1. ' MUNAWAR ALI KHAN (CHAIRMAN).--By this Appeal (No,32 of 1988) the appellant Muhammad Sharif Kalhoro, has challenged the seniority position assigned to him in the Provisional Seniority List of BS- 18 Officers (Male) of Bureau of Curriculum & Extension Wing as it stood on 1-7-1984 (hereinafter referred to as the impugned seniority list). As required by the Education and Culture Department's covering letter No,S.O.(E-IV)EC-83/84, dated 1st November, 1984 under which the impugned seniority list was issued, the appellant filed appeal (representation) dated 29-11-1984 to the Secretary of the said Department. However his objections were rejected vide the said Department's letter No,SO(E-1)5/(Misc.)/85, dated 20th December, 1987. The appellant preferred departmental appeal to the Chief Secretary on 18-1-1988 from the order of rejection of his objections. Thereafter he waited for the requisite period of 90 days but as no decision was forthcoming from the said departmental appellate authority he filed the present appeal on 8-5-1988.
2. ' The appellant claims to be senior to all the ten respondents mentioned at S. Nos.4 to .13 is his memo of appeal. But the names of the said respondents are placed above his name in the impugned seniority list. The respondent Abdul Qasim Shaikh having retired from service, the appellant did not press his appeal against him. As for the remaining private respondents, his prayer is; "It is therefore, prayed that this Hon'ble Tribunal may be pleased to fix/determine the seniority of the appellant on facts and grounds as stated above."
3. ' We heard the arguments of the learned counsel for the parties and also went through the mass of record made available to us.
4. ' Before we take up the arguments made on behalf of the appellant, we would like to dispose of the legal objection raised by the other side. According to the learned counsel for the respondents, the appeal was not maintainable for the reason that it was directed against the provisional seniority list which could not be regarded as final order within the meaning of section 4 of the Sindh Service Tribunals Act, 1973. It is true that the appellant has called in question the provisional seniority list with reference to the position assigned to him in the said list. But as stated above while publishing the impugned seniority list objections were invited from all concerned obviously for the purpose of finalizing the same. However, no final seniority list was issued by the time the appellant brought his grievance to this Tribunal. Nonetheless appellant's objections after due consideration were rejected. His seniority position was left undisturbed in spite of the objections filed by the appellant.
5. Thus the appellant's seniority position vis-a-vis the respondents was finally clinched by intimating him that his objections were rejected. Therefore appellant rightly filed departmental appeal to the Chief Secretary against the rejection of his objections. Accordingly we are of the view that the objection of non-maintainability of the appeal was without force.
6. ' Taking up the question of determination of the inter se seniority of the parties, we may refer to subsection (3) of section 3 of the Sindh Civil Servants Act, 1973, which says: "(3) seniority on initial appointment to a service grade or post shall be determined as may be prescribed." It is an admitted position that the parties entered service by initial appointment. Accordingly their inter se seniority was to be determined as may be prescribed which in other words means in accordance with the rules. The relevant rules in this connection are Sindh Civil Servants (Probation, Seniority & Confirmation) Rules, 1975 hereinafter referred to as Seniority Rules. As provided in sub-rule (1) of rule 10 of the Seniority Rules, the seniority of a civil servant shall be reckoned from the date of his regular appointment. Therefore we have to see on what dates the parties' regular appointment was made. However the thrust of arguments made on behalf of the appellant was not on his date of regular appointment. Instead it was emphasized by his counsel that the respondents' initial appointment was made to Grade-17 and as such for determination of their seniority they could not be equated with Grade-18 Officers, including the appellant. It was further submitted by- the appellant's counsel, that the respondents did not possess the requisite eligibility for appointment to Grade-18 posts. According to him the regularization of their appointment with retrospective effect was illegal.
7. ' It is appellant's own admission that the posts of Subject Specialists in the Bureau were created for the first time on 1-6-1976 in the scale of Rs,450-50-1,000 which was subsequently revised to Rs,600- 50-1200 vide para 6 of the memo of appeal which further shows that said scale was ultimately revised to Rs,1,000-75-1,750 and put at par with NPS-18 w,e,f, 1-3-1972. It would appear that appellant himself was initially appointed as Subject Specialist in the scale of Rs,450-50-1,000 on purely temporary/ad hoc basis subject to approval of the Provincial Education Recruitment Board vide Education Department's notification No,SO(E-IV)1/64-73, dated 22nd December, 1973. After clearance by the said Board he was once again appointed as Subject Specialist as per Education Department's Notification No,SO(E-IV)1/64-73, dated 30th December, 1975 which reads as under: "No,SO(E-IV)1/64-73. The Government of Sindh are pleased to appoint Mr. Muhammad Sharif Kalhoro, Subject Specialist, (AGROTECHNICAL), in the scale of Rs,1,000-75-1,750, on purely ad hoc basis, for a period of six months or till such time the recommendation of the Sindh Public Service Commission is made available whichever is earlier and is posted in the Directorate of Bureau of Curriculum & Extension Wing Sindh, Hyderabad, with effect from the date of assumption of his duty."
8. ' It is clear from the above notification that his appointment was purely on ad hoc basis for a period of six months or until selectee of Sindh Public Service Commission was made available. Of course by this time the previous scale of Subject Specialist was revised to that of Rs,1,000-75-1,750 which was equivalent to NPS-18. If the arguments made on behalf of the appellant were accepted that the scale of Rs,450-50-1,000 was equivalent to NPS-17 then he too was first appointed in that scale and it was only on 30th September, 1975 that he was reappointed as Subject Specialist in the higher scale, though on ad hoc basis. Since the initial scale of Subject Specialist (Rs,450-50-1,000) was revised twice and ultimately became Rs,1,000-75-1,750, it could not be argued that the incumbents of the posts in the lower initial scale had to be reappointed/promoted to the same posts which came to be placed in the higher scale. The change in the scale was only in the nature of upgradation of the post and as such the incumbents holding the posts in lower scale were not required to go through the process of promotion or initial appointment. In this connection reference may be made to "Explanation" appearing below rule 8 of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974. It reads as under:- "Explanation:- Where a class of posts not being a fixed number, or percentage of posts in such class are upgraded as a result of revision of pay scales, the incumbents holding the posts immediately before the upgrading shall continue in the upgraded posts and their continuance shall not be deemed as promotion for the purpose of this part."
9. ' The appellant's reappointment was obviously made in fulfilment of the condition in his previous order of his appointment dated 22nd December, 1973. In any case his reappointment was not promotion from lower post (G-17) to higher post (G-18). Admittedly the appellant was not approved by Public Service Commission when his case was referred to the Commission under MLO
55. The Constitution Petition filed by him against such reference was also withdrawn by him vide judgment of the High Court in Constitution Petition No,1523 of 1973 delivered on 1-10-1981. Meanwhile the Public Service Commission invited applications inter alia for the posts of Subject Specialists and the appellant admittedly applied for one of such posts. He was intimated vide the Commission's Letter No,PSC/RB11/Edu:/PA-SECY/-24, dated 24th February 1980 that his name was recommended for appointment to the post of Subject Specialist. However, the Government issued formal order of appellant's appointment as Subject Specialist (Grade-18) based on recommendations of the Public Service Commission by Education Department's notification No,SO(E-1V)72/8273, dated 5th May, 1980. Despite this, the date of his regular appointment as reflected in the impugned Seniority List is 26-5-1980. The learned Government counsel was unable to satisfy us how the said date was shown as the date of appellant's regular appointment. The appellant was already working as Subject Specialist though on ad hoc basis when he was intimated by the Public Service Commission by its letter dated 24th February, 1980 that he was recommended for appointment to the said post. In our opinion appellant's ad hoc appointment as Subject Specialist stood regularized from the date he received the intimation about the recommendation of the Public Service Commission. Consequently his seniority in the Cadre of Subject Specialists (BS-18) was to be reckoned from the date of such regularisation (i,e, 24th February, 1980.) So for the respondents were concerned, they like appellant were first appointed on ad hoc basis as Subject Specialists. The Education Department's two notifications, one dated 5-12- 1972 and the other dated 12-12-1972, relate to ad hoc appointment of respondents, Messrs Muhammad Bachal Memon, Abdul Majeed Abasi, Ranjha Khan, Mussarat Hussain and Manzoor Hussain Bhutto. As regards ad hoc appointment of the remaining respondents namely Miss Nasreen Jaffri and Messrs Abdul Fattah Abro, Muhammad Saghir Shaikh and Abdul Ghaffar, reference may be made to Education Department's two Notifications, dated 16th March, 1977 and 1st January, 1974. Their cases were subsequently referred under MLO. 55 for approval of the Public Service Commission. Excepting respondents Abdul Fattah Abro and Manzoor Hussain Bhutto whose appointments were not approved by Sindh Public Service Commission, it gave its approval for regularization of the ad hoc appointments of the remaining respondents. On receipt of the recommendations of the Commission, the ad hoc appointments of respondents Miss Nasreen Jaffri and Messrs Muhammad Bachal, Abdul Ghaffar and Muhammad Saghir were regularized by the Education Department's Notification dated 21st Qctober, 1978 and such appointments of respondents Messrs Ranjha Khan and Mussarat Hussain were regularized by the Education Department's Notification dated 20th March, 1978. The ad hoc appointment of respondent Mr. Abdul Majeed Abasi was however regularized by the Education Department's notification dated 27th November, 1979. The cases of respondents Abdul Fattah Abro and Manzoor Hussain Bhutta which were rejected by the Public Service Commission, were referred to Select Committee constituted under MLO.
55. On receipt of the recommendations of the said Committee their appointments too were regularised vide Education Department's two separate notifications dated 31st July, 1979.
10. The question would arise if the ad hoc appointments of respondents Abdul Fattah Abro and Manzoor Hussain Bhutto were duly regularized on recommendations of the Select Committee. As provided in rule 10 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 initial appointments to posts in Grades 16 to 22 ordinarily fall within purview of the Public Service Commission unless of course they are ordered to be filled otherwise by the Government. Obviously MLO-55 was enacted notwithstanding any other relevant law in the field. Therefore, Constitution of the Select Committee under the said MLO for the purpose of discharging the functions of the Public Service Commission was perfectly valid. Consequently the recommendations of the said Committee had as much force as the recommendations of the Public Service Commission and regularization of ad hoc appointments made on the basis of the recommendations of the Selection Committee was therefore valid. Thus all the respondents who were initially appointed as Subject Specialists on ad hoc basis, were duly regularized in their services from the dates on which the regularization was notified. We have noticed that the respondents' entry based on their regular appointment in the cadre of Subject Specialists (Grade-18) was earlier than that of the appellant.
11. Accordingly the appellant cannot be held as senior to them. Whether the respondents possessed the requisite qualifications and eligibility for appointment as Subject Specialist was for the Public Service Commission or as the case may be for the Select Committee to ascertain. The fact that the respondents were recommended by the said Bodies for appointment to the said posts shows that they were satisfied that the respondents did have the necessary qualifications/eligibility for regular appointment to the posts of Subject Specialist. This Tribunal has no jurisdiction to interfere in the process of selection. On the contrary its jurisdiction is expressly barred in respect of suitability or fitness of a person for any appointment or promotion vide proviso (b) to Section 4 of the Sindh Service Tribunal Act, 1973.
12. ' The upshot of above discussion is that subject to the observation that I appellant's seniority will be reckoned from the 24th February, 1980 the appeal is C dismissed with no order as to costs.