' MAMOON KAZI, J.---In action out of which the present appeals have arisen, the respondents, who had been recruited as Assistant Executive Engineers in Grade-17 by the Government of Sindh in the Irrigation Department, had sought to obtain a declaration from the Service Tribunal that their seniority had been erroneously determined by the department as the respondents had been placed below the appellants in seniority lists circulated by the department.
2. The appellants had been promoted in the same grade as Sub-Divisional Officers between 29-4- 1972 and 19-8-1975, in six different batches, but on ad hoc basis. As against that, the respondents had been recruited on regular basis on 2-8-1976.
3. After recruitment of the respondents, in the various seniority lists circulated by the department between 1980 and 1987, the said respondents were placed junior to the appellants, but the seniority lists were not questioned by any of the said respondents.
4. In this background when the seniority list of 1987 of Assistant Executive Engineers was issued by the department, one Azizullah Baloch filed appeal claiming higher place in the said list. His appeal was accepted and revised seniority was assigned to him. Feeling aggrieved by such order, respondent Aijaz Ahmad Khan filed a departmental appeal before the Chief Secretary to the Government of Sindh wherein he questioned the seniority of the appellants which till such time had remained undisputed. However, none of the appellants had been impleaded as a party to such appeal. The said appeal was allowed by the Chief Secretary vide order dated 27-7-1989 but only to the extent that respondent Aijaz Ahmad Khan's claim of seniority over some of his colleagues was accepted but the respondents's seniority claim against the appellants was rejected. The respondents, however, filed appeal before the Sindh Service Tribunal and so did the other respondents and all such appeals were disposed of together by a common judgment, dated 12-9- 1991 and it was held that since the appellants' promotion continued to remain ad hoc, they were not entitled to claim any seniority over the respondents.
5. Leave was granted to consider whether the Tribunal was justified in holding such view.
6. We have heard Syed Sharifuddin Pirzada and Mr. Fakhruddin G. Ebrahim on behalf of the appellants and Mr. G.H. Abbasi on behalf of the respondents. Mr. Munib Ahmed, the learned A.A.-G.
Also addressed us on behalf of the Government.
7. The judgment of the Service Tribunal has been assailed before us by the learned counsel for the appellants on three main grounds: firstly, the order of the Chief Secretary, impugned by the respondents, was subject to the incidence of a departmental appeal under the Sindh Civil Servants (Appeal) Rules, 1980 but no such appeal was filed by the respondents. Therefore, their appeals before the Service Tribunal were barred under section 4 of the Sindh Service Tribunals Act, 1973.
Secondly, the respondents' appeals before the Service Tribunal were barred by time. It was pointed out in this regard that the cause of action, if any, accrued to the respondents in 1980 when after induction of the respondents into service, the first seniority list was circulated, placing the respondents below the appellants. Consequently, the departmental representations as well as the appeals before the Tribunal were hopelessly barred by more than seven years. However, neither condonation of delay in terms of the proviso to rule 3 of the Sindh Civil Servants (Appeal) Rules, 1980 was sought nor the same was granted by the departmental authority. Lastly, according to the learned counsel, the respondents were inducted into service, inter alia, on a condition that they would rank junior to the departmental promotees, that is to say, the appellants, who were already performing their functions as Assistant Executive Engineers. Therefore, even if the appellants' initial promotion was on ad hoc basis, the same would be deemed to have been subsequently regularized. The learned counsel were fully supported by the A.A.-G.
8. Mr. G.H. Abbasi, learned counsel for the private respondents on the other hand has argued that promotion of the appellants was officiating and on ad hoc basis and it continued to be so until the notification dated 14-10-1991 was issued by the Government of Sindh regularising the said promotions. However, the learned counsel has questioned the legality of the said notification, which, according to him, cannot apply with retrospective effect,
9. While supporting the first contention, learned counsel for the appellants have pointed out that none of the appellants had been impleaded as a party to the original order dated 4-10-1987 passed by the respondent No,3. Although representation was made against the said order to the Chief Secretary to the Government (respondent No,1) but none of the appellants was arraigned as .a party by the respondents. However, since no appeal was filed against the order of the Chief Secretary, the appeal filed before the Tribunal without filing a departmental appeal was not competent. Support has been sought in this regard by the learned counsel for the appellants from S. Ali Shah Naqvi v. Government of Sindh (PLD 1979 SC 856).
10. Although, little doubt can be expressed in regard to the said contention because if the Civil Servants Act or the Rules made thereunder provide for an appeal. Then no appal shall lie to a Tribunal unless such appeal was filed. However, such objection should have been raised by the appellants first before the Service Tribunal. The question, whether such objection may be permitted to be raised for the first time before a higher forum was considered by the erstwhile Federal Court in Ghulam Rasul v. Crown (PLD 1951 FC 62) and it was held that questions relating to competency of the Court, which would belong to the region of substantive errors of law as compared to procedural errors, could be raised for the first time before the Federal Court. But in Ghulam Mohi- ud-Din v. Chief Settlement Commissioner (PLD 1964 SC 829), where order of Settlement Authority was passed in contravention of a proviso to section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, which excluded the jurisdiction of the Settlement Authority to entertain review if appeal or revision had already been preferred, this Court refused to interfere where certiorari had been declined on account of failure of the petitioner to raise such objection before the Settlement Authority concerned. Hamoodur Rahman, J. While declining the relief observed that although jurisdiction could not be conferred on the Tribunal concerned by waiver or acquiescence, but the person seeking to have an impugned order quashed should not be granted the discretionary relief if he simply stood by and allowed the Tribunal to usurp jurisdiction which it did not possess. Similar view was expressed by this Court in Mst. Kubra Bibi v. Abdul Haq (1983 SCM R 737) and Ghulam Fatima v. Muhammad Hussain (PLD 1976 SC 729). We, however, find no reason to take a different view in this case. In the present case, the appellants themselves acquiesced to the exercise of jurisdiction by the Service Tribunal by failing to raise such objection before it. They fully participated in the hearing and allowed the Tribunal to decide the case on merits. Since the Appellants failed to raise the objection earlier before the Tribunal, they cannot be permitted to raise the objection for the first time before this Court at last stage after the petition has been disposed of on merits by the Tribunal. The contention is, therefore, not tenable.
11. The second contention raised on behalf of the appellants is that the appeal filed by the said respondents before the Tribunal was time-barred. Although such objection was raised before the Service Tribunal but it accepted the respondents' plea that initially they were not aware of the ad hoc character of the said appointments. Therefore, the objection to limitation was overruled.
12. It has been held in a number of cases that findings of the Tribunal, on the question of limitation, accepting version of the civil servant, unless based on misreading of evidence, are not to be disturbed. The question as to condonation of delay being in the discretion of the Tribunal, the findings cannot be set aside on technical grounds alone. Nothing contrary to the version of the respondents that, they were not aware of the ad hoc character of the appointments held by the appellants, was produced before the Tribunal. We would, therefore, refrain from disturbing the findings of the Tribunal on the question of limitation as well.
13. On merits, the judgment of the Tribunal is founded on assumption that since the appellants' promotion was ad hoc, they had no right to claim seniority until the promotion was regularized. This view, no doubt, is fortified by various judgments of this Court, our attention to which has been invited by Mr. G.H. Abbasi. In Muhammad Afzal v. Government of Punjab (1982 SCM R 408) it was laid down that an ad hoc or a temporary promotion cannot confer any right to seniority. Reference was also made by Mr. Abbasi to another judgment of this Court in Federation of Pakistan v. Rais Khan (1989 SCM R 935), wherein, while relying upon the said judgment, this Court granted leave to appeal to the petitioner to consider, if his ad hoc appointment could count towards length of service for the purpose of his promotion. The next case from which support has been sought by Mr. Abbasi is the case of Muhammad Nawaz Khan v. Muhammad Ijaz Rashid (PLD 1993 SC 10). In this case when the question of fixing inter se seniority between direct recruits and promotees came for consideration before this Court, it was held that direct recruits appointed against vacancies which existed prior in time in reserved quota would rank senior to those appointed earlier, if such persons were not appointed against seats in reserved quota for promotees. It was further held that persons appointed on ad hoc basis in excess of quota reserved for promotees and against posts meant for initial recruitment would stand reverted in normal course on arrival of a rightful person. A similar question was once again raised before this Court in Asif Ali Khan v. Secretary to the Government of Punjab (1992 SCM R 1398) and it was held that subsequent regularization of ad hoc appointments could not adversely affect the status of the direct recruits. Reference has also been made to Inayat Ali and another v. Manzoor Ullah (1987 SCM R 407), wherein it was held that seniority in the grade to which a civil servant is promoted would take effect from the date of regular appointment to a post in that grade. More or less similar view was taken in Manzoorullah v. Sabir Zameer Siddiqui (1991 SCM R 365). Again in Wajahat .Hussain v. Province of the Punjab (PLD 1991 SC 82) this Court held that an ad hoc appointee can only count his seniority from his regular appointment. It was further held that regularisation of seniority could not be retrospective but matching of the seniority would take place from the date of regularisation. However, in none of the said cases, ad hoc nature of the appointments was in doubt.
14. It was further contended by Mr. G.H. Abbasi that the appellants, who were appointed as Sub- Divisional Officers could not compete with the private respondents who were appointed as Assistant Executive Engineers in the integrated seniority list of Civil Engineers. The learned counsel has argued that the respondents who were recruited as Assistant Executive Engineers could not be compared with the appellants who were promoted as Sub-Divisional Officers. Reliance was placed by him upon Muhammad Ibrahim Mushey and others v. Province of West Pakistan (PLD 1968 SC 1).
In this case, an integrated seniority list was prepared of Sub-Divisoinal Officers with Class-II Officers of other units in the Forest Department. Such fixation of seniority was held to be in contravention of the principles contained in the relevant policy as it was held that seniority list of only' officers of comparable grades could be prepared by the Government and as the Forest Officers compared more proximately with class-I Officers of other integrating units, they could not be classified with Class-II Officers.
15. The principles governing seniority of civil servants are to be found in the Sindh Civil Servants Act, 1973 and the Rules made thereunder. Section 8 vide subsections (3) and (4) in the said Act provides that:- "(3) Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade."
' Rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 further provides:-- "10.--(1) Subject to the provision of rule 11, the seniority of a civil servant shall be reckoned from the date of his regular appointment.
(2) No appointment made on ad hoc basis shall be regularised retrospectively."
' The expression "ad hoc appointment" has been defined in section 2(a) of the Sindh Civil Servants Act as "appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method".
16. Learned counsel for the appellants have, however, contended that notwithstanding the said provisions the appellants had throughout been treated as regular appointees as subsequent events following the said promotions, regarding which there is no controversy, indicate that such appointments had assumed a more permanent and regular character. Firstly, pursuant to a decision taken by the Government on 11-2-1974, the appellants were given class-I status in Grade- 17 with effect from 28-3-1972. On the said date, the Sindh Civil Servants (Change in Nomenclature and Abolition of Classes) Rules, 1974 were enforced whereby the appellants got inducted in Grade- 17 of the Sindh Unified Grades. Therefore, according to the counsel, if any distinction existed between the two cadres of Assistant Executive Engineers and Sub-Divisional Officers in the.
Irrigation Department, the same had been effectively done away with. With the unification of grades, simultaneously, the Sindh Public Service Commission (Functions) Rules, 1974 were also enforced whereby the Commission was required to deal with matters of initial recruitment of civil servants only. As such, the requirement of consultation in matters of promotion under the 1967 Rules ceased to be operative. It has been pointed out that pursuant to the said rules, reference made to the Commission in respect of appointments of the appellants as Sub-Divisional Officers was withdrawn. In 1975 and 197,6 seniority lists of Assistant Executive Engineers (Grade-17) were issued and the names of the appellants figured therein which, according to the counsel, was a clear indication that they were no longer treated as ad hoc promotees. It has been further pointed out that, ten of the appellants were promoted in 1974 and 1975 when the Civil Servants Act and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 had already come into. It has been pointed out that their promotions had been approved by the Departmental Promotion Committees, therefore, their seniority was unexceptionable. The rest of the appellants were senior to them. Thereafter, respective summaries, dated 26-11-1975 and 17-5-1976 were sent to the Chief Minister by the Additional Chief Secretary which indicated that after their recruitment in service, the respondents would rank junior to the appellants. This decision was also conveyed to the Public Service Commission by the respondent No,3 vide his letter, dated 1-8-1976. Thereafter, a notification dated 15-7-1982 was issued by the Government confirming the appellants in Grade-17 with effect from, 1-1-1975. Finally, the appellants were promoted on regular basis as Executive Engineers in Grade-18 vide different notifications issued between 1985 and 1990.
17. The circumstances enumerated by the counsel, therefore, leave no element of doubt that after the appellants had been initially promoted on ado basis, they had been throughout treated by the department as regular appointees. When most of the appellants were promoted as Sub-Divisional Officers, the promotions were governed by 1967 rules which had made no provision for ad hoc appointments. Therefore, even on coming into force of the Civil Servants Act, seniority of the appellants thereunder was to be reckoned from the date of their continuous officiation against the posts. The Tribunal appears to have clearly overlooked the fact that the said appellants had since their promotion continued to serve as regularly appointed Sub-Divisional Officers without any break. No doubt, the appellants had been initially promoted without being recommended by the Public Service Commission, as was required by the rules then applicable to them, but any rules providing for approval by a departmental promotion committee or as the case may be, by the Public Service Commission, are made for the benefit of the Government as the object behind them is to ensure fitness of the incumbent to be promoted to a particular post or a grade. In the present case, not only the appellants were treated as regular appointees but even their seniority position was also confirmed by the various seniority lisis issued from 1980 to 1987. The Tribunal has held that the seniority lists were illegal and violative of rules, but it appears to have failed to comprehend that even those of the appellants who had been promoted when the Civil Servants Act or the Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 were not in force had already been treated as regular promotees before coming into force of the raid enactment or the rules. The respondents had been recruited in service thereafter, when the appellants' appointment as Sub- Divisional Officers had already been treated as regular. Therefore, there was no question of any violation of the said provisions of the Civil Servants Act or the said rules. If the Government failed to issue a formal order in this regard, the same appears to be more by inadvertence than by intention. In Khushi Muhammad v. The Pakistan Railways (PLD 1970 SC 203) seniority of railway guards who were departmental promotees, was allowed to be reckoned from the date of their officiating appointment which had continued since 1940 as their appointments by then had acquired a permanent character and the direct recruits who had been appointed on regular basis were held to be junior to them. This judgment was once again noticed by this Court in Muhammad Yousuf v. Abdul Rasheed (1996 SCM R 1297) as it was held in this case that, a departmental promotee, notwithstanding his temporary or officiating appointment, would rank senior to a direct recruit, if the former had entered the grade at a date which was earlier.
18. It would, thus, be against all canons of justice if the appellants are relegated to a junior position as against the respondents. The view taken by the Tribunal is, therefore, erroneous.
19. It is pertinent to point out that after the judgment of the Tribunal, dated 12-9-1991, impugned in these appeals, was delivered, a notification, dated 14-10-1991 was issued by the Government of Sindh, Irrigation and Power Department, converting the appellants' ad hoc appointments as regular. The notification is as under:-- "NOTIFICATION.
' No,Admn.I-3-5/70-III.---With the approval of the competent Authority the phrase 'purely on ad hoc basis' used in the following Orders/Notifications for the promotion of graduate Sub-Engineers to the post of Sub-Divisional Officers is deleted and replaced by 'on regular basis', meaning thereby that these promotions were regular in BPS-17 as Assistant Engineers with retrospective date of their promotions."
' It is, thus, clear that the Government intended to grant benefit of ex post facto regularization to the appellants. As to the effect of the said notification on the judgment of the Tribunal, learned counsel for the respondents has argued that the notification cannot operate to nullify the effect of the judgment already delivered by the Tribunal. Reference has been made by him to the judgment of this Court in Army Welfare Sugar Mills Ltd v. Federation of Pakistan (1992 SCM R 1652) where observations were made to the effect that a notification which purports to impair an existing or vested right or imposes new liability or obligation cannot operate retrospectively in absence of any legal sanction. However, any notification conferring benefit on an individual was excluded from the said rule. Similar observations were made once again by this Court in the case of Elahi Cotton Mills Ltd. v. Federation (PLD 1997 SC 582). However, if the notification in the present case is beneficial to the interest of the appellants, it requires to be determined whether it operates adversely against that of the respondents. The learned counsel for the appellants have, however, invited our attention to section 24 of the Sindh Civil Servants Act, 1973 which provides as follows:-- "24. Saying.---Nothing in this Act or in any rule shall be construed to limit or abridge power of Government to deal with the case of any civil servant in such manner as may appear to it 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."
It has, therefore been contended by them that, the notification in question can be validly issued by the Government in pursuance of its powers vesting under the said section. In our view, the said notification only serves to be manifestation of the Government's stand that appointments of the appellants had already stood regularised, but nothing turns on the said notification.
' Therefore, the question of giving retrospective effect to the notification does not arise.
20. In the result, the appeals are allowed and the judgment of the Tribunal is set aside. The parties are, however, left to bear their own costs.