' ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of Federal Service Tribunal dated 7-1-1986 by which an appeal filed by respondent was allowed with the direction that his promotion from Grade B-17 to Grade 18 shall be deemed to have been made on regular basis and not on acting charge basis but his seniority in service in Grade B-18 is to count from 5-12-1981.
2. Facts of the case briefly stated are that the respondent was appointed as an Assistant Executive Engineer in Grade-17 on ad hoc basis with effect from 8-12-1971 for a period not exceeding six months subject to replacement by the Federal Public Service Commission. The post was purely temporary, and services could be terminated at any time without assigning any reason. There was another post in the same Grade which was filled in by the appointment of one Mr. Jehan Dad Khan on the same basis as the petitioner with effect from 1-1-1972.
3. It was then decided to fill in these two posts on regular basis and therefore the Federal Public Service Commission made the necessary advertisement. There was another advertisement in the same connection in 1974 but the respondent did not avail of this chance to get his appointment regularised by clearance through the Federal Public Service Commission. He also did not avail of yet another chance when the posts were advertised by the Public Service Commission in 1976.
However his ad hoc appointment was extended from time to time up to 15-2-1980 and ultimately his services were regularised by the Public Service Commission and his appointment was adjusted in the quota of Tribal Area against a post reserved for direct recruitment.
4. Then a seniority list was circulated by the Department under letter dated 3-10-1981 inviting objections within 15 days. In this list respondent was shown junior to some officers who had joined service as Assistant Executive Engineer after the appointment of the respondent but before the date of his regularisation in service as Assistant Executive Engineer. In the circumstances, respondent made a representation dated 9-11-1981 praying for grant of seniority from the date he originally joined service by regularisation of his previous service with retrospective effect. His request was, however, refused.
5. He was however appointed as Executive Engineer in Grade 18 by a notification dated 5-12-1981 on current charge basis. Some other officers working on ad hoc basis were also appointed as Executive Engineers on current charge basis. All these officers including the respondent made a joint representation that their appointment as Executive Engineers be considered to have been made on regular basis and the seniority should be given to them in Grade B-17 from the date they initially joined the service. The representation was however rejected and they were informd accordingly by the letter dated 10-1-1983. It was against the refusal of this representation by the letter dated 10-1-1983 that respondent approached the Federal Service Tribunal in appeal which was allowed by impugned judgment.
6. As stated earlier respondent's claim for seniority in Grade B-17 was rejected on the ground that appeal against the impugned order in that behalf was barred by time but Federal Service Tribunal made the recommendation in these words.
"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."
7. However, respondent's claim for seniority in the cadre of the Executive Engineers according to the Federal Service Tribunal stood on different footing, for, in the view of the Service Tribunal "for promotion on regular basis to B-18, the period spent in B-17 on ad hoc or temporary basis is not excluded under any rule". The Service Tribunal further went on to observe in this behalf that "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 shows that the name of the appellant was considered alongwith 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 be made on acting charge basis, then it would have been made of the senior most Assistant Executive Engineer even though he had 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 5th December, 1981 under section 8(4) of the Civil Servants Act (LXXI of 1973), and we direct accordingly."
8. Mr. Sajjad Ahmed Sipra, learned Deputy Attorney-General appearing support of this petition for leave to appeal submits that the Federal Servic Tribunal has totally misconstrued the true nature and character of ad ho appointments, in that, it has not appreciated that an ad hoc appointment does not count towards "length of service or for the purpose of promotion". Learned counsel further pointed out that respondent was appointed on regular basis for the first time with effect from 16-2- 1980 and his appointment was adjusted in the quota of Tribal Area against the post reserved for direct recruitment and it is really from that date that his services are to be calculated for all purposes and not earlier.
9. After having heard the learned counsel in support of the submissions made by him we find that certain pleas raised by him find support of the decision B of this Court in Muhammad Afzal v.
Government of Punjab (1982 SCMR 408) wherein it was held that the ad hoc or temporary appointments do not confer any right to seniority. We, therefore, grant leave and allow the petition.