' SH. AZMAT SAEED, J.---This Civil Petition for Leave to Appeal under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the judgment dated 17-6-2011 passed by the learned Sindh Service Tribunal, Karachi in Service Appeal No,116 of 2009.
2. The brief facts necessary for adjudication of the /is at hand are that the petitioner was directly appointed as Section Officer in BPS-17 through the Sindh Public Service Commission (hereinafter referred to as "the Commission") in the year 1992, while the private respondents were directly appointed by the Government of Sindh by excluding in the public interest such posts from the purview of the Commission through the purported exercise of powers under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 (as it then was). Apparently, under the relevant rules, 50% of the appointments as Section Officer in BPS-17 were to be made through direct/initial appointment, while the balance 50% were to be appointed through promotion. A Seniority List of the Section Officers of the Batch of 1994 was issued on 8-2-1995 in which the petitioner and the other directly appointed Section Officers were shown junior to the promotees. Consequently, the petitioner filed Departmental Appeal before the Chief Secretary, Sindh, as a consequence whereof another Seniority List was issued on 24-3-1998, whereby the grievance of the petitioner and the other Section Officers appointed on regular basis through the Commission in the years 1988, 1992 and 1996 was redressed. Subsequently, the Chief Secretary, Sindh vide Order dated 11-4-1998 declared that the said Seniority List dated 24-3-1998 be treated as "PROVISIONAL". The issue inter se the seniority could not be settled. Consequently, a High Power Committee was constituted, which in its meeting dated 28-1-1999 held that the Seniority List dated 24-3-1998 be treated as "Final".
However, another Seniority List dated 19-8-1999 was issued, whereby the grievance of the direct appointees of the Batch of 1988 was redressed. However, with regard to the Batches of 1992 and 1996, seniority was not granted as they desired. A Departmental Appeal was filed by the petitioner, whereafter the jurisdiction of the learned Service Tribunal was invoked. However, the Service Appeal No,379 of 1999 filed before the learned Service Tribunal was dismissed vide judgment dated 7.4- 2005. The said judgment was challenged before this Court through Civil Petition for Leave to Appeal No,438-K of 2005, wherein leave to appeal was granted and the Civil Appeal bearing No,1213 of 2005 along with other connected matters was heard by this Court on 28-4-2009 and were partially allowed by setting aside the judgment of the learned Service Tribunal and in terms whereof, the Competent Authority was directed to decide the pending Departmental Appeals. On rejection of the said Departmental Appeals, jurisdiction of the Service Tribunal was invoked by the petitioner through Service Appeal No,116 of 2009, which was dismissed vide the impugned judgment dated 17-6-2011. Whereafter, the present Civil Petition for Leave to Appeal i,e, C.P.L.A. No,769-K of 2011 was filed before this Court, which was initially converted into an appeal and was allowed vide judgment dated 14-6-2012. Whereafter, the Civil Review Petitions bearing C.R.Ps. Nos.17-K to 19-K of 2012 were filed by the private respondents, which were accepted vide order dated 2-1-2014 and as a consequence thereof instant Civil Petition i,e, C.P. No,769-K of 2011 was resurrected deemed to be pending to be decided afresh.
3. Though the dispute in its genesis had a wider import, it has now crystallized into a question of relative Seniority inter se the petitioner and' the private respondents who were directly appointed in the year 1991 by the Government of Sindh by taking such post out of the purview of the Commission purportedly under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990.
4. It is in the above backdrop, the learned counsel for the petitioner contended that in terms of the remand order passed by this Court on 28-4-2009, the Competent Authority was required to decide the matter upon hearing the parties and after due application of mind. However, a mechanical order was passed on 27-8-2009, without assigning any cogent reason. It is further contended that in the Seniority List dated 24-3-1998, the petitioner was shown senior to the private respondents and the High Power Committee in its meeting dated 28-1-1999 held that the said Seniority List dated 24-3-1998, be treated as "Final List", which was not challenged by the private Respondents and therefore, there was no occasion for the Secretary (S&GAD) to issue Offended Seniority List dated 19-8-1999, disturbing the seniority of the present petitioner. It is further contended on behalf of the present petitioner that he was directly appointed as Section Officer through a selection process undertaken by the Sindh Public Service Commission in the year 1992 and his seniority has to be reckoned from the date of such regular appointment, while the private respondents were purportedly appointed without undergoing any such selection process. The Chief Minister, Sindh vide Notification dated 25-9-1991 in exercise of the powers conferred under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 excluded 8 posts of Section Officer (BPS-17) from the purview of the Sindh Public Service Commission and proceeded to appoint the present private respondents. Such appointments, it is contended, cannot be deemed to be regular for the purposes of determination of the seniority of the said private respondents and ought to be treated at par with Ad hoc Appointments requiring regularization and pursuant to the judgment of this Court, passed in HRC No,104 of 1992, reported as Abdul Jabbar Memon and others (1996 SCM R 1349). The Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994, (Sindh Act No,XIX of 1994) was enacted on 28-7-1994, setting forth a procedure for regularization. It is only upon the regularization in terms of the said Act of 1994 that the private respondents would achieve the status of regular employees for the purposes of determining their seniority. It is contended that no such process till date has taken place, therefore, the private respondents cannot be held to be senior to the petitioner despite having been appointed in 1991 i,e, prior to the petitioner. In support of his contention, the learned counsel has relied upon the judgment of this Court, reported as Syed Saghir Ahmed Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another 11996 SCM R 1165).
5. The learned counsel for the private respondents have controverted the contentions raised on behalf of the petitioner. It is their case that the private respondents were regularly appointed as Section Officers in BPS-1.7 vide Notification dated 25-9-1991 prior to the appointment of the petitioner. At the relevant point of time, Rule 5 of the Sindh Public Service Commission (Functions)
Rules, 1990, empowered the Chief Minister to take a post out of the purview of the Public Service Commission. Such powers were exercised and appointments were made there under including those of the private respondents, which were regular appointments for the purposes of determining seniority. The respondents did not come within the ambit of "Adhoc Appointments" requiring regularization, therefore, their seniority has to be determined on the date of their appointment i,e, 1991, which is earlier in time than the date of appointment of the petitioner i,e, 1992.
It is further contended that much water has been flown under the bridge, as both the petitioner as well as the private respondents have since been promoted variously to grades 18 and 19 and their inter se seniority is to be determined on the basis of their promotion in the grade or the post they now held, hence no effective relief can be granted to the petitioner.
6. The learned Additional Advocate General has supported the impugned judgment of the learned Service Tribunal.
7. We have heard the learned counsel for the petitioner as well as the learned Additional Advocate General Sindh.
8. In pith and substance, the dispute inter se seniority of the petitioner and the private respondents was raised by way of an Appeal filed by the present petitioner before the learned Sindh Service Tribunal, which has been dismissed vide impugned Order and challenged through the instant Civil Petition for Leave to Appeal filed under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973. The petitioner and the private respondents were appointed as Section Officers in BPS-17 in the Government of Sindh. It is a common ground between the parties that the seniority is to be reckoned on the basis of regular appointment in terms of Rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, as well as the West Pakistan Secretariat (Section Officers) Service Rules, 1962. The petitioner was directly appointed as Section Officer in BPS-17 in the year 1992, while the private respondents were appointed vide Notification dated 25-9- 1991 by the Government of Sindh in exercise of the powers under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990. The real matter in controversy, which goes to the heart of the lis is whether the appointments of the private respondents vide Notification dated 25-9-1991 were regular appointments for the purposes of determining their seniority. It may be noted that the validity of such appointments or whether the powers under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 were in fact exercised in the "public interest" is not before us.
Similarly, the validity or otherwise of the appointments of the private respondents is not the subject matter of this lis. Any more than the question whether the sin of illegal appointments, if any, would visit the Appointing Authority alone or extend to the persons so appointed.
9. By virtue of section 3 of the Sindh Public Service Commission (Functions) Rules, 1990, initial appointments in BPS-17 are to be effected through the Commission. However, thereafter Rule 5 was added, which reads as follows:-- "(5) The Chief Minister may, in the public interest, specify posts which may be filled, without reference to the Commission."
10. The said Rule was enforced at the relevant point of time having been subsequently omitted vide Notification No,SOR-I (S&GAD) 5/1-97, dated 18-2-1997.
11. The said Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 empowers the Chief Minister to take the post out of the purview of the Commission. In the instant case, such powers appear to have been exercised and 8 posts of Section Officers were excluded and the respondents appointed vide Notification dated 25-9-1991.
12. It is the case of the petitioner that such appointments for all intents and purposes are not regular appointments but Ad hoc appointments. The term "Ad hoc Appointment" has been defined in section 2(1)(a) of the Sindh Civil Servants Act, 1973, in the following terms:-- "2(1)(a) "Ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method on recruitment pending the recruitment in accordance with such method,"
13. From a bare reading of the aforesaid section of the Sindh Civil Servants Act, 1973, it is clear and obvious that Ad hoc appointments are made pending recruitments in accordance with the prescribed procedure implying that such posts are subject to a given procedure which in the instant case of appointments in BPS-17 by virtue of Rule 3 of the Sindh Public Service Commission (Functions) Rules, 1990 would be through the Public Service Commission. Adhoc appointments are not made with reference to the posts, which are permanently taken out of the purview of the given procedure, which in the instant case would be through the Public Service Commission. Thus, appointments under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 do not come within the ambit of "Ad hoc appointments" as defined above.
14. The learned counsel for the petitioner has placed reliance on the judgment of this Court, reported as Syed Saghir Ahmed Naqvi (Supra) to contend that an Appointment made under Rule 5 of the Sindh. Public Service Commission (Functions) Rules, 1990 are at par and to be dealt with as Ad hoc for the purposes of regularization. A close examination of the said judgment reveals that matter in issue before this Court in the case of Syed Saghir Ahmed Naqvi (Supra) was regularization of the employees under para 2(a)(iii) of the Martial Law Order No,55 (Adhoc Appointments Regularization Order), 1978 and in terms thereof the term "Adhoc Appointment" has been defined as follows:-- 2, (a) "Ad hoc appointment" means and includes:-- (i)
(ii) ..
(iii) appointment which has been made under the orders of the Chief Minister or any other authority by excluding the post from the purview of the Sindh Public Service Commission."
15. The appointments made under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 were only Ad hoc appointments for the purposes of the Martial Law Order No,55 (Ad hoc Appointments Regularization Order), 1978 in terms of the definition of the term "Ad hoc Appointments" implied thereof.
15. Thus, the judgment relied upon by the learned counsel for the petitioner has no application in the facts and circumstances of the case. With regards to the contention of the learned counsel for the petitioner that the appointment of the respondents required regularization in terms of Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994, it has been noticed that the said Act in terms of section 2 subsection (2) thereof "Ad hoc Appointments" has been defined in the following terms:- "The expression "Ad hoc appointment" and "civil servant" shall have the same meaning as respectively assigned to them in the Act."
17. The term Act by virtue of section 2(1)(a) of the aforesaid Act of 1994 means the Sindh Civil Servants Act, 1973. Thus, for the purpose of the Act of 1994 Ad hoc Appointment is as defined by the Sindh Civil Servants Act, 1973, which has been reproduced herein above and it has already been held that the appointment of the private respondents under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 did not come within the ambit of "Ad hoc Appointment" as defined in the law. In this view of the matter, it is clear and obvious that the provisions of Sindh Civil Servants (Regularization of Ad hoc Appointments) Act, 1994 are not applicable to the case of the private respondents or in any manner affects their status as Civil Servants in this view of the matter, we have no other option but to revert to the Notification of the appointments of the respondents dated 25-9-1991, which clearly denotes that such appointments have been made on regular basis. The relevant portion of the said Notification is reproduced here under:--
(2) With the approval of competent authority the above eight candidates are accordingly appointed as Section Officer (BS-17) in the Basic Pay Scale Rs,2870-215-5450 in the Sindh Secretariat service on regular basis
18. We are, thus, constrained to hold that the respondents for the purposes of Seniority must be deemed to have been regularly appointed vide said Notification dated 25-9-1991 on regular basis, specially as the learned counsel for the petitioner has been unable to show us any law or judgment of this Court whereby the appointments under Rule 5 of the Sindh Public Service Commission (Functions) Rules, 1990 have been held to be in any manner other than the regular appointments for the purposes of determining seniority. Since the respondents were initially appointed in the year 1991 prior to the appointment of the petitioner in the year 1992, therefore, their seniority must be reckoned on the basis of such appointments in terms of Rule 10 of the Sindh Civil servants (Probation, Confirmation and Seniority) Rules, 1975 as well as the West ' Pakistan Secretariat (Section Officers) Service Rules, 1962. Therefore, the respondents having been initially appointed on regular basis prior to the petitioner have been correctly held senior to the petitioner in the Seniority List, which has not been set aside by the learned Service Tribunal by way of the impugned judgment.
19. The contention of the learned counsel for the petitioner that the Seniority List dated 24-3-1998 was Final, conferring rights upon the petitioner is also misconceived. The said Seniority List was accompanied by a covering letter (available at page 55 of the Paper Book) paragraph 2 whereof clearly denotes that any aggrieved person may prefer an appeal there against thereby denuding the said List of its finality, as has been held by the learned Tribunal by way of the impugned Order.
20. In this view of the matter, we are not 'persuaded to interfere with the judgment of the learned Service Tribunal. Accordingly, this Civil Petition must fail and consequently dismissed with no order as to costs.