ABDUL MAJEED KHANZADA (CHAIRMAN).---This appeal is directed against the order dated 21st November, 1994 under which departmental appeal of the appellant against order dated 19th March, 1994 was dismissed. The facts out of which the present appeal is arising are that the appellant was originally employed as Population Planning Officer on 5.th July, 1965 and was promoted as Senior Population Officer in August, 1973. The services of the appellant were requisitioned by the Government of Sindh and were placed at the disposal of Home Department, Government of Sindh, Karachi, where he joined on 2nd October, 1973 and was appointed_as Officer on Special Duty in BPS-17. Subsequently the appellant was promoted to Grade-18 on officiating basis vide Notification No, SOI (S&GAD)3/4/76, dated 14-1-1976. The appellant was allowed move- over from BPS-18 to BPS-19 with effect from December, 1996 vide Notification No, SOI (S&GAD)-6/28/86, dated 10th February, 1992.
2. The appellant has stated that while he was working as Deputy Secretary in the Sindh' Secretariat, a summary was floated by the Chief Secretary to Government of Sindh to the Chief Minister with the recommendation that he may be absorbed in the Secretariat service with protection of his seniority from the date he was promoted to the rank equivalent to that of Deputy Secretary i,e, 14-1- 1976. The Chief Secretary solicited the order of the Chief Minister, Sindh by exercise of Powers under section 24 of Sindh Civil Servants Act, 1973. The appellant has further stated that the summary was approved by the Chief Minister but the services & General Administration Department did not issue necessary notification, constraining the appellant to make representation that his seniority in BPS- I8 may be fixed in the light of the order of the Chief Minister. But his representation appears to have gone unheeded.
3. Under such circumstances the appellant filed writ petition bearing No, CPD-No,2695/93 before the Sindh High Court which was admitted to regular hearing. The appellant made a grievance before the Sindh High Court regarding non-implementation of the order of the Chief Minister and consequent determination of his seniority. Under order dated 27th February, 1994 the Sindh High Court required the Secretary Services who was dealing with the question to give reasons through an affidavit as to why the order of the Chief Minister was not implemented in spite of lapse of 19 months.
4. That during pendency of this petition another summary was floated by the same Chief Secretary with the proposal that the appellant be inducted/absorbed in Sindh Secretariat in exercise of the powers vested under section 24 of Sindh Civil Servants Act by the Sindh Chief Minister, as Deputy Secretary, with immediate effect on the ground that if he is allowed absorption from 1-1-1976 it will adversely affect the seniority of the most senior officers of the Secretariat Group namely Mr. Abdul Rashid Sherwani and Mr. S. Maqbool Moosvi and as such the competent Authority was pleased to pass an order for absorption of the appellant in Sindh Secretariat with immediate effect.
Consequent upon this Notification dated 19th March, 1994 was issued to the effect that the appellant was inducted absorbed as Deputy Secretary in Sindh Secretariat with immediate effect.
5. Against order dated 19th March, 1994 the appellant represented vide his application dated 21st March, 1994 before the Chief Secretary for implementation of the order of the Chief Minister under which he was allowed seniority with effect from 1-1-1976. The appellant at the same time filed appeal dated 19th April, 1994 before the Chief Minister, Sindh against order dated 19th March, 1994.
6. The department issued provisional seniority list of the officers of the Sindh Secretariat Group (BPS-18) as stood on 16-8-1994 vide Notification dated 16th August, 1994 and the appellant was assigned seniority at Serial No, 23 in the said list. The appellant filed objections on the said seniority list before the Sindh Chief Secretary. It appears that objections of the appellant have not been decided so far and the matter is still pending with the departmental authority. However, in the meanwhile the departmental appeal filed by the appellant against the order dated 19th March, 1994 was dismissed vide order, dated 21st November, 1994, hence he has filed preselt appeal against the order dated 19th March, 1994 and 21st November, 1994. The appellant has prayed that both the impugned orders dated 19th March, 1994 and 21st November, 1994 be set aside and he may be granted seniority in BPS-18 either with effect from 19-12-1975 or with effect from 1st January, 1976.
7. We have heard the learned counsel for appellant Mr. Abdul Sam! Mughal and so also learned Assistant Advocate-General Mr. Syed Saidan Zaidi and perused the record of the case. The learned counsel contended tha since the appellant had already been promoted on the recommendation of the Provincial Selection Board II from BPS-17 to BPS-18 in Sindh Secretariat, he was entitled to count his seniority from date of his regular promotion. On this poini the appellant has taken conflicting stand. It goes without saying that under Sindh Civil Servants Act and Rules made thereunder there are only three modes of appointment ie. direct recruitment, by promotion and by transfer. In the Sindh Secretariat Group, the appellant has not been appointed either by direct recruitment or by promotion. The case of the appellant is that of appointment by way of transfer. It appears that the appellant's services were requisitioned by the Sindh Government and, he was placed at the disposal of Home Department. He continuously worked in Sindh Secretariat in BPS-17 as he was in his original department. No doubt that the appellant had been promoted to BPS-18 and was subsequently allowed move-over to BPS-19 but such type of promotion cannot be treated as regular until and unless he was first absorbed in the department. As a matter of routine in such cases the officers are absorbed in the grade in which they are originally inducted. In this case special favour has been shown to the appellant that first he was promoted in BPS-18 on officiating basis and then his summary was floated for his absorption in the Sindh Secretariat in BPS-18. The Notification dated 14th January, 1976 under which the appellant is claiming regular promotion to have been made in BPS-18 shows that his promotion was not on regular basis nor it could have been so under the law. The test of the notification is as under: "Mr. Nisar Ahmed, Officer on Special Duty (Grade-17) in the Home Department is promoted to Grade-18 and appointed to officiate as Officer on Special Duty (Grade-18) against a newly created post with effect from 19th December, 1975 and until further order."
Despite our serious consideration to the contention of the learned counsel, we fail to understand how this promotion can be termed and treated as regular promotion. Moreover, if the contention of the learned counsel is accepted as such, then his subsequent reliance on the absorption of the appellant by the Chief Minister in Grade-18 with effect from 1-1-1976 becOmes redundant because if the appellant is a regular promotee in Grade-18 in Sindh Secretariat then what was the need to absorb him in that group. So viewing the case of the appellant from this angle, the contention raised by the learned counsel and ground taken in appeal appears to be self-contradictory. In our view the controversy involved in the present appeal as a matter of fact relate to determination of seniority in BPS-18 as Sindh Secretariat Officer. The only point for determination in this appeal is whether the appellant is entitled to retrospective seniority in Grade-18 with effect from 1st January, 1976 or with immediate effect i,e, from the date of his absorption. The counsel for the appellant has relied on the purported orders of the Chief Minister approving the summary wherein the appellant was proposed to be absorbed in BPS-18 with effect from 1-1-1976. But it is clear from the record that the orders oi the Chief Minister were not materialised and acted upon inasmuch as neither the Services & General Administration Department issued any notification in pursuance of such order of the Chief Minister, nor any seniority list was prepared and finalised nor in the light of such order the seniority of the appellant was determined. On the contrary it is the case of the appellant that he approached the Sindh High Court for implementation of the order of the Chief Minister by way of filing writ' petition and during pendency of such petition, the appellant was allowed seniority in BPS-18 with immediate effect from the date of his induction i,e, 19th March, 1994 and as such the earlier order of the Chief Minister stood either reviewed, superseded or re-called by the competent Authority before it was acted upon.
8. Before touching upon the seniority of the appellant we would like to refer to the contention of the learned counsel that the Government could not review its order and that too after long interval, in other words the counsel was relying upon the principles of locus poenitentia as enshrined in section 21 of the General Clauses Act. To support his contention he has placed reliance on 1991 PLC (C.S.) 390 relevant at page 397, PLD 1990 Supreme Court page 477, 1987 SCMR page 407, 1991 SCMR page 530. The case-law relied upon by the learned counsel has no application over the facts of the present case. Suffice it is to say that there are undisputed powers of the competent Authority to recall, rescind, amend or modify any order conferring the right on the beneficiary before it is acted upon. Before us it is not. the case of the appellant that earlier order of the Chief Minister allowing proposal of his absorption in Sindh Secretariat in BPS-18 with effect from 1-1-1976 was acted upon, on the contrary the record shows otherwise. The co-related contention of the appellant with regard to review is also without foundation. Under the provisions of Sindh Civil Servants Act or Sindh Services Tribunals Act right of appeal, representation or review is conferred on the civil servants subject to the time frame. Ordinarily, the civil servant is allowed right of one appeal or representation before the competent Authority against the order adverse to his terms and conditions of service but the powers of Government to exercise appellate, provisional or supervisory power are not synonymous with the right of appeal. The civil servant may have one right of appeal but the Government can exercise the powers at any time to rectify the wrong. But such powers are expected to be exercised in the interest of justice and with bona fide intention to rectify the particular wrong. Therefore, the case-law so relied upon by the learned counsel will not help his case as having no bearing on the facts of the present case. Looking into the legality of the two orders passed by the Chief Minister, whereby first the appellant was absorbed in the department in BPS-18 with retrospective effect and subsequently with immediate effect, we would like to say that subsequent order is in consonance with the settled provisions of law as we have earlier observed that the case of the appellant is that of appointment by way of transfer and this appointment will take effect from the date of his induction in the department and as such appellant will count his seniority in BPS-18 from the date he is absorbed in Sindh Secretariat. Rule 10'of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 says that seniority of the civil servant shall be reckoned from the date of his regular appointment and further no appointment made on ad hoc basis shall be regularised retrospectively. This rule clinches the issue involved in this case. In our view the appellant had been acting in Sindh Secretariat as deputations which may be equated with his ad hoc appointment for the purpose and he stood regularized and regularly appointed from the date of his induction in the department. Moreover, the Supreme Court of Pakistan in case of Abdul Qayoom as well as in case of Ahsanullah Memon have clearly laid down that exercising power by the competent Authority under section 24 of Act is bracketed with the hardship of the civil servant but such hardship may be removed in a manner that other civil servants should riot suffer in their rights. If, the appellant is allowed seniority with effect from 1st January, 1976 in BPS-18, definitely he is going to affect the seniority of the officer who are permanent members of the Sindh Secretariat Group in their respective grades. However, since the appellant has been inducted in BPS-18 under two orders of the Chief Minister, therefore, for the purpose of his regular appointment in BPS-18 his earlier induction may be counted in time but prospectively and not retrospectively. The department is seized of the matter as objections of the appellant against provisional seniority list are pending, we direct the department to finalise the seniority of the appellant treating his date of induction in BPS-18 with effect from the date the previous summary, approved by the Chief Minister and not from 1-1-1976. There is another aspect of the matter that department is in the process to determine the seniority of the Sindh Secretariat Officer BPS-18 and here in this appeal if the prayer of the appellant is allowed it is definitely going to affect all the officers who are mentioned in the provisional seniority list circulated under Notification dated 16th August, 1994. From this angle we are unable to allow this appeal because this would amount to condemn all the officers of BPS-18 mentioned in the provisional seniority list unheard, which cannot be done.
9. Under the circumstances we direct the respondent No,3, to finalize the seniority list of the officers of Sindh Secretariat BPS-18 and publish the same.for information of the officers before 15th January, 1998. The date of appellant's regular appointment in BPS-18 may be treated as the date on which the Chief Minister, Sindh had allowed his absorption in Summary floated by the Chief Secretary.
However, we leave it open to the appellant, if he is so advised and aggrieved on determination of his seniority in BPS-18 to seek his remedy is accordance with law, with these observations the appeal stands disposed of.
Given under our hands and the seal of this Tribunal this 13th day of October, 1997 at Karachi.