JUSTICE (RTD) MUNAWARALI KHAN, (CHAIRMAN).- In this appeal, the appellant Iqbal Ahmed Shaikh, Assistant Executive Engineer (Mechanical) has called in question the seniority list of Assistant Executive Engineers/Assistant Engineers (Mechanical) as stood on 1-8-1990, which was forwarded to him by Irrigation and Power Department's letter dated 7th August, 1990.
2. The factual background of the impugned seniority list is as follows. The appellant and the five private respondents, namely , Messrs Muhammad Tariq Baloch, Rehmatullah Soomro, Syed Niaz Ahmed Shah, Manzoor Hussain Panhyar, and Aftab Ahmed Shaikh were appointed on the same date, though by separate orders, as Assistant Executive Engineers(Mechanical) in the posts specially created to accommodate the un-employed graduates Engineers. Their appointments were initially made on adhoc basis for a period of six months. The said adhoc tenure was extended from the to the until enactment of the Sind Civil Servants (Regularization of Adhoc Appointments)
Act 1959 (hereinafter referred as the Act of 1989). Their services were ultimately regularized in accordance with the said Act vide notification of the Irrigation and Power Department, dated 2nd April, 1990. The first seniority list of Assistant Executive Engineer (Mechanical) (BS-17) was issued on 14.5.1990 wherein the appellant's name appeared at S. No. 2 and the private respondents' names were mentioned from S. No 3 to S. No. 7. Subsequently another seniority list was issued on 13-6- 1990 which too did not disturb the appellant's seniority position vis-a-vis the private respondents.
However, the respondent Manzoor Hussain Panhyar being un-satisfied with the aforesaid seniority lists preferred appeal against the same. Consequent upon acceptance of his appeal the impugned seniority list was issued. The appellant filed his objections as called for with simultaneous publication of the aforesaid list. His objections were over ruled vide Irrigation and Power Department's letter of intimation dated 23rd December, 1990. Within 30 days of the said intimation the appellant filed departmental appeal before the Chief Secretary on 24-1-1990. After waiting for 90 days for decision on the said appeal he came to this Tribunal in the present appeal filed on 23-5-1991.
3. We heard the arguments at the bar and went through the relevant documents. Mr. Abdul Sattar Mughal represented the appellant whereas Mr. Shabir Ahmed was heard as behalf of two respondents, Muhammad Tariq Baloch and Manzoor Hussain Panhyar. The other private respondents who were unrepresented were called absent. Mr. Habib Rashid appearing for the official respondents endorsed the views expressed by Mr. Shabir Ahmad, the learned counsel for the private respondents.
4. It is an admitted position that the appellant as well as all the five private respondents were initially appointed on adhoc basis and the date of their adhoc appointment was same viz 25-8- 1987. They however joined their duties on different dates which are specified in column 4 of the seniority list issued on 14-5- 1990. As provided in .Sub-rule (1) of rule 10 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975 (hereinafter referred as the seniority rules), seniority of a civil servant is to reckon, from the date of his regular appointment. It is a common- ground that for regularization of their appointment, the appointees had not appeared before the Public Service Commission, as was the prescribed procedure, but their services were regularized in accordance with the provisions of the Act of 1989. In this connection reference may be made to the Irrigation and Power Department's notification dated 2nd April, 1990. The relevant portion of the notification reads as under:- "In pursuance of the instructions contained in the Service and general Administration Department's notification No: SOR -I (S&GAD)1/1- 57-(Ptv) dated 22-5-1989, the Adhoc Appointment of Mr......................... Assistant Executive Engineer (Mechanical) (BS 17) made on 25-8- 1987, vide this Department's notification No:A-I/10-45/87-III, dated 25-8-1987, is hereby regularized under the Sind Civil Servants(Regularization of Adhoc Appointment) Act,1989 with effect from 22-5-1989.
2/-.................................................................................................................."
5. As is clear from the above notification the adhoc appointment of the appellant as well as the private respondents was regularized w.e.f. 22-5-1989. This has obviously been done in pursuance of S3(I) of the said Act of 1989 which may be reproduced as under:-
(I) Notwithstanding anything contained in the Act or rules thereunder, or in any decree, order of judgement of a court but subject to the other provisions of this Act a civil servant holding adhoc appointment against a post on or before the 12th day of October,1988 and continuing as such till the commencement of this Act, shall on orders made in that behalf, be deemed to have been validly appointed to the post on regular basis with effect from the dale of commencement of this Act".
6. It would appear that any adhoc appointment to be regularized under the above section shall be deemed to have been regularized with effect from the date of commencement of the Act of 1989.
As the said Act came into force on 22nd May 1989, the regularization of the services of appellant and the private respondents also took effect from the said date.
7. Thus the date of regular appointment of the appellant and the private respondents being one and the same, the question would arise how to determine their inter se seniority. In this connection rule 11 of the seniority rules has laid down the necessary guide-lines. It is reproduced as under:- "
11. Inter se seniority of civil servants appointed in a batch or on the same date shall be determined--
(a) in the case of persons appointed by initial recruitment, in the order of merit assigned by the selection authority and if such authority is either not competent to assign such order of merit or has omitted to do so and is unable to overcome the omission for reasons beyond its control, the seniority shall be determined by the appointing authority: Provided further that a person selected in earlier selection shall rank senior to a person selected in a later selection
(b) in the case of persons appointed by promotion on the basis of their inter se seniority in the lower grade:
(c) in the case of persons appointed by initial recruitment vis-a-vis persons appointed by promotion , on the basis that the person appointed by promotion shall rank senior to the persons appointed by initial recruitment;
(d) in the case of persons not covered by clauses (a) to (c) on the basis that persons older in age shall rank senior to persons younger in age".
8. On careful perusal of the above rule, it would appear that this case is covered by clause (d) hereinabove. According to this Clause the persons older in age shall rank senior to persons younger in age. As such the appointment of the appellant and private respondents having been regularized with effect from the same date, their inter se seniority would have to be determined on the basis of their age.
9. However the learned counsel for the appellant expressed a different view. While inviting our reference to sub-section (2) of Section 5 of the Act of 1989, he contended that continuous date of their appointment was the determining factor for deciding their inter se seniority. According to him, the dale on which they joined their duties following their adhoc appointment was the starting point for computing their seniority as they continued in service since then. This argument was repelled by both the learned counsel for the respondents who were of the view that since their adhoc appointment was notified on 25th August, 1987, their appointment would be regarded as continuing from the^said date irrespective of the dates of joining their duties. Accordingly their submission was that the dates of the appointment of the appellant and the private respondents being the same, their inter se seniority would be determined on the basis of their age and as such the impugned seniority list reflected their seniority correctly.
10. We have given our due thought to the arguments of both the sides. No doubt sub-section (2) of Section 5 of the Act of 1989 requires the inter se seniority to be determined on the basis of the continuous appointment. But the question is if for the purpose of determining Seniority the period of continuous appointment also includes the period of adhoc appointment. If this view were accepted, then the provision of the Act of 1989 regularizing the adhoc appointment would become redundant and hence meaningless. We have to see why after all the regularization of the adhoc appointment was necessary. Obviously because seniority is reckoned only from the date of regular appointment. This is provided both in section 8 of the Sind Civil Servants Act 1973 (hereinafter referred of 1973-Act) and rule 10 of the seniority rules. Neither of these provisions has been over ridden by the Act of 1989. As is clear from the preamble and so also from sub-section (1) of section 3 of the Act of 1989, the intention of the said Act is to avoid only those provisions of the 1973-Act and the rules framed thereunder which relate to the procedure prescribed for regularization of the adhoc appointment. The other provisions of the said Act and the rules framed thereunder including obviously the provisions with regard to determination of seniority are left absolutely un-affected by the Act of 19S9. On the contrary we are 1 of the view that the Act of the 1989 has been enacted in order to ensure the strict compliance of the provisions for computing the seniority.
11. Sub-rule (2) of rule 10 of the seniority rules states: "No appointment made on adhoc basis shall be regularized retrospective- "y". This only means that the period of adhoc appointment will not be counted for the purpose of determining seniority, which can be reckoned only from the dale of regular appointment. As stated above the adhoc appointment of the appellant and the private respondents was regularized on the same date viz 22.5.1989. This being so, the proviso following section 5 of the Act of 1989 has to be invoked to determine inter se seniority of the appellant and the private respondents. According to the said proviso if the dates of continuous appointment of civil servants arc the same, the older in age shall rank senior to the younger in age. This provision is obviously in consonance with clause (d) of rule 11 of the seniority rules. The words "continuous appointment" used in subsection (2) of section 5 and the proviso following it of the Act of 1989, in view of above discussion, can not be construed to embrace even the period of adhoc appointment. In our opinion the words " continuous appointment" hereinabove refer to continuous regular appointment. Even if the continuous appointment in this case was extended to include the period of adhoc appointment, still the date of adhoc appointment of the appellant and the private respondents being the same namely 25.8.1987, their inter se seniority will be determined in terms of the proviso following section 5 of the Act of 1989. The dates of joining duties can not be taken as continuous dales of appointment because following the issuance of the orders of adhoc appointments, the appointees joined their duties as and when the circumstances permitted them to do so. The fact that they joined their duties on different dates is a clear proof that they were placed in different situation, otherwise no appointee was expected to make any delay even for hours in joining his duties. As such the date of joining duties in a case like the present one, have never been accepted as the starting point of seniority. The case reported as Khushi Muhammad and 30 others Vs. General Manager P.W.R. (PLD 1970 Supreme Court 203) which has been relied upon by the learned counsel for the appellant in support of his arguments was not applicable in the present case as the facts of the reported case were distinguishable from the facts of the present case.
12. In view of the above discussion we have reached the conclusion that the seniority list dated 1.8.1990 which has been impugned in the appeal was correctly drawn on the basis of age-formula that the older in age will rank senior to the younger in age. Consequently the appeal being without merit is dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 20th day of April 1992 at Karachi.