MR. JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN):- This judgment will dispose of six appeals involving identical questions of law and fact. The appeals to be decided are: Appeal No. 79/89 filed by Ijaz Ahmed Khan, Appeal No.80/89 filed by Syed Mazhar Ali Shah, Appeal No.81/89 filed by Muuzaffar Ali Joyo, Appeal No.82/89 filed by Ghulam Abbas Leghari, Appeal No.83/89 filed by Zahoorul Hasnain Kazi and Appeal No.84/89 filed by Khalid Haider Memon. These appeals have arisen from serious departmental mess with regard to determination of interset seniority of the parties. Consequent upon the selection by Sind Public Service Com mission all the appellants were appointed as Assistant Executive Engineers (BS-17) vide Irrigation & Power Departments's Notification dated 2.8.1976. They have controversy with the private respondents, whose names appear in their respective memos of appeals, over seniority in the cadre of Assistant Executive Engineers. The private respondents were appointed as Assistant Executive Engineers by promotion from lower ranks. The appellants have challenged the order of Chief Secretary dated 27.7.1989 (herein after referred as impugned order whereby the private respondents were declared as senior to them.
2. As disclosed in their memos of appeals, the appellants case is that although all the private respondents were promoted purely on adhoc basis, their promotions were never regularized.
Despite that, the names were illegally mentioned in the seniority lists dated lst. April 1980 and 1st.
February 1982, except the name of respondent Issar Das whose name appeared for the first the in the seniority list of 1986. Like the private respondents, M/s. Lajpat Rai, Azizullah Baloch and Muhammad Daud Baloch who were also promoted on adhoc basis on 3.8.1976, were, without regularization of their adhoc promotion, assigned seniority- over the appellants. Their seniority was however, challenged in the representation which was accepted and the said three promotees were relegated to lower position ;n the subsequent seniority lists issued in 1983, 1984, 1985, and 1986. Then came the seniority list of 1987 which was issued by the Secretary, Irrigation and Power Department on 30.4.1987. On representation of Mr. Azizullah Baloch against the last mentioned seniority list, his name we moved up from No. 30 to No.LI (a). The date of his promotion was also changed from 3.8.1976 to 6.7.1976. As this was done without affording opportunity of hear to the appellants, they started collecting necessary material for filing the appeal against the order dated 4th October 1987, allowing the seniority to Mr. Azizull Baloch over them. In the meantime they lay hands on for notifications dated 23.7.1974, 20.1.1975, 19.8.1975, and 3.8.1976, from which they came to know for the first the that the respondents specified in the said notifications were promoted purely on adhoc basis. As they were unable to locate the orders of regularization of their adhoc promotions, the appellants filed departmental appeal dated 30.1.1988 to Chief Secretary whereby not only they called in question the assignment of wrong seniority to M/s. Lajpat Rai, Azizullah Baloch and Muhammad Daud Baloch but also challenged the private respondents seniority and the illegal inclusion of their names in the seniority lists. By the impugned order, the Chief Secretary partly allowed their appeals giving them seniority over the aforesaid three promotees, holding further that the appellants would remain junior to all the private respondents. It is against the latter portion of the Chief Secretary's Order that the appellants have filed the present appeal.
We heard the learned counsel for the parties elaborately and with their assistance we also went through the massive record relevant for disposal of the appeals.
The Chief Secretary's order dated 27th July 1989 (impugned order) which has been called in question in these appeals is reproduced as under:- "The appeal preferred by M/s. Manzoor Ahmed Shaikh, Aijaz Khan, Mazhar Ali Shah, Muzaffar Ali Joyo Ghulam Abbas Leghari, Zahoorul Hasnain Kazi and Khalil Haider Memon, Assistant Executive Engineers, have been considered. By the Chief Secretary and partly allowed under which the appellants will stand senior to M/s. Azizullah Baloch, Lajpat Rai and Mohammad Daud Baloch on the ground that they were promoted on adhoc basis. They will however remain junior to the other Assistant Executive Engineers w hose names have been mentioned in para-10 of the appeal".
3. As stated above the appellants have taken exception to the last portion of the above order where they were held to remain junior to the Assistant Executive Engineers whose names were mentioned in para 10 of their departmental appeal. The perusal of their departmental appeals would show that the private respondents were specified i.e this para and as such were intended to be held senior to the appellants. Before scrutinizing the merits of the appellants' case with regard to private respondents seniority, we wish to dispose the legal objections raised on behalf of the respondents.
4. It was first contended by the respondents Learned Counsel including learned A.A.G, that the controversial portion of the impugned order was never communicated to the appellants and, therefore, their appeals directed against the said portion of the order were not maintainable. In other words, the learned Counsel wanted to say as if the maintainability of the appeals depended upon the communication of the impugned order. This argument was obviously not in confirmity with the requirements of law. A cursory glance at Section 4 of the Sind Service Tribunals Act 1973 would reveal that the appeal can be filed against the departmental order, original or appellate whereby a civil servant is aggrieved. The communication of that order had nothing to do with the maintainability of the appeal. Of course it is relevant for computation of the period of limitation which was to be calculated from the date on which the impugned order was communicated.
Accordingly the contention raised by the learned Counsel for the respondents was without force.
5. The second and the important objection agitate by the respondents learned Counsel was that the appeals were the barred. Their contention was that a number of seniority lists reflecting the seniority position of the private respondents were issued, one after the other, but the appellants remained totally indifferent, taking no step whatever to assail the seniority of the private respondents. In this connection the learned counsel referred to seniority lists published in 1976, 1980, 1982, 1983, 1984, 1985 and 1986 and submitted that in all these lists the private respondents were assigned seniority over the appellants. In reply to this argument it was submitted on behalf of the appellants that as soon as the appellants came to know from the four notifications bearing same No. Admn-I/3-5/7-Vol. IV dated 23.7.1974, 20.1.1975, 19.8.1975 and 3.8.1976, which came to their notice while collecting material for filing appeal against the order dated 4 October 1987, allowing seniority to Mr. Azizullah Baloch from the back date at the private respondents were promoted only on adhoc basis and their adhoc pi emotions were never regularized, they lost no the in challenging the private respondents seniority. It was further submitted by the learned counsel for the appellants that since the seniority lists referred by the other side were void ab initio in respect of the private respondents, the limitation would not operate as a bar for challenging such seniority lists. According to him there could be no estoppel against the statute. Elaborating this point further he submitted that since the names of the private respondents were mentioned in all the above seniority lists in utter disregard of legal provisions, such illegality could not be allowed to perpetuate for the reason of limitation. The learned Counsel invited our reference to Section 8(4) of the Sind Civil Servants Act 1973 (hereinafter referred as the said Act) arguing that seniority in a post, service or cadre to which a Civil Servant is (Promoted shall take effect from the date of regular appointment of such Civil Servant to the post, service or cadre. He submitted that similar provision is contained in rule 10(1) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975, (hereinafter referred as seniority rules), which also provides that seniority of a civil servant is to be reckoned from the date of his regular appointment. As such, the learned Counsel argued, the inclusion of the private respondents in the aforesaid seniority is, without first regularization of their adhoc promotions, was clearly in violation of the law and hence illegal. He submitted that any protection given to the said Seniority lists would tantamount to estoppel against a right conferred by a statute and would in consequence, nullify the statutory provisions themselves. We need not reproduce the number of authorities cited by the learned Counsel on the estoppel because it is so eminently established that no authority is required to be quoted as its reminder. The learned counsel for the appellants further submitted that the arguments based on "waiver by conduct" would also not help the respondents because the waiver of a right would become effective from the knowledge of breach of right. In support of his assession he relied upon the Supreme Court authority reported as Mohammad Saleh Vs. Mohammad Shaft (1982 SCM R 33), wherein it was held that to establish waiver by conduct, it must be shown that the person entitled to the right had knowledge of the breach thereof and that he acquiesced or failed to at inspite of such knowledge.
The learned Counsel submitted that in keeping with this authority the appellants had moved swiftly as soon as it came to their notice that the private respondents who merely enjoyed the status of adhoc promotees were not senior To them.
6. We have given our anxious consideration the above arguments addressed at the bar. Assuming that the private respondents' initial promotions made on adhoc basis were never regularized, in that case we are inclined to agree with the view that the inclusion of the private respondents, names in the seniority lists was absolutely illegal, Such inclusion, in our opinion, would be construed as not merely raising a dispute of seniority between the parties but it would also amount to perpetuation of illegality. Accordingly the excuse of the limitation would not be permitted to frustrate the efforts taken for removal of that illegality. Even otherwise the appellants had been prompt in taking necessary steps for enforcing heir right of seniority over the private respondent as soon as they discovered that the said respondents were only adhoc promotees and their adhoc promotions were never regularized. The private respondents had obviously started their service from lower ranks much before the appellants entry in Government service. Their adhoc promotions to the higher posts of Sub-Divisional Officers had also taken place in the appellants absence as they were appointed as Assistant Executive Engineers after their adhoc promotions. In these circumstances it was quite possible that the appellants were not aware of the real status of the private respondents particularly when their names continuously appeared in the senior lists issued one after the other. It was also difficult to believe that inspite of the knowledge the private respondents status of adhoc promotees, the appellants would keep mum and would not take necessary measures for establishing their seniority over them. We are therefore convinced that the appellants were unaware of the adhoc nature of the private respondents' promotions until they got that knowledge for the first the from the notifications referred to above. The limitation was to run from the knowledge about the private respondent having the status of only adhoc promotees. It seems after knowing that adhoc nature of the private respondents promotions, the appellants, hastened to challenge their seniority in departmental appeal filed before the Chief Secretary. Even the Chief Secretary did not dismiss their appeals on the ground of limitation. He rather took decision on merits by allowing the appellants partial relief in respect of M/s. Azizullah Baloch, Lajpat Rai and Muhammad Daud Baloch and declaring them junior to the private respondents. More over the appellants have come in the present appeals against the said order. Of course the present appeals were filed within 30 days of the Secretary's order dated 20.8.1989 whereby the Chief Secretary's order was communicated to the appellants. It is true that the controversial portion of the Chief Secretary order which gave cause of action to the appellants did not find mention in the Secretary's order. Since the appellants' departmental appeals filed before the Chief Secretary were directed even against the private respondent's seniority, the Secretary Irrigation and Power Department was not justified in withholding that portion of the Chief Secretary's order from the appellants which actually disposed their appeal in respect of seniority of the private respondents.
The learned Secretary was under obligation to convey the whole order of the Chief Secretary to the appellants. It seems they took sometimes in getting the controversy portion of the Chief Secretary's order. However their appeals were within the as they were filed within 30 days of the secretary's order which actually intimated them about the disposal of their departmental appeals.
Accordingly the objection of the learned counsel for the respondents that appeals were hit by limitation has no force.
7. We may not proceed to examine the merits of the appeals. As pointed out above there is dispute over interset seniority between the parties in the cadre of the Assistant Executive Engineers (BS-17).
Therefore it has to be ascertained on what dates the appellants and the private respondents entered the said cadre. This would again depend on the law/rules applicable at the the of their induction in that cadre. So far the appellants are concerned they are all direct recruits and their date of appointment to the posts of Assistant Executive Engineer was 2.8.1976. By this date, the new service laws had already come into force. The said Act had taken effect from 5th December, 1973.
Sub-Section (3) of Section 8 of the said Act reads as follows: "(3)Seniority on initial appointment to service, grade or post shall be determined as may be prescribed." The word 'prescribed' as defined in clause (g) of sub-sec. (3) of section 2 of the said Act, means prescribed by rules. The relevant rules regulating seniority of civil servants are the Sind Civil Servants (Probation Confirmation and Seniority) Rules 1975 (hereinafter referred as Seniority Rules. As per rule 10 (1) of these rules seniority of Civil Servant is to be reckoned from the date of his regular appointment. The appellants being selectees of the Public Service Commission, their appointment was regular appointment and as such their seniority is reckoned from 2.8.1976, the date of their regular appointment.
8. The private respondents, were however appointed to the posts of Sub- Divisional Officers by promotion. According to appellants learned counsel, their promotions were made on adhoc basis which were never regularized. In support of this contention he invited our reference to Irrigative and Power Department's notifications dated 29th April, 1972, 25th July 1972, 6th December, 1972, 31st December, 1973, 23rd July, 1974, 20th January, 1975 and 19th August, 1975. On perusal of these notifications it was clear that all the private respondents were promoted as Sub-Divisional Officers purely on adhoc basis and their such promotions did not entitle them to claim regular appointment to the said posts. It was also indicated in the aforesaid notifications that despite the said promotions the promotees did not enjoy the gazetted status of Assistant Executive Engineers for which separate reference was intended to be made by the department to the Public Service Commission. Confronted with this situation, the learned counsel for the respondents were unable to show or refer to any order in black and white indicating regularization of the private respondents adhoc promotions. Instead they placed reliance on several documents in an attempt to prove that the promotions of the private respondents had all along been treated as regular promotions. It was also their argument that some of the private respondents were promoted prior to introduction of the new service laws when there wage no concept of adhoc appointment/promotion nor was there any legal bar on retrospective regularization of adhoc appointment/promotion.
9. Taking up first the latter argument of the respondents' learned counsel, it may be pointed out that the promotions contained in the notifications dated 29th. April, 1972, 25th July, 1972 and 6th December, 1972 obviously took place prior to promulgation of the new service laws. The rules which held the filed at the the of issuance of above three notifications were West Pakistan Irrigation Engineering Services (Clause-II) Rules 1967 (hereinafter referred as the 1967-Rules). Of course 'he word "adhoc" was conspicuously missing from these rules. Nevertheless as provided in rule 5 of 1967-Rules, appointment to the post of Assistant Executive Engineer was to be made in consultation with the Public Service Commission. Admittedly no consultation was made with Commission with regard to promotions covered by the above three notifications. As such these promotions not made in accordance with 1967-rules, were anything but regular promotions. However, it was argued by the learned counsel for the respondents that approval of the Chief Minister was obtained with regard to the said promotions and consequently they stood regularized. In this connection reference was made to the "Summar for the Chief Minister" floated by the Secretary, Irrigation and Power Department on 26.11.1975 and the Chief Minister's order dated 18.12.1975 thereon.
Para 2 of the Summary being relevant is reproduced as under:- "In view of the difficulties pointed out by the Sind Public Service Commission, this department will and insist for recruitment being male through written competitive examination in the present selection but the candidates so selected should be made to undergo at least 9 months training (3 months research work and 6 months on Irrigation works) before they are given full fledged sub- divisional charge and they should rank below all the graduate sub-engineers who have been promoted as sub-divisional officers."
10. Obviously the main purpose of the Summary was to obtain the approval of the Chief Minister with regard to suggestion of the Public Service Commission that fresh recruitment to the posts in Grade-17 be made without holding written competitive examination. It was only incidentally that the learned Secretary proposed that the candidates so selected should rank junior to the graduate Sub-Engineers who were already promoted as sub-divisional officers. Prima facie his proposal was uncalled for, because even otherwise the candidates selected on later date had to rank junior to the persons already inducted in the cadre. Moreover his proposal was vague in as much as that neither the names of the sub-divisional officers whose seniority was intended to be protected were specified in the summary nor was it explained for appreciation of the Chief Minister why they needed such protection. In other words, the Chief Minister was not appraised of the full facts about the promotions of the Graduate Sub-Engineers as sub-divisional officers. He was not informed that their promotions were made purely on adhoc basis nor was it explained to him what prevented the consultation with the Public Service Commission and thereby regularization of their promotions.
The learned Secretary knew fully well that until their promotions were regularized, they were not entitled to any seniority much less then seniority over the fresh recruits of the Public Service Commission. In these circumstances the approval of the Chief Minister could not be construed to have regularized the adhoc promotions of the private respondents. Unless the promotions of the private respondents mentioned in the three notifications issued in 1972 were made on regular basis or in accordance With the 1967-rules, the question of counting their seniority in the cadre of assistant Executive Engineer did not arise. Had regularization of their promotions taken place, they could have even been effective retrospectively from the back date of adhoc promotions.
11. When the notification dated 31st December, 1973 was issued the said Act had already come into force. As provided in Section 8(4) of the said Act, seniority of promotee civil servant was to take effect from the date of his regular appointment to the post. Sub-section (2) of Section 2 of the said Act provides that Appointments made by promotion or otherwise shall be deemed to have been made on regular basis if it is made in the prescribed manner. The Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred as 1974- rules) which prescribed the mechanism for making appointments/promotion had hot taken effect by 31st December, 1973 the date of issuance of the above notification. Consequently the promotions made under the said notification were also regulated by the 1967-rules. Since the said promotions to were made without consultation of the Public Service Commission, they continued to. Be adhoc promotions. No move was made to regularize those promotion or the promotions made by the notifications issued in after coming into force of 1974-rules by getting them cleared by the relevant Departmental Promotion Committee.
12. The remaining three notifications dated 23rd July 1974, 20th Jan. 1975 and 19th August, 1975 were however, issued after new service laws i.e. The said Act, 1974-rule and seniority rules had come into force. As required by sub-rule (2) of rule 7 of the 1974-rules, the private respondents mentioned in these notifications were not promoted on recommendations of the relevant Departmental Promotion Committee. There is no such indication in the said Notifications nor the learned counsel for the private respondents showed us any other document reflecting the regularization of the private respondent promotions given in the above remaining three notification. As such, the promotions contained in the said three notifications were also never regularized and they continued to remain as adhoc promotions.
13. From the above discussion it is clear that after the private respondents were promoted on adhoc basis no action was taken by the departmental authorities for regularization of their promotions. Consequently, their promotions continued to remain as adhoc promotions. At this stage it may be pertinent to refer to the case reported as Ghulam Sarwar versus Province of Punjab (1982 SCM R 46) wherein it was held by the Supreme Court that adhoc appointment cannot become regular by lapse of the. In another case reported as Mian Mohammad Afzal versus.
Government of Punjab (1982 SCM R 408) the Hon'ble Supreme Court was of the view that adhoc appointee for a certain period cannot on basis of rules claim their seniority from that date whether their services continuous or not. In the third case reported as Saifuddin v Govt, of Punjab(1982 PSC 920) it was held that an adhoc appointee may continue until his service is regularized in accordance with rules but his such appointment does not confer any right on him in respect of seniority from the date of his adhoc appointment and further that the pendency of the case before the Public Service Commission for approval of three years is no reason to hold the adhoc appointee to be deemed to have been regularized for mere efflux of time.
14. We may now examine the documents relied upon by the private respondents learned counsel as proof that the promotions of the private respondents were treated as regular promotions. The first document in this connection was the Irrigation and Power Department's order No: ADMN:1/8- 14/70, dated 27th Jan. 1980 wherein all the Graduate Assistant Engineers/Assistant Design Engineers/Sub-divisional Officers of the said Department were redesigned for the first the as Assistant Executive Engineers. This documents on the contrary shows that even if the private respondents were treated as regular promotees, they entered the cadre of Assistant Executive Engineers, w.e.f. 27th January, 1980, much later than the appellants' induction in the said cadre w.e.f. 2.8.1976. Accordingly they could not be declared senior to the appellants. At this stage reference may be made to the unreported judgment of the Sind High Court in the C.P.D- dated 13.12.1982 wherein it was held: "After considering carefully the resolution dated 21.5.1977 passed by respondent 1 redesignating Assistant Engineers working in grade 17 as Assistant Executive Engineers and after reading Rule 32
(1) (a) of the K D.A. Employees Service Regulations 1973, we are of the view that the Assistant Engineers who were re-designated as Assistant Executive Engineers pursuant to the resolution of respondent No.1 dated 21.5.1977 were entitled to claim their seniority in the cadre of Assistant Executive Engineer from the date of their entry in that cadre and therefore the assignment of seniority to these Assistant Engineers by respondent No.1 from the date they were given Junior Class I status in the cadre of Assistant Engineers was ultra vires of rule 32(1) (a) of KDA Employees Service Regulations 1973, there being no doubt that the cadre of service of Assistant Engineers was not only different but was also inferior to what of Assistant Executive Engineers."
15. Further argument of the private respondents learned counsel was that had the written competitive examination by the Public Service Commission not been dropped with approval of the Chief Minister, the private respondents would have appeared in such examination for the purpose of regularization of their appointments. This argument was obviously far from convincing. It was only written examination which was done away with and not the selection by the Public Service Commission. Despite dropping of the written examination the Commission went ahead with the selection of the candidates by oral test. The private respondents could have appeared in the said test. Of course in that case they had the fear of losing their seniority until the date of their clearance in the test. Then they had no other alternative to secure their seniority. Obviously none excepting regularization of their promotions through Departmental Promotion Committee in which case also they were not in a position to count their seniority from retrospective date.
16. The other document referred by the learned counsel was the S&GAD's letter dated 20.3.1976 addressed to Irrigation and Power Department, suffice it to say that it spoke of grant of Class I status to graduate Engineers. It had nothing to do with the regularization of adhoc promotions of such Engineers and the resultant seniority to be enjoyed by them. Such status could be given even to the adhoc appointees. The next document referred to by the private respondents learned counsel was Irrigation and Power Department's letter dated 17th December, 1979 addressed to the Accountant General. The said letter was on the subject of pay fixation in grade-17 of Mr. Mohammad Moosa Memon, Assistant Engineer. The AG was told that with issuance of the Irrigation and Power Department's notification dated 12.4.1974 fixing the pay of the said Muhammad Moosa alongwith other graduates sub-divisional officers in the scale of Rs. 450-50-1000, the said officer stood regularized and there was no necessity of issuing any further notification. The said notification was allegedly based on the S&GAD's letter dated 11.2.1974. We have perused the S&GAD's said letter which only allowed the scale of Rs. 450-50-1000 to the graduate Sub-divisional Officers. Since the said higher scale was tagged with designation of graduate sub-divisional officer, even adhoc promotee of that post was entitled to enjoy the same. Therefore the grant of higher scale to the respondents promotees could not be held to have regularized the said promotees adhoc promotions.
17. Apart from above we were referred to the correspondence relating to selection of Mr. Iftikhar Hussain Mughal as Assistant Executive Engineer. It appeared from the letter of the Public Service Commission dated 15.9.1976 addressed to the Irrigation and Power Department that the said Mr. Iftikhar Hussain was selected by the Commission as Assistant Executive Engineer, although as disclosed in the letter dated 5th October, 1976 of the Irrigation and Power Department his application was not forwarded to the Commission by the said Department. Despite this, the said Mr. Iftikhar Hussain was called upon to inform the Department vide Irrigation and Power Department's letter dated 26th October, 1976 if he was prepared to accept the post of Assistant Executive Engineer in Grade-17 on the basis of the recommendations of the Public Service Commission, warning him at the same the that in case of his acceptance of his assignment in consequence of the Commissions recommendations his seniority would be counted from the date of his appointment as direct recruit and the benefit of his previous service would not be available to him. His reply to the above letter is not available on record but the fact that he has chosen to contest the present application clearly shows that he had not accepted the appointment as recommendee of the Public Service Commission. The said officer followed the latter course obviously at his own risk, which certainly did not give him the benefit of regular promotion.
18. We were also shown the Irrigation- and Power Dept.'s letter dated 25th October, 1975 whereby the S&GAD (Regulation Wing) was asked to confirm the said Department's presumption that the graduate sub-divisional officers either allowed Grade-17 vide S&GAB's notification dated 11th February, 1974 or promoted to the said posts on recommendations of Departmental Promotion Committee were to be treated as Regular Promotees for the purpose of computing seniority under rule 10 (1) of the seniority rules. It was however, not clarified which officers were cleared by the DPC and from what dates nor a copy of the DPC's recommendations had been placed on record. Even in course of the arguments the names of the private respondents cleared by the DPC were not disclosed. In fact the consistent stand taken on behalf of the private respondents was that then- promotions were not formally regularized but they were only treated as regular promotions. Even the S&GAD's reply in confirmation of the presumption raised by the Irrigation and Power Department in their letter here-in-above is not available on record. However our attention was drawn to the S&GA&S letter dated 20.3.76 where in the S&GAD on the advice of the Law Department had explained that following the grant of the higher status and higher scale to various formations of the Engineers in the Irrigation and Power Department, their integrated seniority list was required to be prepared reflecting the seniority of the integrated officers in such manner so the grant of higher pay scale should not disturb the previous order of seniority or precedence which one class got over the other. It appeared to us that while conveying the above advice to the Irrigation and Power Department the S&GAD was totally unaware if the private respondents promoted on adhoc basis as sub-divisional officer and subsequently redesignated as Assistant Executive Engineers were ever regularized in their service in accordance with the prescribed procedure (i.e. In accordance with the relevant rules). As such by the said letter of the S&GAD they could not be treated as regular promotees.
19. We have also come across the letter of Assistant Account Officer (Accountant General's office) dated 17.12.1979 wherein the Irrigation and Power Department was required to supply a copy of formal notification whereby the adhoc promotees-respondents were regularized in consultation with the public service commission. In its reply dated 17.12.79, the said Department informed AG that in view of grant of higher scale to the adhoc promotees, their promotions stood regularized.
We have already held that higher scale of pay could be given even to adhoc appointees and therefore the grant of such benefit would not have the effect of regularization of adhoc appointment.
20. Lastly our attention was drawn to the Irrigation and Power Department's notification dated 15.8.1982 whereby the private respondents were confirmed. Taking advantage of this notification the learned counsel for the private respondents argued that the confirmation of their clients was clear proof that their promotions were recognized as regular promotions. No doubt confirmation is made of a civil servant who is appointed/promoted on regular basis. But in the instant case, as has been discussed above, the respondents have failed to establish the regularization of their initial adhoc promotions. All that their learned counsel had emphasized in course of their arguments was that the cumulative effect of the documents relied upon by them was that the promotions of the private respondents had all along been, treated as regular promotions. In this situation the above confirmation were clearly based on mis-conception of legal requirements. The very basis of the confirmation being illegal, they could not be held as legal. As stated above confirmation depended upon regular appointment and not vice versa.
21. We regret our inability to agree with the views expressed by the learned counsel for the private respondents. Adhoc appointment/promotion is converted into regular appointment/promotion only in accordance with the prescribed procedure laid down in the relevant rules. There is no short cut for reaching that destination. As already pointed out no such order of regularization of the private respondents, adhoc promotions was shown to us or was placed on record. We are of the considered view that the adhoc promotions could not be treated as regular ones on the basis of any document other than the order or notification of formal regularization. Accordingly we have no choice but to held-that adhoc promotions of the private respondents were never regularized.
Consequently, they were not entitled to claim any seniority in the cadre of Assistant Executive Engineers, much less over the appellants who being selectees of the Public Service Commission were inducted on regular basis in the said cadre. No doubt with announcement of our judgment seniority of private respondents which are in a large number would be up set which obviously can not be helped and for which we can only express our deep regrets. On similar situation arising in the case reported as Muhammad Ibrahim-v- Province of West Pakistan (PLD 1965 SC 1), Honourable Supreme Court was pleased to observe as under:- "I am also, with respect, unable to agree with the learned Judge (Weheeduddin Ahmad, J), who declined to interfere on the ground that it would upset the seniority of many of other officers, even though he came to the conclusion that the Sind Sub-Divisional Officers should have been equated with Class I Officers of the other units. In my opinion this could hardly be a sufficient ground for allowing an injustice to be perpetuated if the Court was convinced that an injustice had in fact been committed. The only question here is of placing the appellants in their proper place in the integrated seniority list and I see no reason why this cannot be done."
22. As a result of above discussion we allow the appeal and set aside the impugned order. There will be no order to costs. Before parting with the case we can not help making some observations.
The private respondents have obviously suffered due to mishandling of their cases by departmental authorities at various levels. We hope the appropriate steps will be taken strictly in accordance with the relevant law and rules to undo the wrong done to them. Unless such a horrible mess was created on account of indifference or through deliberate design by the officials concerned, some sort of refreshener's course was needed for departmental personnel to impart the necessary training to them in understanding and application of the prevalent service law and rules. In case the mess had been the result of their in difference or deliberate design, suitable disciplinary action be taken so that such flagrant violations of law and rules are put to stop in future.
Given under our hands and the seal of this Tribunal on this 12th day of September, 1991 at Karachi.