1. ' NASIR ASLAM ZAHID, J.---Against judgment dated 7-1-1986 of the Federal Service Tribunal allowing partly the appeal of respondent Rais Khan, leave to appeal was granted by this Court by order dated 22-6-1988 (which leave order has since been reported in 1989 SCMR 935). The facts are given in sufficient detail in the leave granting order. Very briefly, the facts are that respondent was appointed as Assistant Executive Engineer in Grade 17 in Pak P.W.D. On ad hoc basis with effect from 8-12-1971 for a period not exceeding 6 months, subject to replacement by the Federal Public Service Commission. The ad hoc appointment of the petitioner was extended from time to time for 8 years up to 15-2-1980 when his services were regularised by the Public Service Commission. A seniority list was circulated by the department in October, 1981, in which the respondent was shown junior to some officers who had joined service as Assistant Executive Engineers after the appointment of the respondent but before the date of his regularisation in service as Assistant Executive Engineer. The respondent made a representation praying for grant of seniority from the date he originally joined service but his request was rejected. However, he was appointed as Assistant Executive Engineer in BPS-18 by a notification dated 5-12-1981 on current charge basis. The respondent and some other officers similarly placed made a joint representation that their appointments as Assistant Executive Engineers be considered to have been made on regular basis and that seniority should be given to them in BPS-17 from the date they initially joined service. The joint representation was rejected. The respondent then approached the Federal Service Tribunal in appeal.
2. ' Respondent's claim for seniority in BPS-17 was rejected on the ground that appeal against the impugned order in that behalf was barred by time but the Federal Service Tribunal made the following recommendation:-- "We, however, reiterate that this is a fit case in which the President may be requested to invoke his powers under section 23 of the Civil Servants Act (XXI of 1973) and favourably consider the claim of the appellant to the regularisation of his appointment retrospectively from the date when he joined on ad hoc basis."
3. ' The above observation of the Federal Service Tribunal is in the nature of a recommendation to the Government and should not be treated as an order or direction by the Tribunal. The appeal of the respondent in respect of his claim had been rejected by the Tribunal as time-barred and no petition for leave to appeal was filed by the respondent against that part of the judgment of the Tribunal.
4. ' However, the Tribunal granted relief to the respondent with regard to the date of his promotion on regular basis to BPS-18. The Tribunal accepted the stand of the respondent that the order dated 5- 12-1981 of the department treating the respondent to have been promoted on current charge basis was wrong and that his promotion be deemed to have been made to BPS-18 on regular basis and as a consequence respondent's seniority in BPS-18 was to count from 5-12-1981 under section 8(4) of the Civil Servants Act, 1973.
5. ' Reference may be made here to rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which provides that no promotion on regular basis shall be made to BPS-18 to 21 unless the officer concerned has completed such minimum length of service as may be specified from time to time. Ch. Ijaz Ahmad, learned Deputy Attorney-General, had informed that for promotion from BPS-17 to BPS-18 one of the requirements is minimum of 5 years' service.
6. According to the Deputy Attorney-General, service of respondent was regularised in BPS-17 with effect from 16-2-1980 and as such he could not be promoted to BPS-18 on regular basis on 5-12- 1980 as he had not completed 5 years of service in BPS-17. It was further submitted that for this reason respondent was appointed as Assistant Executive Engineer in BPS-18 on 5-12-1981 on current charge basis and not on regular basis.
7. ' In support of the appeal, the learned Deputy Attorney-General, argued that ad hoc appointment does not confer any right on the appointee for the purpose of seniority or promotion. According to the Deputy Attorney-General, the period during which the respondent served the department in ad hoc capacity from 1971 to 1980 could not be treated as service for the purpose of satisfying the condition regarding length of service for promotion from BPS-17 to BPS-18. Reliance was placed on a judgment of this Court in the case of Muhammad Afzal v. Government of the Punjab 1982 SCMR
408. That judgment related to the interpretation and application of West Pakistan Agricultural Engineering Services (Class II) Rules, 1%3. In para. 11 of the reported judgment it was observed by this Court as follows:-- "We propose taking up the question of the nature and effect of ad hoc appointment first because it is common to the first three appellants and to some of the respondents. Their appointments as Assistant Engineers were expressed to be ad hoc, temporary, not conferring any right to seniority etc. The word "ad hoc" has the dictionary meaning of for a particular object". The object as appearing from the appointment of the appellants as well as that of some of the respondents was that their appointments were made and were to last only as long as regular appointments in accordance with the prescribed Rules were pot made. The moment the regular appointments in accordance with the procedure prescribed were made, such appointments were to terminate. Ad hoc appointments truly so-called being not in accordance with the Rules applicable to the service cannot receive either recognition or protection by reference to any of the Rules because they do not imply appointments to the service as such. Such appointments being outside the purview of the rules cannot for any purpose be treated as conferring a benefit under the Rules. It follows that if the appellants and some of the respondents were truly ad hoc appointees for a certain period they cannot on the basis of Rules claim their seniority from that date whether it was continuous or not."
8. ' The Federal Service Tribunal, however, came to the conclusion that for promotion on regular basis to BPS-18 the period spent in BPS-17 on ad hoc or temporary basis was not excluded under any rule and the purpose of the rule requiring length of service was that the person to be promoted should have sufficient experience for being considered for promotion.
9. In this connection, reference may be made to section 8 of the Civil Servants Act, 1973, which relates to seniority. Subsection (4) of section 8 provides that seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post.
10. Accordingly, for purpose of seniority in a particular grade, regular appointment is the determining factor. This provision, however, does not refer to length of service or promotion. Rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, referred to earlier, provides that no promotion on regular baSis shall be made in BPS-18 to BPS-21 unless the officer concerned has completed such minimum length of service as may be specified from time to time. Apart from section 8 of the Civil Servants Act, 1973, Deputy Attorney-General could not refer us to any other provision of the Act or any rule which provides that service in ad hoc capacity cannot be counted towards length of service required for promotion from a lower grade to a higher grade. As observed, section 8(4) of the Civil Servants Act, 1973, makes provision that seniority shall take effect from the date of regular appointment to a post.
11. ' In this respect, reference may also be made to an Office Memorandum dated 20-3-1988 of the Government of Pakistan Cabinet Secretariat (Establishment Division) on the subject of counting of ad hoc service for the purpose of promotion. The said Memorandum is reproduced here:-- "No 10/22/83-R.2 GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION Rawalpindi, March 20, 1988 OFFICE MEMORANDUM SUB: COUNTING OF AD HOC SERVICE FOR THE PURPOSE OF PROMOTION ' The undersigned is directed to say that under the existing rules ad hoc service does not reckon for the purpose of seniority. A point has since been raised whether ah hoc service rendered in a post followed by regular appointment to that post may be allowed to be computed towards length of service prescribed for promotion to a higher post. The matter has been considered in the Establishment Division. It has been decided that the service rendered on ad hoc basis in a post under the Federal Government, followed by regular appointment to a post in the same pay scale shall be counted towards length of service prescribed for promotion to a higher post provided there is no break between ad hoc and regular appointment to the post concerned.
(2) The above decision may be brought to the notice of all departments/organisations under the administrative control of Ministries/Divisions.
12. (Sd.)
13. HUKAM DAD MANI, Deputy Secretary."
14. (Underlining is ours).
15. ' The respondent who appeared in person has also been allowed to place on record copy of the Office Memorandum dated 2-10-1990 of the Government of Pakistan, Finance Division (Regulation Wing) on the subject of "Extension of the Principle of Moveover to the Employees of the Pakistan PWD", which Memorandum is also reproduced here:-- "Government of Pakistan Finance Division (Regulation Wing)
16. ' No,F.7(4)-Imp. 1/88-1120. Islamabad, 2-10-1990.
17. ' OFFICE MEMORANDUM ' The undersigned is directed to refer to Works Division's O.M. No, F.1(9)/89-Admn. III, dated 27-9- 1990 on the above subject and to state that ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed for move-over also in the next higher scale provided there is no break between ad hoc and regular service.
18. (Sd.)
19. Hayat Mahmood Qureshi, Section Officer.
20. Works Division (Mr. Zamir Ahmed), Section Officer, Islamabad."
21. (Underlining is ours).
22. The aforesaid two Office Memoranda of the Government of Pakistan also support the interpretation that the period of ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed for promotion or move-over in the next higher scale. In our view this interpretation is not only reasonable but also correct.
23. ' The respondent had also relied upon three judgments from Indian jurisdiction out of which two judgments were not relevant but the judgment of Punjab and Haryana High Court in the case of Dharam Singh v. State of Punjab reported in 1985(1) Services Law Reporter 358 supports his case. In that case the Punjab Service of Engineers Rules, 1961 were under consideration which prescribed 7 years experience as executive engineer for promotion to the post of superintending engineer. It was held that service rendered as an ad hoc executive engineer was to be counted towards length of service required for promotion to the post of superintending engineer as rules were silent about counting such service and executive instructions were that such service should be counted.
24. ' The Federal Service Tribunal also refered to sub-rule (1) of rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which provides that when the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service, the authority may appoint him to that post on current charge basis. The Tribunal pointed out that when respondent was appointed in BPS-18 on current charge basis, he was not the senior most officer in BPS-17 and as such his appointment could not have been on current charge basis.
25. According to the Tribunal, in 1981 when the respondent was appointed on current chage basis in BPS-18 he had completed the requisite pumber of years in BPS-17 and as such the making of appointment in presence of a vacancy on current charge basis was not proper and if a person who had completed the requisite number of years and was otherwise fit for promotion was promoted to the higher post, his promotion would be regular and not on current charge basis. The Tribunal found that the name of the respondent was considered alongwith his colleagues and he was selected for promotion on merit and, therefore, he should have been appointed on regular basis and his promotion on current charge basis was wrong. As observed earlier, the Tribunal accepted this stand of the respondent holding that his promotion shall be deemed to have been made to BPS-18 on regular basis with effect from 5-12-1981.
26. ' In has not been shown that the view of the Federal Service Tribunal about counting the service rendered by the respondent in ad hoc capacity in PBS-17 towards length of service for the purpose of promotion to BPS-18 is against the Civil Servants Act, 1973 or any rules framed thereunder. There is no law or rule against counting ad hoc service towards length of service for promotion to a post in a higher scale. The two office Memoranda of the Establishment and Finance Divisions, Government of Pakistan also support the view taken by the Service Tribunal. It had been submitted by the Deputy Attorney-General that according to another office Memorandum of the Government, the Office Memoranda issued earlier shall not have retrospective effect but will have effect prospectively. The two office Memoranda which support the respondent, did not lay down any new rule but only clarified/interpreted the law. In the circumstances no question of retrospective or prospective operation of such Memoranda arises.
27. ' Deputy Attorney-General had relied heavily on 1982 SCMR 408 and this judgment is also referred in the leave granting order passed in this case. That judgment of this Court related to the question of seniority and it was held that under the concerned rules relating to Agricultural Engineering, Service ad hoc appointments did not confer any right to seniorty. The question involved in that case is not relevant to the controversy in the present case; viz. Whether the respondent had the required length of service in BPS-17. The purpose of the rule regarding length of service, as rightly pointed out by the Federal Service Tribunal, was that the Government servant seeking promotion to BPS-18 to BPS-21 should have the required experience in the lower scale.
28. ' It has not been denied that the Federal Service Tribunal was competent to pass the order. No case has been made out for interference.
29. We may add here that the only question involved in this appeal was whether the period of ad hoc service followed by regular service in the same scale shall be counted towards length of service prescribed for promotion to a higher scale. Decision of this important question of law of public importance by the Federal Service Tribunal in the affirmative has been maintained by us. The other question whether regularisation of an ad hoc appointment in a scale can be given retrospective effect to date back to the time when the ad hoc appointment was initially made in that scale, which would as a consequence affect the incumbent beneficially as regards his seniority, was dealt with by the Tribunal but no effective relief was granted to the respondent for the reason that his appeal for such relief was barred by limitation. As the respondent did not file any appeal against the decision of the Tribunal, we were not called upon to decide this important question of law. This should not be taken to mean that the Service Tribunal had no jurisdiction to grant relief in this regard if the respondents' appeal was not time-barred to that extent. Another question requiring determination would be whether the Service Tribunal can grant relief to a Government servant under section 23 of the Civil Servants Act, 1973 if such relief is not granted to him by the President. We are leaving these questions for our final decision in some other appropriate case or cases which come up before us. We may refer to Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22) where this Court referred to the wide and some exclusive powers of the Service Tribunals created by the appropriate legislatures under the enabling provision of Article 212 of the Constitution. Service Tribunal has wide powers under section 5 of the Civil Servants Act, 1973, as it may on appeal confirm, set aside, vary or modify the order appealed against.
30. ' We have consciously made reference about this matter as it is common knowledge that in spite of institution of ad hoc appointments unfortunately being deeply entrenched in our service structure and the period of ad hoc service in most cases running into several years like the case of the respondent (8 years' ad hoc service in BPS-17), ad hoc appintees are considered to have hardly any rights as opposed to regular appointees though both types of employees may be entrusted with identical responsibilities and discharging similar duties. Ad hoc appointments belong to the family of "officiating", "temporary' and "until further orders" appointments. In Jafar Ali G Akhtar Yousafzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115) it was observed that when continuous officiation is not specifically authorised by any law and the Government/competent authority continues to treat the incumbent of a post as officiating, it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e.g., failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. And in proper cases, therefore, Courts (at that time Service Tribunals had not been set up) are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it. In this judgment various decisions of the Supreme Court were considered. In Abdul Majid Shaikh v. Munshaffe Ahmad (PLD 1965 SC 208), appellants' appointment had been described as "on probation" and "thereafter terminable by giving 14 days' notice" and "temporary" and "until further orders" but the order of termination of his service on the basis that it was temporary until further orders was declared to be illegal.
31. ' In these and several other decisions, the superior Courts in our country have considered the rights and status of such appointees. These decisions can perhaps be made use of while dealing with the case of ad hoc appiontees seeking regularisation before the Tribunal from earlier date/s, in counting seniority.
32. ' This appeal is accordingly dismissed. There will be no order as to costs.