1. ' MUNAWAR ALI KHAN (CHAIRMAN).---This case has a long chequered history spread over about one and half decades. It made its debt with issuance of the S&GAD's Notification No, S.O.V.
2. (S&GAD)-X-206/73, dated 1st July, 1973 whereby 59 Mukhtiarkars including appellant, Abdul Haq Afghan, were promoted as Assistant Commissioners on regular basis. As the appellant was already inducted in the PCS Cadre by S&GAD's Notification No, SOV-V (PCS) (S&GAD)-X-206/71, dated 6th April, 1973, he felt aggrieved by the above subsequent notification. He challenged the said notification in his representation addressed to the Chief Secretary. Pending decision on his representation, identical case of Mr. Qamar-ud-Din Bhatti (Appeal No, 179/75) was decided by this Tribunal vide its judgment, dated 11th December, 1976. Instead of challenging the said judgment in appeal before the Supreme Court, it was given effect by fresh Notification No, SOV(S&GAD)-X- 206/77, dated 29th March, 1977 whereby several notifications specified therein including the notification, dated 6th April, 1973 of the appellant's appointment to the PCS cadre were amended.
3. Consequently like other appointments, the appellant's appointment was declared as promotion on ad hoc basis. Unsatisfied with this notification also, the appellant made one more representation dated 9-7-1977 to the Chief Secretary.
4. ' By the S&GAD's letter, dated 1st December, 1977, the appellant and several other promotees were informed that their request for retrospective regularisation of their ad hoc promotion as Assistant Commissioner, had been rejected. On the basis of the said intimation, the appellant brought the present appeal before this Tribunal on 29-12-1977. However, it was dismissed on technical grounds vide this Tribunal's judgment dated 3rd September, 1980. The appellant went in appeal before the Supreme Court and the said Court vide its judgment, dated 26th January, 1988 remanded the case back to this Tribunal for fresh decision on merits.
5. ' We heard the elaborate arguments made at the Bar and with help of the parties' learned counsel.
6. We also went through the mass of the relevant record.
7. As per judgment of the Supreme Court referred to above, taking up the appellant's case on merits, it would appear that his claim for seniority vis-a-vis the private respondents in the PCS cadre was based on the S&GAD's Notification, dated 6th April, 1973. The arguments advanced on his behalf was that since his appointment by the said notification was in accordance with the rules and hence on regular basis, the subsequent two notifications: one dated 1st July, 1975 and another, dated 29th March, 1977 were inconsequential and did not in any manner alter the position of his seniority. With a view to appreciate the above argument it may be pertinent to reproduce the Notification, dated 6th April, 1973 which is said to be the foundation of the appellant's claim. It reads as under: "Mr. Abdul Haq Afghan, Mukhtiarkar Mirpur Bathoro is appointed to PCS(EB) on the following terms and conditions with immediate effect:-
(i) that he will draw pay in Mukhtiarkar's pay scale.
(ii) that he will exercise all the powers and perform all the duties attached to the post to which he is being appointed.
(iii) that this will not confer upon him any right to claim seniority vis-a-vis other Mukhtiarkars in case in the gradation list of Mukhtiarkars he is not shown senior to others."
8. On careful perusal of the above notification, the impression that one gets is that it speaks of the appointment of lower-grade officer to higher post, on his own pay of lower grade, which is invariably made in the exigencies of service for a short period. Since the appointment was made before amendment of the first proviso to section 18 of the Sindh Civil Servants Act, 1973 (hereinafter referred as the said Act) in 1978, all that the appellant could insist on the basis of the above notification was payment of the salary of higher post of Assistant Commissioner. But the appointment was certainly not intended to be in the nature of promotion. However, the Sindh Service Tribunal consisting of Mr. Abdul Wali Makhdoom as Chairman, and Mr. Abdul Kadir as Member took a different view in the case of Mr. Qamaruddin Bhatti (Appeal No, 179 of 1975) similar to that of the appellant, holding as follows: "It is therefore very clear that the order dated 28-12-1972 was in the nature of a promotion in favour of the appellant and was not a mere holding of any current charge.
9. ' It is however quite correct that this promotion was in the nature of ad hoc promotion.
10. ' In fact, the condition No, 1 mentioned in the order, was also only an ad hoc condition which was merely a time gap arrangement to be finalised subsequently. It cannot be inferred that this condition was fate accompalii, it was to be finalised alongwith the regularisation of the promotion.
11. The regularisation itself may be made effective on any subsequent date but it will certainly not take away the right of the appellant to draw pay prescribed for the post."
12. We may not agree with the above view expressed by our predecessor Tribunal, the fact remained that the Government did not go in appeal against the said judgment before the Supreme Court.
13. Instead it was implemented by fresh notification, dated 29th March, 1977 whereby, as stated above, a number of notifications already issued including the notification with regard to the appellant's appointment issued on 6th April, 1973 were modified. Consequently not only the appellant's appointment was declared as ad hoc promotion but he was also allowed the prescribed pay of the higher post from the date of his appointment to that post. Of course the Government could convert the appellant's initial appointment to the PCS cadre as promotion to that cadre particularly when he was entitled to and was actually allowed higher pay of the said cadre.
14. The important point that arose for our consideration was whether the appellant's promotion could be treated as promotion on ad hoc basis. No doubt this was done in the wake of the judgment of our predecessor Tribunal in Appeal No, 179 of 1975. Since the appellant was not party to that appeal the said judgment was not binding on him. It goes without saying that the said Act and the rules framed thereunder were nowhere in sight when the appellant's appointment was notified on 6th April, 1973. Therefore, the law/rules then in force had to be consulted for determining the status of the appellant's promotion. Admittedly the West Pakistan Civil Service (Executive Branch) Rules, 1964, hereinafter, referred as the said rules held the field at that time. The concept of 'ad hoc promotion' as distinguished from 'regular promotion' which was given statutory recognition for the first time in the said Act was totally alien to the said rules. Even then the promotion not made in accordance with the said rules was anything but regular promotion. Although, there was no specific rule in the said rules requiring the seniority to be computed from the date of any regular promotion, yet as provided in clause (b) of sub-rule (1) of rule 9, of the said rules, the promotee would count his seniority from the date of his continuous officiating. Evidently, one would start officiating only after his appointment under the said rules. Therefore, it has to be ascertained if the mechanism laid down in the said rules was followed in the case of promotion of the appellant.
15. ' Rule 5 of the said rules which deals with Method of Recruitment is divided into nine(9) sub-rules.
16. According to the sub-rule (1), recruitment to the Service (PCS) was made either by initial recruitment on recommendation of the Public Service Commission or by promotion. Sub-rule (2) says that 50% of the vacancies in the service shall be filled by initial recruitment and the rest by promotion. Sub-rule (3) relates the mechanism for initial recruitment. Sub-rules (4), (5), (6), (7) and (8) which pertain to the procedure to be followed in making promotions to the service are relevant here and are therefore reproduced as under:-- "(4) Vacancies to be filled by promotion shall be filled as follows:
(a) 87-1/2 per cent. Of such vacancies shall be filled from among members of the regional sub- cadres of the West Pakistan Tehsildars/Mukhtiarkars' Service whose names appear in Select List 'A' to be maintained in accordance with the provisions of clause (a) of sub-rule (5), in proportion to the strength I f such sub-cadres.
(b) The remaining 12-1/2 per cent. Of such vacancies shall be filled from among persons whose names appear in Select List 'B' to be maintained in accordance with clause (b) of sub-rule (5) of this rule.
(5) Government shall maintain--
(a) a Select List 'A' in Form I annexed to these rules, which shall be prepared in consultation with the Board of Revenue, of the Tehsildars, Mukhtiarkars and Naib-Tehsildars/Head Munshis who are considered fit for promotion to the service; provided that Naib-Tehsildars/Head Munshis of outstanding ability and merit shall be considered for promotion to the service; and
(b) a Select List B' in form 2 appended to these rules of persons who hold substantive posts of Superintendents, Personal Assistants/Stenographers, working in the West Pakistan Secretariat Attached Departments, Commissioners' Offices and the Regional Offices, and who are considered fit for appointment to the Service.
(6) Selection of officers for being brought on the select lists referred to in sub-rule (5) shall be strictly on merit with particular reference to fitness for higher responsibilities.
(7) No entry shall be made in the Select Lists to be maintained under the provisions of sub-rule (5) of this rule nor shall an entry appearing there be removed or the order in which the names appear in a select list be altered without the previous approval of the Commission.
(8) In making an appointment from among the persons whose names appear in a select list to be maintained under the provisions of sub-rule (5) the order in which .The names appear in the select list shall, as far as may be, be followed."
17. It would be observed that for the purpose of making promotion to the PCS cadre, select list of Mukhtiarkars who were considered fit for promotion was to be prepared in consultation with the Board of Revenue (BOR) and no entry was either made or removed from such select list without previous approval of the Public Service Commission. The question arose if the name of appellant appeared in the select list 'A', when he was promoted to the PCS cadre in 1973. On such query from the learned A.A.-G., he called for the requisite information from the S&GAD and in reply submitted the said Department's letter, dated 12th September, 1990 which reads as under:- "I am directed to refer to your Letter No, A.G.2, dated 8-9-1990, on the subject noted above and to state that the promotions of Mukhtiarkars to the posts of Assistant Commissioner were made in 1973, which includes the promotion case of Mr. Abdul Haque Afghan. The select lists A and B required to be maintained under sub-rule (5) of the West Pakistan Civil Service (Executive Branch)
18. Rules, 1964, were not existing during 1973."
19. ' In addition to the above information received from the S&GAD, the learned AA.-G. Made a statement in open Court that as required by rule 5(5) of the said rules select lists A & B had never been prepared or maintained. We were however told that although no select lists were maintained, the Board of Revenue invariably sent the recommendations to the Government with regard to the Mukhtiarkars considered fit for promotion to the PCS cadre. In support of this assertion, we were, shown a copy of the Letter No, 19-1-70 Estt. III, dated 7th December, 1972 addressed to the S&GAD, containing the recommendations of the Board of Revenue in respect of the appellant. The relevant para. Of the above letter is reproduced as under:-- "In view of the above position, the name of Mr. Abdul Haq Afghan will find place at serial number 25 of the list of 30 Mukhtiarkars (i,e, below Mr. Jan Muhammad Memon and above Ghulam Kadir Memon), which has already been forwarded to your Department, for consideration of their cases for promotion to PCS (E.B.) Cadre. Accordingly, his name may kindly be included at serial number indicated above in the list of Mukhtiarkars, sent to you for consideration for promotion to PCS (E.B.) cadre, under this office letter referred to above."
20. ' Keeping the BOR's above recommendations in view we are of the opinion that in absence of the select list, the said recommendations served the purpose of the select list.
21. Apart from above the learned AA.-G. Frankly conceded that the appellant's promotion in 1973 was made in clear vacancy and that he continued to work in the promotional capacity without interruption until he was promoted to the next higher post. This clearly shows that the vacancy against which the appellant was promoted was part of the quota reserved for promotees.
22. Moreover, his promotion having been made before the coming into force of the said Act and the rules framed thereunder, the question of it being of ad hoc nature did not arise. Consequently it was not required to be regularised for the purpose of computing the date of the appellant's seniority. As such the notification, dated 1st July, 1975 whereby the appellant was shown to have been promoted as Assistant Commissioner on regular basis was redundant and uncalled for.
23. Similarly the fresh notification, dated 29-3-1977 was also invalid to the extent of declaring the appellant's promotion to be on ad hoc basis.
24. The upshot of above discussion is that the appellant's promotion as notified on 6th April, 1973 fulfilled the requirements of the said rules under which it was made and as such he was entitled to count his seniority in the PCS cadre from that date. Accordingly appeal is allowed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.