S. ABDUL JABBAR KHAN (CHAIRMAN).--Ishfaq Hussain Rana, Assistant Agriculture Engineer, Multan, has filed the appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Government of the Punjab through Secretary Agriculture, Punjab Civil Secretariat, Lahore and M/s. Falak Sher Khan and 37 others as respondents.
2. By virtue of this appeal he has prayed that the impugned seniority list dated 2-6-1984, be modified and the appellant be placed at serial No, 1 of the said Seniority List.
3. Brief facts of the case are as under: The appellant passed his professional examination and obtained a agree of B Sc. (Agriculture Engineering and Tech.) from Missisippi State University, USA, in 1965. On 22-12-1967, five posts of Assistant Agriculture Engineers were advertised by the West Pakistan Public Service Commission, to be filled in on regular basis. The appellant applied alongwith others. However, no interview was held due to certain reasons and ultimately Public Service Commission sent a list of applicants to Government for appointment as Assistant Agriculture Engineer on temporary basis. The appellant was appointed on 14-6-1968 on ad hoc basis as such. His appointment was extended to 1-3-1969 and then to 31-5-1969. Later on from 18-10-1969, his ad hoc appointment was further extended for an indefinite period by a notification dated 18-10-1969 till the appointment of an officer against the existing vacancy on regular basis, on the advice of the West Pakistan Public Service Commission. A notification was issued by the Services, General Administration and Information Department, Lahore, on 7-8-1973, appended with the appeal as Annexure/D as under:-- "(1) every person appointed on ad hoc basis to any gazetted service of post and who has continuously served in such service or post, as the case may be, since or before 1st August, 1969, and whose appointment from the date of this notification, be deemed to have been regularly appointed to such service or post."
However, another notification dated 22-3-1974, came into existence, by which the appellant was appointed on regular basis from 7-8-1973. The appellant made a representation against this treatment on 10-4-1974, as well as against the seniority list of 1975. The then Chief Minister was pleased to declare by order dated 22-6-1977, that the appellant should be regularised from 16-6- 1968, and seniority be fixed accordingly, Annexure T. This order was not complied with by the then Secretary. The appellant filed a Writ Petition No, 2783 of 1979, against it with a prayer that Government be directed to implement the order of the said Chief Minister. This petition was dismissed by his Lordship Justice Gul Muhammad by his order dated 1-4-1980, that as this matter pertained to terms and conditions of service of the appellant, therefore the appellant should seek redress before the proper forum. The appellant filed this appeal before the Tribunal (No, 639/1422 of 1981), which was disposed of as premature and thereafter a tentative seniority list came into existence on 7-8-1982, against which objections were filed by the appellant and ultimately final seniority list was prepared on 2-6-1984 and released as such. Aggrieved against this seniority list the appellant has come before this Tribunal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department alongwith Masud Ahmad Riaz and Ch. Muhammad Aslam Virk, learned counsel for respondents, and have perused the entire record of this case with their assist
5. Learned counsel for the appellant has submitted as under:--
(1) That the appellant's appointment since 14-6-1968 has characteristics of regular appointment as the same was 0661 permanent clear vacancy and could not be termed as ad hoc apps at the whim and fancy of the Department.
(2) In the alternative if it was treated as ad hoc appointment, the Government has the powers to regularise it from the date of ad hoc appointment and the Chief Minister being the Executive Head of the Province had passed effective order and the Secretary of the Department had no power to deviate from the same.
This Tribunal has jurisdiction to settle the characteristics of the
(3) appointment and for this he has relied on 1981 PLC 73, 1984 PLC 277, 1983 PLC 247, PLD 1970 Quetta 115. While elaborating the powers of Government to regularise ad hoc appointment into regular one, he has relied on 1981 PLC 551, 1984 PLC 1418 and PLD 1959 Kar. 108.
6. On the other hand learned counsel for the respondents have submitted as under:--
(1) The appeal is barred by section 4(1)(e) of the Punjab Service Tribunals Act, 1974, because the controversy in the appeal relates to the year 1968 and as such this Hon'ble Tribunal has not been vested with the jurisdiction. He has placed reliance on 1985 SCM R 547, 1984 SCM R 1275 and 1984 SCM R 183.
(2) The jurisdiction of this Tribunal is further barred in matters of appointments/promotion under section 4(1)(b). Since the matter essentially relates to the appointment therefore, the bar of jurisdiction is very much attracted.
(3) The offer of appointment was made to the appellant in the year 1974, was accepted by him and as such it was binding on him. He has placed reliance on 1983 SCM R 161.
(4) The appellant's appointment was regularised by notification dated 22-3-1974, under the special provisions made by the Governor of Punjab through notification dated 7-8-1973. Therefore, his seniority shall have to be determined under those special provisions and not under any other rules.
Reliance is placed on 1982 SCM R 978, 1982 PLC (C.S.) 242 d Case No, 344/765 of 1984 Nasarullah Khan and others decided by his Tribunal.
The Chief Minister's order was never communicated to the appellant and as such it did not attain finality and no right can be claimed upon it by the appellant. Reliance in this connection is placed on 1984 SCMR 1178.
The appellant was appointed in the year 1968, on the specific condition that his appointment will be on ad hoc basis. His ad hoc appointment was extended from time to time for specific period, therefore, he could not count his ad hoc appointment's period towards his seniority.
The law quoted by the appellant was not applicable.
In the alternative, even if the order of the Chief Minister is held to be valid, in that case also it does not give any right of seniority to the appellant in view of the special provisions as contained in notification of 7-8-1973, as well as Recruitment Rules dated 18-6-1963, governing this class of service.
7. We have given our anxious thought to the arguments advanced by the parties and first of all will advert to the point of jurisdiction so raised by the learned counsel for respondents that as essentially the matter relates to the appointment. which came into existence in 1968, therefore, the case would be barred, we are afraid we cannot extend the impact of section 4(1)(c) which definitely takes the matter relating to the period earlier than 1969, out of the jurisdiction of this Tribunal as main section 4 empowers this Tribunal to adjudicate matters arising out of final order.
The final order in this case would be the seniority list dated 2-6-1984, therefore, we are of the considered opinion that the Tribunal has jurisdiction to decide the case on merits. Similarly we do not find much fore in the second contention of the respondents that the jurisdiction of this Tribunal is ousted because the matter relates to the promotion/appointment as the impugned issue in this case is whether the appellant would be allowed to claim seniority from the date of his original appointment or from the date from which he has been so regularised.
8. With regard to the merits of the case, what we find is that the appellant was appointed on ad hoc basis in 1968 on 14-6-1968, when his application alongwith others were forwarded to Government without any positive recommendations of the Public Service Commission, with regard to their suitability. This being so the claim of the appellant that he was a regular appointee since 1968 falls to the ground. It will be useful to mention here that the appellant never stood the test of recommendations by the Public Service Commission although the posts were advertised in 1968, and those who applied to the Public Service Commission, were selected by the said body. The appellant even did not dare to apply and only enjoyed the benefit of general notification dated 7- 8-1973, issued by the Governor of Punjab in his rules-making powers under Articles 221 and 222 of Interim Constitution of Islamic Rep Pakistan. This notification, which regulates the appellant's appointment w by special provisions and was not a derrogation to the general rules framed Governor. Under the General Rules he was required to apply to the Service Commission and undergo the test of selection. This being so, his cannot be equated with the case of respondents who as mentioned ahoy undergone the test of formalities of selection by the Public Service Comm. under the normal Rules of 1963. The law on this point has been settled by very judgments of this Tribunal as well as by the Supreme Court of Pakistan. respectfully follow the judgment of Supreme Court of Pakistan in the case of Kabir Ahmad and others v. Government of Punjab reported as 1982 SC M 978. In that case also Ch. Kabir Ahmad and others were inducted into service as a lawyer Magistrate in the year 1973 under special provisions made by the then Governor. Those special provisions contained the rule of seniority. On their appointments under the special provisions, the said civil servants filed an appeal before this Tribunal that their seniority should be reckoned on the general principle of earlier selection provided under the Punjab Civil Servants Ordinance. Their appeal was rejected on the ground that since they had been inducted into service under special provisions, their seniority will be regulated under those special provisions and not under the general rules. Aggrieved against the decision of this Tribunal they filed civil petition as mentioned above, which was dismissed by their Lordships of the Supreme Court of Pakistan.
Para. 10 of the said case is reproduced below:-- "A contention raised that the notification of 18-5-1974 was ultra vires of the Punjab Civil Servants Ordinance (II of 1974) on the ground that the principle of seniority prescribed by the notification was in conflict with section 8 of the Ordinance is without substance. The notification itself had been issued by the Governor in the exercise of his powers under section 25 of the Ordinance, which enabled him to "make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Ordinance". Section 8 says that seniority or initial appointment to a service, cadre, or post shall be determined in the prescribed manner. Since the appointment in question was not under the ordinary rules but under a special provision made for the purpose, it follows that the seniority of such appointees would be governed by the principle prescribed therein for determining seniority. We are satisfied that the case of the petitioners was governed by the notification dated 18-5-1974, and therefore, the seniority was to be regulated as laid down in its clause (iii)."
This being so we are of the considered opinion that the claim of appellant that he should be considered an appointee of 1968, on regular basis and be assigned seniority on that basis under the normal rules, is devoid of merits.
9. With regard to the alternative prayer of the appellant that the Chief Minister Punjab regularised his appointment w,e,f, 11-6-1968, by his order dated 22-6-1977, we have perused the order and find that the case was passed on the application moved by the father of the appellant, in which he had made a grievance that his five years service has not been counted in fixing his seniority in the Department and he has been declared junior. It was also urged that he being ex-Retired Officer and dedicated PPP worker, therefore, benefit of his service be extended to his son. There is an order of Mr. Saleem Akhtar, Secretary to Chief Minister, in which it has been indicated that Chief Minister has seen and been pleased to order that services of Mr. Ashfaq Hussain be regularised w,e,f, 16- 61968, and seniority be also fixed accordingly. It will be useful to mention at this stage that this order was not communicated to the appellant and remained on the file as it was. In this respect we will refer to the judgment of the Supreme Court of Pakistan cited as 1984 SCMR 1178 in regard to Dr. Abdul Sattar Babar v. Pakistan wherein it has been held as under:-- "We cannot accept this argument in its entirety. The order of President, approving the recommendation of the Federal Service Commission and directing his retention in Foreign Affairs Group had not been placed on record. It may be on the Government's file, but was never communicated to him and cannot therefore, be held to have attained finality."
In view of the above pronouncement of their Lordships of the Supreme Court of Pakistan; the order so referred to above, on which learned counsel for the appellant has placed reliance, loses its significance in entirety. The fact remains that whatever was the legal strength of this order, upon which we refrain to devolve, the same would not be of any help to the appellant as it was never communicated or implemented by the Department itself. In view of these circumstances, Government was fully justified to give the benefit of seniority to the appellant which he deserves on the strength of being regularised from 7-8-1973, and thus no injustice had been done to him.
10. The result is we do not find any merit in this appeal, which is dismissed accordingly. However, there will be no order as to costs.