JUSTICE SHAH ABDUR RASHID (CHAIRMAN).--The appellant, this Khan, was offered the post of Assistant Executive Engineer (Civil) in the Pak. P.W.D. By letter, dated 15th November, 1971, the relevant portion of which reads as follows:-- "Mr. Rais Khan has been selected for appointment as Assistant Executive Engineer (Civil) in the Pak.
P.W.D. On ad hoe basis on the following terms and conditions:-- (I)
(ii)
(iii)
(iv) The appointment shall further be subject to the approval of the Central Public Service Commission in due course, if necessary.
(v) He will be governed by all the :ides and regulations framed or which may be framed by the Central Government from time to time for the category of Government servants to which belongs.
(vi)
(vii)
On receipt of the above letter, the appellant joined the service and after undergoing the requisite training period of six months, was given the charge of Assistant Executive Engineer.
2. The appointment of the appellant and some others was attempted to be regularised from the public service Commission by the Works Division in 1972, but it appears that they could not succeed. In 1974, applications for appointment as Assistant Executive Engineer were called for by the Public Service Commission in an open advertisement and the appellant too applied. However, subsequently, the advertisement was cancelled and the papers and the fee, etc. Were returned to the appellant. In the same year, however, another advertisement appeared, but the appellant did not apply. Likewise, in response to another advertisement published in 1976, the appellant failed to apply. Finally, an advertisement was issued somewhere in 1980 and the appellant who appeared before the Commission was cleared for appointment in B-17 to the post of Assistant Executive Engineer. Consequently, the appellant's appointment was regularised from the date of approval of the Commission which happened to be 16-2-1980. The' appellant's case had been that he being posted in the Tribal Area did not come across the advertisements in response to which he had failed to apply. It appears that attempt was made by the Works Division again to make the Public Service Commission agree to the retrospectide regularisation of the appointments of the appellant and others from the date of their ad hoc appointments, but without any success.
3. A seniority list was issued on 3-9-1981, in which the appellant was shown junior to many officers who joined after the initial appointment of the appellant but before the date of regularisation. The appellant made a representation for the correction of the seniority list by regularising his appointment retrospectively from the date when he first joined the service. He alleges that he did not receive any reply, but the Government's case is that his prayer was rejected and he had been informed accordingly. ---.
4 While the appellant spas claiming seniority from the date of hire ad hoc appointment, he was first given the current charge of the post of Executive Engineer by letter, dated 9-9-1979 and subsequently appointed as Executive Engineer ors acting charge basis under notifica--tion, dated 5-12-1981. The appellant and some other persons who had been given the appointments of Executive Engineer on current charge basis made a joint representation that their appointments as Executive Engineer should be considered to have been made on regular basis and that they should be given seniority in B-17 also with effect from the date they initially joined the service. This representation having been ejected, the present appeal was filed with the Tribunal under section 4 of the Service Tribunals Act (LXX of 1973).
5. The learned counsel for respondents has pointed out that in similar circumstances, this Tribunal has rejected the appeal of one Jahandad Khan Masood. A copy of the order in Appeal No. 54(P) of 1982 passed by the Tribunal has also been placed on file. The learned counsel contends that the circumstances in the said appeal were identical and that this appeal for the same reasons is liable to rejection. It may be pointed out that this Tribunal not being a Court of record can differ from any of its earlier decision on the same point of law. Even otherwise, we find that the claim of Jahandad Khan Masood was with regard to his seniority in the grade of Assistant Executive Engineer only and he had made no claim with regard to his appointment in the grade of Executive Engineer. Even then the appeal was rejected, because it was a belated claim, the seniority having been determined in 1972 and 1973, and the appeal having been filed in 1983. While deciding the appeal, we made the following observations: "However, we feel that this is a hard case in which a person who joined in 1971 was prevented from being regular for no fault of his. If rule 23 of the 1951 Rules, referred to above, could be applied in 1980, it could have very well been invoked in 1974. If for no fault of the appellant that was not invoked in 1974, then when in 1980 it was invoked, the Government should have obtained the approval of the Commission for the regularisation of the appellant's services with effect from 1974 when a batch of officers was selected by the Commission for appointment as Assistant Executive Engineer. In any case, it was a fit matter where President should have been requested by the concerned authorities to invoke the provisions of section 23 of the Civil Servants Act, 1973, to remove the hardship, which the appellant had suffered for no fault of his. We, therefore, while dismissing this appeal, recommend to the Government that the appellant's representation for changing the date of regularisation of service which he has already submitted, should be favourably considered and the President be requested to invoke the provision of section 23 of the which he can do in such cases. If that representation is accepted, then the appellant's seniority shall automatically vary to his advantage."
6. The learned counsel for the appellant has pointed out that the cases of the appellant and Jahandad Khan Masood are distinct from other cases, inasmuch as, both these persons belong to the Tribunal territory and proposal for their appointments was initiated by the Works Division in view of the fact that they belonged to the Tribal territory and in the cadre of Assistant Executive Engineer, there was either no person belonging to that area, or even if there was one, the desired quota had not reached. We have gone through the file and we also find be indication in the nothing that the proposal for the appointment of the appellant on ad hoc basis was initiated merely for the reason that he belonged to the Tribal Area.
7. The learned counsel for the appellant referred to the Central Engineering Service Class I Recruitment Rules, published with the Works Division under Notification No. 724/186, dated the 13 August, 1951. Rule 3 of the said Rules reads as follows.---
3. The Service shall be recruited by the following methods:--
(i) By competitive examination held in Pakistan in accordance with Part 11 of these Rules;
(ii) By promotion in accordance with Part III of these Rules;
(iii) By transfer or appointment in accordance with Part IV of these Rules of an officer in Government service in Pakistan; (iv)By direct appointment in accordance with Part V of these Rules.
The above rule shows that there are, inter alia, two modes of direct recruitment. The first is given in clause (i) of rule 3, which provides for selection by competitive examination, while clause (iv) by another mode of appointment in accordance with Part V of the Rules. In Part V, there is rule 23, which reads as follows:--
23. If and when it is found necessary or advisable to select a direct recruit in any special case, Government may make appoint--ment to any post borne on the cadre of the Service, in consultation with the Pakistan. Public Service Commission. No candidate will, however, be eligible for appointment under this Rule who does not possess the requisite educational qualifications and experience for the Service or the particular post for which he is recruited. Rules 3 and 23 when read together would show that the appointment which is to be made under Part V is not by competitive examination. It is an appointment which is made by the appointing authority in consultation with the Public Service Commission. The appellant's case squarely fell under this category and, therefore, when his appointment was formally regularised by the Commission, he was entitled to regular appointment from the date when he initially joined the service. This view finds support from the appointment letter of the appellant wherein only this much is mentioned that the appointment is subject to approval of the Public Service Commission meaning thereby that if the name of appellant is approved, he shall stand on regular footing. .Apart from that, certain previous notifications have been shown to us where appointments on regular basis have been made retrospectively from the date of ad hoc appointments. In spite of that, we are unable to accept the appellant's claim of seniority in B-17 in the cadre of Assistant Executive Engineer, because the departmental representation was made in this respect long ago and it was incumbent upon the appellant to come to the Tribunal, in the absence of any reply, within 120 days of the date of making of the representation. We cannot, therefore, entertain the claim of the appellant for the same reasons for which we declined to go into the merits of the case of Jahandad Khan Masood. We, however, reiterate that this is a fit case in which the President may be requested to invoke his powers under section 23 of the civil Servants Act (LXXI of 1973) and favourably consider the claim of the appellant to the regularisation of his appointment retrospectively from the date when he joined on ad hoc basis.th
8. The claim of the appellant for seniority in the cadre of Executive Engineer, however, stands on a different footing. The learned counsel for respondents has raised the objection that in this respect a joint representation was made by the appellant along with others and, therefore, the said representation was not entertainable being against the rules. He contends that since there was no proper representation to the departmental authority, the appellant cannot invoke the jurisdiction of this Tribunal. We are unable to accept this objection, inasmuch as, while rejecting the representation of the appellant by letter, dated i2-9-1982, this defect was not pointed out. In any case, the relevant rule requiring the making of the representation individually and no collectively is directory and not mandatory, which has been enacted only for smooth examination of the cases. We, therefore, hold that the mere feet that the representation was made jointly by the appellant and the others would not exclude our jurisdiction of examining the merits the appellant's case with regard to his seniority in the cadre of Executive Engineer (B-18).
9. As already observed, the appellant was first given the current charge of the duties of the Executive Engineer and then appointed to the post on acting charge basis by notification dated 5th December, 1981. The appellant's claim is that this notification requires modification to the extent that the words "acting charge basis" are not relevant in his case. Rule 8-A and sub-rule (1) of Rule 8-B of the Civil Servant (Appointment, Promotion and Transfer) Rules, 1973 read as follows:-- 8-ANo promotion on regular basis shall be made in Grade 18 to 21 unless the officer concerned has completed such minimum length of service as may be specified from to time.
8-B(1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service, the authority may appoint him to that post on acting charge basis.
The above rule and the sub-rule when read together clearly show that the acting charge appointment is to be made only of a person who possesses all the qualifications except the length of service, required for promotion. It is not denied that the appellant had .Rendered requisite number of years in B-17 entitling him to be considered for regular promotion. However, the appellant was not regularly promoted, because . There were persons shown senior to him in the seniority list who did not complete the requisite number of years required for promotion. For promotion on regular basis to B-18, the period spent in B-17 on ail hoc or temporary basis is not excluded under any rule. The purpose of the rule requiring length of service is that the person to be promoted should have earned sufficient experience for being considered for promotion. Obviously, service rendered on ad hoc or temporary basis is also to count for promotion. It is not denied that in 1981 when the appellant was appointed on acting charge basis, he had completed the requisite number of years in B-17. As such, the making of appointment, in presence of vacancy. On acting charge basis was bad in law. The acting charge appointment is restricted for the persons who do not complete, on the date of promotion, the requisite number of years. If a person who has completed the requisite number of years and is otherwise fit for promotion, is promoted to the higher post, his promotion is regular and not on acting charge basis. Apart from that, the acting charge appointment is to be made of the senior most officer. According to the seniority list of B-17 officers then in field the appellant was not the senior most Assistant Executive Engineer in B-17. This clearly stows that the name of the appellant was considered along with his seniors and he was selected for promotion on merit which included number of years spent in the lower grade. If the appointment had to F be made on acting charge basis, then it would have been made of the senior most Assistant Executive Engineer even though he had not completed the requisite number of years in the lower cadre. In the circumstances, we accept the stand of the appellant that the order, dated 5th December, 1981 treating the appellant to have been promoted on acting charge basis, is wrong and further that this promotion shall be deemed to have been made to B-18 on regular basis. The appellant's seniority in B-18 is, therefore, to count from 5 December, 1981 under section 8(4) of the Civil Servants Act (LXXI of 1973), and direct accordingly.
10. The appeal is accepted to the extent indicated above. Parties to be informed accordingly.