' S. ABDUL JABi3AR KHAN (CHAIRMAN).-S. Safdar Hussain, Administrative Officer, Agriculture Department. Has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Excise and Taxation Department, Lahore as respondent.
2. By virtue of this appeal he has prayed that the impugned order, dated 5th September, 1977 and final order, dated 26th December, 1982 be set aside and the appellant be re-instated as Excise ant Taxation Officer from 5th. September, 1977.
3. Brief facts of the case are that the appellant originally joined service in the Agriculture Department in 1957 and then later on raised to the rank of Administrative Officer in the year 1976.
The appellant was appointed as Excise and Taxation Officer in Grade-17 by the Governor of the Punjab vide Notification, dated 28th February, 1976. He took over the charge of the said post on 6th March, 1976. Soon after his appointment the appellant underwent department training which he completed successfully. He also passed the Departmental Examination as required under the Rules. After completing his training, etc., the appellant was posted as Excise and Taxation Officer, Gujranwala, where he worked as such. It was in August, 1977 Martial Law was imposed in the country and M.L.I. 21, dated 8th August, 1977 was issued. It was on 5th September, 1977 that the Secretary, Excise and Taxation vide his order of the said date, revoked the earlier order of his appointment as Excise and Taxation Officer and reverted him to his parent Department. The appellant submitted his representation to the competent authority, which has now been rejected by the final order, dated 26th December, 1982. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case including the comments so filed by the Department carefully with their assistance.
5. Learned counsel for the appellant bas submitted that M. L. I. 21 was not attracted in the case of the appellant and reference of M.L.I. In the impugned order was uncalled for. It has been further argued that as the appointment order was made by the Governor, therefore, the same cannot be revoked or rescinded by his Secretary, i,e, Secretary Excise and Taxation Department. In this connection learned counsel has further pointed out that the impugned order as well as appointment order have been signed by the same person who was Secretary at both the times (Iqbal Ahmad Khan). It was vehemently argued that as the appellant was appointed in a prescribed manner by the Governor himself and in consequence of which order, he worked on the said post after undergoing the course of training and examination, therefore the principle of locus poententiae will be fully attracted in his case. Lastly it was argued that even if at all it is held that M.L.I. 21 was attracted then he was not given opportunity of being heard as laid down in case of Malik Javed Azam and Shahid Latif's case decided by this Tribunal in appeal No, 419/1509 of 1981.
6. On the other hand learned District Attorney has taken preliminary objection that the impugned order relates to the year 1977 and representation against the same was rejected in 1978, therefore, the filing of appeal in the year 1982, would be, on the face of it, hopelessly time-barred. On the merits of the case, it was submitted that as the appellant was not appointed in the prescribed manner, therefore, he would be considered ad hoc appointee for all purposes and M.L.I. 21 would be fully applicable in his case. Learned District Attorney has further argued that the case of the appellant was referred under M. L. I. 21 to the Punjab Public Service Commission, a forum so prescribed for this purpose and it was held by the said forum that the appellant was ineligible for the post, therefore, no exception could be taken to his reversion to the parent Department.
7. We have given our anxious thought to the arguments so advanced by the parties and first of all will look into the two orders, which would be relevant to assess the strength of the same. The first order appointing the appellant has been passed by the Governor in exercise of the powers conferred upon him under section 22 of the Punjab Civil Servants Act, 1974 as well as Rule 23 of the Punjab Civil Servants (Appoinment and Conditions of Service) Rules, 1974 by relaxation of said rules in favour of the appellant. The impugned order has been passed by the Secretary, Excise and Taxation Department without invoking the name of the Governor and purportedly it has been made so considering the case of the appellant falling within the ambit of M.L.I.
21. Keeping these two orders in view in juxtaposition, we have no hesitation to hold that the first order being the order passed by the Executive Head of the Province who had the inherent powers vested in him to relax the rules, the same cannot be revoked or rescinded by the Secretary who was a subordinate to him. That being so, we shall have to consider, whether the case of the appellant fell within the ambit of M.L.I. 21 was or not as the Martial Law being supra law, imposed in the country therefore, its weight has to be taken into consideration in its true perspective. M.L.I. 21 was issued in order to assess the following categories of civil servants who have crept into service during the regime of late Mr. Bhutto :
(1) Persons who were holding ad hoc appointments as enumerated in sub-paras. (a), (b) and (c) of para. 1 of the said Instructions.
(2) All those appointments whether by initial recruitment or by promotion made otherwise than in accordance with the prescribed method of recruitment/promotion. All such appointments were held to be deemed to have been made on ad hoc basis.
' In this manner it would become crystal clear that only persons who were initially appointed as ad hoc or later on though declared a regular but recruited or promoted without following the prescribed method, would also be considered ad hoc. In view of the above, what we have to see is1 whether the appointment of the appellant was on ad hoc basis or not. The word 'ad hoc' denotes that a person is appointed as a stopgap arrangement and his appointment is to be re-affirmed after every six months. M.L.I. 21 also widened its scope by stating that even though a person has not been appointed in the manner as mentioned above, yet if his recruitment or promotion was made without following the prescribed method of doing such act, the same would also fall within the category of ad hoc. To resolve this issue we will refer to Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. These Rules deal with appointment by promotion, transfer or deputation in Part II and Part III of these Rules deal with the appointment by initial recruitment..
However, Rule 23 of these Rules provide that "Governor may for special reasons relax any of these conditions in any individual case." Similarly section 22 of the Punjab Civil Servants Act, 1974, also confers upon the Governor to deal with the case of any individual in such manne as may appear to him to be just and equitable. This is also a prescribed manner of an appointment. This issue came for determination before the Division Bench of Sind High Court in three cases, reported as 1981 PLC (C S) 90, 92 and 566. In these cases M.L.A. Sind promulgated M.L.O. 55, on the same lines as of M.L.I.
21. The cases of petitioners in those cases, who were Lecturers in various colleges of Sind Government were sought to be reviewed. Those Lecturers had been appointed by the Sind Government during the Regime of former P.P.P. Government in relaxation of Rules for filling of the posts of Lecturers through Public Service Commission. Their appointments were held to be ad hoc appointments under M.L.O. 55 and Public Service Commission was asked to determine their suitability, against which those Lecturers filed Writ Petition. Their contention was that since they had already been appointed on regular basis in relaxation of the Rules, therefore, there appointments did not fall within the ambit of M.L.O. 55 and the review was uncalled for. The Sind High Court accepted their contention and held that since under the relevant Rules, Sind Government was competent to relax Rules, therefore, there was no irregularity with their original appointments, which had been made in relaxation of these Rules. Accordingly it was held that since their appointments were in the prescribed manner as such the review of their appointments in M.L.O. 55 was uncalled for. In the present case, what we find is that the appellant was appointed by the Governor in relaxation of Rules, therefore, in view of the judgment of the Division Bench of Karachi High Court, we are persuaded to hold that the appointment of the appellant was also made in the prescribed manner and as such it did not fell within the purview of M.L.I. 21 and it cannot be considered ad hoc in any manner whatsoever.
8. We have also attended to the arguments of the learned counsel for the appellant with regard to the principle of locus poenitehtiae and are in agreement with the same for the reasons that the appellant being an appointee by the Governor to the post of Excise and Taxation Officer, went through all the exercises which were required for the said post and actually work as such was for about more than a year, to the entire satis-faction of his superiors, therefore, the respondent cannot be permitted to throw him back against the principle of locus poenitentiae as held in case of Raja Muhammad Nawaz .
9. With regard to the arguments of the learned counsel for the appellant that the appellant was not given proper hearing and for which he has relied on the case-law cited as Malik laved Azam and Shahid Latif decided by this Tribunal on 8th May, 1982, we do not find necessary to go into this point as, we have already held that the appellant was appointed in the prescribed manner and the scrutiny of his case under M.L.I. 21 was unjustified and uncalled for.
10. With regard to the preliminary objection taken by the learned District Attorney that on the face of it appeal was hopelessly time-barred, we find that final order by which his representation was rejected, was passed in the year 1982 on 26th December, 1982 and the appeal has been filed within 30 days of the same, therefore, we have no hesitation to repel this contention so raised by the learned District Attorney. We have re ferried to this only because we find mention of this objection2 in the written, statement although the same was not pressed during the course of arguments. It would also be necessary to attend to another argument of the learned District Attorney that the appointment order in favour of the appellant was also passed by the Secretary and not by the Governor as this file was never put up before him.
11. Without going into intricacies of the procedure we are bound to accept the contention of the learned counsel for the appellant that under Article 139 of the Constitution of the Islamic Republic of Pakistan, 1973 has been clearly laid down that "Orders and other instruments made and executed in the name of the Governor shall be authenticated in sue manner as may be specified in rules to be made by the Provincial Government and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order o instrument made or executed by the Governor." The Secretary to Government always acts on behalf of the Governor when he specifically says so in the order. When we look into the impugned order, we do not find that the Secretary has taken shelter behind the order of the Governor and the said order has been passed by him in his capacity as Secretary, Excise and Taxation, Punjab, therefore, we do not find any force in this contention of the learned District Attorney. In view of the above, we are of the considered opinion that the impugned orders are liable to be struck down as being without lawful authority and without any justification.
12. The result is that we accept the appeal, set aside the impugned order and direct that the appellant be considered to be Excise and Taxation Officer since the date of his appointment by the Governor. However, there will be no order as to costs. The judgment be conveyed to the parties. 1980 PLC (C. S.) 32 1981 SCM R 523