' NASIR ASLAM ZAHID, J.---Appellant Dr. Sher Wali Khan passed his M.B.B.S. In 1972 and then rendered compulsory service in the Army from 22nd March, 1973, to November, 1975, as required under section 9(a) of the Compulsory Service in the Armed Forces Ordinance, 1971. On release from the Army, he was appointed on ad hoc basis in Grade-17 as a civil Medical Officer in the Northern Areas, Health Department, with effect from 26-9-1975 till the availability of a nominee of the Federal Public Service Commission vide office order dated 6-11-1975 of the Kashmir Affairs Division, Government of Pakistan.
' By letter dated 12-4-1981 of the Director, Health Services, Directorate of Health Services for Azad Kashmir and Northern Areas, Government of Pakistan addressed to the Kashmir Affairs and Northern Affairs Division, it was informed that the appellant had since completed his five years in Grade-17 on 25-9-1980 and the performance of the officer had remained satisfactory and, therefore, it was recommended that he may be promoted to Grade-18. Thereafter, by office order dated 8-10-1981 the approval of the competent Authority was conveyed by the Establishment Division, and appellant was promoted to Grade-18 on the same post with immediate effect and until further orders.
' It may be observed here that in 1981, the Health Department in computing the appellant's service recognized the service rendered by the appellant in the Army.
2. Respondent No, 1 Dr. M. Hassan Khan Amacha joined the Rural Health System Northern Areas on 8-8-1976, which was not Government service. However, on being selected by the Federal Public Service Commission and after approval by the competent Authority, he joined service of the Government of Pakistan and was appointed as Medical Officer in Grade-17 in Northern Areas Medical Department with effect from 24-1-1982.
3. The first combined seniority list of officers in Grades-17 and 18 of the Health Department of Northern Areas was issued on 2-11-1980. This was prior to the induction of respondent No, 1 in Government service. In this combined seniority list, amongst Grade-17 officers, appellant was shown at Serial No, 2 treating his date of appointment as 26-9-1975.
' In October, 1985, separate seniority lists for Grades-17 and 18 officers were issued. By then appellant had already been promoted to Grade-18 (in October, 1981) and his name appeared at Serial No, 3 in the seniority list of Grade-18 officers. In the seniority list of Grade-17 officers, also issued in October, 1985, respondent No, 1 was shown at Serial No, 4.
4. Apparently, till 1989, no dispute arose about the seniority of appellant vis-a-vis respondent No, 1 or any other officer. In February, 1989, A.G.P.R. Pointed out that neither the appellant had been regularized by the competent Authority nor he had been replaced by a nominee of the Federal Public Service Commission. Thereafter, a summary was floated by the Ministry of Kashmir Affairs and Northern Areas for regularization of the ad hoc appointment of the appellant. The said summary gives the background and reasons for regularization of appellant's service and the same reads as follows:-- "Government of Pakistan Ministry of Kashmir Affairs and Northern Areas ' Subject: REGULARISATION AT AD HOC APPOINTMENT CAPT. DR. SHER WALI KHAN AS MEDICAL OFFICER (B-17)
IN THE HEALTH DEPARTMENT NORTHERN AREAS ' After being released from the Army Medical Corps. Capt. Dr. Sher Wali Khan was appointed as Medical Officer (BPS-17) on ad hoc basis, in the Health Department Northern Areas, with effect from 26-9-1975. He was promoted to BPS-18 with effect from 8-10-1981, with the approval of the competent Authority prior to the regularisation of his ad hoc appointment (Establishment Division's U.O. No, 35/2/81-CP.5, dated 4-10-1981 refers). After his promotion he was posted as District Health Officer, Diamer and is presently posted as Assistant Director, Health Services Northern Areas.
2. In February, 1989 the A.G.P.R. Sub-Office, Gilgit pointed out that neither the ad hoc appointment of Dr. Sher Wali Khan, as Medical Officer (BPS-17) has been regularised by the competent Authority nor he had been replaced by the F.P.S.C. Nominee. Considering his 14 years' service in the Northern Areas, the Establishment Division were requested vide this Ministry's summary dated 9-7-1989 (Annex-I) to regularise his ad hoc appointment in BPS-17 for the period 26-9-1975 to 8-10-1981. The case was referred to the F.P.S.C. By that Division for advice. The Commission advised that the case needed regularisation of his ad hoc appointment in accordance with rule 4 of the F.P.S.C.
(Functions) Rules, 1978 (extracts at Annexure I). Under this provision, the cases of appointment made during the period between 1-1-1972 to 5-7-1977 were required to be sent to the Commission for regularisation only with the approval of the President. As advised by the F.P.S.C. The Ministry of Kashmir Affairs and Northern Areas moved a summary for the President for regularisation of ad hoc appointment of Dr. Sher Wali Khan through the Establishment Division vide U.O. Of even number dated 21-7-1990. The Establishment Division have conveyed the approval of the President to the F.P.S.C. In terms of Rule 4 of the F.P.S.C. (Functions) Rules vide Letter No, 2/45/89- CP.5, dated 14-10- 1991.
3. After interviewing him and scrutiny of his record, the F.P.S.C. Have regularised ad hoc appointment of Dr. Ser Wali Khan as Medical Officer (BPS-17) in the Health Department Northern Areas with effect from 26-9-1975, in terms of the said rules vide their Letter No, F.4-1/89-S, dated 1- 2-1992 (Annexure III).
' Approval of the competent Authority is, therefore, now solicited to the appointment of Dr. Sher Wali Khan as Medical Officer (BPS-17), in the Health Department Northern Areas and his promotion to BPS-18 with effect from 8-10-1981. The A.C. Dossier of the officer is also enclosed.
(Sd.)
Secretary."
' Establishment Division (Mr. U.A.G. Acini Secretary), Islamabad ' M/O K.A./NAS U.O. No, E.II.2/13/75, dated 10th February, 1992."
' Thereafter, two separate office orders were issued by the Kashmir Affairs and Northern Areas Division. The first office order is dated 14-4-1992 which was to the effect that the competent Authority had regularized the ad hoc appointment of the appellant as Medical Officer (B-17) in the Health Department of Northern Areas with effect from 26-9-1975 in terms of rule 4 of the Federal Public Service Commission (Functions) Rules, 1978. The other office order is dated 23-7-1992 and it was to the effect that the competent Authority had regularized the promotion of the appellant, a Medical Officer (B-17) in the Health Department Northern Areas to BPS-18 with effect from 8-10-1981 as notified vide that Division's office order dated 8-10-1981, referred to earlier.
5. In 1992, a seniority list of BPS-18 Officers was issued by the competent Authority which had shown the appellant senior to respondent No,1, who, against the seniority of appellant, filed an appeal before the Federal Service Tribunal. Before the Tribunal, case of respondent No, 1 was that the entire service of appellant was on ad hoc basis while respondent No,1 was appointed as regular Medical Officer with effect from 6-2-1982 having been selected by the Federal Public Service Commission and as such in all respects he was senior to the appellant. It was additionally argued before the Tribunal on behalf of respondent No, 1 that, before regularization of service of the appellant, respondent No, 1 was regularly promoted to BPS-18 on 7-1-1990 when regularization of appellant was made in contravention of the two orders after regular appointment of respondent No, 1 in BPS- 18.
' The Tribunal in its judgment noted that when the summary was submitted to the then President for regularization of the appellant as Medical Officer in BPS-17, the then President recorded the following note:- "11. Dr. Sher Wali Khan was appointed as Medical Officer BPS-17 on ad hoc basis in the Health Department Northern Areas with effect from 26th September, 1975. Under the law the appointment should have been advertised and nominee of the F.P.S.C. Appointed within a maximum period of one year. Not only was this done but the ad hoc appointee was also promoted to BPS-18 which is a serious irregularity, as ad hoc appointments are against specific posts and have no right to promotion. In order to prevent such irregularities in future there is a requirement to go into the entire range of ad hoc appointments which are at present continuing indefinitely and suitable action initiated against the delinquent officials.
12. Apparently by referring the case of Dr. Sher Wali Khan to F.P.S.C. The intention appears to be to enable the F.P.S.C. To pronounce on the suitability of his appointment in BPS-17. After so many years it is doubtful whether F.P.S.C. Will be able to make an objective assessment in this respect. However, since the Prime Minister has so advised, the President is pleased to refer the case of Dr. Sher Wali Khan to F.P.S.C. In terms of Rule 4 of the F.P.S.C. (Functions) Rules, 1978 to report on the fitness of the officer to hold his post."
' The Tribunal further noted that the case of the appellant was then referred to the F.P.S.C. By the Establishment Division vide letter dated 14-10-1991 with the request to regularise his ad hoc appointment as Medical Officer (B-17) on the direction of the President and that appellant was interviewed and found suitable for appointment as Medical Officer (B-17) in the Health Department Northern Areas. The letter dated 1-2-1992 of the F.P.S.C. Addressed to the Kashmir Affairs and Northern Areas Division has also been referred by the Tribunal in its judgment and the same is also reproduced here:-- "I am directed to refer to your Letter No, E-II-2/13/75 (NA-III), dated the 27th November, 1991 and this office letter of even number, dated 26th December, 1991, on the above subject and to say that in terms of Rule 4 of the F.P.S.C. (Functions) Rules, 1978, the Commission has interviewed Dr. Sher Wali Khan, Medical Officer (BPS-17) on 2nd January, 1992 at Islamabad. Mr. Taj M. Naeem, Development Commissioner, Northern Areas, has assisted the Commission as Departmental Representative. The Commission has found Dr. Sher Wali Khan suitable for regularisation of his service as Medical Officer (BPS-17) in the Health Department Northern Areas, under the Kashmir Affairs and Northern Affairs Division.
2. Further action in the matter may please be taken under intimation to his office. The A.C.Rs, of the above-named officer from 1975 to 1990 are returned herewith. The receipt of the same may please be acknowledged."
' Paras. 11, 12 and 13 of the judgment of the Federal Service Tribunal which gave the reasoning of the Tribunal in allowing the appeal of respondent No,1 read as follows:-- "It has been vehemently argued by the learned counsel for respondent No, 4, Dr. Sher Wali Khan that under section 23 of the Civil Servants Act, 1973, the President has got vast powers to deal with the case of any civil servant which he exercised and regularised the services of Dr. Sher Wali Khan, and as such, he is entitled to reckon seniority over and above the appellant. There is no cavil about this issue and for the sake of convenience, section 23 of the Act is also reproduced hereunder:-- 'Saving.---Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable.
' Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule.'
' The proviso to section 23 of the Act clearly lays down that where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favorable to him than that provided by this Act or such rule. Since Dr. Sher Wali Khan's ad hoc appointment as Medical Officer (Grade-17) continued for a considerable long period, which was in utter disregard of the rules, the then President took serious notice of such an irregularity directing initiation of suitable action against the delinquent officials and as the Prime Minister had advised, it seems that he, under Rule 4 of F.P.S.C. (Functions) Rules, 1978, perhaps, halfheartedly and on humanitarian grounds, referred the case of Dr. Sher Wali Khan to F.P.S.C. To report on the fitness of the officer to hold his post, but he did not regularize his appointment in B-17 or promotion in B-18. Therefore, the objection of learned counsel for respondent No, 4, Dr. Sher Wali Khan is repelled.
' The other objection raised by the Advocate for respondent No, 4, is that seniority is not a vested right, but according to the Civil Servants Act, 1973 which regulates the terms and conditions of service of the civil servants, section 8 thereof provides for seniority and the appointing authority has been enjoined to cause a seniority list of the members of service for which rules have been framed by the Legislature called the General Principles of Seniority to redress the grievances of the civil servants. Since seniority plays a major role in hosting up service prospects of the civil servants, we are of the view that seniority is very much a term and condition of service, and particularly in the circumstances when the respondent No, 4 has been allowed seniority over and above the appellant mala fidely by regularising his irregular service rendered in B-17 and also the promotion to B-18, and, therefore, this objection is also repelled.
12. From the above discussions the position that emerges is that appellant having been appointed on regular basis as Medical Officer (B-17) with effect from 6-2-1982 and respondent No, 4 Dr. Sher Wali Khan's ad hoc appointment in B-17 was regularized to the extent that he may not be removed from service but the commission had not given him benefit of regularization retrospectively and earlier opined that his promotion to B-18 was not legal. Thus, the Commission has not regularized his promotion but the Ministry without justification took up his promotion to B-18 as regular and issued the notification, without processing his case through the procedure prescribed by rules. As such his regularization in B-18 was not regular and it was all along objected by the Minister. Federal Public Service Commission and even the President, and in such circumstances he could not have a legitimate right for reckoning seniority order and above the appellant.
13. For the reasons recorded above, we allow the appeal with the direction that the appellant shall rank senior to respondent No,4."
6. Being aggrieved by the impugned judgment dated 6-10-1994 of the Federal Service Tribunal, appellant filed a petition for leave and, by order dated 9-4-1995, leave was granted to the appellant. We have heard at length the arguments of Mr. K.M.A. Samdani, learned Senior Advocate Supreme Court for the appellant, Sh. Riazul Haq, learned Advocate Supreme Court for respondent No, 1 and Maulvi Anwarul Haq, learned Deputy Attorney-General, who appeared for the Federal Government. With the assistance of the learned counsel, we have referred to the relevant record.
7. Mr. K.M.A. Samdani, learned counsel for the appellant has argued that appellant had joined Government service in Grade-17 on 26-9-1975, though the appointment was shown to be ad hoc, whereas the respondent No,1 joined Government service in January, 1982 in Grade-17, appellant was promoted to Grade-18 in October, 1981, before respondent No, 1 joined service in Grade-17 in January, 1982, and that also initially on probation and was promoted to Grade-18 in January, 1982, the first combined seniority list of officers of the Health Department of Northern Areas of Grades-17 and 18 was issued on 28-9-1980 and, amongst the Grade-17 officers, appellant was shown at Serial No, 2 whereas the name of respondent did not appear in the list as he had not joined Government service till January, 1982, then according to Mr. Samdani, in October, 1985, a separate seniority list of Grades-17 and 18 officers was issued and as the appellant had already been promoted to Grade-18 in October, 1981, his name appeared in that seniority list at Serial No, 3 whereas, in the seniority list of Grade-17 officers respondent's name appeared at Serial No, 4 and no objection was raised by the respondent in respect of the name of the appellant appearing in the seniority list of Grade-18 officers. According to Mr. Samdani, therefore, throughout the appellant was senior to the respondent and in age also the appellant is much senior to respondent No,
1. It was then submitted by Mr. Samdani that on objection being raised by A.G.P.R., the question of formal regularization of appellant's service cropped up and the matter was referred, through proper channel, to the President who referred the matter to the Federal Public Service Commission and the Commission found the appellant fit for regularization and, once the service of the appellant was regularized in Grade-17, no objection could be raised as to his seniority in Grade-17 from the date he joined Government service in 1975 nor to his promotion to Grade-18 in 1982. According to learned counsel, in the circumstances, the view taken by the Federal Service Tribunal that respondent was senior to the appellant cannot be sustained.
8. On the other hand, Sh. Riazul Haq, learned counsel for respondent No, 1, Dr. M. Hassan Khan Amacha, contended that the President had no power or discretion to regularize the service of an ad hoc employee with retrospective effect to the detriment and great prejudice of another employee who had come on the recommendation of the Federal Public Service Commission and had joined service on regular basis much prior to the orders passed by the President. In any case, according to Sh. Riazul Haq, the President having not regularized the service of the appellant with retrospective effect in Grade-17, the appellant would be deemed to have been inducted in Grade- 17 with effect from the date when the order was passed. According to learned counsel, no retrospective effect could be given to such order/regularization. It was then contended on behalf of the respondent that, as regards promotion of the appellant to Grade-18, there was no order/direction of the President or by the Federal Public Service Commission for such regularization and, therefore, the orders of the Department regularizing his promotion with retrospective effect was patently illegal.
9. Sh. Riazul Haq had placed reliance on several judgments of this Court for the proposition that the ad hoc service of a Government employee cannot be counted for purposes of seniority or promotion to affect the rights of another employee who is regularly inducted into the Government service prior to regularization of formal induction of such ad hoc employee into Government service.
' The first judgment cited in this case is of Muhammad Iqbal Khokhar v. Government of Punjab (PLD 1991 SC 35). In this case four appellants were recruited directly in 1974 through Public Service Commission as Assistant Engineers in the service of Engineers, Buildings and Roads, governed by rules framed in 1967. Respondent No, 2 was recruited next year in 1975 by the same process and, according to the rules and the law applicable, being an inductee of a subsequent selection was to rank junior to the appellants. Respondent had previous to such induction rendered service of the Army Corp of Engineers and was on duty at Karakaram Highway Project. In 1979, the following order was issued by the Secretary of Communication and Works Department:- "The Governor of the Punjab is pleased to allowed Capt. (Retd.) Abdul Qayyum, Assistant Engineer, presently posted as S.D.O., Highway Chiniot to count Army Service (21-10-1969 to 26-2-1975) for the purposes of seniority in his Civil Appointment as Assistant Engineer, in realization of rule 8 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974. Consequently, the seniority position of this officer is changed from Serial No,125 of the Provisional seniority list, circulated vide No,SDO (C&W) 4-2/77, dated 15-7-1978, to a place between M/s. Muhammad Farooq Chohan (Serial No,2) and Mr. Muhammad Ashraf Dogar (Serial No,3) in the said list.
' The Governor of the Punjab is further pleased to relax the condition of 5 years' service in the Department as Assistant Engineer, for promotion to the post of Executive Engineer, prescribed under the West Pakistan service of Civil Engineers (Class-I) Rules, 1967, by considering his service rendered in the Arriy as service in the Department.
' The Governor of the Punjab is also pleased to allow the officer the benefit of his army service towards pay and pension."
' In view of the aforesaid orders passed by the Governor Punjab, the appellants, who belonging to 1974 batch became junior to the respondent who was inducted in 1975. Appellants challenged the said order and the Service Tribunal dismissed their appeal holding that the orders passed by the competent authority I.e. The Governor, assigning respondent seniority by giving the benefit of past service in relaxation of rules and, therefore, the order is a valid one and it cannot be assailed and the appeal was dismissed in limine. In the judgment, section 22 of the Punjab Civil Servants Act was referred which prescribes as follows:-- "Nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant in such manner as .Nay appear to him to be just and equitable: ' Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favorable to him that that provided. y this Act or such rule."
' Reference was then made to rule 23 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 which provides that the Government may, for special reasons to be recorded in writing relax any rule in an individual case of hardship to the extent by the Government.
' Then reference was made to rule 18 of the West Pakistan Service of Civil Engineers (Building and Roads) (Class-I) Rule, 1967 which provides for relaxation as follows:-- "18. Relaxation.---Any of these rules may, for reasons to be recorded in writing, be relaxed in individual cases, if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned: ' Provided that where such relaxation involves a question on which consultation with the Commission is mandatory, except in the case of relaxation of academic qualifications, prescribed for promotion to the Service from the West Pakistan Service of Civil Engineers (Buildings and Roads)
(Class-II), the Commission shall be consulted before the relaxation is made."
' Rule 15(1) (a) of 1967 Service Rules which governs seniority of the parties to the case was also referred in the judgment which reads as follows:-- "15. Seniority.---(1) The inter se seniority of the members of the service in the various grades thereof shall be determined--
(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission; provided that persons selected for the Service in an earlier selection shall rank senior to the persons selected in a later selection; "
' Finally reference was made to rule 8(1)(a) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 framed under the Punjab Civil Servants Act, 1974 and the same is reproduced here:-- "8.---(1) The seniority inter se of persons appointed to posts in the same grade in Functional Unit shall be determined:--
(a) In the case of persons appointed by initial recruitment in accordance with the order of merit, assigned by the selecting authority provided that persons selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection;"
Paras. 13 and 14 of the judgment of Shafiur Rahman, J. (as he then was) in the case of Muhammad Iqbal Khokhar v. Government of Punjab are reproduced here The appeal was dismissed as follows:- - "13. The only question that remains to be examined is whether the power possessed by the Governor under section 22 of the Punjab Civil Servants Act, to which the provisions in the Rules on the same subject are subordinate, justify the conferment of seniority retrospectively in a manner to violate the provision of Rule 8(1)(a) of the Appointment Rules and 15(1)(a) of the Service Rules of 1967 in a manner to prejudicially and adversely affect the vested right of the appellants and many others. The dispensation under section 22 of the Punjab Civil Servants Act is individual and is limited and controlled by a proviso which establishes the supremacy of the Act and the Rules. The relaxation can be beneficial to the civil servant without being prejudicial to anyone else even to the civil servant who is granted relaxation or exemption. On that principle the impugned order of the Governor is ultra vires section 22 of the Punjab Civil Servants Act in so far as it grants the respondent No,2, seniority for the period 21-10-1969 to 26-2-1975 and refixes the seniority accordingly. The allowance to an Officer, the benefit of his Army service towards pay and pension and relaxation of five years' service in the Department as Assistant Engineer for promotion to the post of Executive Engineer do not by themselves prejudicially affect anyone, and are, therefore, not in violation of the law but in relaxation of it. Therefore, they are declared to that extent to be valid and proper.
14. The appeal is, therefore, allowed. The judgment of the Service Tribunal is set aside and the service appeal filed by the appellants is allowed partly to the extent that the Order passed by the Governor conferring seniority on the respondent No,2 by giving him benefit of service rendered from 21-10-1969 to 26-2-1975 in the Army is declared to be ultra vires section 22 of the Punjab Civil Servants Act and of no legal effect. As regards the rest of the exercise of relaxation power, the appeal in respect of it is dismissed. The parties are left to bear their own costs."
' Rustam S. Sidhwa, J. (as he then was) agreed with the views of Shafiur Rahman, J. But added his own opinion also. The learned Judge pin-pointed the question involved in the case as follows:-- "The main question that arises in this appeal is whether the Governor of the Punjab, acting under section 22 of the Punjab Civil Servants Act, 1974, was competent to order respondent No,2's Army service from 21-10-1969 to 28-2-1975 to be counted for the purpose of seniority in his appointment as Assistant Engineer in the C&M. Department to fix his seniority at Serial No,2 from his previous position at Serial No,124, over the heads of as many as 122 officers, including the appellants, to relax the condition of 5 years' service in the department as Assistant Engineer for promotion of the said respondent No,2 to the post of Executive EngineerC proscribed under the West Pakistan Service of Civil Engineers (B&R) (Class-I) Service Rules, 1967, and to also allow him the benefit of his Army Service towards pay and pension."
' It was pointed out by learned Judge that the appellants did not challenge the grant to respondent of his Army service towards pay and pension because of such monetary benefits did not affect but then challenged the counting of his Army service from 1969 to 1975 for the purpose of seniority in his civil appointment as Assistant Engineer in relaxation of rule 8. After referring to section 22 of the Punjab Civil Servants Act, 1974, Mr. Justice Rustam S. Sidhwa observed as follows:-- "This power permits the Governor, as the Chief Executive of the Province at the apex, to deal with serious cases relating to civil servants in such manner as may appear to him to be just and fair, which otherwise cannot be sorted out by the Chief Minister or the Punjab Government under the various powers vested in them by the different rules existing from time to time relating to relaxation. This section is primarily a saving section, basically intended to correct serious cases, where unusual factors place a civil servant in serious disability, which requires correction on the basis of equity and justice by the Governor himself, sitting at the apex of the executive hierarchy.
Amendments, additions and substitutions, effected in the rules from time to time, mergers in and transfers from one service to another, etc., create a host of problems, where civil servants placed under serious disability and hardship call for a fair and equitable resolution of their difficulties. To meet these genuine cases, the Governor has been granted this special saving power to deal with such cases, so as to remove injustice and inequity which may stand in the way of a civil servant in securing his just rights. In short, it is a power rarely used, unless to serve justice or correct grave injustice, and perhaps never used arbitrarily to reward a person or to grant him an undue privilege over the right of another."
' We also consider it appropriate to refer to paras. 6, 7 and 8 of the opinion of Rustam S. Sidhwa, J. In the said case and the same are reproduced here:- "6. Section 22 of the Punjab Civil Servants Act, 1974, since it gives the Governor great latitude to act according to his personal judgment, falls in the field of that special power called 'discretion'. It would not be out of place here to say a few words about this enchanting field of authority. The word 'discretion' is associated with the action of separating, discerning, distinguishing or judging. It deals with the liberty or power of deciding or acting according to one's own personal view, conscience or judgment, as one thinks fit; the controlled or uncontrolled power to decide or dispose of a matter. In legal interpretation discretion, therefore, is sometimes as illusive as the shadow, which stalks the provision that has to be interpreted, and sometimes as firm as the provision, which throws up the illusion. In one case it may permit uncontrolled liberty or power to decide a matter or act on one's own personal pleasure, view, choice or judgment. In another, it may compel a person to decide or act within the stricter or controlled limits allowed by law or rules of procedure or subject to conditions precedent or subsequent laid down for the exercise of the power. Between the two polarities, discretion has never acquired any settled or established meaning which can be applied universally in any given case. Each case, where discretion is to be exercised, has to be judged according to its own facts. The nature of this power in the particular section or rule, the object of the said section or rule, the scope of the Act or the rule where the power appears, or the conditions and limitations which define or limit its exercise, or the conditions precedent which have to be fulfilled before it can operate all require to be carefully examined, before any idea can be formed as to how it can be exercised.
7. The words 'nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant' in section 22 of the Act only show that when dealing with the case of any person the learned Governor can operate in an uninterrupted field, so that any limitation or abridgement provided by any section of the Act or by any rule would not stand in his way to do complete justice. It gives the Governor freedom to ignore limitations and restrictions that may tend to stultify his action. However, the words ' to deal with the case of any civil servant in such manner as may appear to him to be just and equitable' bind him not to proceed outside the parameters of being just and equitable. Whilst the first part of the section frees him from limiting factors contained in the Act or the rules, the closing part limits him to that which should not be unjust and inequitable. In short, it is the power to ignore consciously any section of the Act or any rule that may prohibit or restrain the Governor to do what he is attempting to do, provided he limits his action to what is just and equitable. Euphuistically it is the power of trespass circumscribed by the limits of justice and fair play. What is 'just and equitable'? The word 'just' denotes that which is right and proper, that which can be justified in law. Since we are dealing with the rights of civil servants under the Punjab Civil Servants Act, 1974, and the various rules that are framed thereunder or are already in force, the word 'just' would mean that which is legal and proper under the said Act or the rules or that which imports the exercise of good judgment or discriminatory appraisal within the bounds of reason and which negatives the presence of any arbitrary, unreasonable or capricious determination, or anything which causes injury to a person.
The word 'equitable' means that which is founded in equity, I.e. That which is fair, reasonable, unbiased, impartial, evenhanded; the construction of a matter according to its reason and spirit.
Thus, the section creates a balance. The learned Governor, in appraising the case of a civil servant, can ignore limiting or abridging factors contained in the Act or in any rule, but he must confine himself within the limits of justice and equity, for no sooner he finds he is about to transgress those limits, a cutoff point arises and he must control---impetuosity and stay further transgression, so that the purpose of the law or rule may not be flagrantly violated or defeated under the guise of its exercise. What is just and equitable, would vary in each case, depending upon it facts and circumstances.
8. With the above in view, I would now turn to the order of the Governor dated 18-7-1989. Under rule 8 of the West Pakistan Service of Engineers (B&R) (Class-I) Rules, 1967, and Rule 8 of the Civil Servants (Appointment and Conditions of Service) Rules, 1974, the seniority inter se of persons appointed to posts in the same grade in a Functional Unit is determined in the case of persons appointed by initial recruitment, in accordance with the order of merit assigned by the selecting authority and that persons selected for appointment to the grade in an earlier selection rank senior to person selected in a later selection. This Court has time and again held that persons directly recruited take their appointments from the dates of their selection or regular appointment and not any earlier retrospective dates, such as the dates of their ad hoc appointments, etc. See Inayat Ali v. Manzoor Ullah 1987 SCMR 407 and Wajahat Hussain v. Province of Punjab Civil Appeal No,240 of 1982, decided by this Court on 20-9-1990. Thus, appellants who were directly recruited in the 1974 batch will rank senior to persons who were recruited in the 1975 batch, such as respondent No,2.
The order by the learned Governor permitting the Army service of respondent No,2 from 21-10-1969 to 28-2-1975 to be counted towards his service in his civil appointment as Assistant Engineer, clearly violates the law declared in the above cases, for it amounts to taking the date of regular appointment of respondent No,2 retrospectively back to 21-10-1969. Further, the order of the Governor granting seniority to respondent No,2 over the heads of a number of Assistant Engineers recruited in the 1974 batch, clearly contravenes the provision of Rule 8 of the two Rules cited above, because this also retrospectively takes the date of regular appointment of respondent No,2 back to the 1974, batch and gives him seniority over the heads of the appellants who were recruited in 1974.
Surely, the object of section 22 of the Punjab Civil Servants Act, 1974, was not to enable the Governor to flagrantly strike down the very law he was to uphold by its exercise. Still further, the order of the Governor relaxing the condition of 5 years' service in the Department as Assistant Engineer for promotion of the said respondent No,2 of the post of Executive Engineer out of turn, contravenes the rights of others because the respondent has been given forced seniority. If it was the case of respondent No,2 that he had also appeared for selection with other persons in the 1974 batch, but his name was not notified because his papers were misplaced and then they were later discovered his name was notified with officers selected in the 1975 batch, perhaps the Governor would have been justified in treating respondent No,2 as a person belonging to the 1974 batch and an order to that affect under section 22 of the Act would have been both just and fair. The claim of respondent No,2 all along was that his Army service should be counted for purposes of seniority in his civil employment, on the analogy of similar benefits granted to medical practitioners released from Army service who had joined civil employment, on the basis of section 9-A of the Compulsory Service in the Armed Forces Ordinance, XXXI of 1971, which claim was rejected by the Department time and again, as no such legal provision existed governing Engineers. However, it appears that towards the end, the Department misdirected the learned Governor to resort to section 22, which was highly improper, if not highly unjust and unfair. The Department could have advised the Governor to grant seniority to respondent No,2 amongst the direct recruits of the 1975 batch, by virtue of his long and special experience, which action may have passed as just and equitable.
' The grant of seniority or promotion under section 22, unless it meets the strict test of being just and fair, can only be a colourable violation of the law under the guise of its exercise, which cannot be permitted. Discretion, even where outwardly appearing as absolute, will always be treated as qualified by the terms and spirit of the provision in which it occurs and by the object of the law. See Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166, where the President of Pakistan's exercise of discretionary powers under Article 58(2)(b) of the Constitution were struck down for violating the terms and spirit of that Article. The order of the learned Governor in the instant case not only violates the law declared by this Court, which strikes down retrospective regularisation, but directly --- contravenes Rule 8 of the 1967 and 1974 Rules and adversely affects the seniority and right of promotion of the 1974 batch of direct --- induces and I would, therefore, with profound respect to the learned Governor, declare that the same deserves to be set aside."
10. It may be observed here that respondent Capt. (Retd.) Abdul Qayum in the above-cited case filed a review petition against the above judgment which was dismissed and the judgment is reported as Capt. (Retd.) Abdul Qaym v. Muhammad Iqbal Khokhar (PLD 1992 SC 184). While dismissing the review petition of Capt. Abdul Qayum, Rustam S. Sidhwa, J. Observed as follows:-- "As regards the residual remedial power of the Governor contained in section 23 of the Punjab Civil Servants Act, the bounty and the generosity of the Governor has been placed under a limit. It is not to be so exercised so as to infringe, impair or curtail any of the statutory rights of the beneficiary himself. This is the recognition and effect of Article 4 and Article 240 of the Constitution. The argument that the exercise of this power can ride rough over the statutory rights of others would amount to negation of rule of law, going beyond the Constitutional parameters, subordinating or statutory rights to executive fiat. What follows is that like all authorities, the Governor in the exercise of residual power is as much to be guided and bound by the law as anyone else except that his bounty and generosity has been made limitless. He can grant as much benefits as he wants to and considers just and fair but not at the cost of others, not even at the slightest cost of the statutory rights already granted to the beneficiary. This is a power of --redress, of providing a relief and not of impairing statutory rights of anyone."
' Nasim Hassan Shah, J. (as he then was) also gave his opinion in the review judgment in the said case observing as follows:-- "But as rightly pointed out by my learned brother Shafiur Rahman, J., the residual power conferred on the Governor under section 23 of the Punjab Civil Servants Act, 1974, extends only to passing a just and equitable order which may benefit the aggrieved civil servant to alleviate his hardship but such an order cannot impair any of the statutory rights vesting in other civil servants. Thus, in the Punjab where seniority continues to be a vested right, the seniority position of other civil servants cannot be affected while undoing the hardship for another civil servant inasmuch as section 23 confers a power of redress which does not extend to impairing the statutory rights of other."
11. Reliance was also placed by Sh. Riazul Haq on the majority judgment in the case of Ehsanullah Memon v. Government of Sindh (1993 SCMR 982). The majority opinion was authored by Ajmal Mian, J. (as he then was) and the learned Judge cited with advantage the above two judgments. In this case also the question of seniority was involved and inter alia the interpretation and applicability of section 24 of the Sindh Civil Servants Act, 1973 which corresponds to section 24 of the Punjab Civil Servants Act and section 23 of the Federal Civil Servants Act. It was held by majority in the said judgment that exercise of power of the Government of Sindh under section 24 of the Sindh Civil Servants Act, 1973, for absorbing the civil servant after expiry of 23 years was not warranted by the facts and law. It may be noted that in that case a notification had been issued in 1986 absorbing the respondent with immediate effect. After 3 years of the issuance of the notification, the Government of Sindh passed an order purportedly exercising power under section 24 of the Act and gave retrospective effect to respondent's absorption in service with effect from 1985. It was held by majority view that the exercise of power by the Government under section 24 of the Act after expiry of more than 3 years from the date of issue of Notification dated 8-4-1986 absorbing respondent with immediate effect was not warranted by facts and law. It was further observed that the Government was free to grant any benefit to the respondent under section 24 of the Act so long exercise of such power was just and equitable and it did not in any way affect or prejudice a third person.
12. Reference has also been made to another judgment of this Court in the case of Federation of Pakistan v. Rias Khan (1993 SCMR 609). The relevant facts of this case are given in the opening paragraphs of the reported judgment which are reproduced here:- "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. Or 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 regularized 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 regularization 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.
' Respondent's claim for seniority in B.P.S-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.'
' 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.
' 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."
' In support of the appeal filed by the Government in that case the Deputy Attorney-General had argued that ad hoc appointment did not confer any right on the appointee for the purpose of seniority or promotion. The Federal Service Tribunal, however, had come 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 rule requiring length of service was that the person to be promoted should have sufficient experience for being considered for promotion. It was noted in the judgment that section 8 of the Civil Servants Act, 1973 related to the seniority and subsection
(4) thereof 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 and it was observed that purpose of seniority in a particular grade regular appointment is the determining factor but the said provision did not refer to length of service or promotion. Reference had also been made in the said judgment to two office memoranda of the Government of Pakistan. First was the O.M. 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. According to the said memorandum, the matter had been considered in the Establishment Division and it had been decided that the service rendered on ad hoc basis in a post under the Federal Government followed by regular appointment to that post in the same pay scale may be counted towards length of service prescribed for promotion to a higher post provided there was no break between ad hoc and regular appointment to the post concerned. The other office memorandum referred was of Government of Pakistan Finance Division (Regulation Wing) dated 2-10-1990, in which it was stated 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. After referring to the aforesaid office memoranda, it was observed by this Court in that judgment that the said O.Ms. 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 higher scale and this interpretation was not only reasonable but also correct.
' We may also refer to the following observations made in the said judgment:-- "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 regularization 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.
' 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 appointees 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 Akhtar Yousafzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115) it was observed that when continuous officiation is not specifically authorized 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 purpose 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 Ahmed (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.
' 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 appointees seeking regularization before the Tribunal from earlier date/s, in counting seniority."
13. Other judgment relied upon by Sh. Riazul Haq is in the case of Muhammad Matlub Khan v.
Government of Pakistan (1993 SCMR 798) where it was held that the appellant could claim seniority from the date of his regular induction in the concerned Department.
14. Another judgment cited by the learned counsel is in the case of Jamal Khan Jaffar v. Rahim Shah (1994 SCMR 759). In this case, while considering the scope of section 23 of Civil Servants Act, 1973, which applies to all Federal Government employees and is worded in the language similar to section 22 of Punjab Civil Servants Act and section 23 of the Baluchistan Civil Servants Act, reference was made to the judgment in the case of Major (Retd.) Muhammad Matlub Khan v.
Government of Pakistan (1993 SCMR 798) and the following passage from that judgment was referred:-- "Reliance on section 23 is also inapt. While construing section 22 of the Punjab Civil Servants Act, 1974 which is para materia with section 23, in Muhammad Iqbal Khokhar v. Government of the Punjab (PLD 1991 SC 35) it has been maintained that the Governor has to act justly and fairly. The grant of seniority in exercise of the powers vesting in him under section 22 which was in violation of the rights of the others, conferred on them by law, was not held permissible. It has already been observed that the appellant's permanent absorption and grant of seniority to him with effect from.
1-7-1978 is not countenanced by service laws. Moreover, section 23 confers powers on the President and there is nothing on the record that the orders on which the appellant's claim is founded had also the blessings of the President."
' In the case of Jamal khan Jaffar 1994 SCMR 759 and objection had been raised that in the Balochistan Civil Servants Act, 1974 and as also in the Federal Civil Servants Act, the seniority is not prescribed as a vested right and, therefore, no relief could be given by the Service Tribunal as regards the decision by the Department on the question of seniority. This Court repelled the contention holding as follows:-- "There is nothing either in the language of Article 212 of the Constitution of section 4 of the Balochistan Service Tribunals Act, 1974, to indicate that the Tribunal cannot give relief in respect of a grievance brought before it by a civil servant relating to his terms and conditions of service, unless such grievance is founded on a right recognized by the service law as a 'vested right Vested rights only means 'rights which are not dependent on any contingency However, for enforcement of a right, it is not at all necessary that the right must be a vested one. If a person is wrongfully deprived of something is wrongfully affected he is said to have suffered a legal grievance and if a forum is provided for redress, he can successfully impugned the wrongful action. We are, therefore, of the view that notwithstanding the fact that seniority in service of a civil servant has been specifically declared under section 8 of the Act as not a vested right of the civil servant, a civil servant who has been wrongfully denied his rightful seniority in service entitled to seek redress before the Service Tribunal in a properly instituted proceedings."
' It may be mentioned here that Mr. K.M.A. Samdani had also raised a contention that the department had decided the question of seniority on the basis of the orders passed by the President under section 23 of the Civil Servants Act and, as seniority was not a vested right under the said Act, no appeal lay before the Federal Service Tribunal. We reiterate the view taken in the case of Jamal Khan Jaffar which has been reproduced hereinabove. There is no merit in the contention of Mr. Samdani that the appeal filed by the respondent in the present case before the Federal Service Tribunal was not maintainable.
15. In the above-cited judgments of this Court it has been prescribed that seniority dates back from the date of regular appointment and reference has also been made to section 8(4) of the Civil Servants Act, 1973, according to which seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to the post in that grade. It has also been held that the period during which an employee held a post as an ad hoc appointee can be taken into consideration for pay and pensioner benefits and as regards promotion and move-over to the next higher grade period of ad hoc service followed by regular service in the scale shall also be counted towards length of service provided for promotion or move-over in the higher scale subject to the condition that there is no break of service. It has also been held that while exercising plenary powers under section 23 of the Civil Servants Act (or corresponding provisions in the Provincial Civil Servants laws) or exercising powers for relaxation of rules, the President, or the Governor or the Government, as the case may be, benefits can be conferred upon the concerned employee so as to alleviate any hardship or injustice to which the employee might have been subjected to on account of adverse situations created or strict application of the rules which could not be undone under the ordinary rules but could only be done by relaxation of some rule or rules or by exercising plenary powers under section 23 of the Civil Servants Act, but without affecting the rights of another employee. It has also been noted that in section 23 of the Civil Servants Act, (and in corresponding provisions in the Provincial Civil Servants Acts) power has been conferred upon the President, (or the Governor or Government as the case may be) to deal with the case of any civil servant as may appear to him as just and equitable and such power is not limited or abridged by any provision of the Act or any rules made thereunder. Here also and while dealing with the provisions relating to relaxation of any rules where a strict application would cause hardship to the concerned individual, the general principle appears to be that such power should not be exercised to the prejudice of another employee.
16. It is now to be considered whether regularization for ad hoc service of the appellant by the Government was sustainable and so also the confirmation of his promotion to Grade-18 and whether the Federal Service Tribunal was right in allowing the appeal filed by respondent No,1 holding that respondent No,1 is senior in Grade-17 as well as in Grade-18 to the appellant.
17. No objection was raised by respondent No,1 and the record does not show that any other employee of the Department raised any objection against such promotion or against the combined seniority list of the Department prepared in 1985 in which he was shown at Serial No,2 in Grade-17. The respondent on being recommended by the Federal Public Service Commission joined the service in 1982 in Garde-17. An argument had been raised by Sh. Riazul Haq, learned counsel for respondent No,1 that when the advertisement of the Federal Public Service Commission appeared inviting applications for Grade-17 Medical Officers, appellant, being an ad hoc employee, should have applied for such post as was one by the respondent. In this case, the reply of Mr. Samdani appears to be correct that in 1982 when the Public Notice of the Federal Service Commission appeared inviting applications for posts of Grade-17 Medical Officers in the Department, appellant had already been promoted to Grade-18 and it could not be expected that appellant, having already been promoted to Grade-18, he should have applied for the post of Medical Officer in Grade-17.
' It is after 14 years of his services with the Department when the issue arose in 1989 about the ad hoc nature of the initial appointment of the appellant when A G.P.R. Raised the question. Keeping in mind that the appellant had already served for about 14 years in the Northern Areas, the Establishment Division was requested through a summary dated 9-7-1989 of the Ministry of Kashmir Affairs and Northern Areas to regularize the ad hoc appointment of appellant for the period from 26-9-1975 to 8-10-1981. The case was referred to the Federal Public Service Commission by the Establishment Division for advice. Under the then existing rule 4 of the Federal Public Service Commission (Functions) Rules, 1978, the cases of appointment made during the period between 1-1-1972 to 5-7-1977 were required to be sent to the Commission for regularization only with the approval of the President. The said rule reads as follows: "4. The Commission shall test civil servants appointed at any time between the first day of January, 1972 and the fifth day of July, 1977, or promoted to a higher post or grade during the said period whose case may be referred to the Commission by the President, and make a report to the President whether they are fit to hold the post to which they were appointed or promoted, as the case may be, and, if not, whether they are fit to hold any other civil post in the same or lower grade; compatible with their qualifications and experience."
' As the appointment of the appellant was made in 1975 I.e. During the aforesaid period from 1-1- 1972 to 5-7-1977, the concerned department moved a summary through proper channel for orders of the President for regularization of the ad hoc appointment of the appellant. The President made certain remarks on the said summary yet passed orders for referring the case of the appellant to the Federal Public Service Commission in terms of the then rule 4 of the Federal Public Service Commission (Functions) Rules, 1978 whether he was fit to hold the post in Grade-17 as Medical Officer to which he was appointed (in 1975). In view of the aforesaid orders of the President, appellant was interviewed by the Federal Public Service Commission who found him suitable for appointment as Medical Officer in Grade-17 (in 1975). In the light of the orders of the President, mentioned hereinabove, and the opinion of the Federal Public Service Commission after interviewing the appellant, the competent Authority passed formal orders regularizing the ad hoc appointment of the appellant in Grade-17 with effect from 26-9-1975 when he had initially joined service of the Department. Once his service had been regularized in Grade-17 with effect from 1975, the competent Authority passed further orders for regularization of his promotion to Grade-18 with effect from 8-10-1981, I.e. The date when he had earlier been promoted.
' Another argument of Sh. Riazul Hach learned counsel for respondent No,1 was that the case of promotion of the appellant was not referred to the Federal Public Service Commission. Answer to this contention is that the promotion had taken place in 1981 I.e. After 5-7-1977, the last date prescribed in rule 4 of the Federal Public Service Commission Rules and, therefore, it was not necessary to send the case of such promotion by the President to the Commission, the Federal Service Tribunal allowed the appeal of the respondent only on the ground that the Establishment Division had referred the case of the appellant to the Federal Public Service Commission to report on the fitness of the officer to hold his post but he did not regularize his appointment in B-17 or promotion. Under the then rule 4 of the Federal Public Service Commission (Functions) Rules, 1978, the cases of appointment made during the period from 1-1-1971 to 5-7-1977 were required to be sent to the Federal Service Commission only with the approval for the President. It is on record that the case of the appellant was sent to the Federal Public Service Commission for regularization of his service with effect from 1975 with the approval of the then President.
18. Once the Federal Public Service Commission found the appellant fit to hold the post in Garde-17 as Medical Officer in 1975, the Competent Authority could validly pass orders regularizing his service in Grade-17 with effect from September, 1975 and also pass consequential orders formally regularizing his promotion to Grade-18 with effect from 8-10-1981 I.e. The date when he had already been promoted to that grade.
19. Even if the said orders of the competent Authority regularizing the appellant's ad hoc service in Grade-17 with effect from 1975 are considered to have been passed under section 23 for the Civil Servants Act, 1973, in the peculiar facts and circumstances of this case, specially where no objection had been raised for 14 years by any other employee of the Department and even no objection had been raised by respondent No,1 when the combined seniority list of Grades-17 and 18 was issued in 1985 in which the appellant was shown in Grade-18 and the respondent No, 1 's name was in Grade-17, coupled with the fact that this was a case of regularization of an appointment made between 1-1-1972 and 5-7-1977, prescribed in substituted rule 4 of the Federal Public Service Commission (Functions) Rules, 1978, such order of the competent Authority would be covered by the words "just and equitable" employed in section 23 of the Act. Additionally it may be observed that there was no allegation on record that the appellant was flavored in any way by any authority in his appointment or he managed to obtain promotion on the basis of any influence or pressure.
The aforesaid facts and reasons, made this an exceptional case, and despite the fact that the same technically affected respondent No,1 the ad hoc service of the appellant having been validly regularized with effect from September, 1975, in effect seniority of respondent No,1 was not affected, he having joined service in Grade-17 much later in 1981.
' As observed, this was an exceptional case and the judgments referred to hereinabove relied upon by Sh. Riazul Haq did not debar the competent Authority to regularize the ad hoc service of the appellant.
20. As a result, this appeal is allowed and the impugned judgment dated 6-10-1994 of the Federal Service Tribunal is set aside. There shall be no orders as to costs.