' MUHAMMAD HASHIM KHAN KAKAR, J-- Service Appeal No,! Of 2002, carries the following prayer clause: "It is, therefore, respectfully prayed keeping in view the aforementioned submissions:
(i) That it may be declared that letter dated 17th November, 2001 issued by the respondent No,2 and in pursuance of the same Notification dated 10th December 2001 issued by respondent No,1 is invalid and of no legal effect.
(ii) That it may be declared that the rules prescribed for the regularization of the service are prospective in character. The same cannot be given retrospective effect because it affects the seniority of the appellant. The adhoc period of the respondents No,4 to No,27 cannot be counted for the purpose of seniority.
(iii) The regularization of respondents No,4 to No,27 with retrospective vffect is a sheer violation of rules made for the recruitment of such posts. When the law provides a thing to be done in a prescribed manner the same cannot be done otherwise.
(iv) That it may also be a declared the promotions of respondents from Judicial Magistrate/Civil Judges to Senior Civil Judges and from Senior Civil Judges to Additional District and Sessions Judges during the appeal is of no legal effect.
(v) Any other relief which this Honourable Tribunal may deem fit in the circumstances of the case be given to the appellant in the interest of justice, equity and fair play. "
2. Since Service Appeal No,! Of 2002 as well as Service Appeals Nos.6, 7, 8 and 9 of 2015 is outcome of one and the same notification dated 10th December 2001 as well as common question of law and facts are involved, therefore, the same are being disposed of through this common judgment.
3. The facts, in brief, are that in order to regularize the services of certain Judicial Magistrates, Civil Judges, Qazis and Additional District and Sessions Judges, who were appointed on adhoc basis in the years 1997, 1998 and 1999, the High Court of Balochistan recommended to the Government of Balochistan that services of such ad hoc appointees be got regularized. Such proposal was placed before the Provincial Cabinet on 23rd July 2001 and the decision taken by the said Cabinet was conveyed to the Registrar of the High Court of Balochsitan vide letter No,S.O.CAB. 447/S&GAD/794- 97 dated 11th August 2001 in the following words: " The Honourable Governor informed the Cabinet regarding the above issue. After detailed discussion the Cabinet decided that the cases of those Judicial officers who have completed two years of their services will be dealt with by the Administration Committee of Judges for regularization 'of their appointment in terms of the relevant Service Rules. This relaxation is being granted for one time only and in future all adhoc appointments should be cleared through the Public Service Commission within the stipulated time. However the cases of those Judicial officers who have not completed 2-year service will be referred to the Public Service Commission as per rules. "
4. After receiving the said decision the Registrar of the High Court of Balochistan through letter No,198/H.S.C/2001, requested the Government for deleting the words "in terms of relevant service rules" contained in the minutes of the said Cabinet's meeting. In pursuance of said request, a fresh decision was taken by the Governor of Balochistan and the same was conveyed to the Registrar of the High Court vide letter No,S-11-3(51)/80 S&GAD, dated 17th November 2001. The same speaks as under: ".. ..Minutes of the Cabinet Meeting held on 23-7-2001 may be considered to have been amended to the extent that the words "in terms of relevant service rules" appearing in the 5th line of the decision be deleted. The remaining text of the decision will be operating as such. "
5. In pursuance of the aforementioned letter issued by the Government of Balochistan, Services and General Administration Department ("S&GAD"), the following notification No,2602/149- Estt:/Admn: dated, 10th December 2001 ("the impugned notification ") was issued, whereby the ad hoc services of the respondents. From the date of their ad hoc appointments were regularized. The notification reads as under: " In pursuance of letter No,5.I1.3 (51)/80-S&GAD dated 17th November, 2001 of the Government of Balochistan, Services and General Administration Department, Quetta, the Administration Committee of Hon'ble Judges, High Court of Balochistan has been pleased to regularize the ad hoc appointment of the following Additional District and Sessions Judges, Judicial Magistrates, Civil Judges and Qazis who have completed two years satisfactory service from the dates of their ad hoc appointments as mentioned against each. "
6. At this stage, it would be advantageous to reproduce the initial appointment order of some of the Judicial Magistrates/Civil Judges issued in the year 1997, which reads as under: " NOTIFICATION.
' On the recommendation of the selection committee of the Hon 'able Judges and in pursuance of notification No,SOR-11 (22)51/S&GAD/2406-2555 dated the 18th September, 1997 of the Government of Balochistan, Services and General Administration Department, Quetta, the High Court of Balochistan is pleased to appoint the following persons as Judicial Magistrates/Civil Judges (B-17) on ad hoc basis for a period of six (6) months or till the regular selection is done by the Balochistan Public Service Commission, which is earlier:-
1. Mr. Muhammad Yahya son of Haji Hameedullah.
2. Mr. Naseer Ahmed son of Ali Sher Bangulzai.
3. Mr. Muhammad Anawar Baloch son of Muhammad Ishaq.
4. Mr. Abdul Wahid Durrani son of Abdul Latif Durrani.
5. Mr. Ghulam Azam son of Izzatullah Qambrani.
6. Mr. Muhammad Anwar son of Dost Muhammad.
7. Mr. Abdul Saboor son of Maulvi Muhammad Usman.
' These orders will not confer on them any right for permanent absorption as Judicial Magistrate/Civil Judge and claimed to seniority. "
' It may be noted that the adhoc employment of the aforementioned respondents as well as the remaining respondents arrayed in the maim of appeal continued without any break till their regularization retrospectively.
7. The appellant, as stated above, was appointed on regular basis as Judicial Magistrate on the recommendation of the Balochistan Public Service Commission ("PBSC" ) in accordance with provisions of the Balochistan Civil Judges/Judicial Magistrates Service Rules 1984 ("the Service Rules of 1984 "), being aggrieved of the impugned notification, submitted departmental appeal, but as the same was not decided within the statutory period, hence the instant appeal.
8. The moot question for consideration in the instant appeal is that, whether the appellant, who was, admittedly, appointed as Judicial Magistrate on the recommendations of the BPSC, could be declared junior to the private respondents, who were selected on ad hoc basis as a result of scrutiny by the Selection Committee of the High Court in the years 1997, 1998 and 1999?
9. Mr. Shams-ud-Din Achakzai, learned counsel appearing on behalf of the appellant, contended that neither the Governor, nor the Administrative Committee of the High Court had power or discretion to regularize the service of an ad hoc employee with retrospective effect the detriment and great prejudice of another employee, who had come on the recommendation of the BPSC and had joined service on regular basis much prior to the orders passed by the Administrative Committee.
' According to the learned counsel, adhoc service of a government employee cannot be counted for the purposes of seniority or promotion to affect the rights of another employee, who is regularly inducted into he government service prior to regularization of formal induction of such adhoc employee into government service. While concluding his arguments, he further submitted that when the respondents were, admittedly, temporary employees, they could not have been promoted to the next higher scale, particularly when the appellant, being eligible by all means, was sidetracked by brushing aside all the recognized canons of law and propriety.
10. Learned counsel appearing on behalf of the private respondents sought dismissal of the instant appeal on the ground of limitation. They mainly contended that the selection/joining of the respondents was prior in time in the department than that of the appellant, therefore, they were rightly declared senior to the appellant, notwithstanding the fact that their regularization was made subsequently to the appointment of the appellant by the BPSC on regular basis. They further submitted that it is an established principle of law that persons selected earlier are senior to the persons selected later. To substantiate their contention, they further submitted that as the date of continuous service of the respondents admittedly, the years 1997, 1998 and 1999, whereas the date of continuous appointment of the appellant i.e, selected by the BPSC is 5th April 2000 and further as the services of the private respondents were regularized with effect from their initial appointment on ad hoc basis through the impugned notification, therefore, their seniority should have been from the date of joining service and not from any subsequent date i.e, the date of regularization of their ad hoc services.
11. So far as the question of limitation is concerned, it is an admitted feature of the case that right from 1997 till the regularization of services of the respondents, neither any tentative, nor final seniority list of the Judicial Magistrates and Civil Judges was issued by Registrar of the High Court.
Since the seniority list was not issued, as such, no question of inviting objections or its circulation among the Judicial Officers arise in the peculiar circumstances of the case. The appellant came to know about the impugned notification by his own source. Even otherwise, it is a classical case, where a Judicial Officer, who has to dispense with justice to the general public, himself has been running from pillar to post for the last about 15 years to seek equity and justice. It is not a case, where the matter can be set at rest by invoking the provisions regulating the limitation. Admittedly, the impugned notification has been issued by the Administration Committee in sheer violation of all the recognized canons of law and propriety and, in such circumstances, it cannot be ignored altogether that a repository of executive, judicial or quasi-judicial power is required to act in accordance with law. Any order, which has been passed in violation of law, cannot be protected simply because the repository of such power, has the power to pass such order. While holding this view, we are fortified from the latest judgment passed by the Hon'ble Supreme Court of Pakistan in the case of "Fazli Hakeem v. Secretary State and Frontier Regions Division Islamabad (2015 SCM R 795), wherein it was observed: " It cannot be ignored altogether that a repository of executive, judicial or quasi judicial power is required to act in accordance with law. For the very condition for the conferment of such power is that it has to act in accordance with law. If and when it would go wrong in law it would go outside its jurisdiction. An order thus passed would be non est. Such order cannot be protected simply because the repository of such power, has the power to pass such order. "
Needless to observe that it has been held by the Hon'ble Supreme Court in a number of occasions that a void notification cannot be enforced and no limitation is prescribed to competently and successfully challenge a void order and notification. Reference can be made to the case of "Senate through Chairman v. Shahiq Ahmed Khan" (2016 SCM R 460).
12. Another important question, which requires consideration is that whether ad hoc services rendered by the private respondents shall be computed for determination of their seniority or their seniority shall be computed from the date of their regularization in service. The arguments of the learned counsel for the private respondents were wholly erroneous and misconceived, therefore, cannot be accepted for the reason that the private respondents were initially appointed on adhoc basis in the years ranging from 1997 to 1999 on different dates and they had continued in service till their regularization on 10th December, 2001. The appellant was appointed on regular basis on 5th April, 2000 on the recommendations of the BPSC. He was working as a Judicial Magistrate on regular. Basis in the Establishment of the High Court, prior to the regularization of the private respondents. It is by now settled that the services rendered by the employees on an adhoc basis, prior to their regularization, cannot be counted for the purpose of their seniority. Instead their seniority shall be counted from the date of their 'substantive' appointment. Adhoc service unless, regularized by the "Competent Authority" does not confer any right either for regular absorption as of right or counted towards seniority except that it is counted towards length of service for the purpose of pension if ultimately regularized.
13. It is also an admitted feature of the case that the private respondents were appointed as Judicial Magistrates/Civil Judges by the Selection Committee of the High Court on ad hoc basis for a period of six months or till the regular selection is done by the BPSC and their appointment letters clearly stipulate that the said orders will not confer them any right for permanent absorption as Judicial Magistrates/Civil Judges and claim to seniority. The wisdom behind these conditions was to make it clear at the very beginning that they would neither claim any seniority on the basis of their ad hoc service, nor would the said service confer any right for regular appointment and the regularization of their appointment, without the intervention of the BPSC in terms of noted condition, was being made in order to protect their career and further to save them from being rendered jobless in case of their failure to compete before the BPSC.
14. It may additionally be noted that the appellant was appointed on regular basis after proper recommendations by the BPSC on 5th April 2000, whereas the appointments of the private respondents were made on adhoc bass in the years 1997, 1998 and 1999 and, thus, continued as adhoc employees till regularization of their services in relaxation of the rules vide impugned notification, and were assigned seniority from the date of their initial appointment on adhoc basis with the result that the appellant was placed below them in the order of seniority. In such view of the mater, we are of the considered view that the appellant, being selectee of the BPSC, was required to rank senior to the private respondents who were regularized through the process of Administration Committee of the Judges and that the Committee had no authority to regularize the services of the private respondents from the date of their initial adhoc appointment. It may be noted that the decision of the Administration Committee of the High Court was neither comprehensible by a person of ordinary prudence, nor strictly in line with Article 18 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution" ). There was absolutely no occasion with the Administration Committee to fix the date of regularization of their appointments by reference to their first adhoc appointment going in retrospect to the years 1997, 1998 and 1999.
Our this view is fortified from the dictum laid down by the Hon'ble Supreme Court in the case of "Wajahat Hussain, Assistant Director, Social Welfare Lahore v. Province of the Punjab (PLD 1991 SC 82), wherein it was held: " It is an established principle requiring not much argument that even the executive authority does not extend to make the retrospective orders. The Departmental Selection Committee enjoyed no better position. The 1964 Rules also do not envisage such regularization from a retrospective date.
It was clearly beyond the power of the Departmental Selection Committee and the Services, General Administration and Information Department was wrong in blessing such a performance of the Departmental Selection Committee and advising the adoption of it for preparation of the seniority list. "
15. M/s H. Shakil Ahmed and Muhammad Qadir Shah, learned counsel for the respondents, contended that much water has been flown under the bridge and the impugned notification having taken effect as about 15 years ago. It was a past and closed transaction irrespective of the fact whether the Provincial Cabinet or the Administration Committee of the High Court was authorized to regularize services of the respondents from retrospective effect. They further submitted that there is no provision in any law to limit or abridge the powers of the Government or the Administration Committee of the High Court to deal with the case of any civil servant in an uninterrupted field, so that any limitation or abridgment provided by any section of the Act or by any rule would not stand in their way to do complete justice. We are afraid that we cannot subscribe such view of learned counsel for the respondents for the reason that such powers of the Government or Administration Committee of the High Court are to be exercised in just and equitable manner. No doubt, it is the power to ignore consciously any section of the Act or any rule that may prohibit or restrain the Government or the Administration Committee to do what they are attempting to do, provided they limit their action to what is just and equitable. The word, 'just' denotes that which is right and proper, that which can be justified in law. Similarly, the word 'equitable' means that which is founded in equity, i.e, that which is fair, reasonable, unbiased and impartial. The Government or the Administration Committee of the 'High Court, in appraising the case of a civil servant, can ignore limiting or abridging factors contained in the Act or any rule, but they must confine themselves within the limits of justice and equity, for no sooner they find they are about to transgress those limits, a cutoff point arises E and they must control and stay further transgression, so that purpose of the law or rule may not be flagrantly violated or defeated under the guise of its exercise. While considering the case in hand on touchstone of the aforesaid criteria, we are of the considered view that the Administration Committee, while regularizing services of the respondents from the date of their initial adhoc appointment, has exercised its discretionary power in an arbitrary, unreasonable and capricious manners, which has caused serious injury to the appellant. Legally speaking, since the very notification regarding regularization of services of the private respondents was not in order, as such, the arguments of learned counsel for the respondents were whimsical and superfluous, as illegal acts remain illegal and do not become legal by the efflux of time, as such, the principle of estoppel and limitation would not apply to the illegal acts. The Courts are required to do justice though the heaven may fall, as has been enshrined in the maxim: fiat justitia ruat coelum' . Reference is made to the case of "the State through National Accountability Bureau, Islamabad v. Haji Nasim-ur-Rehman", PLD 2005 SC 270.
16. Likewise, the contention of learned counsel for the respondents that the initial departmental representation filed by appellant Tahir Hamayun was not competent and maintainable for the reason that at that point of time, the appellant was on probation, is also devoid of force and misconceived. In this respect, it may be Mentioned here that appointment on probation is not synonymous with adhoc appointment. The adhoc appointment means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, whereas initial appointment to a service or post, not being an ad hoc appointment is always made on probation as may be prescribed. An adhoc appointment cannot be on probation and an appointment on probation cannot be adhoc.
17. It is by now settled that the concept of adhoc appointments against the posts in public sector is a stopgap arrangement, which is not the permanent character of the civil service. It is not proper in the public sector to occupy the posts required is to be filled through the methods prescribed by the law by making adhoc appointments and allow the incumbents to continue in the same position beyond the terms of their employment without taking any steps for filling the posts through the prescribed manner i.e, BPSC on regular basis. As stated above, the adhoc appointment is appointment of a duly qualified person made otherwise in accordance with prescribed method of recruitment and is made only in exceptional circumstances. This stopgap arrangement is a temporary measure for a particular period of time, which does not by itself confer any right on the incumbent for regular appointment or senility against those civil servants, who have been appointed by the BPSC in accordance with the prescribed method of recruitment on regular basis.
The appointing authority may in its discretion, if necessary, make adhoc appointments and can also subsequently in peculiar circumstances regularize such appointments, but not with retrospective effect to disregard the rules.
18. So far as Service Appeals Nos.6, 7, 8 and 9 of 2015 are concerned, although the appellants have filed the same after a period of about 15 years, yet it is an admitted feature of the case that besides some of the non-appealing Judicial Officers, who were recommended with .Appellant Tahir Hamayun by the BPSC, the appellants in the aforesaid appeals were also appointed on regular basis on the recommendation of BPSC on 28th May 2001, prior to regularization of services of the H private respondents. It is by now settled that dispensation of justice is not alone function of the Court, public functionaries are equally responsible to treat all citizens placed in similar circumstances alike. Though under trichotomy of power, it is the legislature, that makes the law, executive through public and statutory functionary makes policies and implement law, whereas enunciation, interpretation and exposition of law is the function of judiciary. When a particular law, rule, regulation, policy etc. Is expounded and enunciated by the superior Courts, it is binding on all.
For the safe and expeditious administration of justice, it is duty of the public and statutory functionaries to apply law, rule, regulation, notification or the policy etc. As enunciated, interpreted and expounded by the superior Courts with all its implication and ramification affecting person or group of person coming within its net, whether they have approached the Court or not. In the case of "Sikandar A. Karim v. State" (1995 SCM R 387), it was held: " The decision of this Court, in so far it decides a question of law or is based upon or enunciates a principle of law is binding on all Courts in Pakistan. The decisions on questions of law or enunciation of principles of law are the generalization of such questions and principles. There can be no generalization of the facts and circumstances of any case. The facts and circumstances of each case are peculiar to that case and therefore, provide no guidance in the other cases. On the other hand, the generalized principles of law or generalized enunciation of principles of law govern all those which fall within such generalization. The above observations of the learned Judge are, therefore, not correct .
19. Admittedly, the judgment in hand is a judgment in rem. It may be noted that where any law, statutory rule etc. On being challenged, is interpreted and decided one way or the other by the superior Courts, then such interpretation, application of law, rule etc. Not only decide the right of a person, who had approached the Court of law, but also . Judgment in rem as regards the interpretation and application of impugned law, statutory rule etc. Applied by the concerned public, statutory agencies, authorities, bodies and functionaries etc. The judgments of the superior Courts to the extent, it decide a question of law or based upon principle of law or enunciated/interpret law, statutory rule etc. Are not only binding on all subordinate Courts and Tribunals, but are also binding on all public and statutory functionaries etc.; such judgments hold good and should be applied by all such public and statutory functionaries to all persons or class of person affected by such law, rule etc. Without forcing or driving such person to obtain reaffirmation of the legal position already declared by the superior Courts in earlier round of litigation, to which such person/s was not a party, unless of course, such decision is revisited by the Court in review, revision, appeal or a larger bench has taken a different view. As stated above, all persons, placed in a similar situation, affected by any law, statutory rule, regulation, notification or policy etc. Are to be treated even handedly and in the like manner. In this respect, again reference I can be given to the case of Sikandar Karim supra, wherein Hon'ble Supreme Court observed as under: " The generalized principles of law or generalized enunciation of principles of law govern all those which fall within such generalization. "
20. Since the question of giving retrospective effect, while regularizing the services of adhoc appointees, has already been set at rest in the paras supra, as such, no further discussion is required, while deciding the fate of the aforesaid appeals.
21. It is, indeed, unfortunate that grievance of appellant Tahir Hamayun remained un-redressed for a period of over 15 years since issuance of the impugned notification, whereby the adhoc services of the respondents were regularized with retrospective effect. In terms of proviso (b)(1) Section 5 of the Balochistan Subordinate Judiciary Service Tribunal Act, 1989 ("the Act of 1989 ") and Balochistan Subordinate Judiciary Services Tribunal Rules, 1990, the question of fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post is to be determined by the authority (Administration Committee of the High Court in the instant case). However, it may be noted that under Section 6 of the Act of 1989, this Tribunal has wide powers, as it may, on appeal, confirm, set aside, vary or modify the order appealed against.
22. For the above reasons, without setting aside the impugned notification as a whole, the appellants in all the service appeals as well as non- appealing Judicial Officers, who were also appointed on regular basis, prior to the regularization of adhoc services of the private respondents, are hereby declared senior to the private respondents, whose adhoc services were regularized retrospectively in sheer violation of all recognized canons of law and proprietary. After declaring the appellants as well as non-appealing Judicial Officers as senior to the private respondents, their cases are referred to the Administration Committee of the High Court of Balochistan for consideration of their promotion to the next grade from the date when the respondents were promoted.