellants with a job after the successful completion of their training. Thus they were bound by the same. He also argued that in substance the appellants were asking for giving them an earlier date of appointment which was not within the competence of this Tribunal. He relied upon the provisions contained in proviso (b) to section 4 of the Punjab Administrative Tribunal Act which was to the following effect :- "(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted a higher grade."
9. He also referred to section 10 of the Punjab Civil Servants Act to show that the Services of the appellants being terminable without notice they were not entitled to any seniority during the aforesaid period. He also contended that the respondents Nos. 2 to 6 having been appointed on regular basis in the year 1969, they were rightly ranked senior to the appellants. With these submissions he pressed for the dismissal of the appeals. Mr. A. G. Hamayun the learned Government Pleader for the respondents contended that some of the appellants never raised objection against appointment of respondents 2-6 therefore they were not entitled to maintain this appeal. He contended that the appeal was not competent in as much as unless the date of the appointment of the appellants were changed the seniority remains unaffected. This Tribunal was not competent to assign an earlier date of appointment to the appellants. In reply the learned counsel for the Appellants relied upon the provisions of rule 2(16) of the Civil Services Rules (Punjab), Volume I, Part I, sub-clause (b) where of defines the duty. The learned counsel went on to argue that the vacancies were available, as it was evident from the advertisement that 25 seats were available. Similarly he also referred to letter dated 4th February 1966 from the Director, Agricultural Engineering, Lyallpur to the Director-General to show the availability of the vacancies.
10. According to the aforesaid letter, 31 vacancies were available whereof 23 were for direct appointment and 8 for promotion candidates. The appellants submitted that since they qualified the examination on 10th June, 1968 they were entitled to be appointed against the vacancies reserved for direct recruits. As regards the representation by some of the appellants it was submitted that the case being identical the result could not have been different. With regard to the observation of the Supreme Court in contempt application, it was conceded that it was a case of misconceived remedy and the appropriate remedy was before the Service Tribunal which was a competent, in the first instance, to adjudicate upon the controversy involved in this case. He submitted that the controversy as to the contempt was a matter purely between the Court and the contemner, as the applicants were merely the informers. He relied upon PLD 1975 SC 383 in this behalf. He submitted that neither the appellants made any request before the Supreme Court nor the issue of seniority was decided by the Supreme Court. It was in the context as to whether the Government has been guilty of culpable disobedience and the respondents were never a party the application. It was also submitted that Article 189 was not attracted.
5. After hearing both the parties we are of the view that the contentions of the appellant must prevail. In the first instance we find that the order of ad hoc appointment of the appellants made by the department on 14th November, 1968 (Annex. D, page 27 of the file) was issued under the impression that the appellants were not properly selected by the West Pakistan Public Service Commission and as such they were not eligible for appointment as regular basis. It is manifest from the following terms of the order reproduced as under :- "The Governor of West Pakistan on the recommendation of the Ad hoc appointments Committee is pleased to appoint the undermentioned persons, as Assistant Agriculture Engineers, in WPAES-II from the date of assumption of charge, as such under-the Directorates of Agricultural/Agriculture Engineering, indicated against their names, on purely temporary ad hoc basis against the posts to be filled by initial recruitment, on the recommendation of the West Pakistan Public Service Commission, for a period upto 31st May, 1969 or the appointment of Officers, on regular basis, on the recommendation of the Commission, which might be earlier."
11. We have no doubt in or mind that after the decision of Supreme Court dated 20th October 1971 became available to the Department, there was no ground to sustain the ad hoc character of the appointment even from its inception and the appellants being qualified persons having been already selected by the Public Service Commission and the vacancies being available, stood appointed on regular basis even in the terms of the above order itself. Secondly, the judgment of the S.C. Is declaratory in nature accordingly to which the appellants were entitled to appointment as Assistant Agri. Engineers Class II on completion of the terms of selection. Thus we find a great deal of merit in the contention of the appellants that the terms of the judgment will be operative from the date when the appellants complied with the terms of the selection or at least from the date of their actual appointments. Thirdly, the Department has placed nothing before us to show that there was any other justification for making the appointment on ad hoc basis, Thus neither any provisions of law nor any other ground justified the making of appointment on ad hoc basis.
12. The following observation In re : Joffar All Akhlar Yousafzai v. Islamic Republic of Pakistan clearly support the contention of the appellants that in proper cases the Court is competent to decide whether for practical purposes or legal consequences any appointment had permanent effect- "In such like cases when continuous officiating is not specifically authorized by any law and the Government/competent authority continuous to treat the incumbent of a post as officiating, in or view it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence e.g. Failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together, whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found to give legal effect to it."
13. In the present case, we find that all the characteristics of permanent appointment were available and the appointment was to be made on that basis except for the impression that the appellants were not eligible fo appointment unless they were recommended by the Public Service Commission. That impression having been dispelled by the Supreme Court judgment reported as Mukhtar eihmad v, Government of West Pakistan the appaintments in law could be deemed to hay been made on regular basis. The above view of ours has also the support of the departmental construction produced before us, according to which the matter was examined at the departmental level in the S & GAD and also by the Law Department who also came to the conclusion that since regular vacancies were available, the date of ad hoc appointment of these officers may be treated as the date of their regular appointments. However, according to the2 department the question o their appointment prior to this date could not be raised for obvious reasons. We are also in agreement with the departmental construction. The objection raised by the respondents that section 4(b) of the Service Tribunal Act is a bar to the grant of relief to the appellant has no force. In the first instance the suitability of the appellants to be appointed ha already been determined. Thus the aforesaid provisions is inapplicable to the facts of this case.
14. Similarly, the objection raised by the Government Pleader that he appellants in substance were asking for prior date of appointment and the same could not be granted by this Tribunal in view of the aforesaid provision of section 4(b) is also devoid of any substance. In or view we are only called upon to determine the character of appointment and not to assign a prior date of appointment.
15. The decision of the Quetta Bench referred to above clearly laid down that such a power was available to the Court. We, therefore, repel! Both the above objections. The objection raised by Ch. Abdul Rehman, the learned counsel for respondents 2 to 6 that the contempt application moved by the appellants before the Supreme Court was rejected on the ground that the seniority fixed by the Department did no violate the Supreme Court judgment is also of no avail to him. In or view the liability as to contempt may not be attracted to a case where a department under a bona fide belief implemented the order of the Supreme Court in a particular manner. In any case the scope of the contempt proceedings is essentially different from the adjudication of lies between the parties as to the inter se seniority. Thus, in or humble view in contempt proceedings their lordships were not called upon to express any opinion in this regard. In fact, respondents 2 to 6 were never a party to the previous proceedings before the Supreme Court, the non-compliance of which was complained against by the appellant before the Supreme Court. Thus, the question with regard to the seniority of the appellants vis-a-vis respondents 2 to 6 could not be considered to be an issue sub judice before the Supreme Court in any such proceedings.
16. The upshot of the above discussion is that the appellants will have to be regarded, in law, holding the posts on regular basis with effect from the date of their continuous appointments even if described as ad hoc by the Department and the seniority of the appellants vis.a-vis a respondents Nos. 2 to 6 is governed by the provisions of rule 9 of the West Pakistan Agriculture Engineering Service (Class II) Rules, 1963. It is the common case that rule 9(2) regulated the seniority of the appellants and the respondents which is to the following effect- "The seniority in the various grades of the service of the members appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined -
(a) In case both the officers appointed by initial recruitment and the officers appointed otherwise have been appointed against substantive vacancies, or both have been appointed against temporary vacancies with reference to the date of appointment to such vacancy in the case of Officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of the officer appointed otherwise, provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the Officer appointed by initial recruitment ;
(b) in case the Officer appointed by initial recruitment has been appointed against a substantive vacancy and the officer appointed otherwise has been appointed against a temporary vacancy, the officer appointed otherwise shall rank senior to the Officer appointed by initial recruitment."
17. According to the provisions of the above rules since the appellants were appointed on earlier dates, they were entitled to the seniority over respondents Nos. 2 to 6. The respondents Nos. 2 to 6 have shown nothing that in terms of the aforesaid rule of the appellants were treated to have been appointed on regular basis from the year 1968 even then the appellants could be denied the seniority.
18. Before parting with the judgment, we may also notice the objection of the respondents as to the competence of this appeal on behalf of those appellants who did not file any departmental representation. In or opinion since the case of all the appellants was identical, the representation some of the appellants was sufficient to sustain this appeal the objection of the respondents that the appointments held by the appellants prior to 18th March, 1972 being temporary and terminable without notice under section 10 of the Punjab Civil Servants Act did not qualify for seniority, is equally without force. As we have already held that they stood appointed on regular basis right from the beginning and there is nothing under 1963 Rules to exclude the service in question being counted towards seniority.
19. Consequently the appeal succeeds. However, the parties are left to bear their own costs. Parties be informed accordingly. PLD 1970 Quetta 115 PLD 1971 SC 846