ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts. Of this appeal arc that the appellant joined as Lower Division Clerk on ad hoc basis w.e.f. 19-1-1973 and later on appointed as UDC, on ad hoc, w.e.f. 30-8-1973. He was further promoted as Assistant by the DPC w.e.f. 4-3-1976. The services of the appellant were regularised as UDC from the date of his ad hoc appointment and subsequently confirmed as UDC. Since the appointment of the appellant as UDC was treated as regular and he was confirmed w.e.f. 31-8-1973, his promotion as Assistant w.e.f. 4-3-1976 was deemed as regular having been made under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
Before the enforcement of aforesaid 1973 Rules, recruitment to the posts of LDCs, UDCs and Assistants was to be made on the ratio of 100% LDCs and 50% UDCs/Assistants through the Federal Public Service Commission. The Federal Public Service Commission did not hold any examination for recruitment for the aforesaid posts up to 1967. Therefore, the Establishment Division vide its O.M.
No. 1/8/73-ARC, dated 20-11-1973 allowed the Ministries and Divisions to make recruitment to the aforesaid posts, and on the basis of that decision recruitments were made for the posts in Grade- 15 and below against direct recruitment quota. The 1973 Rules provide that initial appointment to the posts in Grades 1 to 15 shall be made on the recommendation of the DFC and as such recruitment for the aforesaid posts was excluded from the purview of the Federal Public Service Commission. According to the formula for regularisation issued by the Establishment Division vide O.M. No. 1/81/8/73-ARC, dated 20-11-1973 the persons possessing minimum educational qualification prescribed for the posts and having minimum 5 years satisfactory service as on 31-12- 1973 were to be regularised. On 5th December, 1983 the Establishment Division issued the directions to Ministries and Divisions, in continuation .Of their earlier instructions dated 20-11-1973 to regularise the ministerial staff in accordance with these instructions, and accordingly the appellant's appointment as UDC was regularised, where after he was appointed as Assistant on. Regular basis and he was deemed to have been regularised retrospectively. Under section 12-A of the Civil Servants Act, 1973 appointment/promotions made during the period from 1-1-1972 to 5-7-1977 were to be regularised but the appointments from Grades 1 to 15 were, however; exempted from the purview of section 12-A of the Act, and the appellant was deemed to have been promoted as Assistant on regular basis w.e.f. 4-3-1976.
2. A seniority list was issued on 2-7-1977 and name of the appellant was mentioned at S. No. 233, while the names of the respondents did not rind place in that list but subsequently in the provisional seniority list issued by the Ministry of Finance on 15-12-1991 appellant was relegated to lower position at S.No. 101 and the respondents were placed above him. The appellant lodged protest against this seniority list on 26-12-1991. Another final seniority list dated 3-12-1992 was issued thereafter but the position was the same as it was in the provisional seniority list. The appellant aggrieved by this seniority list submitted representations on 12-1-1993 but the same was withheld by the Finance Division vide Memo. Dated 28-3-1993 .Under Rule 7(1)(c) of the Appeal Rules. The appellant filed this appeal on 27-4-1993.
3. The main contention of the learned counsel .For the appellant is that the appellant who was working as Assistant since 1976 on regular basis is eligible and having been exempted from the purview of section 12-A of the Civil Servants Act his appointment as such was regular. It is further argued that the appellant fulfilled all conditions for direct recruitments as Assistant and was to be treated at par with the direct recruits having been confirmed retrospectively and was entitled to reckon seniority over the respondents: The learned counsel for the appellant relied on the cases of Muhammad Zakria Khan v. Establishment Division (1990 PLC (C.S.) 45) and Rab Nawaz v.
Intelligence Bureau (1992 PLC (C.S.) 717).
4. The Finance Division have filed comments in which it is stated that the appellant was promoted as Assistant temporarily in excess of quota and inadvertently he was given promotion against the quota of direct recruits. This fact has not been denied and controverted by the appellant but his case is that he had the same qualification as the direct recruits and therefore he may be considered as regular.
5. There are two categories of respondents. The seniority list issued in December, 1991 contains the names of 5 respondents and they were made senior to the appellants. The appellants did not rile the appeals against those 5 persons. The learned counsel for the appellant at the time of arguments frankly submitted that this lacuna cannot be reconciled and he does not press the appeal against those persons. Now there remains the case of remaining 24 respondents who were admittedly appointed against their quota but the most important factor is that in 1976 appellant was regularised in the service as Assistant. This confirmation will not 'entitle him for seniority over the respondents. He cannot- also get the benefit of the cases referred to by the learned counsel for the appellant, viz. Muhammad Zakria Khan v. Establishment Division (1990 PLC (C.S.) 45) and Rab Nawaz v. Intelligence Bureau (1992 PLC (C.S.) 717). They preferred these appeals against the order issued in 1992. On the point of law the appeals are time-barred and on merits the appellants were working purely on temporary basis and against direct recruit quota. The learned counsel for the appellant has not been able to show that the appellants had a right for promotion in their quota over the respondents. In these circumstances, the facts of the reported cases cannot be equated with this case. Such a question was also examined thoroughly by the Honourable Supreme Court in the case of Muhammad Nawaz Khan v. Muhammad Ijaz Rashid reported in PLD 1993 SC 10. The relevant paragraphs of the judgment read as under: '
"--------After incorporating the relevant provisions of the Civil Servants Act it was held that the direct recruits appointed against vacancies having fallen vacant prior in time in the reserve quota for direct appointment shall rank senior to those appointed earlier but not against a vacant seat in the reserved quota meant for the promotees. It is worthwhile to reproduce the relevant portion on pages 393 and 394 of the cited judgment:-- It follows from section 9 of the Act, which provision the Tribunal failed to even take note of, that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent.
In favour of the direct recruits. The departmental candidates, were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some lime in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even, Asghar Abbas Rizvi v. Chairman, Investment Promotion Bureau (Abdul Razzaq A. Thahim, Chairman) though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of rule 7 in isolation is not in accord with the express provisions of section 9 of the Act.
The above dictum was followed in subsequent case of Malik Ghulam Rasool v. Government of Punjab 1985 SCMR 1107 wherein it was declared that promotion/appointment of petitioner in that case being on ad hoc basis in excess of quota reserved for promotees and against a post meant for initial recruitment, on arrival of rightful person, he would stand reverted in normal course."
The respondents were admittedly appointed on regular basis before the confirmation and regularisation of the appellant. Therefore, we are of the view that no injustice has been done to the appellant and the appeal is without merit and is accordingly dismissed.
6. Appeals Nos.115, 116, 117, 118, 133, 134, `135 and 136(R)/93 filed by M/s. Mahboob Ali Khan, Muhammad Anwar, Hashmat Ali, Bashir Ahmed-II, Sikandar Hayat Khan, Muhammad Aslam, Azhar Ali Sheikh and Allah Yar Khan were heard together alongwith this appeal and all the appeals involve common question of facts and law, except the dates of appointment. Therefore, this judgment in Appeal No. 114(R)/93 will apply to all these appeals, mutatis mutandis, and they are also dismissed.