' SHAH ABDUR RASHID (CHAIRMAN).---These two appeals, namely Appeal No, 134 (K)/1980 by Muhammad Iltemas Khan and Appeal No, 135 (K)/80 by P. Zamirul Hasan are taken together as common questions of law and facts are involved.
2. The first named appellant joined the Customs Department on 19th March, 1965 as an Appraiser.
The second named appellant joined the same post on 27th March, 1965. The appointments of both these civil servants were made on ad hoc basis because at that time the selection to the post of Appraiser was to be made on the recommendations of the Public Service Commission. After the appellants had joined as Appraisers, several persons were selected and appointed in the cadre on the recommendations of the Public Service Commission and although the appointment of the appellants was for a period of six months on temporary basis, they were allowed to continue without any interruption. Subsequently, the post of Appraiser was taken outside the purview of Public Service Commission and the Collector Customs became the appointing authority. By order dated 12th July, 1976, the Collector, Customs, placed the appellants and five other ad hoc appointees of the cadre on regular basis. The services of the first appellant were regularized from 19th March, 1965, and of the second appellant from 27th March, 1965. These are the dates on which the two appellants had joined the cadre of Appraiser initially on ad hoc basis.
3. After coming into force of the Civil Servants Act, 1973, the department, presumably in pursuance of section 8 of that Act, prepared a seniority list of the Appraisers as it stood on 1st July, 1976. This was circulated by letter dated 26th August, 1974, and objections were called for. The date of appointment of both the appellants on regular basis, was shown to be 15th August, 1974. The seniority of the first appellant was placed at S. No, 164 and that of the second appellant at S. No, 166.
4. Both the appellants filed objections to the seniority list circulated by letter of 26th August, 1976, and after considering their representation, and perhaps other representations as well, another list was prepared, showing the date of regular appointment of the first appellant as 19th March, 1965, and of the second appellant as 27th March, 1965, and they were placed respectively at S. Nos. 49 and 51. Strangely enough this list was also marked as 'provisional' list, though after receiving and deciding the objections, a final list should have been prepared.
5. The appellants were satisfied with the aforesaid second list, but another list, which was treated, as final list as on 22nd July, 1976, was published on 30th May, 1979. In this list, the first appellant was relegated 'to 148th and the second appellant to 152 position, and their dates of regular entry into service were shown to be 13th July, 1974, while the date on which the order of regularisation of the services of the appellants was passed by the Collector of Customs was 12th July, 1976 and but given retrospective effect from the date of their initial appointments on ad hoc basis. The appellants represented to the Central Board of Revenue against this order. Their representations having been rejected, they have invoked the jurisdiction of the Service Tribunal by way of appeal under section 4 of the Service Tribunals Act, 1973.
6. On behalf of the appellants, it has been argued that irrespective of the fact that the appellants' first appointment was on ad hoc basis, and most of the persons, placed senior to them, were taken through the Public Service Commission, nevertheless, for the purpose of seniority, the date of their continuous officiating in the grade of Appraisers has to be taken into consideration. While arguing this, the learned counsel for the appellant relied on a few judgments in which similar questions were decided. The first case relied upon by the learned counsel is Khushi Muhammad v. General Manager P. W. R. (1). Though the case deals with a different proposition yet it was held that there is no rule that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade. The case was no doubt, of two categories of posts, one of which being reserved post, nevertheless, in principle, it was recognised that the date of continuous officiation determines the seniority. In the case of Muhammad Ashraf v. Secretary, Agriculture Department (2) the Punjab Service Tribunal accepted the principle that where the ad. Hoc appointment is regularised, the initial date of appointment shall be counted towards seniority.
There are two direct authorities on the point. The first is S. M. Zafar Babar and another v. Province of the Punjab and another (3). In this case, it was held that when an ad hoc appointment is regularised, the date of seniority shall be counted from the date of regularisation though made retrospectively. The other case is Muhammad Sharif Ashraf v. Secretary to the Government of the Punjab, Social Welfare and Local Government Department, Lahore (4) in which the same Tribunal held that where regularisation of an ad hoc appointee is made from the date of induction in a post or grade, that cannot be subsequently changed, and that the seniority shall count from the date from which it was regularised and that having once been done, it cannot be changed even by the Public Service Commission.
7. The learned State Counsel has contended that though the regularisation of the appointment of the appellants was made by a competent authority, namely the Collector of Customs, nevertheless the regularisation can be effective only from the date on which the order of regularisation was passed, and not from any earlier date. He contends that an order of this nature cannot be passed to have retrospective effect. In support of his contention, he could not convince us, nor could he bring to our notice any pronouncement of the superior Courts in this respect. No doubt, statutory rules cannot be made by a delegatee to have retrospective effect, but this principle does not apply to orders which are of administrative nature. The appellants' service were regularised, by the Collector of Customs, who was the competent {{FOOT NOTE}}
(1) PLD 1970 SC 203 (2) 1981 PLC (C S) 731
(4) 1973 PLC (C S T) 90
(3) 1981 PLC (C S) 551 {{FOOT NOTE}} ' authority, from the dates of initial appointment of the appellants, and there was no illegality in this order. Moreover, the Collector of Customs once having passed the order, a right accrued to the appellants and the Collector had no power to reverse the same order to the disadvantage of the appellants. We, are, therefore, of the view that the appellants' seniority is determinable in accordance with the letter regularising their appointments retrospectively, i. e. From 19th March, 1965, in the case of Muhammad Iltemas Khan, appellant, and 27th March, 1965 in, the case of P.
Zamirul Hasan.
8. Both the appeals are accepted as above. There shall be no order as to costs.