1. ' SAEEDUZZAMAN SIDDIQUI, J.---The abovementioned appeal is filed by the appellants with the leave of this Court against the judgment of N.-W.F.P. Service Tribunal, Peshawar, dated 26-2-1992.
2. The leave granting order in the case is as follows:-- "In this petition for leave to appeal arising out of a service matter under Article 212 of the Constitution the grievance made by the petitioners against the dismissal of their appeal by the Service Tribunal the point of law argued by the learned counsel is; whether, the benefits granted by N.-W.F.P. Civil Servants (Regulation of Services) Ordinance (I of 1987) to the Provincial ad hoc employees is available. Only to direct ad hoc appointees or to those civil servants also who were promoted on ad hoc basis. Section 3 of the Ordinance reads as follows:- 3 Notwithstanding anything contained in any law or rule, or in any decree, order or judgment of a Court, all civil servants holding ad hoc appointment to post on or before 20th September, 1986, and continuing as such till the commencement of this Ordinance, shall be deemed to have been validly selected and appointed to the posts held by them on regular basis with effect from the date of commencement of this Ordinance: ' Provided that ---
(i) the services of such civil servants shall be deemed to have been regularized under this Ordinance only on the publication of their names in the official Gazette;
(ii) such civil servants possess the qualification and experience prescribed for the posts; and
(iii) the Commission has in respect of the posts held by such civil servants not recommended any other person on or before the commencement of this Ordinance."
3. ' The Tribunal also noticed section 2 (1) of the Ordinance (definition) and observed as follows to decide the point: ' The important point vis-a-vis, the present case, in this provision of law is as to whether appointment of a person on ad hoc basis would mean initial appointment against that post pending in the Public Service Commission or it would also include appointment through promotion.
4. Section 2 (1) (d) defines a post as under: ' means a post under Government or in connection with the affairs of Government to be filled in on the recommendation of the Commission.'
5. ' Hence reference to section 3 of the aforesaid Ordinace I of 1987 indicates that the regularization of such civil servants holding appointment to a post on ad hoc basis in any department of the Provincial Government shall be subject to preferential right of appointment of a selectee of the Public Service Commission and further that if such selection has already been made, the civil servant holding the post on ad hoc basis, shall not be regularized under the said proviso of the Ordinance. Reading of section 3 with section 2(1)(d) conveys the meaning that it applies only to such civil servant who hold the appointment to a post which is to be filled in on the recommendation of the Commission. Therefore, it is clear that the appointment on ad hoc basis refers only to those posts on which initial appointment is to be made through the P.S.C. The appellants are the promotees and under the relevant rules they have got their own quota. Proviso
(ii) of section 3 of Ordinance of 1987 lays down that the person to be regularized should possess the qualification and experience prescribed for the posts. The appellants did not possess the said qualification. They are diploma holders and they had to be promoted under the N.-W.F.P. Irrigation and P.H.E. (Recruitment and Appointment) Rules, 1979 whereunder promotion is regulated by No, 4
(c) which provides for '20% by selection on merits, with due regard to seniority, from amongst officiating Assistant Engineer/Senior Scale Sub-Engineers of the Department concerned where the vacancy occurs, who hold a diploma and have passed the Departmental Examination.'
6. ' The foregoing rendering of the Tribunal's opinion on the questions involved in this case is of first impression. Questions of law of public importance are also involved. Leave to appeal, accordingly, is granted."
7. ' The appellants who were serving as Civil Engineers were posted to officiate as acting Sub- Divisional Officers (S.D.Os.) as a stop-gap arrangement in their own scale until selectees of the Public Service Commission were available for the posts, vide Notification No,SO (E) I&PHE/4-83, dated 21-8-1986. However, on promulgation of North-West Frontier Province Ad hoc Civil Servants (Regularization of Services) Ordinance, 1987, which later became North-West Frontier Province Civil Servants (Regulation of Services) Act, 1988' (hereinafter to be referred as 'the Act' only), the appellants made representations to the Government to regularize their appointment as S.D.Os. In accordance with the provisions of the Act. It appears that the representations made by the appellants remained unattended whereupon the appellants filed Constitutional Petition No, 257 of 1987 before the Peshawar High Court seeking direction against the Government to regularize their appointment as S.D.Os. With effect from 21-1-1987 as provided in the Act. The learned High Court, however, dismissed the petition as not maintainable. After 9 dismissal of their petition by the High Court, the appellants approached the Service Tribunal through the service appeal which was accepted by the Tribunal vide judgment dated 10-9-1989. The Service Tribunal accepted the contention of the appellants and directed the Government to regularize their appointments as S.D.Os. In terms of the Act. The judgment of the Tribunal was challenged before this Court by the N.- W.F.P. Government in an appeal which was allowed and the case was remanded to the Service Tribunal. After remand of the case, the Service Tribunal though held that the appeals filed by the appellants were within time, but dismissed the same on merits holding that the provisions of the Act did not apply to the case of the appellants as they were departmental promotees and the Act in terms only applied to the initial recruitments to the post. Against the judgment of the Tribunal leave was granted by this Court as aforesaid.
8. ' The learned counsel for the appellants contended before us that the appointment of the appellants on 21-8-1986 was on ad hoc basis and as such their cases should have been dealt under the Act and their services regularized as provided therein. The learned counsel for the respondents on the other hand supported the judgment of the Service Tribunal and contended that since the appellants were not appointed by initial recruitment against the post of S.D.O. On ad hoc basis, their cases could not be dealt with under the provisions of the Act. After hearing the learned counsel for the parties we find no merit in this appeal.
9. ' The notification dated 21-8-1986 through which the appellants were posted as S.D.Os. Clearly shows that the appellants were transferred to officiate as acting S.S.Os. As a stop-gap arrangement till such time the regular candidates properly selected by the Public Service Commission against that posts were available for appointment. It is, therefore, quite clear that the posting of the appellants as S.D.Os. Was not as a result of their direct appointment to that post.
10. Section 3 of the Act, which provided for regularization of the service of a civil servant holding appointment to a post on ad hoc basis in any department of the Government immediately before the commencement of the Act, reads as follows:-- "3. Regularization of services of certain civil servants.- -Notwithstanding anything contained in any law or rule for the time being in force, but subject to preferential right of appointment of a selectee of the Public Service Commission, if any, selected before the commencement of this Act, all civil servants holding appointment to a post on ad hoc basis in any Department of Government immediately before the commencement of this Act shall be deemed to have been as selected for appointment on regular basis on the commencement of this Act: ' Provided that----
(a) the services of such civil servants shall be deemed to have been regularized under this 'Act on the publication of their names in the official Gazette; and
(b) such civil servants possess the qualifications and experience prescribed for the posts to which they are appointed on regular basis."
11. The expression "ad hoc appointment" in the Act has been given the same meaning as assigned to it in the N.-W.F.P. Civil Servants Act, 1973 which reads as follows:-- "2.
(a) 'ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method;"
12. ' Section 4 of the Act clearly provides that the civil servant whose services have been regularized under the Act shall rank junior to all civil servants belonging to the same service or cadre, who are in service on regular basis on the commencement of the Act. Such civil servant also rank junior to such other persons who in pursuance of the recommendation of the Commission made before the commencement of the Act, are to be appointed to the respective service or cadre irrespective of their actual date of appointment. The seniority inter se of the civil servants whose services are regularized under the Act are determined on the basis of their continuous officiation in such service or cadre subject to the condition that if the date of continuous officiation in the case of two or more civil servants is the same, the civil servant older in age shall rank senior to the younger civil servant.
13. On the contrary, the proviso to subsection (4) of section 8 of the N.-W.F.P. Civil Servants Act, provides that the civil servants who are promoted in one batch to a higher grade or post shall retain their inter se seniQrity according to their seniority in the lower cadre. This clearly indicated that the departmental promotees were not within the purview of the Act. Section 5 of the Act totally banned further recruitment on ad hoc basis for a period of ten years from the date of commencement of the Act with option to the Government to fill in short term or temporary vacancies by way of contractual appointment in such a manner and terms as may be prescribed, for a period not exceeding two years. It is, however, to be noted that in spite of total ban for appointment on ad hoc basis through initial recruitment, the Act did not prohibit promotion to the higher post for the low& cadre on ad hoc basis. Reading the definition of ad hoc appointment as given in the N.-W.F.P. Civil Servants Act, alongwith the provisions of the Act, it is quite clear that the Act was promulgated with the intention to regularize the services of only those persons who were appointed on ad hoc basis through initial recruitment. The provisions of the Act did not apply to the civil servants who were promoted to officate on ad hoc basis from the lower cadre. We are, therefore, of the view that the appellants having been promoted from lower cadre to the posts of S.D.Os. Though on ad-hoc basis, were not covered by the provisions of the Act and as such they could not claim regularization of their services as S.D.Os. In terms of the provisions of the Act. e No exception can be taken to the view taken by the Service Tribunal in the case. The appeal is without any merit and is dismissed, accordingly. However, in the circumstances of the case we will make no order as to costs.