1. JUSTICE (RETD.) MUNAWAR ALI KHAN (CHAIRMAN).--By this appeal, appellant Ghulam Hussain Baloch has sought to challenge the Government's Order No. E.II(C&W) II-8/74/168, dated 31st March, 1985 Whereby his prayer for giving him seniority over respondent No. 3, Liaquat Ali Baloch in the grade of Assistant Engineers was rejected.
2. The facts giving rise to the present appeal may be stated as follows. Consequent upon his selection by the Federal Public Service Commission, the appellant was appointed as Assistant Director (Technical) in Grade-17 in the Ministry of Fuel, Power and Natural Resources, Federal Government on 4-7-1973. While he was still on probation, the Sind Government wrote to the Federal Government to lend his services on deputation for appointment as Executive Engineer (Mechanical) in Grade-18. Although the Federal Government expressed its inability to allow him to go on deputation during the period of his probation yet he was relieved on his own request by permanently severing his connections with the Federal Government. On learning about the inability of the Federal Government to send the appellant on deputation, the Sind Government hurriedly sent a teleprinter message prohibiting the relieving of the appellant, as under the rules he could not be appointed to the post under reference by direct recruitment. Since the appellant had already been relieved by the Federal Government he reported to the Sind Government for duties.
3. However, he was accommodated by the Sind Government as Assistant Engineer in Grade-17 on ad hoc basis, subject to regularisation of his appointment by Public Service Commission vide order, dated 5-6-1974. Subsequently his case was referred to the Public Service Commission for regularisation but the same was returned With advice that the appellant should apply for the post when it was advertised by the Commission. It appears from the summary, dated 7-2-1975 submitted to the Chief Minister that in early 1974 on requisition of the Department, the Public Service Commission had recommended 17 selectees, for Assistant Engineers' posts, who with approval of the Chief Minister were appointed to the said posts. The ad hoc appointment of the appellant having obviously been made subsequent to these appointments, he could not apply for any of the said post and as such his appointment remained ad hoc until it was regularised under M.L.O. 55 in 1978. In the meantime no direct appointment of Assistant Engineer was made on recommendation of the Public Service Commission and, therefore, the appellant got no opportunity to have his appointment regularised earlier. However, before the regularisation of his appointment in 1978, two Supervisors namely Aftab Ahmad Memon and Liaquat Ali Baloch (respondent No.3) were promoted to Grade-17 as Assistant Engineers on 4-3-1975 and 12-3-1975 respectively. Accordingly they became senior to the appellant in the Assistant Engineers grade. But the appellant's case is that at the time of their promotion only one post was reserved for promotion and consequently the promotion of the respondent No. 3 was illegal. He has averred that the said respondent No. 3 could be promoted only in 1980 to the post vacated by Mr. Aftab Ahmad Memon.
4. In this way the appellant claims to be senior to the respondent No. 3, though he has been shown junior to him in the seniority list of Assistant Engineers. The appellant agitated for assignment of proper place in the seniority list whereupon he was informed by the impugned order referred to above that his plea that he was senior to Liaquat Ali Baloch had been rejected. The appellant preferred appeal to the Chief Minister against the said order but as no decision was taken within 90 days he has come in the present appeal.
5. We have heard the learned counsel for the parties at great length and have also perused all the documents relevant for disposal of the appeal.
6. It would appear that the appellant's prayer substantially is that the impugned order referred to above and all other orders on which the said order is based be set aside and the appellant be assigned seniority over respondent No. 3 in the Assistant Engineers' grade. The impugned; order sought to be reversed reads as under:-- "I am directed to refer to your applications, dated 20-2-1983 and 2-8-1984 on the subject and to inform you that your submissions have been examined by the Regulation Wing in Services and General Administration Department and your plea for claim of seniority over Mr. Liaquat Ali Baloch stands rejected."
7. Before considering the case of the appellant on merits, we would like to dispose of two preliminary objections raised by the learned counsel for the respondent No. 3. His first objection was that departmental appeal required to be filed against the impugned order was not mad to the proper forum as instead of the Chief Secretary it was made to' the Chief Minister. It may be observed that although the appeal was addressed to the Chief Minister, yet it was routed through proper channel which obviously means the Chief Secretary. Since the Chief Secretary who was competent authority to hear the appeal against the impugn .d order, was brought into the picture by routing the memo. Of appeal through him, it cannot be held that the present appeal has been filed without exhausting the departmental remedy available to the appellant. Thus, the objection of the respondent's counsel was without force.
8. The other objection of the learned counsel for the respondent No.3 was that the appellant had not challenged the seniority of respondent No. 3 in time, therefore, his representation made in 1983 challenging the seniority for the first time could not be entertained, and the appellant would be deemed to have accepted his seniority position via-a-via respondent No. 3. No doubt it is appellant's own admission that promotion of Liaquat Ali Baloch (respondent No. 3) took place on 12-3-1975 vide para. 13 of memo. Of Appeal, which however, is silent as to when the appellant made application challenging the seniority of respondent No. 3. In absence of such mention in the memo.
9. Of Appeal, the only document available to us for ascertaining the dates of appellant's representations against the seniority of the respondent No. 3 is the impugned order. It clearly shows that the appellant had made two applications, one on 20-12-1983 and another on 2-8-1984.
10. Thus, he had challenged the seniority of the respondent No. 3 for the, first time on 20-12-1983, about 8 years after the promotion of the said respondent and consequent assignment of seniority to him.
11. Obviously his such application was hopelessly time-barred. But the argument of the learned counsel for the appellant was that since the belated representation made by the appellant was considered on merits by the competent authority, it was presumed that the delay was condoned by the said authority. We are sorry, we cannot accept this argument. The period for making such representation is given in section 23 of Sind Civil Servants Act, 1973 (hereinafter referred to as the said Act). It does not contain any power to extend that period. Nor had the appellant's counsel pointed out any other provision of the law empowering the relevant departmental authority to condone the delay in making representation under section 23 referred to above. As such the presumption suggested by the learned counsel could not be legally raised. Therefore, we are of the view that since the appellant had not challenged the seniority of the respondent in time he would be deemed to have accepted the same. Accordingly the appeal is not sustainable on this ground.
12. Coming to the merits of the case, it is not disputed that the appointment of the appellant as Assistant Engineer in Grade-17 was made on ad hoc basis. "Ad hoc Appointment" as defined in clause (a) of subsection (i) of section 2 of the said Act, means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending the recruitment in accordance with such method. Thus the ad hoc appointment of the appellant was to be regularised in accordance with the prescribed method of recruitment. In this connection reference may be made to the Part III of Sind Civil Servants (Appointment, Promotion and Transfer)
13. Rules, 1974 (hereinafter referred to as the 1974 Rules) which lay down the prescribed method for initial appointment. According to rule 10 appearing in this part, initial appointment to posts in Grade-16 to 22 fall within the purview of the Public Service Commission, unless the Government otherwise directs. Accordingly the regularisation of the appellant's ad hoc appointment as Assistant Engineer in Grade-17 could be made only on recommendations of the Public Service Commission.
14. It is clear from the record that subsequent to the appellant's appointment on ad hoc basis neither the Public Service Commission made selection for direct appointments to posts of Assistant Engineers nor the appellant applied and selected, for any such post. Since his ad hoc appointment continued until M.L.O. 55 was promulgated, it was regularised under the said M.L.O. Through the Public Service Commission. This is how the appellant's ad hoc appointment was regularised in 1978.
15. As provided in subsection (2) of section 8 of the said Act, seniority of a Civil Servant shall be reckoned in relation to other Civil Servants belonging to the same service or grade serving in the same department or office or not as may be prescribed. The word "prescribed" is defined in clause
(g) of subsection (1) of the said Act which means prescribed by rules. The requisite rules relating to seniority are called Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred to as the 1975 Rules). As provided in sub-rule (1) of rule 10 of these rules, seniority of a Civil Servant shall be reckoned from the date of his regular appointment. Sub-rule (2) of the said rule says that no appointment made on ad hoc basis shall be regularised retrospectively. Keeping the above rule in mind, the appellant can claim his seniority only from the date of his regular appointment which falls in 1978. On the other hand the respondent No. 3 was promoted as Assistant Engineer in Grade-17 on 12-3-1975 as has. Been admitted by the appellant himself in para. 13 of his memo. Of appeal. His promotion was made in pursuance of the approval given by the Chief Minister vide summary of Secretary, Communication and Works Department, dated 7-2-1975. It is clear from the said summary that Liaquat Ali Baloch (respondent No. 3) was one of the Supervisors who were cleared and recommended by the Departmental Promotion Committee. It is further clarified in the same summary that he was promoted against one of the posts reserved for promotion. Thus, the position stated in the summary belies the arguments advanced on the appellant's behalf that the promotion of the respondent No. 3 was defective inasmuch as that it was neither cleared by Departmental Promotion Committee nor was made against the quota reserved for promotion. The promotion or respondent No. 3 being in order, he entered in the grade of Assistant Engineers by virtue of his promotion in 1975 i.e. About three years earlier than the appellant's entry in the said grade. Accordingly we are convinced that the respondent No. 3 ranks senior to the appellant in the grade of Assistant Engineers and has rightly been placed above him in the seniority list As a result of this conclusion, appeal is dismissed.
16. Before parting with the case we cannot help making some observations. This case presents a glaring example of a great hardship. The appellant has been the worst sufferer. His woes began, the moment he gave up his regular appointment of the Federal Government in the hope of getting a higher post, of Grade-18 under Sind Government. However, his hopes proved abortive. No doubt he too showed undue haste in severing his connections with the Federal Government but we feel that in a case like the present one the appellant was entitled to equitable treatment at the hands of the Provincial Government. After all the said Government had shown its keenness to provide him in Grade-18 post. As disclosed in the summary, dated 27-3-1974, the then Minister for Communication and Works had even suggested the creation of a post of Executive Engineer, Mechanical for making direct appointment of the appellant in that post. However, he was accommodated in Grade-17 post and that too on ad hoc basis. If there were legal difficulties in the way of his direct appointment to Grade-18 post, he should have at least got the lower post of Grade-17 in a regular manner, so that his seniority in that grade would have counted from the date of his appointment. The appellant could have been straightaway appointed in Grade-17 on regular basis by excluding his post from the purview of the Public Service Commission with approval of the Chief Minister, particularly when the unfortunate officer had already gone through the examination of the Federal Public Service Commission before his appointment in grade 17 post under the Federal Government. This was permissible under rule 10(b) of 1974 Rules read with rule 5 of Sind Public Service Commission (Function) Rules, 1974. Somehow this procedure was not followed for the reasons best known to the relevant authorities. As a result the appellant languished on ad hoc basis for about four years when his appointment was regularised under M.L.O. 55 in 1978. The more tragic aspect of the appellant's case is that during the period of his ad hoc appointment, his two juniors who were merely supervisors when the appellant entered the service of Federal Government in Grade-17 were promoted to Grade-17 posts and became senior to him. They were Messrs Aftab Ahmed Memon and Liaquat Ali Baloch.
17. If so desired, the Government can help the appellant even at this belated stage. As provided in clause (a) of subsection (2) of section 9 of the said Act, promotion to a selection post is made only on merit. The Grade-18 post is obviously a selection post. If the Government is convinced that appellant in view of his background, qualifications and performance should be given preference to his immediate seniors including the respondent No. 3 for promotion, he should be promoted to Grade-18 post before them. If this is done, the Government's action is not likely to be challenged for two reasons; firstly it is settled law that promotion cannot be claimed as matter of right and secondly the Service Tribunal which is the only forum available to civil servants for adjudication for their service matters has no jurisdiction to go into fitness of any civil servant for promotion.
18. M.Y.H./91/Lb/S