MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant, now an Assistant Programmer (Grade-16) in the Agricultural Census Organization of the Federal Government, was initially appointed in the Regional Office of the Agricultural Census as Stenotypist (Grade-8) w.e.f. 7-1-1970. She was thereafter appointed by promotion as Quality Control Assistant (re-designated as Data Processing Assistant) in Grade-10 w.e.f. 16th September, 1972. She was further promoted to Grade-12 and appointed as Data Processing Supervisor w.e.f. 4th September, 1975. Subsequently she was promoted to Grade-16 and appointed as Assistant Programmer in Grade-16 w.e f. 23-8 1976.
2. The department issued and circulated in November, 1977 a seniority list of Data Processing Supervisors (Grade-12), wherein the ap--pellant was shown at Serial No. 2, junior to only one Mr. Manzoor Ahmed shown at Serial No. 1. But the said list was cancelled vide department's circular dated 27th May, 1981, and another seniority list of Data Processing Supervisors was issued wherein the appellant was shown at the tail of the list at Serial No. 9 junior to respondents Nos. 3 to 8, adversely altering her seniority. Ultimately, her name was altogether deleted from the said list vide department's circular dated 16th November, 1981, after filing the present appeal by the appellant in this Tribunal.
3. The appellant represented to the Agricultural Census Commissioner against alteration of her seniority. But vide letter dated 14th July, 1981 the relief requested for was refused to her. She then submitted a representation dated 28-7-1981 to the Secretary, Statistics Division, Government of Pakistan. The department issued a seniority list of Assistant Programmers (Grade-16) on 29th July, 1981, when the representa--tion of the appellant was still pending before the Secretary, Statistics Division. 'In this seniority list also, the appellant was shown junior to her colleagues who had joined the post of Statistical Assistant; Data Processing Supervisor, etc. Later to the appellant. The appellant submitted a representation dated 10-8-1981 to the Joint Agricultural Census Commissioner protesting against wrong fixation of her seniority in Grade-16. Whereon she was required to furnish documentary proof to prove her appointment as Data Processing Supervisor on regular basis and not on ad hoc basis and also to furnish copies of Government's order under which an ad hoc appointment could be counted towards the seniority. The appellant, thinking that her representation was rejected, appealed to the next higher authority, the Agricultural Census Commissioner. But she heard nothing from the responder ; until 5-I1-1981 when she filed the present appeal in this Tribunal after expiry of 90 days from the date of her departmental appeal dated 28- 7-1981.
4. We have heard the appellant, the learned counsel for respondent No. 10 and the learned counsel for the State as well as the department representative. The case of the appellant briefly is that her appointment by promotion to Grade-12 was made in a prescribed manner and on the recommendations of the duly constituted Departmental Promotion. Committee, hence it was a regular appointment and the department, as late as June 1981, has wrongly termed it as art ad hoc.
She contends that her seniority in Grade-12 was correctly shown in the first seniority list issued in November, 1977, but the same was wrongly and illegally altered to her disadvantage in 1981. While the force of the arguments advanced by the respondents before us as well as in their objections and the written arguments filed on behalf of the respondent No. 10, directed mainly on the stand that the appellant's appointment to the post of Data Processing Supervisor in Grade-12- was on ad hoc basis and was never regularised. Therefore, according to them, her seniority in Grade-16 has rightly been fixed taking into consideration her appointment in Grade-12 as being ad hoc.
5. We have carefully and anxiously considered the submissions made by the parties, have seen the record produced by the department and perused the relevant laws. According to subsection (2) of section 2 of the Civil Servants Act, 1973, an appointment whether by promotion or otherwise shall be deemed to have been made on regular basis if it is made in the prescribed manner. Section 2 (1)
(f) of the Act. Define, `prescribed' as to mean `Prescribed by Rules'. The manner for making appointments by promotion is prescribed by rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which provided inter alia that promotions to posts in Grades 2 to 18 shall be made on the recommendations of the appropriate Departmental Promotion Committee, The perusal of the record has revealed that the promotion, of the appellant to Grade 12 was made on the recommendation of the appropriate Departmental Promotion Committee. Therefore, Fir we lank at the matter keeping in view the above given definitions of the regularize appointment and prescribed manner, we find the promotion of the appellant to Grade-12 as a regular appointment to that grade. Nevertheless, in the Office Order dated 5th September, 1975, we find mention that the appellant was appointed to the post of Data Processing Supervisor in Grade-12 "on ad hoc basis until further orders", which at the first sight gives a strong impression that the appellants appointment to Grade-12 was on ad hoc basis. However, it has to be seen that according to section 2 (1) (a) of the Civil Servants Act, 1973, "ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method. Since, however, the appointment of the appellant in Grade-12, as we said above, was made through promotion strictly in accordance with the prescribed manner and. Needless to say, that thera was no pendency of recruitment in accordance with such method. Therefore, the appointment of the appellant in Grade-12 dos not come within the definition of ad hoc appointment as given above. This conclusion finds further support from the provisions relating to manner for making ad hoc appointments prescribed in Part IV of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Rule 19 of the said Rules provides that when the appointing authority considers it to be in the public interest to fill a post falling within the purview of the Federal Public Service Commission urgently and pending nomination of a candidate by the Commission, it may fill the post on ad hoc basis for a period not exceeding six months, by advertising the post. A firm conclusion is thus reached that the rules permit the ad hoc appointments only for the post which falls within the purview of the Federal Public Service Commission and that too only when the appointing authority considers it to be in the public interest to fill the post urgently pending nomination of a candidate by the Commission.
Further, a study of the instructions issued by the Establishment Division from time to litre (reproduced in ESTACODE) regarding making ad hoc appointments, the only impression created is that the ad hoc appointments can be made only to the post which falls within the purview of the Federal Public Service Commission. This proposition is also consistent with reasons because selection for a post by the Public Service Commission normally takes a long time during which the work of the department in certain cases is most likely to suffer if the appointment to the post is not made urgently. It seems to us clear that it was to cover such a situation that ad hoc appointments have been made permissible in such cases, while appointments/promotions through the Departmental Selection/ Promotion Committee can very well be made in a very short time.
Therefore, there seems no point in permitting ad hoc appointments also for the posts which are outside the purview of the Federal Public Service Commission An irresistible conclusion, therefore, is that ad hoc appointments are permissible only to the posts which are within the purview of the Federal Public Service Commission. The posts in Grade-12 are outside the purview of the Federal Public Service Commission. Therefore, no appointment to a post in Grade-12 can legally be made on ad hoc basis Therefore, the appointment of the appellant in Grade-12, in, the eye of law, is not an ad hoc appointment.
6. Viewing the factual position, we find that in para. 140 of the file No. 6/2-57/HQ-1, on the subject of recruitment to the post of Data Processing Supervisor, it was stated that according to the recruitment rules which were still awaiting approval of the Establishment Division, 50% of the vacancy in a grade could be filled in by promotion. It was, therefore, proposed to fill the vacancy of Data Processing Supervisor (in Grade-12) reserved for woman candidates by promotion, in the interest of Government work, on provisional basis. Vide para. 142 it was suggested that the cases of all female Data Processing Assistants may be placed before the Departmental Promotion Committee. The noting in paragraph 143 shows that a meeting of the Departmental Promotion Committee was held on I-9-1975 to consider the filling up of the post of Data Processing Supervisor by promotion from the existing female D.P.As. Accordingly the cases of the three existing female D P.As. Were thoroughly examined and considered, and it was found that out of three candidates only the appellant fullfiled the requisite qualifications and was thus found suitable to be promoted as D.P.S. It is significant that nowhere in the noting of the filet here is any mention indicating that the promotion was using made on ad hoc basis. In spite of this however, we find that the Office Order dated 5th September, 1975, which was manifestly issued to give effect to the above-stated selection of the appellant, finds a mention, as stated above, that the appellant was appointed on "ad hoc basis and until further orders". However, in view of the fact that the Departmental Promotion Committee and the competent authority never intended to make the promotion on ad hoc basis, mentioning so in the Office Order dated 5th September, 1975, was wholly unfounded and absolutely wrong. It is also strange that in the said order the appointment of the appellant was said to be simultaneously on ad hoc basis and until further orders. It may be mentioned that normally an appointment until further order is at temporary appointment other than the ad hoc appointment. While in the Notification/Order of ad hoc appointments, it is invariably mentioned that the person appointed on such basis will be replaceable by nominee of the Federal Public Service Commission, and that his appointment is for a period of six months or till he is replaced by the nominee of the Federal Public Service Commission, whichever is earlier. It, therefore, appears that the words "ad hoc basis" were inserted in the above Office Order either sheerly by force of habit or meaning thereby as temporary inasmuch as, explained above, the said appointment of the appellant was not at all an ad hoc appointment. Therefore, mere insertion of words "ad hoc basis" in the said Office Order shall not make the appointment of the appellant on ad hoc basis which was doubtlessly on regular best as concluded above. During the course of hearing the departmental representative also appears to have suggested that the appointment of the appellant was made on provisional basis because the "recruitment rules" framed by the department were awaiting approval of the Establishment Division. Therefore, according to him, the appointment of the appellant shall be considered on ad hoc basis. This contention is also wholly devoid of any force and is merely misconceived. Firstly, because in the said noting in paragraph 140, in addition to the proposal of filling up the post reserved for woman candidate by promotion on provisional basis during the pendency of approval of the Establishment Division to the "recruitment rules" framed by the department, it was also proposed that the question of regularization of appointment, of Mr. Manzoor Ahmed already working as Data Processing Supervisor may spend till the "recruitment rules" are finalished. Whereon it was noted in the margin by some officer that why should not it be regularised now by D.P.C, In the remaining noting no explanation is found indicating that the appointment could not be regularised at that time, which also shows that the appoint--ment of the appellant was made on regular basis. It may be mentioned here that the recruitment policy prescribing the qualifications and other conditions applicable to the various posts of the Agricultural Census Organizations contained in the notification dated 12th February, 1976, is being wrongly termed by the department as Recruitment Rules. And secondly, assuming that the appellant was originally appointed in Grade-12 on a provisional basis subject to recruitment policy pending approval of the Establishment Division at the time, the same' must have been regularised by the department on the enforcement of the recruitment policy notified on 12th February, 1976. For on such enforcement several such appointments including the ad hoc appointment of the appellant in Grade-10 were regularised. In fact, in the seniority list of the Data Processing Supervisor issued by the department in 1977, the appellant's appointment in Grade-12 was also shown to be on regular basis. However, it was revealed to the department in 1981 again that the said appointment was ad hoc. We have, therefore, no doubt in our mind that there was no reason or justification for not regularising the appellant's appointment in Grade-12, if it was on ad hoc basis. And if the department omitted to do so, we see no reason to make the appellant suffer for the negligence and default of the department, because her appointment, in any case, shall be deemed to have been regularised on enforcement of the recruitment policy. Therefore, on factual plane also we find that the appointment of the appellant by promotion to Grade-12 is to be considered on regular basis for all intents and purposes, and we hold accordingly.
7. The respondent No. 10 in his written statement/objection raised a preliminary objection that the appellant's appeal against seniority list of Grade-16 was incompetent as she had not made any appeal in this respect before the departmental appellate authority. The correct position, however, is that the appellant submitted a representation initially to the Joint Agricultural Census Commissioner against her wrong fixation of seniority in Grade-16, and having failed to get relief therefrom, she submitted an appeal representation to the Agricultural Census Commissioner, the next higher authority. Moreover, the determining issue made by the department between the parties was the question whether the appellant's appointment in Grade-12 was on ad hoc or regular basis. On this issue the appellant first represented to the Agricultural Census Commissioner, who refused to grant relief asked for by her. She then submitted a representation to the Secretary, Statistics Division, which was also rejected subsequent to her filing the present appeal. Thus, the real and main issue stands finally determined by the department. The objection of the respondent No. 10, therefore, having no substance is repelled.
8. Incidentally, it may be added that the appellant petitioned to this Tribunal on 7th March, 1982 that after the respondents had received notices of the admission of her appeal the respondent No. 2, with an intent to defeat the Result of her appeal pending before this Tribunal, and illegally depriving the appellant of her right to be considered for promo--tion, had initiated the case for promoting respondent No. 10 Mr. Mohammad Zafar Iqbal to the next higher post of the Programmer. Hence, she prayed ford stay order restraining the department from holding selection to the post of Programmer until the decision of her appeal by this Tribunal. Notices were issued to the respondents for hearing of the said stay petition, which was heard by a Bench of this Tribunal on 17-3-1982.
9. It transpired that in spite of issue of the seniority between the ap--pellant and the respondent No. 10 being sub judice before this Tribunal, the department initiated action of promoting respondent No. 10 to the next higher post of Programmer totally ignoring the appellant. This action was considered by the Tribunal as indicative of the fact that the depart--ment wanted to promote respondent No 10 on the basis of his seniority which was disputed and pending review by this Tribunal. It could result in frustrating the object of the appeal and avoiding the process of this tribunal. The Tribunal, therefore, found no justification for the department depart--ment for taking steps to promote respondent No. 10 while appellant's ap--peal on the point of seniority was still pending. The Tribunal also reached the conclusion that the respondent department was taking such actions intended to bypass the proceedings pending before this Tribunal and presenting it with a fait accompli, a development which cannot by conducive either to the ends of justice or to the observance of due regard that a Government department in a case before this Tribunal is expected to render. The Tribunal, therefore, passed an order restraining the department/competent authority from making promotion of respondent No. 10 during the pendency of the appeal
10. The tragedy did not end here. Surprisingly enough, we have further noticed that for promotion to next higher grade in the proceedings referred to above and stayed by us, only respondent No. 10 was considered as he was, according to the departmental representative, a senior most official in Grade-16. Quite obviously, such strange course of action seems to us not only erroneous and unlawful but also mala fide. It is a well---known legal position that for such departmental promotions not only the senior most but all other eligible persons too are entitled to be considered, It is noticeable that the appellant fulfils all the qualifications laid down in the recruitment policy notification dated 12-2-1976 for promotion to the post of Programmer, irrespective of her appointment in Grade-12 being either ad hoc or regular, because, the condition of eligibility for promotion to the post of Programmer, according to the said notification is 5 years service in Grade-16 disregard of nature of his/her appointment (Ad hoc,' Regular) in a lower grade. Therefore, the position of the appellant in Grade-10 or 12 becomes quite irrelevant, and is to be disregarded for the purpose of promotion to the post of Programmer. The appellant had completed her 5 years service in Grade-16 on 23-8-1981 and she is better qualified than the respondent No. 10. She had, therefore, undoubtedly a right to be considered for promotion to the vacant post of Programmer.
The department acted, as we said above, unlawfully and maliciously to initiating a case to promote respondent No. 10 instead of placing the cases of all eligible candidates for the consideration of the Departmental Promotion Committee. The proceedings, therefore, vitiate ab initio. A malice in law is to be inferred when a proceeding is taken or an order is made contrary to the object and purpose of law or in violation of legally vested right of a person. In the case in hand actions of wrongfully altering appellant's seniority and violating her right to be considered for promotion were apparently taken with an ulterior motive to hurt the appellant and benefit the respondent No. 10 in violation of law and vested right of the appellant. The logical conclusion, therefore, is that all actions and pro--ceedings taken to promote respondent No. 10 to post of Programmer, being mala fide and illegal are nullity in the eye of law and are hereby set aside.
11. For the foregoing, we accept the appeal and direct that appellant's seniority in Grade-16 be revised and prefixed considering he appointment in Grade-12 as being regular. It is further ordered that proceedings for holding selection to the available post of the Programmer be taken afresh, wherein the appellant along with all other eligible candidates (including the respondent No. 10) should also be considered by the Departmental Promotion Committee/competent authority.
12. There shall be no order as to costs.
BRIG. (RTD.) ABDUL RASHID (MEMBER).-I agree