JUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN).- This appeal was filed on 2.11.1983 by Mr. Ali Anwar Ghanghre, raising a controversy with regard to seniority between him and seven private respondents in the cadre of Assistant Directors, Labour (BS-17). Five of the private respondents having retired, only two respondents Messrs. K. H. Bokhari and Babib Siddiqui are left in the field to contest the appeal. The controversy started with circulation of the provisional seniority list of Assistant Directors as it stood on 1.1.1979, eliciting objections from all concerned. In the siad list the appellant was shown junior to the private respondents, although regularization of his ad hoc appointment in consequence of his selection by the Public Service Commission was made earlier on 18th March, 1974 than regularization of ad hoc promotions of the said private respondents. Their adhoc promotion was allegedly regularized on 18.9.1974. Accordingly the appellant took serious exception to the position allocated to him in the aforesaid seniority liist by submitting his objections which however did not find favour with the competent departmental authority and were ultimately turned down vide labour amd Cooperation Department's letter dated 19th June, 1983 addressed to the Director, Labour Sind, a copy whereof was endorsed to the appellant vide Labour Directorate's endorsement dated 23rd Jane, 1983. On receipt of the. Said letter, the appellant preferred departmental appeal dated 10th July, 1983, to the Chief Secretary After waiting for 90 days for decision on his said appeal, he approached this Tribunal as mentioned above. However pur predecessor Tribunal, .With Mf. Justice (Rtd) Mushtaq Ali Kazi, as its Chairman, dismissed the appellants appeal vide its judgment dated 17th March 1985. The appellant went in appeal before the Supreme Court, calling in question correction of the Service Tribunals judgement. The Supreme Court by its judgement dated 28th January, 1990, allo wed the appellant's appeal and so also the appeal filed by the Govt, and set aside l lie decision of the Service Tribunal. The case of the appellant has been remanded 1 by the Supreme Court to this Tribunal for fresh decision, after hearing of the panties who has been left free to raise any plea in support of their respective cases.
2. We have heard the elaborate arguments addressed at the bar and have also carefully gone through the entire relevant material available on record. Mr. Manzoor Ali Khan argued the case of the appellant while Messrs Naimatullah Qureshi and Fasahat Hussain Rizvi, made their submission on behalf of the two contesting private respondents. Mr. Muhammad Aqil Awan represented the official respondent and submitted his arguments.
3. As is clear the last para of the judgement of the Supreme Court, this Tribunal has been required to take a fresh decision in the light of the said judgement. It may therefore be pertinent to refer to such poisons of the judgement of the Supreme Court which may serve as guidelines for us for taking fresh decision. Following are the relevant portions of the judgement: " We are not, therefore, aware as to whether there was any rule regulating the seniority of civil servants prior to the Rules of 1975, except the provision of section 8 of the Civil Servants Act, subsection(4) of which lays down that a promotee seniority shall take effect from the date of regular appointment to a post in the higher grade. Therefore, it appears to us that unless there were rules in force on the subject prior to 1975, there was no guiding principle so far as the seniority of a person appointed by initial appointment is concerned. We feel that no attention was given by the learned Service Tribunal to this aspect of the case. The effective date of the seniority of a promotee under section 8 (4) of the Act is laid down as the date of regular appointment. Therefore, if section 8(4) is applied to the case of two respondents, normally, the effective date of their semortiy in the gradation list o Assistant Directors would be 18th September 1974. However, their appointment was regularised with effect from 9th November, 1975, i.e. The date of adhoc promotion. The learned Service Tribunal has held that by virtue of the powers under section 24 of the Act the Government could pass order giving retrospective effect to the appointment of the said respondents from the date prior to the actual date of regularization restropeclively.
" In view of the above we are clearly of the opinion that the question before the Service Tribunal was whether retrospective regularization of the appointment of the respondent was ordered by a competent authority under section 24 of the Act. And if so whether the question of seniority was also determined with retrospective effect as between the appellant and the respondents, in exercise of the said power........... ...... .....-..... ............................. ...."It has to be shown that the competentauthority had applied his mind to the case of a given civil servant and consciously exercised the power to relieve him of the effect of any provisions of the Act or the Rules. In this connection it was contendedon behalf of the appellant in Civil Appeal No: 112-K/1986, that the Government had not passed order consciously giving retrospective seniority or retrospective regularization in the case of the two contesting respondents. This aspect of the case was not examined by the leamed Tribunal. We, therefore, do not agree with the conclusions arrived at by the Tribunal that merely because there was a power vesting in the Government under section 24, the order of regularization with retrospective effect was valid."
4. It is clear from the observations of the Hon'ble Supreme Court (reproduced above at 'A') that although it took note of subsection (4) of Section 8 of the Sind Civil Servants Act (hereinafter referred as the said Act) as laying down that a promotee's seniority shall take effect from the date of regular appointment to a post in higher grade, yet it found no guiding principle for determination of seniority of a person appointed by initial recruitment. It was unaware of any rules regulating the seniority of civil servants prior to seniority rules of 1975. Accordingly this Tribunal was first required to give attention to this aspect of the case.
5. It was admitted on both hands that the appellant was inducted in the cadre of Assistant Directors, Labour by initial recruitment whereas the contesting two respondents entered the said cadre by way of promotion. It is appellant's own case that in consequence of his selection by the Public Service Commission his adhoc appointment was regularized w.e.f, 18.3.1974. By that date Sind Civil Servants Act 1973 had already come into force. As provided in sub-section (3) of section 8 of the said Act, seniority on initial appointment to a service, grade or post was to be determined as may be prescribed, obviously by rules. The seniority rules of 1975 had not yet been framed.
Therefore as required by subsection (2) of Section 26 of the said Act, the rules already in force had to be invoked for determining the seniority of direct recruits; provided that they were not inconsistent with the provisions of the said Act. Admittedly the West Pakistan Labour Welfare Service (Class I) Rules 1969 (hereinafter referred as 1969-rules) held the field at the relevant the. As per rule 10 (b) of these rules, seniority of direct recruit in relation to persons appointed otherwise, was to be reckoned from the date of continuous officiation, which of course, means officiation following the appointment in accordance with the rules. The Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974, (hereinafter referred as 1974-rules) were promulgated on 28th March, 1974. Since the appellant's appointment was made prior to coming into force of these rules, the mechanism provided in 1969-rules obviously governed his appointment by initial recruitment was to be made in consultation with the Public Service Commission. As pointed out above, the commission gave its approval to the appellant's appointment with effect from 18.3.1974 and as such his seniority in cadre of Assistant Directors, Labour has to be computed from the said date.
6. As for the two contesting private respondents, their appointment to the afore-mentioned cadre was made by promotion. No doubt their adhoc promotions took place on 9.11.1973. But as provided in subsection (4) of section 8 of the said Act, the seniority of the promotee civil servants was to be reckoned from the date of regular appointment. It is an admitted position that the relevant Selection Committee gave its clearance for regularization of their ad hoc promotion on 18.9.1974 Accordingly their regular appointment within the meaning of Section 8 (4) hereinabove took effect from the said date. However, they were regularized in the posts of Assistant Director, retrospectively w.e.f, the date of their adhoc promotion i.e. 9.11.1973. In this connection the Supreme Court has also observed (observations reproduced above at 'B' that the effective date of the promotee respondent's seniority in the seniority list would normally be 18th September, 1974, but as has been held by the Service Tribunal that by virtue of powers under section 24 of the said Act the Government could pass order giving retrospective effect to the appointment of the said respondents from the date prior to the actual date of regularization. In view of the above thoughts of the Service Tribunal, the Hon'ble Supreme Court observed (observations reproduced above at 'C') that the question before the Service Tribunal was whether retrospective regularization of the respondent's appointment was ordered by the competent authority under section 24 of the said Act and if so whether the question of seniority was also determined with retrospective effect as between the appellant and the respondents in exercise of the said power. It was further observed by the Supreme Court (observations reproduced above at 'D') that it had to be shown that while exercising the above power the competent authority had applied his mind and had consciously relieved the contesting respondents of the effect of any provisions of the Act or the Rules particularly when it was contended that the Government had not passed orders consciously giving retrospective seniority or retrospective regularization in their case. The Supreme Court did not agree with the conclusions of our predecessor Tribunal (observations reproduced at 'F) that merely because, there was a power vesting in Government under section 24, the order of regularization with retrospective effect was valid. As such the Supreme Court required the Service Tribunal (observations reproduced above-at 'E') also to address itself to the above aspect of the case.
7. We have given our best thought to the arguments addressed at the bar in the light of the Supreme Court's observations so to comply with the requirements of the Supreme Court's judgment. The moot point to be considered by us in whether adhoc promotion of the two contesting private respondents could be regularized retrospectively. As mentioned in clause (a) of sub-section (1) of Section 2 of the said Act, adhoc appointment means an appointment not made in the prescribed manner, whereas sub-section (2) of the same section shows that appointment made in the prescribed manner is deemed to be a regular appointment. Thus adhoc appointment is different from regular appointment. As such both kinds of appointments can not be made at one and the same the, for the simple reason that at a given the a person found fit by the relevant Selection authority for regular appointment would not necessarily possess such fitness at the the of his adhoc appointment made some the earlier. May be he availed the intervening period for improving his fitness. If so, ad hoc appointment can not be regularized retrospectively from the date of the said appointment.
8. However, our attention was drawn to the minutes of the Departmental Promotion Committee'No: 1's meeting held on 25th July, 1974 when not only adboc promotion of the two private contesting respondents was regularized but also the regularization was given retrospective effect from the date on which their adhoc promotion was made. In the same context we were also shown the gazette notification dated 18th September, 1974 issued by Labour Department wherey the adhoc promotions of the above two respondents were regularized retrospectively from the date of their adboc promotions. It was also submitted on behalf of the said two respondents that the Chief Minister had given his approval to retrospective regularization of their adhoc pr- -otions. In support for their submission reliance was plr.Ced on the "Summary Chief Minister"Dated 12.8.1974, carrying the Chief Minister's approval.
9. In our opinion the Departmental Promotion Committee had travelledbeyond its jurisdiction to allow retrospective regularization of adhoc promotions of two private contesting respondents. All what is required by sub-rules (2) of rule 7 of the 1974-rules is that "appointments by promotion and transfer to posts in grade 3 to grade 18 without special pay shall be made on the recommendations of the appropriate Departmental Promotion committee." Thus the only function assigned to the relevant Department Promotion Committee is to mak>. Recommendations as to fitness for appointments by was of promotion or transfer. If its recommendations extended to include the recommendations even for retrospective regularization of adhoc promotion, the same had to be ignored, not being consistent with legal requirements of the 1974-rules. We hav jne through the Summary for the Chief Minister referred to above. It appears that the Chief Minister was not requested in the Summary to approve the retrospective regularization of the said respondent's adhoc promotion therefore the approval given by the Chief Minister could not be construed as such. The gazette notification carrying the retrospective regularization of the said respondent's adhoc promotions was in-consequential as it simply reflected the recommendations of the Department Promotion Committee.
The recommendations of the said Committee being in excess of its jurisdiction, the Gazette notification issued in the light of such recommendations was accordingly meaningless to the extent of retrospective regularization of the promotions of the two private contesting respondents.10. Looking at the case from different angle it may be noted the S.8(4) of the said Act being a part of substantive law, the Chief Minister as a rule-making authority could not pass any order contrary to the said provision. In other words the Chief Minister could not permit the two private contesting respondents to count their seniority from the date of their ad hoc promotions in contraventive of Section 8 (4) o'" i- said Act which required the seniority of the said respondents promottees to eckoned from the date of their regular appointment. As pointed out above, the Chief Minister had not accorded his approval to retrospective regularization of the said respondent's ad hoc promotions. Even if he had given such approval, it would have been invalid being inconsistant with the requirements of Section 8 (4) of the said Act.
11. Despite the legal position discussed above, the Supreme Court has expressed the view that Section 24 of the said Act recognizes and preserves the plenary power of the government to deal with the case of any civil servant in such a manner as may appear to it to be just and equitable, notwithstanding any other provisions of the said Act or any rule framed their under. It goes further to say that this is a residuary power to deal with the case of any person according to justice and equity which partakes of compensatory nature of power and that the availability of this power can not be construed to rectify any illegality in an order on account of violation of the provisions of the said Act or the Rules, automatically, as seems to have been done by the learned Tribunal.
Obviously the Supreme Court has disapproved the views of our predecessor Tribunal in as much as that the powers tested in the Government under section 24 of the said Act, automatically came into play and with issuance of the Govt, notification referred to above the adhoc promotions of the two contesting respondents stood regularized retrospectively giving them the benefit retrospective seniority from the date of their adhoc promotions. Precisely for this reason, the Supreme Court have required this Tribunal to examine if the competent authority had applied his mind by invoking the powers under section 24 hereinabove and whether the said authority had consciously passed the order under the above provisions of law allowing regularization of adhoc promotions' of the said respondents with retrospective effect.
12. It is not the case of the contesting respondents that regularization of their adhoc promotion was ordered by the Govt, in exercise of its powers under section 24 of the said Act. The notification of the regularization of their adhoc promotion is also conspicuously silent in this regard. There is no mention of the above section or exercise of the powers thereunder even in the Summary for Chief Minister referred to above. We have not come across any other material on record indicating that the said respondents adhoc promotions were regularized retrospectively in pursuance of the powers conferred by the said section. Accordingly we hold that the orders of retrospective regularization of the said respondents' adhoc promotions were not passed under section 24 of the said Act. Even otherwise as has been held by the Supreme Court hereinabove, the above section can not be construed to cure the illegality automatically. That is to say unless the competent authority by applying his mind considered the question of retrospective regularization of the said respondents' adhoc promotion in the light of section 24 of the said Act and took decision accordingly, the obvious illegality resulting from the retrospective regularization would not be automatically testified.
13. In view of the above discussion we are of the view that the two private contesting respondents would count their seniority from the date of regularization of their adhoc promotions i.e. 18.9.1974, as such they would rank junior to the appellant whose regular appointment was made earlier on 18.3.1974. Therefore the appeal is allowed with no orders as to costs and the impunged order is set aside.
14. Given under our hand and the Seal of this Tribunal on this 25th day of November, 1991 at Karachi.