1. ' MUSHTAK ALI K ALI (CHAIRMAN). -The appellant, a District Food Controller, in N.P.S-16 has preferred this appeal claiming seniority in the cadre as against respondents 3 to 18.
2. ' The facts in brief are that the appellant had originally joined the Food Department Government of Sind as a Food grain Inspector. He was afterwards appointed as a direct recruit against the clear vacancy of Ward Rationing Officer, N.P.S.-16 by the Government of Sind. This appointment made by the Government without referring the case for selection under the rules to the Public Service Commission. The Chief Minister, Government of Sind, had the powers to relax the rules in respect of any such post and dispense with prescribed method of recruitment. The order was passed dated 28th October 1972 relaxing the rules regarding the maximum age limit and the method of recruitment in respect of the appointment of the appellant. The order reads as under :- "The Government of Sind are pleased to order the relaxation of the maximum age limit to the extent of 8 years. 7 month and 14 days in favour of Mr. Ghulam Sarwar Qureshi, Foodgrain Inspector in the Office of the Ration Controller, Hyderabad, for appointment by initial recruitment against the post of Ward Ration Officer.
3. ' The method of recruitment for appointment to the post of Ward Rationing Officer by initial recruitment is also hereby relaxed as a special case."
4. ' By another order of the same date signed by the Secretary to Government of Sind, Directorate of Food the appellant was appointed Ward Rationing Officer against the 25% quota reserved for appointment by initial recruitment.
5. ' The appointment was, however, described as temporary and not permanent. Since the appointment was not for a fixed term nor a stop-gap arrangement the appellant continued to hold this post from 28th October, 1972 onwards.
6. ' On 2nd May, 1978 Martial Law Administration, Zone 'C' for the Province of Sind Promulgated Martial Law Order No,
55. The purpose was to examine all such appointment in existence on this date in the province made in the post by incorrect relaxation of rules. The appointment made under orders of the Chief Minister excluding the post from the purview of Sind Public Service Commission was regarded under M.L.O.-55 as an ad hoc appointment and such appointments were to be referred to Public Service Commission or other appropriate Committees. The cases of Grade-16 officers whose appointments were termed ad hoc in this manner were to be referred to Public Service Commission for review and the Commission had to give a finding whether the ad hoc appointee was fit to be retained in the post held by him on the basis of initial recruitment. After the ad hoc appointee was cleared by the Sind Public Service Commission, his appointment had to be regularised by appropriate order.
7. ' The case of the appellant was accordingly referred to Public Service Commission and his appointment by initial recruitment was duly cleared.
8. ' Such notification was issued by the Government on 2nd July, 1978. The Government of Sind, Food Department, thereafter circulated seniority list of officers in N.P.S-16 of the Food Department as it stood on 1st January, 1983 by notification dated 16th August, 1983. In this list against the name of appellant Ghulam Sarwar Qureshi, the date of regular appointment in N P.S-16 was shown as 2nd July, 1978 instead of 28th October, 1972 and he was, therefore, placed below respondents 3 to 18 whose dates of regular appointment in N.P,S-16 were shown as 5th March, 1978. The appellant then filed his representation with the Government that his appointment as Ward Rationing Officer N.P.S- 16 was with effect from 28th October, 1972 and since it was not an ad hoc appointment, his seniority had to be counted from the date of his initial appointment, and not from the date the Government issued the notification after clearance of his case by the Public Service Commission under M.L.0.-55. Having failed to obtain redress of his grievance, the appellant preferred this service appeal under section 4 of the Sind Service Tribunals Act, 1973.
9. ' The learned counsel on behalf of the appellant has referred to a circular letter of the Service and General Administration Department of the Government of Sind, dated 12th June, 1979, clarifying that the purpose of M L.0.-55 was to review appointments which were made in violation of or incorrect relaxation of rules with a view of assessing their suitability for being retained in service. That the seniority of such officers is not to be determined on the recommendation of the Commission. The seniority and other rights of such civil servants will continue to be the same as before and they will not be adversely affected, merely because their case were processed under M.L.0.-55.
10. It appears that the confusion has resulted from the use of the terms 'ad hoc appointments' and 'regularisation' used in M.L.O.-55 and also referred to in 'the Sind Civil Servants Act, 1973'. Section 8
(4) of this Act provides that seniority in the grade shall take effect from the date of regular appointment to a post in that grade, Rule 10 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, which also appears to have been applied to the case of the appellant, lays down that seniority of civil servant shall be reckoned from the date of regular appointment. It has been emphasized by this Tribunal in various decisions that the acts or rules referred to above cannot be applied to the cases of appointments retrospectively nor can such cases be re-opened just because they do not conform to the requirements of the Civil Servants Act, 1973 and the rules made thereunder. The Sind Civil Servants Act, 1973 came into force on 5th December, 1973 and the Seniority Rules made under the Act were promulgated on 2nd October, 1975. The Act and the rules can have no application in respect of appointments made prior to the coming into force of the Act, and the rules.
11. Prior to 1973 the Services of Pakistan enjoyed Constitutional guarantees under the 1962 Constitution and their terms and conditions were governed by the fundamental rules. The terms such as 'ad hoc appointments' and `regularisation of appointments' did not exist prior to 1973. The services in Pakistan were of two kinds, viz,, temporary or non-temporary. This distinction was based on the question of Constitutional guarantees not being available to temporary employees by virtue of Article 179 of the Constitution of Pakistan, 1962. A cadre is defined by the fundamental rules S. III Ch. H, rule 9 (4) as the strength of a service or a part of a service sanctioned as a separate unit. Each cadre consisted of a certain number of posts which were (i) Permanent, or (ii) Temporary. A permanent post was defined by rule 9 (22) of the fundamental rules as a post sanctioned without limit of time. The temporary post on the other hand was defined in rule 9 (3) of the fundamental rules to mean a post sanctioned for a limited time. An appointment to a temporary post could be
(i) substantive, or (2) on probation, or (3) on officiating basis. A substantive appointment to a temporary post for an undefined period was regarded as non temporary employment and the incumbent thereof would not be hit by Article 179 of the Constitution (1962).
12. ' The entire cadre in the Food Department, Government of Sind, was on temporary basis. The duration of posts being subject to extention from year to year. None of the posts were, therefore, permanent and the appointment orders in all cases mentioned the appointments to be on temporary basis. In the light of what has been described above we may examine the appointment of the appellant. This appointment was not for any fixed period. It was not stop-gap arrangement.
13. It was against 25% quota of direct recruits. The appointment was against a substantive vacancy.
14. The incumbent had been recruited by the Government as special case by relaxation of rules. This appointment could not, therefore, be termed as ad hoc. On the other hand, the appointment being for indefinite duration and having continued from 1972 to 1978 up to the time of promulgation of M.L 0.-55 was clearly meant to continue indefinitely, and on this basis the appointee could claim Constitutional guarantees under Article 179. The term 'ad hoc' and so also the term 'regularisation' used in M.L 0.-55 cannot, therefore, adveresly affect the seniority of the appellant.
15. ' Mr. Naimatullah Qureshi for respondents has pointed out, that the appointment of the appellant being initially on temporary basis carried no rights or safeguards and could be terminated at any time. But all the appointments in the Food Department including the appointments of the respondents by promotion were on temporary basis. The nature of the appointments did not, therefore, have any effect on the question of seniority inter se. Their seniority would be governed by their dates of appointment, in N.P.S-16.
16. ' We accordingly direct that the seniority list in question may be prepared afresh and the appellant may be placed in the list according to the date of his initial recruitment in N.P.S-16, irrespective of regularisation of his appointment under M.L 0,-55. The appeal is allowed with no order as to costs.