' MISBAHULLAH KHAN (MEMBER).--The appellant, Muhammad Siddique Anjum, was appointed initially as Accounts Assistant in NPS-11 in the National Development Volunteer Programme in pursuance of the provisions of the National Development Volunteer programmer Act, 1973 now repealed. With effect from 1-8-1977, the office of the Director-General, N.D.V.P., with its regional offices was declared as an attached department of the Ministry of Industries by letter dated 3-8- 1977. The appellant by order dated 12-2-1979 was promoted alongwith two others as temporary Accountant (Grade 16) with immediate effect. The letter of his promotion reads as follows:- OFFICE ORDER ' The following temporary Assistants (Accounts), Grade-11 possessing B. Corn. Degrees are promoted to officiate as temporary Accountants (Grade 16) with immediate efect or from the date they assume charge which ever is earlier and until further orders. They are posted at the ND VP Centres shown against their names:- S.No, Name From To
(1) XX XX XX XX XX XX
(2) XX XXXX XX XX XX
(3) Mr.M.Siddique Anjum, Assistant NDVP Regional Centre, Lahore. NDVP Regional Centre, Peshawar.
2. They will be on probation for a period of one year. This period may be curtailed for good and sufficient reasons to be recorded, or if considered necessary, it may be extended for a period not exceeding one year.
3. Their inter se seniority will remain unchanged."
2. By the end of 1979, the NDVP was abolished and its staff was declared surplus by the Government and the names of the surplus staff were circulated to different ministries/departments for absorption. The appellant was absorbed as Assistant Adman. Officer (BPS 16) in the Population Census Organization, Statistics Division with effect from 8-3-1980 by notification dated 15-3-1980, issued by the Statistics Division and duly gazette. This notification reads as follows:- "NOTIFICATION ' No,6(9)/80-PCO(Admn). Consequent upon his absorption in the population Census Organisation, Statistics Division, Peshawar as Assistant Administrative Officer (Grade 16) Mr.M.Siddique Anjum, Accountant (Grade 16) in the NDVP Peshawar relinquished the charge with effect from 8th March, 1980 (FN) and assumed charge of the post of Assistant Administrative Officer (Grade-16) in the Population Census Office, Statistics Division, Peshawar, with effect from 8th March, 1980 (FN) in pursuance of the Establishment Division O.M. No,13/10/1979- D.III, dated the 5th March, 1980."
3. The policy of absorption of the surplus staff was enunciated in the Establishment Division's O.M.
Of 7-6-1980. Para 3 of the O.M. Being relevant to the case of the appellant is reproduced as under:- "OFFICE MEMORANDUM Sub: ABSORPTION OF SURPLUS STAFF
(1) xx xx xx
(2) xx xx xx
(3) With a view of adjust the surplus staff expeditiously it has been decided that:-
(a) No post shall be filled either by promotion direct recruitment, transfer or deputation, unless the phase of adjusting the surplus person is over.
(b) Surplus person shall be absorbed appointed against vacant posts, irrespective of promotion or direct quota posts and as far as possible, be adjustment against equivalent posts, keeping in view the qualifications and experience possessed by them as required under recruitment rules for the vacant posts.
(c) In case the equivalent post is not available it will be at the discretion of the Establishment Division to offer a lower post, in term of CSR/426(c), to a surplus person, provided he accepts the same, otherwise he should be dealt with as provided in the rules.
(d) Technical posts shall not be filled by surplus persons possessing non-technical qualification/experience.
(e) Absorption of surplus persons does not amount to initial recruitment, and so the surplus staff is to be absorbed/appointed against suitable vacancies.
(f) Surplus persons shall not be appointed on deputation, as the posts held by them previously would stand abolished, and they cannot be reverted to the abolished posts, on the expiry of "deputation".
(g) The absorption/appointment of such surplus persons who were holding regular posts before their being declared surplus, shall not be treated as ad hoc.
(h) The previous service of the regular surplus personnel staff be counted towards seniority in the cadre/post, if absorbed against an equivalent post and their pay shall be fixed under normal rules in consultation with the Audit/Finance Division.
(i)All deputationists who have completed their terms of deputation, shall be reverted to their parent offices, within a period of three months from the date these instructions are issued.
(j) Those who have been promoted to higher posts but have been declared surplus, and are not absorbed against equivalent posts in the same grade, should be reverted to their substantive post immediately.
(k) Anyone who refuses to accept nomination against a new post and does not join within the stipulated period should be given notice for termination of service as required under the rules.
(i)Ministries/Division/Departments should finally and firmly declare the vacancies, if any, in various categories/grade Supersession of such information if any traced by the Establishment Division shall be dealt with severely.
(m) Those who cannot be -absorbed, may be disposed of under the rules (Section 11 of Civil Servants Act 1973 reads with CSR 426 respectively.
(4) xx xx xx xx"
4. As would appear from clause 'h' of para. 3 of the aforesaid C.M. Of 7-6-1980, the appellant was assigned seniority by counting the previous service in the NDVP from the date he was promoted in that Programme. Although by letter dated 4-12-1984, the Establishment Division had advised that the absorption of the officers and staff in the NDVP should be made in accordance with O.M. Of 23- 10-1984 it nevertheless issued another O.M. Of 7-8-1986. The contents of that letter are as under:- "OFFICE MEMORANDUM Sub: ABSORPTION OF OFFICERS AND STAFF OF NATIONAL DEVELOPMENT VOLUNTEER PROGRAMME.
ISLAMABAD.
' The undersigned is directed to refer to the Statistics Division u.o. No,SD.S.0.(A-I01-4/84-278, dated 23-2-1986 and Office Memorandum No,SD.SO(A-II)1/4/84-1198, dated 16-7-1986 on the above subject and to say that according to the recruitment rules for appointment to the post in the Population Census Organization the post of Assistant Administrative Officer (BPS 16) is reserved for promotion from amongst Assistant In charge/Assistants with 5 years' service as Assistant. The post, therefore, does not fall within the purview of the Federal Public Service Commission. M/s.M.Siddique Anjum and Abid Rafi were working on ad hoc in the NDVP and should not have therefore been absorbed in the Population Census Organization. Since they have been absorbed and have been continuing as Assistant Administrative Officer since 1980, their appointments may be regularized through DPC and with the approval of competent authority from the dates they joined as Assistant Administrative Officer in the Population Census Organization and will reckon seniority from the dates of their joining in the Population Census Organization."
5. The decision of the Establishment Division dated 7-8-1986 was communicated to the appellant by letter dated 24-8-1986. The appellant made a representation against it on 4-9-1986, in which he inter alia challenged the decision contained therein. The representation was, however, turned down by letter dated 19-10-1986, issued by the Establishment Division and addressed to the Statistics Division. The letter was communicated to the appellant on 29-10-1986, which he received on 2-11- 1986. Consequently he filed the present appeal on 27-11-1986, prayig for setting aside the impugned order and requesting that he should be given the benefit of his regular service with effect from 10-9-1974 up to-date.
6. The respondents-department contested the appeal and the main plea taken by them was that the service of the appellant in the Population Census Organization was ad hoc and, therefore, he could not get the benefit of policy letter dated 7-6-1980.
7. We have heard the learned counsel for the parties and have perused the record. There is no dispute to the proposition that the NDVP originally was not a Government department having been established as a separate entity under the Act of Parliament. However, as already stated above, with effect from 1-8-1977, the programmer became an attached department of the Ministry of Industries by letter dated 3-8-1977, and consequently all its employees became civil servants from that date. The appellant was promoted in the programmer by notification dated 29-3-1979 with effect from 5-3-1979. This notification reads as follows:- " NOTIFICATION ' No,F.1(36)/ISL/Admn/76. Mr.Muhammad Siddique Anjum. Temporary Accounts Assistant, N.D.V.P.
Regional Centre, Lahore is promoted to officiate as a temporary Accountant in Grade-16, w,e,f, 5-3- 1979 (F.N.) at N.D.V.P. Regional Centre, Peshawar until further order."
8. Ordinarily the seniority of the appellant in Grade 16 on the strength of O.M. Dated 7-6-1980 should count from 5-3-1979 but the Government's case is that since the appellant is holding ad hoc post the letter dated 7-6-1980 did not apply to him and that he was not legally absorbed and that subsequently his absorption was made as a matter of grace. This contention appears to be misconceived because the letter dated 7-3-1979 reproduced above does not say that the appellant was promoted on ad hoc basis. The word used are "to officiate as temporary Accountant in Grade 16 with effect from 5-3-1979". The learned counsel for the department has pointed out that though the word ad hoc has not been used in the letter, nevertheless the appointment was ad hoc as the appellant was not eligible for appointment in accordance with the rules laid down for the appointment of Accountants Grade 16 which post was reserved for promotion from amongst Assistants-In charge/Assistants with five years' service. No doubt this is so but then the matter is to be considered not in relation to the post in the Statistics Division but in relation to the post in the NDVP. In that programmer the appellant was appointed as stated above to officiate as temporary Accountant. The temporary posts or for that matter an officiating post is not ad hoc post the latter having been defined in the Civil Servants Act itself. In this view of the matter, therefore, clause 'h' of para 3 of letter dated 7-6-1980 is fully applicable to the appellant. It was, therefore, wrong on the part of the Establishment Division to advise that the case of the appellant may be considered seperately and declared through DPC. We, therefore, confirm that the appellant shall count seniority in Grade 16 in the Population Census Organisation from the date he was promoted to that post in the NDVP i,e,, with effect from 5-3-1979.
9. As regards the length of service we are not inclined to agree with the appellant's stand that his service length should count from the date he was appointed in BPS-11 on 10-9-1974 in the NDVP. The reason being that the said appointment was not as a civil servant and could not count towards his service. The appellant became civil servant for the first time with effect from 1-8-1977 when the NDVP was declared to be an attached department of the Ministry of Industries. We may, however, add that nothing in this regard shall prevent the Government from giving the appellant the benefit of previous service in the NDVP for the purpose of retiring benefits on such conditions as may be imposed. Apart from that he shall not be treated less favorably than other employees of the defunct-NDVP in this respect.
10. This appeal is accepted in the light of above observations.