' MUSHTAK ALI KAZI (CHAIRMAN).--The appellant, a directly recruited Deputy Superintendent of Police, has filed this appeal under section 4 of the Service Tribunals Act, 1973, to claim seniority over respondents Nos,4, 5 and 6 in the recruited batch. The then Government of Sind had taken out selection of the D.S.Ps. From the purview of the Public Service Commission by issue of notification dated 22-5-1974 issued under rule 5 read with 2(b) of the schedule of the Sind Public Service Commission (Functions) Rules, 1974. Rule 5 enables the Chief Minister in the public interest, to specify posts which may be filled without reference to the Commission. These posts were specified in the schedule as being posts is all departments which the Chief Minister may notify to be filled through the Selection Board or Committee. Therefore, for all practical purposes the notification of the Chief Minister above referred to for selection of the posts of D.S.Ps. By the Selection Committee consisting of (1) I.G.P. (2) D.I.-G.P. Headquarters and (3) D.I.-G. Special Branch, could be regarded as valid under the rules. Under the said notification 35 Deputy Superintendents of Police were recruited by the Selection Committee in the prescribed manner. These appointments were made in the prescribed manner by the competent authority on 26-8-1974 in accordance with rules and were, therefore, regular and not ad hoc.
' The recruitment of such huge number of these Police Officers in a single batch posed problems.
Most of these candidates could not pass the departmental tests and were found unsuitable.
Therefore, with the approval of the Governor all the cases of these direct recruits were referred to the Sind Public Service Commission for determining their suitability. The Sind Public Service Commission interviewed the candidates and prepared a select list of 10 candidates only. Out of these 10 Officers 2 Officers had not passed the departmental test. Two other from this list had left the department, one having been selected in the C.S.S. Examination and the other having died.
Subsequently, the two candidates who had not qualified, succeeded in clearing the departmental examinations. Respondent No,9, Mr. Wasim Ahmad was amongst these eight candidates, but respondents Nos,5 and 6 had not been approved by the Commission. The problems still remained unsolved because amongst the remaining 25 candidates who had not been approved by the Commission, there were six persons who had qualified in the departmental test and whose services could not, therefore, be terminated. The M.L.A., Sind meanwhile, promulgated Martial Law Order No,55. Under para. 2(iii) appointments which had been made under the orders of the Chief Minister, excluding the posts from the purview of the Sind Public Service Commission were to be regarded as ad hoc for the purpose of the M.L.O. Such cases of appointments in Grade-17 were to be referred to the Sind Public Service Commission who had to forward their findings to the appointing authority. If the appointee was cleared by the Sind Public Service Commission his appointment was to be regularised by appropriate order. The cases of 6 Officers who had not earlier been approved by the Commission and who had qualified in the departmental test were, therefore, again referred to the Public Service Commission under M.L.O.
55. On receipt of the report the appointments of these six candidates were also regularised with effect from 2nd July, 1978. This list contained the names of the appellant and respondents Nos, 5 and 6. By a subsequent notification dated 20th September, 1981 inter se seniority of all the 14 Officers was determined by the appointing authority under rule 11(a) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, on the basis of aggregate of the marks secured in the departmental examinations, those clearing the subjects first having been placed above those who cleared by later attempts. In this notification respondent No,4, Mr. Wasim Ahmad was placed at serial No,1, respondent No,5, Mr. Abdul Karim Pathan at serial No,2, respondent No,6, Mr. Muhammad Saeed Malik at serial No,3 and the appellant, Syed Asif All at serial No,9. Feeling aggrieved Syed Asif All has preferred this appeal claiming that he should get his seniority above Mr. Wasim Ahmad, Mr. Abdul Karim Pathan and Mr. Malik Muhammad Saeed because his case had been regularised under Martial Law Order No,55 under notification dated 9th August, 1978 and his name had been shown in that notification at serial No,l. Also because the case of Mr. Wasim Ahmad had not been referred under M.L.O. 55 to the Public Service Commission again and his appointment, therefore, continued to be ad hoc within the meaning of M.L.O.
55.
' It has been argued by the learned counsel on behalf of the appellant that, although, the cases of other 8 Officers had been approved by the Public Service Commission including the cases of Mr. Wasim Ahmad, their cases were not again referred to the Public Service Commission under M.L.O.
55. That the reference to Public Service Commission of the cases of all the 35 candidates earlier, was irregular, therefore, the approval of the 10 cases by the Public Service Commission was also irregular and their cases could, therefore, be regarded as ad hoc within the meaning of para. 2(a) of the Martial Law Order No,55.
' The learned A.A.-G. Has, however, rightly pointed out that M.L.O. 55 had been promulgated for a limited purpose to test the suitability of Officers who had not been selected in the prescribed manner by the Public Service Commission. When the cases of 10 Officers including Mr. Wasim Ahmad had already been approved by the Public Service Commission, it was no longer necessary to refer their cases again for the same purpose to the Commission. Their cases were, therefore, excluded from operation of M.L.O. 55 by the Government. The appointments being regular initially under the Civil Servants Act, it cannot be said that such appointments continued to be ad hoc under M.L.O.
55. It has also been pointed out that the M.L.O. Was promulgated to examine the suitability of appointees and did not regulate their seniority. The seniority was to be determined under the ordinary rules. Under the Civil Servants Act, section 8(3), seniority on initial appointment shall be determined as may be prescribed. Under rule 10(1) of the Seniority Rules, seniority of a civil servant shall be reckoned from the date of his regular appointment. The appellant and the respondents were appointed in the regular prescribed manner in accordance with rules on the same day. Their inter se seniority in the batch shall, therefore, be determined under rule 11. Under that rule if the order of merit is not assigned by the Selection Committee then the seniority shall be determined by the appointing authority. The, appointing authority in this case had determined the seniority according to the principles and policy explained in the impugned notification.
' The appellant cannot thus take advantage of subsequent developments to claim seniority over all other candidates. The Public Service Commission had been asked to examine the cases of the candidates and report regarding their suitability. They were not asked to assign order of merit in respect of the candidates approved by them. The reference to Public Service Commission of the case of all the 35 candidates prior to the promulgation of M.L.O. 55 could not be regarded as irregular as it was the established right of the Government to raise the efficiency of the services and for this propose to devise ways and means for selection of officers and for assessing their efficiency and capability. It cannot be laid down that having once determined a particular mode of selection, the Government was powerless to adopt any other method to judge the efficiency of such candidates Zahid Ali v. Pakistan Ordnance Factories PLD 1971 Lah.
229. The reference to Public Service Commission could not, therefore, be considered to be irregular.
Nor could it be considered necessary to refer the case of the 10 candidates again to the Public Service Commission as they had already been cleaned by them. The purpose of the M.L.O. Being only to find the suitability of the appointees by the Public Service Commission or other appropriate bodies, if this had not already been done. The impugned notification fixing seniority of the appellant and the respondent is, therefore, regular and valid and cannot be called in question on the ground that it offends against M.L.O. 55 or any other orders or instructions.
' As a result of the above discussion we find no merit in this appeal which is accordingly dismissed with no order as to costs.