1. MUKHTAR AHMAD JUNEJO, J.---Appellants Muhammad Siddique Ahmad Khan, Intizar Ahmad and Muhammad Mushtaq Jawaid have filed these Appeals No. 739 of 1993, No. 740 of 1993 and No. 741 of 1993, respectively, with leave of this Court, against the judgment of Federal Service Tribunal in Appeals Nos.46-K/92, No.48-K/92 and No.45-K/1992. All these appeals would be disposed of by this judgment.
2. Admittedly the appellants joined Pakistan Railways, on different dates before 1970, as cash clerks.
3. Under an order dated 23-5-1969 appellants Muhammad Mushtaq Jawaid and Intizar Ahmad, working as cash counters/clerks, were promoted till further orders to officiate as pay clerks, subject to the conditions that they would appear before the Selection Board when constituted and that they will have to remain on probation for six months. Continued retention of said appellants in said post was to depend upon their earning satisfactory reports. Under an order dated 20-3-1979, appellant Muhammad Siddique Ahmad Khan was promoted to officiate as Sectional Pay Master
(SPM) in Railways in R. N. S. P. No.11 without any condition. In the seniority list of Cash Supervisors and Sectional Pay Masters of Pakistan Railways Accounts Department, issued under a letter dated 27- 9-1984, appellants Muhammad Mushtaq Jawaid, Intizar Ahmad and Muhammad Siddique Ahmad Khan were shown at Serial Nos.44, 45 and 85 respectively.
4. The appellants felt aggrieved by the order dated 19-3-1990 by which Selection Grade in Basic Pay Scale 15 was allowed to 39 employees of Pakistan Railways, who were said to be junior to the appellants. Subsequently, Selection Grade was granted to another batch of 30 officials with effect from 1-4-1988, and to others from 17-3-1990. In any case the appellants were not given such grade.
5. After serving grievance notice upon the employer, the appellants filed grievance applications in a Labour Court, which non-suited them on the ground that it had no jurisdiction. Subsequently, appellants Muhammad Siddique, Intizar Ahmad and Muhammad Mushtaq filed Appeals Nos.46-K, 48-K and 45-K of 1992 in the Federal Service Tribunal. Their prayer before the Tribunal was, that they be allowed the benefit of upgradation to the posts of Sectional Pay Master in BPS-15 with effect from 1-4-1988 viz. The date from which their juniors have been extended said benefits. The appellants also sought consequential benefits in the shape of arrears of salary, periodical increments etc. All the appeals were contested before the Tribunal by the Railway Administration, who filed parawise comments/written statement. The Railways administration challenged the appeals to be the-barred and not maintainable, On merits it was averred that the appellants had been ad hoc employees and Were entitled to no benefit of a regular and confirmed employee. It was conceded that services of the appellants were regularised/confirmed with effect from 11-5-1989. The Railways Administration took the stand that promotion to the post of Sectional Pay Master was regulated under the Recruitment Rules for the Cash and Pay Department, which stipulated that nobody can be promoted to the said post on regular basis, until he qualifies in the prescribed examination of SPM Group. It was added that the appellants were promoted as Sectional Pay Masters not regular basis in accordance with the terms and conditions approved by the Member Finance and that in the seniority list circulated under letter dated 27-9-1984 the word ad hoc was written against the name of each of the appellants, whose names appeared at Serial Nos.44, 45 and 85. It was admitted that the appellants were promoted under the letters mentioned in their appeals. It was explained that the Sectional Pay Masters who were allowed Selection Grade in BPS-15 were officiating on regular basis prior toad hoc appointment of the appellants. It was added that ad hoc appointment of the appellants although converted into regular appointment, did not give them seniority.
6. ' Under a judgment dated 24-5-1993, the Federal Service Tribunal dismissed inter alia Appeal No.46-K of 1992 of Muhammad Siddique, Appeal No. 48-K of 1992 filed by Intezar Ahmad and Appeal No.45-K of 1992 filed by Muhammad Mushtaq Jawaid. Hence these appeals.
7. Mr. Sirajul Haq Memon, learned counsel for appellant Intizar Ahulad argued that the appellants were promoted and kept on probation for six mouths at the expiry of which they were deemed to be confirmed, if not removed or if probation period was not extended. It was also argued that the department never constituted any Selection Board, before which appellants could appear. That the appellants were never called upon by the department to appear before any Selection Board despite promotion of Intizar Ahmad and Muhammad Mushtaq Jawaid having taken place on 23- 5-1969 and promotion of Muhammad Siddique having taken place on 22-3-1979. It was further argued that persons junior to the appellants had been given Selection Grade and hence the same should not have been denied to the appellants.
8. Mr. Niaz Ahmad Khan, learned counsel for appellant Muhammad Mushtaq Jawaid adopted the arguments of Mr. Sirajul Haq Memon, A.S.O. And added that by no stretch of imagination the appellants can be treated to have been appointed on ad hoc basis and that mere mention of the word ad hoc against names of the appellants in the seniority list, would not change the picture. It was also argued that according to the promotion order dated 23-5-1969, promotion of the appellants was not contingent upon their passing any departmental examination. It was also argued that Service Rules cannot be amended to the detriment of the persons already appointed.
9. Appellant Muhammad Siddique argued the matter in person. He claimed that his case was distinguishable from case of the other appellants, inasmuch as, he was a Graduate and was exempted from appearing before the Departmental Promotion Committee for the purpose of promotion to the post of Sectional Pay Master and for upgradation of said post to Grade-15.
10. Appellant Muhammad Siddique further argued that he was not an ad hoc appointee and that the persons given Selection Grade were junior to him.
11. Mr. Akhlaq Ahmad Siddiqui, learned Advocate-on-Record for respondents Nos.4, 8 to 10 and 12 in Appeal No.739 of 1993, for respondents Nos. l and 2 in Appeal No. 740 of 1993 and for respondents Nos. l, 2 and 12 in Appeal No.741 of 1993 opposed the contentions raised on behalf of the appellants.
12. He argued that under the rules the appellants were required to appear in the departmental examination, before being given Selection Grade, after being regularised in the posts of Sectional Pay Masters. Learned A.C.R. Did not contest the appellants being senior to the persons given Selection Grade in BPS-15, but argued that the officials given Selection Grade had passed the departmental examination. In respect of the appellants, learned Advocate-on---Record for the respondents contended that they were ad hoc appointees and that they were to be cleared by the Selection Board.
13. Promotion of appellant Muhammad Siddique Ahmad as Sectional Pay Master . (hereinafter mentioned as SPM) took place under an order dated 20-3-1979, para. 4 of which reads as below:-- "4.Mr. Muhammad Siddique Ahmad Khan, U.D.C., Pay Office Central is promoted to officiate as S.P.M.
14. In R.N.S.P. No. 11 viz. Rs.430--24---550/28--830--45 A.P. And transferred to Pay Office, Quetta against the vacancy of Mr. A. H. Suri, S. P. M."
15. It would thus appear that although appointment of Muhammad Siddique Ahmed by promotion as S.P.M. Took place after coming into force of CivilServants Act, the same was not ad hoc or subject to clearance by any Selection Board. There is thus no any worldly reason on earth, as to why he should not be given seniority from 20-3-1979. Promotion of appellants Intizar Ahmad and Muhammad Mushtaq took place under order dated 23-5-1969. Para. 1 of said order containing their terms of appointment, reads as below:-- "(1) M/s. Muhammad Mushtaq Jawaid and Intizar Ahamad Ansari, Cash Counters, who have since deposited and completed the prescribed amounts of security, are until further orders promoted to officiate as Pay Clerks, subject to the condition that (a) they shall have to appear before the Selection Board, when constituted by the F.A and C.A.O. For the purpose and (b) they will be on probation for six months and their continued retention in this post will depend on their earning satisfactory reports, failing which they shall be reverted as Cash Counters. "
16. It may be mentioned here that appointment on probation is not synonymous with ad hoc appointment, which word was not in existence before introduction of the Administrative Reforms in 1973. No doubt, the condition of appearing before the Selection Board is incorporated in the letter of promotion of said appellants, but when learned Advocate-on-Record for the respondents was asked to point out or produce any document, by which any of the appellants was called upon to appear before the Selection Board, he failed to point out or produce any such document. In the circumstances, the said appellants cannot be penalized if in a period of over 15 years since their promotion, no Selection Board has been constituted to examine their fitness.
17. The term "Ad hoc Appointment" has been introduced in the sphere of service laws by clause (a) of subsection (1) of section 2 of the Civil Servants Act, 1973, which came in force much after promotion of appellants Muhammad Mushtaq Jawaid and Intizar Ahmad as S.P.M. Under the order dated 23- 5-1969. Appointment of said appellants by promotion as S.P.Ms. Under said order dated 23-5-1969 can by no stretch of imagination, be considered to be "ad hoc appointment", which as per clause
(a) of subsection (1) of section 2 of-- Civil Servants Act means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending the recruitment in accordance with such method. Intention to appoint by promotion said appellants as S.P.M., on ad hoc basis, is lacking in the order dated 23-5-1969, which uses the words "promoted to officiate" and "they will be on probation for six months".
18. According to section 6 of the Civil Servants Act, an initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed. This shows that an ad hoc appointment cannot be on probation and an appointment on probation cannot be ad hoc. According to Audit Instruction No.(2)(c) given in para.3(i), Chapter 11, section 1 of Manual of Audit Instructions, reproduced in combined set of F. R. And S.R., Volumes I and II by Hamid Ali (1991 Edition), the status of a probationer is to be considered as having the attributes of a substantive status! Except where the rules prescribe otherwise. Perusal of the promotion order dated 23-5-1969 would show that appellants Inttzar Ahmad and Muhammad Mushtaq Jawaid were appointed on probation and not on ad hoc basis. They were to remain on probation for a period of six months, at the end of which they were either to be continued in their posts or were to be reverted to the posts of Cash Counters/Clerks, depending on their earning satisfactory reports, vide para. 1 of the order dated 23-5-1969. Fact that said appellants were not reverted and were continued as S.P.Ms. Beyond initial period of six months, indicates that they earned satisfactory reports. Hence at the expiry of their period of probation either the period of probation was to be extended or they were to be confirmed. Date of their promotion is, therefore, relevant for considering their seniority in the cadre of S.P.Ms. At the stage of arguments learned counsel for the appellants produced a copy of P.R. Gazette dated 18-1-1975 reproducing the Government decision, which reads as below: "(1)Confirmation of Staff.---The Government had decided that all staff, except work-charged staff or those working in the temporary projects, with three years, service should be confirmed and the posts against which they are working should be made permanent as far as possible. All others who cannot be so confirmed should be given all the benefits/privileges of confirmed staff."
19. Viewed from any angle appellants Intizar Ahmad and Muhammad Mushtaq Jawaid have established their right of their service as S.P.Ms. Being counted towards their seniority. In all fairness their seniority in the cadre of S.P.Ms. Should be reckoned from the date of their promotion to said post.
20. There is no force in the contention of learned counsel for respondent No. l that regular promotion of Intizar Ahmad and Muhammad. Mushtaq Jawaid as S.P.Ms. Depended upon their passing the departmental examination. There is no mention in the order of promotion dated 23-5-1969 that promotion of said appellants would be subject to passing of any examination except appearing before the Selection Board, for which the said appellants were never asked.
21. It is settled position of law that seniority in a grade will be accorded to an officer with effect from the date of his continuous officiation in that grade and not from the date of his confirmation.
22. Similar view was taken in the case orI Araab Mukhtar Ahmed v. Secretary to Government of Pakistan, Establishments Division, Rawalpindi (1983 PLC (C.S.) 104). Learned counsel for the appellants Engineering Officers' Association and others v. State Maharashtra and others (AIR 1990 SC 1607), where it was observed by the Supreme Court of India that once an incumbent is appointed to a post, his seniority has to be counted from the date of his appointment and not from the date of confirmation. It was also observed that where an appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
23. No order has been produced to show if the S.P.M.S. Granted Selection Grade were senior to the appellants. In the seniority list of SPMs by Pakistan Railways issued under a letter dated 27-9-1984, appellants Muhammad Mushtaq Jawaid and Intizar Ahmad appeared at Serial Nos. 44 and 45, respectively, and the persons at Serial Nos. 61, 64, 65, 66, 69 to 72, 74 and 76 have been given Selection Grade in B-15 with effect from 1-4-1988, while the persons at Serial Nos. 90, 95, 96, 98 and 99 in the same list have been given Selection Grade in B-15 with effect from 17-3-1990. Since persons junior to the appellants have been given Selection Grade in B-15, it would be contrary to the interest, of justice if such grade is denied to the appellants.
24. For the foregoing reasons, these appeals are accepted and the respondent No. 1 is required to grant Selection Grade in B-15 to the appellants from the date their juniors were given such grade.