SHAFIUR RAHMAN, J.--Leave to appeal was granted in these two appeals under Article 212(3) of the Constitution to examine whether the seniority list of the Social Welfare Officers prepared and circulated as on 1-1-1980 was in accordance with law applicable to the parties.
2. The Summary submitted to the Chief Minister on 10-7-1975 provides the historical background of the controversy in the following words:- "There have been two categories-of Social Welfare Officers in the Social Welfare Department i,e, the Medical Social Officers attached with hospitals for medical social work and Social Welfare Officers in the field of Community Development. In 1962, the subject of Social Welfare was allocated to the Provincial Government. Simultaneously, the Medical Social Officers, who had all along worked with Social Welfare Officers in one Department, were separated and placed under the Health Department on account of administrative expediency. After the dismemberment of One Unit, the Medical Social Officers were once again allocated to the Social Welfare Department from the Health Department. Since the transfer of Medical Social Officers from Social Welfare Department to Health Department and back in the Social Welfare Department, was based on the time to time policies of the Government, the Department decided to give the Medical Social Officers benefit of seniority from the date of their continuous service, whether in the Health Department, Central Government or the Provincial Social Welfare Department."
3. There are three factors not clearly pointed out in this Summary and need to be noted at this stage. The first is that formal rules of service were framed in 1964 and these are known as the West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964" (hereinafter referred to as the 1964 Rules). The second fact to be noted is that the controversy has arisen mainly on account of the ad hoc appointment of Social Welfare Officers, be it on the medical side or on the Social Welfare side, and their regularization from a date in retrospect. The third fact of importance to the case is that on 12th of August, 1970, the following Order was passed by the Government:-- "The Government of Punjab is pleased to transfer the Medical Social Work alongwith the staff (List enclosed) from the Health Department to the Basic Democracies, Social Welfare and Local Government Department w,e,f, the 1st August, 1970.
By order of the Governor of Punjab.
Dr. Ghulam Bheek, P.H.S.I., Secretary to Govt. Of Punjab Health Department.
' No,S.0.(G)MSP-3-319/70, dated Lahore the 12th August, 1970.
' A copy along with a copy of the list of the staff is forwarded to the Government of Punjab, Basic Democracies, Social Welfare and Local Govt. Department for information and necessary action with reference to his U.O.S.O. VI(LG)1(12)/70, dated 29-7-1970.
' It is requested that an official may please be deputed to collect the relevant record from the Health Department.
' The budget provision relating to this project is being surrendered in consultation with Finance Department. Basic Democracies Department is requested to send its demand for budget to Finance Department for sanctioning out of contingency item against this surrendered budget provision."
' The list appended to this Order contained the names of appellant No,1 at serial No, 2; appellant No, 2 at serial No, 2 in the separate category of Medical Social Workers; appellant No, 3 at serial No, 17; appellant No, 4 at serial No, 15, appellant No, 5 at serial No, 11; appellant No, 6 at serial No, 16; appellant No, 7 at serial No, 18 and appellant No, 8 at serial No, 19 ( in Civil Appeal No, 240 of 1982).
4. The first seniority list that was circulated on 20-2-1974 was challenged by as many as eighteen appeals before the Punjab Administrative Tribunal, Lahore and the appeals were disposed of on 8- 10-1974. The Tribunal held that the case of the Medical Social Officers was not of initial recruitment under 1964 Rules but one of transfer and the Governor had the residuary power to yet pass an order with regard to their seniority on such transfer. The operative part of the order of the Tribunal was in he following words:- "It is to be observed that we are here dealing with an extraordinary situation. Consequent upon the reconstitution of the Social Welfare Services in 1970, one cadre was abolished and the officers affected thereby were transferred in bloc to another cadre. As already pointed the incidents of service in the two cadres were different. It is not only possible but also very likely that the strict application of clause (a) of paragraph (2) of rule 8 may cause hardship to some officers. The Government has the power to relax the said sub-rule to ameliorate the hardship this Tribunal cannot do. Apart from that to sort out the anomalies which may arise from this extraordinary situation and in order to be just to both categories of officers the Government may well prefer to frame a separate set of rules for determining their inter se seniority."
' This judgment of the Tribunal is reported as M. Shaft Arshad v. Director, Social Welfare, etc. (PLJ 1975 Tr.C. (Service) 1).
5. In consequence, a Summary was presented to the Chief Minister whereby the regular appointment of the Medical Social Officers was fixed under this statutory power as 20-11-1968. The order passed on the 21st of July, 1975 was as hereunder in the case of each appellant and others affected:-- "No, S.O.II(SW) 1-4-1975. Whereas the Governor of the Punjab is satisfied that the application of rule 8(a) of West Pakistan Social Welfare (Gazetted Posts) Recruitment Rules, 1964 will cause hardship in his case, therefore it is decided that seniority of Mr. Wajahat Hussain vis-a-vis other Social Welfare Officers will be fixed from 20-11-1968."
6. Another development that took place was that the Departmental Selection Committee on 11-5- 1970 considered the regularization of the services of the ad hoc Social Welfare Officers and fixed the date of regularization of their appointment by reference to their first ad hoc appointment going in retrospect to the years 1961 to 1968.
7. The third event having a bearing on the case is that on 28-2-1970 an extraordinary dispensation came in the field whereby all ad hoc employees on satisfaction of certain conditions were regularized and were entitled to count their seniority in service, grade, cadre or post to which they were regularly appointed from 1st of January, 1970. The extraordinary nature of dispensation would appear from the following opening words of the Notification' dated 28-2-1970:-- "In pursuance of the provisions of the Martial Law Proclamation of 25th March, 1969 and with the Provisional Constitution Order, and in exercise of all powers enabling him in that behalf, the Governor of West Pakistan is pleased to direct that notwithstanding anything to the contrary contained in any rule relating to the method of recruitment or the age for appointment to any service or post under the rule making authority of the Governor of West Pakistan.
' Every person appointed on ad hoc basis to any service or post under the rule-making authority of the Governor of West Pakistan whose appointment to such service or post has not been regularised for any reason shall, with effect from the date of this notification be deemed to have been regularly appointed to such service or post provided that: * * *
8. It is to be further noted in this context that neither in the case of the appellants nor that of the respondents, regularization had taken place by reference to this extraordinary dispensation by scrutiny and satisfaction of the conditions prescribed therein.
9. In this background of events, a revised seniority list of 1-1-1981 came out and the principles governing this revised seniority list are found in the Services, General Administration and Information Department advice to the following effect:-- "Services, General Administration and Information Department would advise as under:--
(i) The seniority of 85 Social Welfare Officers appointed on ad hoc basis between 1963 to 1969 and regularised on 11th May, 1970 may be fixed w,e,f, the date of such appointment as recommended by the Selection Board for Attached Departments.
(ii) The seniority of 33 Social Welfare Officers regularly appointed on the recommendations of the Selection Board for Attached Departments between 17th March, 1969 to 11th February, 1970 may be fixed with reference to the dates of their regular appointments.
(iii) The seniority of Medical Social Welfare Officers transferred from Health Department to the Social Welfare Department on 1st August, 1970 may be fixed as already approved by the then Chief Minister, with reference to the dates of their regular appointment as Medical Social Welfare Officers in Health Department (His UO No,SGV(II)-SW-1-4/75 dated 28-10-1976 concerning representation of Medical Social Officers for seniority refers)."
' This seniority list became the subject-matter of numerous challenges by those affected. The decision of the Tribunal was not uniform and consistent in all of them. For example, when Wajahat Hussain and others (appellants in C.A.No, 240 of 1982) challenged this seniority list whereby benefit of continuous ad hoc appointment was given to the Social Welfare Officers as against them, the Tribunal held that their claim was barred on the principle of res judicata, the earlier decision in M.
Shafi Arshad's case barring it.
10. When Mr. Zahid Aziz Khan, respondent in Civil Appeal No, 292 of 1986 challenged this seniority list, the Tribunal gave the following decision on each of the legal points raised before it:--
(1) "The question whether earlier date of regularisation was for the purpose of seniority or not, came up for decision before this Tribunal in the case of two other Social Welfare Officers. One is case No, 39-32 of 1974, Rifaat Mahmood v. Director Social Welfare Department. In para. 6 of that judgment the Tribunal noticed that by regularising Social Welfare Officers from earlier date, the only intention was that "the Government did not want that these officers should lose the benefit of their service rendered in ad hoc capacity in the calculation of pension". It was further noted by the Tribunal that "the Departmental Representative took a stand before this Tribunal that it was never in the contemplation of the Directorate to tamper with the order of merit fixed by the Commission". It was accordingly held that: "In view of this statement the contention of the appellant that he was entitled to a higher position in the seniority list on account of his longer ad hoc service loses all substance."
' In case of A.K. Farooqi v. Director, Social Welfare 1975, PLC (C.S.T.) 85 (2) this Tribunal again confirmed the view taken in Rifaat Mahmood's case and refused to give any benefit of seniority on account of earlier date of regularisation."
(ii) "..As held by us in the case of Muhammad Ayub Rizvi etc., Notification dated 28-2-1970, promulgated by the former Governor of West Pakistan had provided for a special policy and has the force of rules. The opening phrase of the said Notification "Notwithstanding anything to the contrary contained in any Rules" clearly manifests the intention of the rule-making authority that all the normal Service Rules stand superseded by this Notification. Under this Notification, all ad hoc appointments made since 1-1-1966 stood regularized by the force of this Notification. Further orders of regularization which were issued by departmental authorities were just a formality. As this Notification fiked 1-1-1970, as the date of fixation of seniority of such civil servants in the service/cadre, the contesting respondents are not entitled to a date earlier than that date."
(iii) "Even if the case of respondents is exam in under the Service Rules of 1964, the position is no better under Rule 8 (1) (a) of these rules which is the appropriate rule for the determination of seniority of the parties, it is the earlier and later selection i,e, date of selection which is material for the purpose. Date of selection always means the date when a particular civil servant is selected by the Public Service Commission or other appropriate Selection Board. This point has been clarified by us in the - aforesaid reported case of Hadi Raza Khan v. Director Social Welfare Punjab and others as follows:- "Thus he can be said to have been selected for the service only when the Public Service Commission included his name among its nominees."
' We are further fortified in this view by the decision of the former Punjab Civil Services (Appellate)
Tribunal in 1973 PLC (C.S.T.) 67 at page 73. The relevant portion reads as follows:- "The material consideration being selection for appointment to the Service in an earlier selection there can be no doubt on the peculiar facts of this case that the appellant was selected in an earlier selection and the two respondents were selected in a later selection and thus the appellant is entitled to rank senior to these two respondents. There is no escape from the proposition that 23 were selected in the first selection by the Public Service Commission and the appellant was one of them, while the two respondents were not included in that list. Their names were recommended for appointment to the service in the letter of Public Service Commission dated 5-10-1967, when the appellant had been selected and named in their letter dated 28-12-1966."
11. At the hearing another judgment of the Punjab Service Tribunal, Lahore passed in Case No, 541/1560 of 1981 (Mrs. Talat Musharaf and 17 others v. Director-General Social Welfare Punjab Lahore and 2 others) was placed before the Court which was delivered by the Tribunal on 15-1-1983. In this judgment the following observation was made by the Tribunal:-- "As both the judgments of Wajahat Hussain and others and Zahid Aziz Khan are now before the Supreme Court of Pakistan, we will leave the matter to the said Court, the highest Court of the realm to decide the issue involving seniority and would maintain our earlier view taken in Shafi Arshad as well as Wajahat Hussain and others cases."
12. After hearing the learned counsel for the parties we find that the following questions arise in the two appeals:-- Whether the decision in the case of M. Shafi Arshad operated as .Res judicata to bar the appeal of Wajahat Hussain and others (the appellants in Civil Appeal No, 240 of 1982) before the Tribunal?
(ii) Whether the Departmental Selection Committee could regularise the appointment of the ad hoc appointees of the Social Welfare Department from the dates of their ad hoc appointment i,e,, retrospectively?
(iii) Whether the general dispensation in favour of ad hoc appointees continuing since 1966 was of avail to the effected parties?
(iv) Whether the seniority list of the Medical Social Officers and of Social Welfare Officers had to be determined by dates of their regular appointment batchwise or otherwise?
(v) Whether the expression "continuous appointment" used in Rule 8 of 1964 Rules could mean and cover ad hoc appointment as well?
13. The judgment of the Administrative Tribunal given in M. Shafi Arshad's case could not operate as res judicata between the parties because the seniority list under challenge before the Tribunal was a different one. Apart from that the Governor's Order pursuant to the decision in M. Shafi Arshad's case had taken over the field as from 21st July, 1975 and the Governor had allowed Wajahat Hussain and others to claim seniority from 20-11-1968. This statutory instrument was not in issue in the decision in M. Shafi Arshad's case. Besides, the two material questions arising in the appeal filed by Wajahat Hussain and others had not been determined or decided at all in M. Shafi Arshad's case. The first was whether the case of the Social Welfare Officers was itself not of initial appointment irrespective of the fact whether the case of Medical Social Officers was of transfer or of initial recruitment. Having not expressly determined that question, if it was a case of initial appointment then the further question had to be determined whether their appointment could be regularised by the Departmental Selection Committee from a date in retrospect. Apart from that whether in the rules of seniority, continuous appointment could mean an appointment not made in accordance with the rules i,e, ad hoc appointment. As these questions were left undetermined, that judgment could not operate as res-judicata.
14. From the proceedings of the Departmental Selection Committee dated 11th of May, 1970, two violations of the 1964 Rules, the service rules applicable to the case, stand out. In the first place, it was definitely a case of initial appointment of the Social Welfare Officers but the vacancies were not advertised and a selection made out of the applicants against the advertisement and those serving as ad hoc as Social Walfare. Officers. It was a closed or restricted selection from amongst those who were already serving ad hoc. This is not permitted by the 1964 Rules. Secondly, the Departmental Selection Committee proceeded to regularise the appointment from a date in retrospect as long back as six to nine years. It is an established principle requiring not much argumcnt that even the executive authority does not extend to make the retrospective orders. The Departmental Selection Committee enjoyed no better position. The 1964 Rules also do not envisage such regularisation from a retrospective date. It was clearly beyond the power of the Departmental Selection Committee and the Services, General Administration & Information Department was wrong in blessing such a performance of the Departmental Selection Committee and advising the adoption of it for preparation of the seniority list.
15. The general dispensation in favour of ad hoc appointees continuing since 1966 was made on 28-2-1970 and for availing the benefit under it certain conditions had to be satisfied one of them being that the ad hoc appointment should have continued since at least 1966. The Department never undertook that exercise for the benefit of the appellants or the respondents in these two appeals. The Service Tribunal was, therefore, in error in applying that principle without C ensuring the satisfaction of the conditions prescribed therein, The result is that, as pointed out by the appellants in Civil Appeal No, 292/1986, six of them did not satisfy the requirement being ad hoc appointees in 1966. They could not benefit from that Notification. It is for the Department to undertake the exercise in the light of that Notification and confer benefits on those who deserved it if they stand to gain in the matter of seniority. Without that exercise having been undertaken by the Department, the Tribunal could not have attempted it without ensuring the satisfaction of the conditions prescribed therein.
16. The order of the Governor transferring the work, the post, the budget of the Medical Social Officers to the Social Welfare Department did not make out a case of transfer to Medical Social Officers but a case of merger of the two, along with the work, the budget and the posts. It cannot be said -to be a case of transfer of one to the other. The rules on the subject clearly provide for either initial recruitment or by promotion or by transfer. In the case of Social Welfare Officers it was definitely case of an initial appointment. Even the Medical Social Officers were initially ad hoc appointees and their appointments had to be regularised. The rule of seniority contained in Rule 8
(1) (a) is very specific and provides that "in the case of persons appointed by initial recruitment, in accordance with the order of merit assigned by the Commission; provided that persons selected for posts in an earlier selection shall rank senior to the persons selected in a later selection".
Applying this principle, Wajahat Hussain and others for whom a special dispensation has come, would be entitled to count seniority from the date that the Governor ordered. The other ad hoc appointees will count their seniority from their regular appointment which took place on 11-5-1970 or under the general dispensation from 1-1-1970 as the case may be. The batchwise eniority following the selection shall on the strength of this Rule be observed and kept intact.
17. The expression "continuous appointment" used in clause (h) of Rule 8 (1) of 1964 Rules means appointment to the service in accordance with law and not an ad hoc appointment. Considering this expression alongwith the view taken that the regularisation could not be from a past date, even under this clause the matching of the seniority can take place from the date under regularisation and not from any retrospective date of reglarisation.
18. Mr. Aamar Raza A. Khan, Advocate, the learned counsel for the appellant in Civil Appeal No, 292 of 1986 and contesting respondents in Civil Appeal No, 240 of 1982 contended that at one stage when recruitment was being made by advertising the vacancies and the ad hoc appointees wanted to make applications, they were informed by a circular letter dated 6-8-1968 that the Social Welfare Officers who were already working on ad hoc basis need not apply for the posts which had been then recently advertised. This has been taken to be a sort of indication or promise to them that their regularisation would be from a past date. No such promise is contained in those letters. What has been suggested is that they need not apply implying thereby that they would not be affected by the appointments so made. Ordinarily, the ad hoc employees have to yield place to the selectees but in this case an exception was made. Nothing more was assured or guaranteed to them.
19. In view of the above discussion we find that the decision of the Service Tribunal in Civil Appeal No, 240 of 1982 merits to he set aside on the ground that its finding that the appeal was barred by res judicata is incorrect. The other appeal (Civil Appeal No, 292/86) also mertis to be accepted and the judgment of the Service Tribunal set aside in so far as it applies the general instructions with regard to regularisation of the ad hoc appointees without ensuring the satisfaction of the conditions attaching to such appointment. The result of the acceptance of the two appeals and setting aside of the judgments of the Service Tribunal would be that the seniority list under challenge shall be prepared afresh giving the batchwise benefits to the selectees ignoring the retrospective date of regularisation except where the Governor has in individual cases allowed the benefit in exercise of his residuary powers. It shall be open to the Department while preparing the list to allow the benefit of the general instructions to such of the ad hoc appointees who satisfy the conditions prescribed therein for getting benefit of seniority from 1-1-1970. No order is made as to costs.