1. M. SALEEM CEIAUDHRY (CHAIRMAN).-These 12 seniority appeals filed by Mohammad Afzal Sohail, Senior Civil Judge, Jhelum and others emanate from the following facts.
2. In 1962, in view of the heavy back-log of cases pending in the Civil Courts of the Province of West Pakistan the Central Law Ministry recommended to the Provincial Government, that act hoc arrangements be made to clear the arrears of wcrk. Accordingly, the Government of West Pakistan created 20 extra pots of Civil Judges. Sixteen of these extra posts fell to the share of the present Province of the Punjab.
3. Appointments to these Extra Posts of Civil Judge; were to be made in consultation with the West Pakistan Public Service Commission and the West Pakistan High Court but no competitive test was to be held. Appli--cations were invited for these appointments in the Pay Scale prescribed for W. P.
4. C. S. (Judicial Branch) and the prescribed qualifications inter alia included 3 years practising experience as an Advocate or 5 years experience as Pleader. Under these arrangements 5 personal were recruited in June/July, 1963 and another 8 persons in 1964. The present appellants belong to this category of Civil. Judges who were appointed against extra posts which have been created for the clearance of arrears of work pending in the civil Courts.
5. It is noteworthy that in November, 1963 recruitment to the W. P. C. S,, Judicial Branch was also made under the West Pakistan Civil Service (Judicial Branch) Rules, 1962 in the manner prescribed therein including the holding of a competitive test.
6. It appears that at the time of recruitment the appellants were not admitted to membership of the West Pakistan Civil Service (Judicial Branch, (hereafter referred as 'the Service,) although they did subsequently press for the some. Ultimately, on 23-8-1968, the Governor of West Pakistan decided in principle that the appellants be absorbed in W. P. C. S. Judicial Branch). However, the order was silent as to their seniority vis-a-vis the existing members of the Service. Even a Notification No. S. O.
7. R. III-I-40/69, dated the 28-2-1970 was issued by the defunct Government of West Pakistan appointing the appellants to the service subject to their suitability being-- approved by the Public Service Commission. In September 1910, the appellants' cases were referred to the Punjab Service Commission, who tendered favourable advice in respect of each of the appellants. On 16-12-1974 (Annexure '13' to appeal) appellants were appointed to P. C. S. (J. B.) by order of the Governor of Punjab with effect from 1.1-1970. Resultantly, the appellants became junior to the respondents Nos.
8. 2-52 who joined service as the Members of the W. P. C. S., after 1964 but before 1-1-1970. Against this determination of their seniority, all the appellants except Mohammad Afzal Sohail and Ch. Anwar Ali made representations to the Governor of the Punjab. These representations are stated to be still awaiting the Governor's decision.
9. In the first instance, 7 persons filed a joint appeal before us on 16-1-1975. Subsequently on 18-1-75 and 15-2-1976 two more joint appeals, one by two officers and the other by three officers were filed.
10. Later these twelve appellants filed separate, individual appeals. Five appeals were filed on 1st Of October 1976 and seven on 4th October 1976. Initially only the Government had been impleaded as respondents in the joint appeals but when the separate, individual appeals were filed, then besides the Govern--ment, 51 other respondents who were likely to be affected by the order of this Tribunal, were also impleaded, This appeal was initially set down fop hearing in April, 1977 but the hearing was accelerated on the representation of the appellants.
11. The learned counsel for respondents Nos. 10 to 20, 23 to 39 and 41 to 45, Mr. Khalll-ur.Rehman Khan raised the preliminary objection that under section 4 of the Punjab Service Tribunals Act, 1974, the appellants were required to move this Tribunal within 30 days of the impugned final order, dated 16th December, 1974 or within six months of the establishment of this Tribunal or in any case immediately after the expiry of 90 days after the date of filing the representations as laid down in proviso (a) to section 4 of tie Punjab Service Tribunals Ac., 1974, which reads as under: "4 (a).-Where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Ordinance, 1974, or any rules mace thereunder, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and period of ninety days elapsed from the date on which application or representation teas so preferred."
12. Thus it was pressed that the separate appeals having been filed in October, 1976 were barred by time, his further objection was that the appeal as initially filed on 15.1-1975 was not directed against respondents Nos. 2-51, and that they bad been added subsequently wit; The respondents in reply to these objections sated that the represent--ations against the impugned order were stilt pending before the Govern of and had not been finally disposed of. It was also submitted that proviso (a) to section 4 of the Punjab Service Tribunal Act, 1974 simply prescribed the minimum period after the expiry of which an appellant was entitled to avail the right of appeal conferred on him by the principal clause of sec--tion 4, and ft bad nothing to do with the limitation for filing the appeal as such. The right of appeal was available against the final order which had not till then been passed in this case and for that reason even the filing of the appeal in October, 1976 was not hit by limitation. So far as the failure of the two appellants to file their representations was concerned, it was submitted that the same was not necessary inasmuch as 10 out of the 12 appellants bad duly filed representations, the issue involved was the same and the ratio of the order to be passed upon the 10 representations was automatically applicable to the remaining two. Thus the objection was not in any manner fatal to the maintainability of the appeal.
13. Similarly with regard to the failure to imp lead 10 persons who according to the respondents were necessary parties, the appellants argued that the objection was misconceived. Such persons, if any were not necessary parties. If not impleaded, they were not bound by the judgment and the contention that the appeal was defective bad no force. So far as the objection raised on the basis of Rule 11(3) of the Punjab Service Tribunal (Procedure) Rules, 1975, was concerned, it was argued that the time could be extended by the Registrar and it was only when the appellant failed to comply with tile order of the Registrar in respect of depositing of the security, that the dismissal was to follow. In this case no such order has been shown to have been made by the Registrar or by the Tribunal. However, on a point of fact, it was submitted that the security had been deposited and if there was any balance yet outstanding, the appellants were prepared to deposit the same immediately.
14. After hearing both parties, we are of the view that the preliminary objections have no force. In the first instance, the final order has admittedly not been passed by the Governor on the representations, which even it treated as review applications, were still awaiting disposal. In the absence A of any final order it is not possible to hold that the appeals were barred by time. In fact proviso (a3 to section 4 allowed the appellants to approve this Tribunal at any time after the expiry of 90 days after the filing of appeal, review or representation and before the passing of the final order but the penal consequences with regard to limitation could only be attracted if a final order had been passed. We also find force in the argument of the appellants that the representations filed by the 10 persons were the same in substance, and we have no doubt that the decision in one case would be uniformly applied by the Provincial Government, to the cases of all the appellants since the facts and circumstances of their cases were identical. The objection regarding the addition of parties also appears to be of a somewhat formal nature. The final order on the representations made by the ten appellants is yet to be passed. The appellants are clearly entitled to move this Tribunal when their representations are disposed of. Thus the limitation has not yet expired. In the circumstances the respondents' objection in this regard had no force. As regards Vie failure to imp lead 10 other officers likely to be affected by this order, as find that they may not be affected by this order if not impleaded. Their absence does not affect the constitution of this appeal, which can proceed in their absence. We may also note that the names of such persons have not been specified. Therefore, we are not inclined to take serious notice of this objection. So far as the last objection based on the failure to deposit the security was concerned, the same is equally devoid of any force. The provisions of rule 11 (3 j which enable the Tribunal to dismiss an appeal in a case of non-compliance with the order of Registrar, have not been shown to be attracted t s the acts before us. The case of the appellants is that in most of the cases the security ha been deposited. In any case, we can ourselves allow the appellants to deposit the same and we have directed them to deposit the same within a fortnight from the date of the objection.
15. On merits the appellants contended that they were regular appointees to the P.C.S. (Judicial Branch) Cadre from the very beginning and therefore, they were senior to the respondent Civil Judges They argued that they could not be described as 'ad hoc' either in common parlance or according to their terms of appointment, statutory rules, Government instructions or from the point of view of practical functioning. According to the appellants neither their appointments nor the posts held by them were ad hoc, therefore, they could not be considered to have been appointed on ad hoc basis. In the first instance the appellants pointed out that in common parlance 'ad hoc' means anything unusual or for a particular purpose its., not to be continued. The appellants submitted that since they were appointed for an indefinite period and were employed to dispose of the same work, which the respondent Civil Judges were doing, therefore, in common parlance they could not be considered or treated as being 'ad hoc' on the second place the appellants relied upon their terms of appointment;--a argued that m the advertisement issued by the Public Service Commission, there was no mention of ad hoc appointment nor the posts to be filled were stated to have been created on an 'ad hoc' basis. Similarly, in appointment letter issued to the appellants on 17th of June; 1963 appended as Annexure 'A' to the grounds of appeal, under the Head "Tenure", the post was shown to be temporary and not `ad hoc'. The appellants further pointed out that in ' leave, medical attendance, conduct rules and travelling allowance, they were treated at par with other Government Servants and the same rules were directed to be applicable to them. The pay allowed to them was also in the prescribed scale admissible to Member, of the W. P. C. S., Judicial Branch.
16. Against the above background it was urged that the inclusion of the expression 'ad hoc basis' in the 'subject' of the appointment letter was unwarranted or :n any case was relatable to the mode of recruitment only.
17. The appellants drew our attention to the West Pakistan Civil Service (Judicial Branch) Rules of 1962.
18. According to rule 2(e), the service under the aforesaid rule means the West Pakistan Civil Service (Judicial Branch). Rule 3 deals with the constitution of the service which is to the following effect: "3. Constitution of service.-The Service shall comprise the posts of Civil Judges and such other posts as may be determined by the Government from time to time."
19. It is conceded that no order has been passed by the Government deter--mining the posts of the appellants as posh included in the service. However, the reliance is paced on the expression, 'Civil Judge', which according to the appellants included temporary as well as permanent Civil Judges.
20. The case of the appellants before us is that according to the terms of appoint--ment, they were temporary Civil Judges and thus they were covered by the expression 'Civil Judges' as mentioned in rule 3, which did not envisage any distinction between temporary and permanent Civil Judges and thus they became Members of the Service right from the date of their recruitment in 1963-64.
21. The appellants conceded that they had been representing to the Government to be absorbed in the service, but contended that they were asking for being absorbed on a permanent basis, which was ultimately granted by the orders of the Governor of West Pakistan, dated 13-8-1968. The appellant invited our attention to the Government instructions printed at page 103, Volume I of the O & M Manual and also to the instructions printed at page 558 of the Manual of Administration, Vol. IV. According to these instructions the essential characteristics of ad hoc appointment inter alia included a purely stop-gap arrangements made in public Interest extending up to six months at the maximum and terminable on the final selection of the incumbents by the Public Service Commission, an ad hoc appointment could he continued only subject to the condition of prior reference to the Public Service Commission, two months before the expiry of the period of six months. The appellants also referred to the model form prescribed for ad hoc appointees as printed on 7th August, 1973 at pages 56-57 of the Establishment Manual, which though not strictly applicable yet Illustrated the intention of the Government irt the matter of ad hoc appointments.
22. Thereafter, the appellant relied upon the letter of the High Court, dated 16/17th July, 1973 written to the S. & G. A. D. in which the view was expressed that the appellants were not ad hoc appointees and for them the expression 'ad hoc' was a mis homer. On the basis of these aver--ments the appellants argued that the essential characteristics of ad hoc appointment were absent in their case and the intention of the authorities was abundantly clear that they were not ad hoc appointees. It was further argued that in view of the nature of the duties performed by them and the purpose for which their posts had been created clearly established that the posts in question had to be considered as being part of the cadre, though as a temporary addition to the same. In this behalf reliance was placed on Note 3 to Rule 4.20 of the Civil Service Rules (Punjab), Vol. I, Part I which reads as under: "Note 3.-Temporary posh may be divided into two categories, viz. posts created to perform the ordinary work for which permanent posts already exist in a cadre, the only distinction being that the new posts are temporary and not permanent and isolated posts created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform, A distinction by strict verbal definition is difficult, but in practice there should be little difficulty in applying the distinction in individual cases. The former class of posts should be considered to be a temporary addi--tion to the cadre of a service whoever may be the individual appointed to the post; while the latter class of temporary posts should be considered as unclassified and isolated ex-cadre posts."
23. According to appellants they were required to and had to do the same work, which their colleagues in W. P. C. S. Service have been doing and which could not be said to be a function unconnected with the ordinary work. In this context the appellant also argued that until 1967-68 there were 60 permanent poets and 16 temporary posts of Civil Judges in Punjab and Bahawalpur Zone 'C'. But in the years 1968-69 and 1969-70, there were 90 and 105 permanent posts respectively and there was no temporary post whatsoever; thus the implication was that the appellants were Members of the cadre and were employed against permanent posts. On these premises the appellants attacked the notification, dated 16th December, 1971 which purported to absorb them in the Punjab Civil Service (Judicial Branch) subject to their good record and fitness. The appellants argued that they were Members of the Civil Service from the very inception, and while determining their seniority under Rule 9 of `Nest Pakistan Civil Service (Judicial Branch) Rules, 1962 their appointment had to be requested under clause a of rule 9 of the said Rules from the date of their joining service as Civil Judges. Rule 9(a) dealt with the seniority of the persons appointed by initial recruitment, and according to this Rule persons selected to the Grade in an earlier selection would rank senior to persons selected in later selection. Since the appellants were selected in the year 1963-64, therefore, they were entitled to seniority under rule 9(a) over the respondent Civil Judges, who were selected after 1964. In the alternative the contention of the appellants was that clause
(6) of the rule 9 related to the case of the persons appointed otherwise than by initial recruitment.
24. It the appellants were deemed to have been appointed otherwise then by initial recruitment, their seniority would be reckoned with reference to their continuous appointment iii the grade as rule 9;b) fixed the date of appointment as relevant point for fixing the seniority. It was also contended that since the appointment order was by the Rule-making Authority himself, therefore the order even if not warranted by rule 5 of W. P. C. S., (J. B) Rules or 1962 was valid. Reliance was placed on the ratio of the order of S. C. of Pakistan PLD 1971 SC 846, to support their preposition. The appellants further supported their contention by placing reliance on the decision of the Supreme Court of Pakistan, Abdul Majid Sheik v. Mushaffe Ahmad, Section Officer, Government of Pakistan, Ministry of Defence, Karachi and others (PLD 1965 SC 208) according to which a person appointed for an indefinite period, though expressly described as temporary, was entitled to the constitutional guarantees provided under Article 177 of the Constitution of Pakistan of 1962. Support was Jafar? sought to be derived from Jafar Ali Akhtar Yousaf tai v. Islamic Republic of Pakistan and another (PLD 1970 Quetta 115) in which it was held "that the authorities, it appears, whenever want to retain a power of removal, reduction in rank, etc., although not otherwise empowered to do so under a law or a rule having the force of law, attach or continue to apply some conditions which are not, or do net remain strictly valid and constitutional. The Court, cannot, therefore, permit the Government or other authorities to retain extra-consti--tutional power of arbitrary termination of service so as to defeat the consti--tutional guarantees available to civil servants, by doing what is not permissible by law, and will not give effect to such conditions." The appellants also argued that in the year 1957, recruitments were made by the Government as prescribe) under the Rules of 1962, but the appellants' case was not considered; thus the requirement of recruitment by holding a com-- petitive test as prescribed by rule 5 of the West Pakistan Civil Service (Judicial Branch) Rules, 1962, may be deemed to have been waived as held by the Punjab Civil Service (Appellate) Tribunal in Muhammad Khan and 3 others v. Secretary to the Government of the Punjab, Communications & Works Department (1971 PLC (C. S. T.) 140). In this case as Assistant Draftsman was appointed by promotion and though for which appointment a test was prescribed yet the Department did not hold any test or Departmental Examination before making the appointment. In that context it was held that the rule requiring appointment to the service as a result of examination would be deemed to have been waived and the appointments of respondents 2-9 would be treated as valid appointments. Another plea of the appellants was that if the case of the appellants was not covered by Rule 3 of the West Pakistan Civil Service (Judicial Branch) Rules of 1962, they formed a class of officers, who had continuously for the last many years on the given terms, been officiating against their posts and they being not ad hoc, became senior in terms of the rules as held by the Supreme Court of Pakistan, Khushi Muhammad and 3 others v. General Manager, Pakistan Western Railway, Headquarters Office, Lahore and others (PLD 1970 SC 203) In which their Lordships laid down that: "It is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. The ratio of 50 between the direct recruits and the departmental promotes, merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority or their confirmation inter se. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that confirmation in the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promotes, have to be alternatively confirmed Again, there is no rule that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade."
25. According to the appellants, in any case they were entitled to rank senior to the respondent Civil Judges, since they had been appointed to these posts earlier than the respondents.
26. Lastly the argument of the appellants was that considerations of the equity want in their favour.
27. They submitted that they had 3-5 years legal practice to their credit at the time of joining service which obviously gave them an advantage over fresh Law Graduates. Moreover, they had been in service for the list 14 years, their performance was satisfactory and they had been considered fit for appointment to the regular cadre by the Public Service Commission. In some cases they had already earned promotions since they had a long continuous officiating in the Grade and if the benefit of their previous service was denied to them, they would suffer serious hardship. It was also argued that about 22 persons were recruited to the W P C S (J. B.) in 1967 without holding the Departmental Examination. The case of these recruits was identical with that of the appellants but they were likely to become senior to the appellants. With these submissions they prayed for the acceptance of their appeal.
28. The learned counsel for the respondent Civil Judge Mr. Khalil-ur---Rehman Khan, vehemently controverted the contentions raised by the appellants. According to the learned counsel it was abundantly clear from the record that both the posts and the nature of appointments held by the appellants was ad hoc. According to him posts could be ad hoc, if they were for a specific purpose only. The appellants' appointments were purely temporary, on ad hoc basis and were terminable on one month's notice. He relied upon the meaning assigned to the expression 'ad hoc' by Earle Jowitt in his Judicial Dictionary at page 19, according to which it means "for a particular purpose".
29. He also pointed out that even otherwise there was no promise of promotion for them and there were no rules applicable to them, according to which they could be treated as members of the P.
30. C. S. (Judicial Branch). He pointed out that on 20th of May 1962 in the Governors' meeting, it was noted that the pendency of cases with the subordinate civil Courts was heavy and in order to clear the same, the High Court was granted an impress account amounting to rupees one lac. It is common case that pursuant to above, 20 posts of Civil Judges were created for West Pakistan.
31. According to him it was in the light of the above recommendations that the posts were advertised by the High Court of West Pakistan on 10-3-1963 Condition No. 6 of this Advertisement under the caption of future prospects reads as under: "Officers, who clear the arrears of work assigned to them and earn a satisfactory record ref service may be considered for absorption in the P. C. S., Judicial Cadre on terms and conditions to be determined by the Government."
32. It was thus pointed out that to start with they wer,9 not members of the P. C. S., Judicial Cadre as is claimed by them. Similarly he argued that the order of the Governor of West Pakistan dated 13th August, 1968 was a fulfilment of this promise only. He also referred to the same document to show that the appellants' appointments were made specifically for the purpose of the clearing the arrears, on purely temporary basis, against some of the 20 posts created and they were ad hoc appointees though it was not so mentioned in the advertisement. He also referred to the requisi-- tion sent by the Provincial Government on 30th March, 1963 to the West Pakistan Pubic Service Commission. In particular he referred to the entry in column No. 2 of the aforesaid requisition, which appears on page 132 of the File. The requisition described posts as "unclassified Civil Judges recruited on ad hoc basis". In column 3 the post was shown as "purely temporary on ad hoc basis."
33. Column No. 4, showed the posts as non--pensionable. In column No. 7, the service of such officers was shown to be terminable on one month's notice. In column No. 12, it was shown that there was no prospect of higher posts i. e. promotions. In the forwarding memo also the post was shown as temporary and was required to be filled immediately. It appears that on the receipt of this requisition the Commis--sion made enquiries from the High Court as to the mode of recruitment vie whether the recruitment was to be made on Zonal basis. The High Court on IE-9-1962 replied in the negative by stating that these were ex---cadre posts and the Zonal formula, which was applicable to the members of the Service only was not to be applied in these cases. The learned counsel for the respondents also referred to the objection raised by the Accountant General, Punjab, which was replied to in similar terms. Ghulam Murtaza, of the P. C. S. (Judicial Branch) protested against the appointment of the appellants as members of the Service on the ground that such an appointment was likely to effect his rights. The High Court allayed his apprehension; by replying that they were not going to be absorbed in the cadre, Mr. Khalil-ur-Rehman Khan also referred to the letter, dated 13-9-1963 written by Mir Mohammad Afzal to the Registrar. Lahore High Court asking as to whether be was required to take up the Departmental examination. He was informed that it was not necessary in his case as he was not a member of the Service. In fact the High Court also made an enquiry on 13-10-1963 from the Government who replied on 18th November, 1963 that the present appellants not being members of the Service, were not required to take up the examination. Thereafter the learned counsel referred to the appoint--ment letter to show that the appointments of the appellants were made against the above background on a purely temporary basis, and in the heading of the letter of appointment it was reiterated that their appointments were on ad hoc basis, According to him the expression ad hoc in the subject of the letter against the above background was very relevant and significant. So far as the application of the Rules was concerned, be pointed out that some of the Rules namely the Rules pertaining to leave, Medical Attendance, Conduct Rules, Travelling Allowance only were made applicable. But under the heading "General'", it was distinctly stated that the Govern--ment, unlike its practice in respect of other civil servants, reserved the right to alter or interpret any of the conditions in a manner less favourable to them which is a clear departure from the protections normally available to the members of the Service. In cast the appellants accepted the entire conditions they could contact the Registrar. High Court, West Pakistan, Lahore for their posting orders. He also pointed out that in fact the contention of the appellant cuss an afterthought inasmuch as the appellants themselves had been making representations to the Government, requesting for their absorption in the P. C. S. Judicial Cadre. Thus they could not be justified at this belated stage in contending that they were the members of the Service right from the time of their appointment. In reply to the assertion of the appellants he placed reliance upon the decision of the PLD 1968 Kar. 693 which laid down that ad hoc appointee cannot be equated with probationers. It was contended that the decision dated, 13-8-1968 was merely a decision in principle to agree to absorb the appellants subject to their fitness. There was no provision in any rule for absorbing them in the service. The Rules have to be amended and the amendment could not operate with retrospective effect. The Government decision, dated 28-2-1970 was the only sanction for absorbing them. There was no indication in the aforesaid order that they were going to be recruited on a regular basis. He also referred to the letter of the High Court, dated 13-9-1970 who sent the case to the Public Service Commission for advice as to the fitness of the appellants. According to the learned counsel if the appellants were already members of the Service, there was no need for sending the case to the Public Service Commission again. This letter clearly negated the stance of the appellants that they were already the members of the Service. In fact their names were approved in three batches.
34. Firstly on 12-11-1970, secondly on 22-12-1970 and thirdly on 29-1-1971, and till such time that they were approved they were holder of ex-cadre posts and not members of the Service. He also relied upon the seniority list published on 31 May, 1970 in which the names of the present appellants were not included as they were not members of the Service. Again another list was published on 2- 12-1971 and their names were not there in it but the appellants did not prefer any appeal to the Civil Service Appellate Tribunal, Punjab before whom they had a clear remedy. Thus according to the learned counsel, the appellants by their conduct were precluded from contending to the contrary.
35. He pointed out that it was on 16/17th July, 1970 that the High Court for the first time expressed the view that the present appellants should be considered as members of the Service with effect from the date of their joining their posts. However, the Law Department In their advice, dated 13-10-1972 did not agree with the aforesaid advice of the High Court, and again expressed the view that the appellants were not regular members of the Service. Earlier on 29-4-1972 the Law Department had opined that the recruitment of the ad hoc Civil Judges in the cadre from 28-2-1970 was tantamount to initial recruitment. He also referred to PLD 1968 Kar. 673 paragraph 5 of which supported the view of the Law Depart--ment. He argued that neither the text of Departmental instructions nor the approval of the Commission for ad hoc appointees, improved the case of the appellant as the instructions relied upon simply laid down the procedure for ad hoc appointments.
36. As regards the objection of the appellants to the recruitment of the Civil Judges to the P. C. S. without examination in the -year 1966/1967, he brought to our notice the amendment introduced in the Rules (vide Rule 7-A) in 1966 to West Pakistan Provincial Civil Service Judicial Branch Rules, 1962 which provided for relaxation in the conditions of recruitment which was not available in 1963/1964 and that made all the difference. Moreover, the learned counsel pointed out that the appointments in 1967 were made on a regular and permanent basis. He also argued that the appellants have not shown as to why they did not appear in the test in 1966. It may be that they were not qualified due to age or otherwise or they were afraid of not being selected. Replying to the contents of the letter, dated 16/17th July, he referred to the advice of the Public Service Commission, dated 17th July, 1974 in which the same had not been accepted and the Government accordingly wrote back to the High Court, who on 1C-10-1974 replied that their view was merely of the nature of an advice and it was for the Government to decide the issue. As such finally on 16th December, 1974 the notification issued by the Government of Punjab was made after taking into consideration the D. O. letter of the High Court, which was not pressed by the High Court themselves at a subsequent stage. The representation filed by Mr. Zeman against the aforsaid notification was also rejected. He furtherst argued that an appoint--ment against an ex-cadre post does not entitle the incumbent to claim seniority. He relied upon the decision of the Civil Service Appellate Tribunal Ijaz Hussain v.
37. Government of the Punjab (1972 PLC 78). Similarly, he also rolled upon PLD 1972 SC 95 to contend that ad hoc appointees had no rights in this respect. Lastly, he argued that the authority reported as PLD 1971 SC 846 was clearly distinguishable on facts. In the aforesaid case qualified persons were not available and the Government conceived a plan to train persons themselves and to obtain bonds from the trainees. The aforesaid terms and conditions were widely circulated' and published in the press and the letter of appointment clearly stated it was an appoint--ment to Class-11 Service. This letter was in the nature of a policy letter and had all the characteristics of a Rule of a general application. Thus the intention indicated therein made a basic different According to the learned counsel in the present case the intention was just the opposite.
38. Replying to the last contention of the appellants based on considerations of equity the learned counsel for the respondents argued that the appellants had an advantage inasmuch as they were granted a higher start in the form of advance increments. They were not required to pass any departmental test on the ground that they were holders of ex-cadre posts. Thus with these initial advantages over the members of the Service, they could not claim further advantages in the name of equity. He also argued that at no stage was there any confusion as to their status and canons of equity had not been contravened in the treatment accorded to them.
39. After hearing both the parties at considerable length, we are of the view that the intention of the competent authority at the time of making the appointments of the appellants constitutes the crux of the present dispute. In the first instance the appointments emanated from a background is which it was felt that there being a considerable back-log of work, specialarrange--ments were called for to clear these arrears. I; is common case that it was clear accumulated arrears of work that 16 pests of civil Judges in Zone 'C` comprising the present Punjab which includes Bahawalpur State, were created. There is no indication on the record that these posts at any stage formed a part of the regular cadre of service, on the contrary there are strong indica--tions that these posts were created as unclassified and isolated from the cadre. We examined the records including the requisition sent to the Public Service Commission by the Department. It is clearly stated in the relevant files that the posts were ad hoc and for filling these the recruitment was to be made on ad hoc basis. It is correct that no express condition was incorporated in the terms of appointment as issued to the appellant, but it subject of the letter of a the appointment the word 'Ad hoc' was there.
40. The appointment letter further distinctly clarifies that the terms, and condition offered to the appellant could be modified to their disadvantage and it war also expressly provided that there way no Prospect of promotion for the appointees. The Public Service Commission before making the recruit inept enquired as to whether the zonal formula is to be absorbed but were informed by the High Court that since these were ex-cadre pasts, therefore, ii was not necessary to observe the Zonal formula. Similarly Accountant-General, Punjab is also understood to have raised the similar. objection but h e was also informed accordingly. Further communications were also made in response to a query by one of the ad hoc recruits as to whether he was required to take the examination. He was informed that since he was the holder of an es-cadre post, therefore, it was not necessary for him to take the examination.
41. Similarly, in reply to the representation by Mr. Awais, a P. C. S. Officer it was stated that fir. Awais's apprehensions sere mis-founded as the' present appellants were not likely to be absorbed in the P.
42. C, S. cadre. Their own conduct in pressing of absorption in W.P.C.S. (J.B.) also was a pointer to the fact that they clearly and definitely knew that they were as hoc appointees. Even in the year 1968 when it was decided to absorb them, they did not take up the plea that they were already members of the Service and thus there was no question of absorbing them de novo. All these facts evidently establish boy; ad all reasonable doubt that the intention was to appoint the appellants to ex-cadre costs created for the clearance of the spears of work. It is correct that they were not exclusively assigned the work of clearing the arrears only but this does not alter the fact that it was not initially intended to appoint them to the Service. It has to be borne in mind that the creation and filling of a past for a particular purpose is one fact and the actual employment of the officer is another. It is the intention behind the creation of the post, which is relevant and not the actual functioning of the officer appointed to it. It is quite significant that nothing has been shown to us to indicate that the posts were not created for the specific purpose of clearing arrears of work thus we have no hesitation in holding that the intention was to create these posts on an ad hoc basis to clear the arrears of work and the appointments of the appellants were made to achieve that particular end. We are not inclined to accept the suggestion of the appellants that the words 'ad hoc' on the subject of the letter of appointment was an isolated and unauthorised insertion by some subordinate official at the time of drafting the letter. In fact it was a summing up of the entire background of the appointments and was not accidental or unauthorised.
43. The next contention of the appellants that they were holders of temporary posts and Rule 3 of the West Pakistan Civil Service (Judicial Branch) Rules 1962 covered their case is equally without substance. Rule 3 aforesaid clearly states that the service shall comprise the posts of Civil Judges or such other pasts as may be determined from tine to time. This rule to our mind clearly means that the posts of Civil Judges or other posts as the Government may determine would form a part of the service for which these rules had been framed. At no stage the temporary Civil Judges have been determined by the Government as having been appointed to cadre posts. We cannot accept that the post of civil judge simpliciter is to be treated as part of the cadre, then an ad hoc appointee is equally a civil judge and as such he is also the holder of a post forming the cadre. We are not inclined toi accept this contention and the post of Civil Judge to our mind means a post, which is included in the cadre by the order of the Government. We are of~ the view that Rule 3 in its scope did not include the temporary posts unless so expressly determined by the Government. We may also notice here the argument of the appellants that the posts held by the appellants be treated as temporary addition to the cadre in terms of Note-3 appended to Rule 4.20 of the Punjab C. S. it., Vol. I, Part I. In the first instance, we have already pointed out that in the requisition to the Public Service Commission in the relevant column the posts have been shown as un-classified posts to be filled on ad hoc basis. We, therefore, are clear in our mind the provisions of the Note in question as relied upon by the appellants, are not attracted to the facts of this case. Even otherwise, we are of the view that some order by the Government is necessary before a post can be considered as part of the cadre even as a temporary addition to the cadre.
44. The other argument of the appellants that after the year 1967-68 there was no temporary post of Civil Judge in Zone 'C' viz. the present Punjab which includes Bahawalpur State, also does not appear to be correct. The argument was based on the pro forma supplied by the Finance Department containing the schedule of-posts sanctioned for Zone 'C' us per letter, dated 25th June 1968. We probed into the matter and found that the position taken by the appellants was not correct. It was decided on 29th March 1968 to create additional posts of Civil Judges to copy with the pressure of work and it was also decided that out of the total strength 10% of the pasts were to be temporary. The 'existing' cadre strength of Zone C for The year, 1967-68 shown in the minutes of the meeting of 29-3-68 was 60 permanent posts and 16 temporary posts. According to the decision the above increase in the strength was to be spread over 3 years viz. 1968-69, 1969-70 do 1970-71. The cadre strength for Zone C proved by the Governor for these years was 90 permanent posts for 1968-69, 105 permanent posts for 1969-70 and 108 permanent and 12 temporary posts for the year 1970-71. We also examined the position oh the West Pakistan basis as provided in the printed budget. We find that in the year 1967-68 there were a total of 166 posts out of which 43 were temporary. In the year 1968-69 we find that there were 197 posts out of which 116 were permanent and 58 were shown as existing temporary posts while another 23 temporary posts created for Tyre year. In other words there were about 81 temporary posts as against 58 in the preceding year. In the year 1969-70 there were 214 posts out of which 116 were permanents and 81 were existing temporary posts from the preceding year while 17 new temporary post were created for the year. In the letter dated 25th June 1968, the Finance Department however conveyed the following sanction of cadre strength: Zone 'C' West Pakistan Permanent Temporary TotalPermanentTemporaryTotal 1968-69 90 90 188 5 193 1969-70 105 105206 8 214 1970-71 10812 120210 25 235 The cadre strength approved by the Finance Department is obviously not in conformity with the actual cadre strength for which the funds wire voted and the cadre strength approved by the Finance Department has obviously not bean maintained in actual practice. Actually there were 58 temporary posts In 1967-68, 81 in 1968-69 and 98 in 1969-70.
45. The appellant's argument thus proceeded on incorrect premises and appears to be based on incomplete data. Thus it is not safe to rely upon the same and the same cannot be accepted.
46. The next contention of the appellants that rule 5 of the West Pakistan Civil Service (Judicial Branch)
47. Rules, 1962 should be deemed to have been; relaxed also failed to impress us. The reliance placed upon the decision of the Civil Service Appellate Tribunal reported as 1971 PLC (C. S. T.) 140 is also misconceived. In the present case a competitive examination was held by the Government both in the year 1963 and 1967 in which some of the appellants in the year, 1963 and all the appellants in the year, 1967 if they so chose, could participate and take the examination. It is not the case of the appellants that they were stopped or discouraged by the Government from taking the examination. Thus the facts of this case and the case cited by the appellants are widely distinguishable. If the appellants did not choose to appear in the examination they cannot blame the Department for the disabilities, which they incurred there by. In the circumstances it is difficult to hold that rule 5 should be deemed to have teen relaxed in the appellant's favour. The argument of the appellants that the order of appointment in their case having beam made by the Rule- framing Authority, should be deemed to modify the Rules, is of no avail to them.
48. This argument could only be available to them if the Rule-framing Authority consciously and in actual fact made an order in their favour, but the order challenged before us clearly appoint them from 1-1-1970 to the service and in this state of facts, the reliance placed upon the Supreme Court judgment reported as PLD 1971 SC 203 is clearly misplaced. We fail to see as to how the same was applicable to the facts of this case. The Rule Framing Authority never intended to appoint them to the service from the date of their appointment as Civil Judge. No doubt the High Court at one stage was inclined to favour them but when facts and arguments to the contrary were advanced by the Law Department and the Public Service Commission, the High Court vide their letter dated 10-10- 1974 did not insist on maintaining their recommendation. In fact the High Court's earlier view is on record that the appellants were holders of ex-cadre posts and such it was not necessary for the appellants to take the examination. This view was confirmed by the Department. The representation by Mr. Awais was also replied to in the same terms. Thus the High Court did not take and final stand in the matter and later appears to have accepted the views of the Law Department and the Public Service Commission. In fact, they had themselves referred the cases of the appellants for selection to the service to the Public Service Commission in September 1970, which clearly implied that the appellants were not Members of the Service at that time. Reference to Departmental instructions as printed in O & M Manual and Establishment Manual of the Model form was also of little assistance as the same laid do the guiding principles for making rid hoc appointments. If there was any disregard of the same it did not alter the character of the appointment without any order from the competent authorities concerned. Once it is hold that the appellants were the holders of the ad hoc appointments nothing was placed before us to show that the seniority determined by the Depart mental authority was questionable on any ground.
49. Even on consideration of equity, we find ourselves unable to accept the contention of the appellants. From the very beginning the ad hoc nature of their appointment was clean to the appellants and their conduct clearly indicates that they were striving all tire time to be appointed to the service. The terms of appointment were clear enough not to leave any ambiguity in their mind. They bad the initial advantage of extra increments and they did not take the Departmental Examination which was necessary for further promotions for which no promise was held out to them. In the circumstances of the case, we do not find enough justification in equity to ignore the provisions of law, which are clearly against the appellants.
50. We, therefore, do not find any force in this appeal, which is hereby rejected the cost.