1. ' The brief facts in short are that respondent No,2 viz Secretary to Govt. Of Sindh Education Department invited applications for the posts of Statistical Officers and Assistant Account Officers in BPS-17. Appellant being eligible applied for the post of Statistical Officer, in December, 1989. The appellant was interviewed by a Departmental Selection Committee, comprising of Additional Secretary Education (Admn.) Directors of Colleges Education, Hyderabad and Karachi Regions and Deputy Secretary, S&GA Department. The case of the appellant was recommended by the Selection Committee alongwith respondent No, 4 for the appointment as Statistical Officer. After fulfilling all the conditions and medical test the appellant was offered a substantive vacant post of Statistical Officer vide Letter No, S.O. (E-IV) 1-53/89, dated 17-1-1990 by Respondent No, 2 with the following terms and conditions:-- "(a) ad-hoc Post of Statistical Officer in BPS-17.
2. Initially for 6 months extendible for further period till Selectees of Sindh Public Service Commission are available.
3. Service terminable on One Week's Notice without assigning any reason etc."
4. ' Appellant accepted offer and as such intimated respondent No,2 and after scrutinizing his antecedents age domicile etc. Respondent No,2 issued Notification No,S.O. (E-IV) 1-53/89, dated 11- 2-1990 he joined service on 15-2-1990 alongwith respondent No, 4 That initial period of six months expired on 10-8-1990 but he alongwith respondent No, 4 was allowed to continue. In November, 1990 appellant moved an application to respondent No,2 through respondent No,3 requesting therein that his case may kindly be referred to Sindh Public Service Commission for regularization but his request was never acceded to. The ACR of the appellant for the period from 16-2-1990 to 31- 12-1990 was rated as "A-I" Very Good, by the Reporting Officer. The respondent No,2 extended the period of ad hoc appointment of all the ad hoc employees including the appellant and respondent No,4 vide Notification No, S.O. (E-IV) 3-53/90, dated 7-5-1991. That the appellant once again moved an application to respondent No,2 through proper channel repeating his request that his case be referred to Sindh Public Service Commission for regularization but to no effect. Again the Reporting Officer gave A-I, Very Good ACR report for the period 1-1-1991 to 31-12-1991 allegedly. When the appellant as well as respondent No,4 had already served the department for about 25 months, the respondent No,2 terminated the services of four Statistical Officers including the appellant as well as of respondent No, .4 vide Notification No, S.O. (E-IV) 3-53/90, dated 19-5-1992. The reasons given is shown as to adjust the selectees of Sindh Public Service Commission.' The case of the appellant is that actually there was a political change and as such the Provincial Assembly passed an Act to regularise all the ad hoc appointees upto an specific date. However, there was no selectee of the Public Service Commission was available. That the appellant was reinstated in service in 1995 under amended terms and conditions vide Notification No,S.O. (E-II)6-229/91, dated 19-11-1995. New terms and conditions are given below:-- Appointment would remain ad hoc.
5. Intervening period between date of Termination (19-5-1992) to date of Reinstatement (19-11-1995) was treated as Extraordinary Leave (EOL) without Pay/Salary.
6. Appointment initially for 6 months extendible till Selectees of SPSC are made available.
7. Service Terminable without assigning any reason with 14 days Notice Pay.
8. Service to be governed by Sindh Service Tribunals Act, 1973 and Rules framed thereunder etc. ' That the appellant rejoined the service and has been in continuous service of the department because the intervening period of 3-1/2 years was treated as EOL. Since, the Government of Sindh was pleased to promulgate Sindh Civil Servants (Regularization of Ad Hoc Appointments) Act, 1994 (Sindh Act XIX of 1994 vide Notification No, PAS/Legis B-15/94, dated 28-7-1994, the appellant requested that his period between 19-5-1992 to 19-11-1995 which was treated as EOL by giving benefit of continuation of service, the appellant claims that he became eligible, under the said amended law. As such he moved an application to respondent No, 2 requesting therein that since he has been awarded benefit of continuity of service, as such his case may kindly be processed and put up before Special Committee for due consideration under the law but his request was never acceded to. The respondent No,4 like the appellant was also re-appointed but at a later date. However, after the new elected Government of Sindh came with power, the salary of the appellant was stopped from May, 1996. While the appellant was waiting for the decision on the application for release to his outstanding. Salary and other dues the respondent No,2 terminated the services of the appellant vide Order No, S.O.(A-II)6-229/91, dated 28th May, 1997. The appellant filed the departmental appeal against the impugned order and after waiting statutory period of 90 days has filed this service appeal on 8-10-1997.
9. ' The main contentions of the learned counsel for the appellant are that the impugned order is illegal, biased and against the natural justice. No reason whatsoever has been assigned by the respondent No,2 while terminating the services of the appellant. No show-cause notice was issued to the appellant as per terms and conditions of the appointment nor there was any selectee of Public Service Commission for the post. The learned counsel has also argued that the respondent No,2 has discriminated as the services of the respondent No,2 who was at least four months junior to the appellant were retained while the services of the appellant were terminated without any cogent reason. That the post of the appellant against which he was working has not been advertised nor any selectee from Sindh Public Service Commission is available nor any selectee is working against the post. According to him that post is still lying vacant. That the appellant had almost put in 7 years Service with 'A-I ACRs' (Nothing adverse has been communicated to him). He has relied on 1994 PLC (C.S.) 1339 and 1995 PLC (C.S) pp. 337 and 765.
10. ' He has also argued that the respondents were given about 7 months time to file their written statement but in spite of that they have failed to file the written statement as sue his averments made in the appeal, supported by the affidavit goes unchallenged. On this point he has relied on 1988 PLC (C.S.) p.
11. 207.
12. ' Mr. Zaidi, A.A.-G. For respondents Nos, 1 to 3 has submitted that he has written letters to the respondent on different dates viz 10-2-1998, 5-3-1998, 17-3-1998, 24-4-1998, 29-8-1998 and 2-11- 1998, Deputy Solicitor in response to the letters of the A.A.-G., also wrote a letter to the Secretary, Government of Sindh Education Department on 9-9-1998. Section Officer (Litigation) S&GAD also wrote a letter to the Secretary to Government of Sindh Education Department on 10th September, 1998 but in spite of all these efforts the respondents have failed to submit the comments as such according to him he was unable to file the written statement. However, he has argued that Section 11(3) of the Sindh Civil Servants Act, 1973 is applicable in this case which reads as under:-- "(3) Notwithstanding the provisions of subsection (1) but subject to the provisions of subsection (2), the service of a civil servant in temporary employment or appointed ad-hoc shall be liable to termination on fourteen days notice or pay in lieu thereof."
13. ' According to him since the appellant was an ad hoc appointee as such the order of respondent No, 2 terminating the services of the appellant is justified. He has further argued that. No vested right is created when the appellant is on ad hoc employee. As such according to him the appeal is liable to be dismissed.
14. ' We have heard the arguments of the learned counsel for the appellant as well as A.A.-G. For respondents Nos,1 to 3. As far as respondent No,4 is concerned, Advocate for the appellant did not press against respondent No,4 on 2-3-1998. We have also perused the citations quoted by the Advocate for the appellant.
15. ' Section 2(1) (a) of the Sindh Civil Servants Act, 1973 defines ad hoc appointment as under:- "'ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending the recruitment in accordance with such method."
16. ' The Sindh Civil Servant (Promotion, Confirmation and Transfer) Rules, 1977 framed under the Act- Part III-Initial Appointment in Rule 10 provides that: Initial appointments in Grade-16 to 22 shall be made on the recommendations of the Sindh Public Service Commission, whereas appointment in Grades-3 to 15 shall be made on the recommendations of the Departmental Selection Committee (DSC). This legal provisions is further strengthened by the Sindh Public Service Commission (Functions) Rules, 1974 wherein a detailed procedure is prescribed for extension of ad hoc appointments after lapse of every six (6) months, where the post lie within the purview of the commission/referred to it Rule 5 of the said rules further provides that the Chief Minister is competent to take out any post from the purview of the commission by appointment of a person possessing such qualifications and experience and in such manner as he may determine.
17. In view of the above clear cut legal position and the fact that the appellant's appointment was never regularized by the Sindh Public Service Commission, whatever be the reason thereof and that the post to which he was originally appointed later reinstated was never taken out from the purview of the Commission, under the orders of the Chief Minister the appointment of the appellant initial and subsequent shall remain ad hoc until and unless either he qualifies the Public Service Commission Examination as recommended by it, or till the post is taken out from the purview of the Commission in accordance with the above said Rule 5 of the Pubic Service Commission (Function)
18. Rules, 1974 by the Chief Minister is appointed on the recommendation of the Selection Committee, if any, so notified. The only subsequent question is whether the Regularization Act passed in respect of the ad hoc employees in 1994 gives a cover to the appellant's reinstatement or reappointment on 19th November, 1995 and makes it a regular appointment by virtue of the enactment? A careful reading of the said Act reveals that the Act was passed by the Provincial Legislature on 15-6-1994, assented to by the Governor on 18-7-1994 and notified on 28-7-1994. Its section 3(1) reads as under:- "Notwithstanding anything contained in the Act or rules thereunder, or in any decree, order and judgment of a Court but subject to other provisions of the Act, a civil servant holding ad hoc appointment against a post in BPS-16 or above and is in employment on the commencement of the Act shall, on orders made in this behalf, be deemed to have been validly appointed to that post on regular basis with effect from the commencement of this Act."
19. ' Section 3(2) prescribes the procedure for such order.
20. ' It is an undisputed fact that the 1st appointment of the appellant was terminated on 19th May, 1992 and he was not an ad hoc employee on 28-7-1994 i,e, the commencement date of the said Regulation Ordinance, 1994.
21. ' The only argument of the learned counsel for the appellant is that since in his reappointment/reinstatement orders dated 19-4-1995 the intervening period is treated as extraordinary leave without pay as such his first appointment is continued. We are not in agreement with this lien of arguments mainly because it is contrary to factual position. It is a well- establishment known fact that extraordinary leave without pay causes break in service. Moreso because during that period such person does not render any service to the Government nor it can be treated as qualifying service for the purpose of pension and gratuity involving financial implications to the Government. Such break in service can be condoned only by the specific order of the appointing authority, with the prior concurrence of the Finance Department and as invariable condition for such condonation is that the concerned civil servant is directed to deposit in cash from his own pocket proportionate contribution towards his pension, gratuity leave etc. To avoid an undue. Financial loss to the Government for counting of such break in service as without deposit of required amount, it would cause unnecessary illegal loss to public treasury. The Provincial/Federal Governments were originally very reluctant to grant extraordinary leave without pay for the same reason. However, due to the change in the policy and specially to allow the benefits of Foreign service to the Pakistani doctors and engineers the Government have liberalized the grant of E.O.L. Without pay depending upon the length of service. Under the new rules EOL without pay even upto 10 years can be granted to a civil servant with the concurrence of FD/AD provided he deposits the pension, gratuity and leave contribution as calculated and communicated by the Finance Department/Office of the Accountant-General concerned in Foreign Exchange or in Pak Rupee equivalent to the current foreign exchange rates. It is, thus, apparent that the arguments of the learned counsel for the appellant do not carry any weightage.
22. Without prejudice to the above, the Civil Servants Act, section 11(3) provides that the "Services of a civil servant in temporary employments or appointed ad hoc shall be liable to terminate on 14 days notice or, pay in lieu thereof". Since the service of the appellant in the impugned order dated 28-5- 1997 were not terminated in accordance with this I c specific provision of law, it is bad in law.
23. ' It is a sad history in this country the most of the ad hoc employees appointed as the wishes of the political masters of the days, do not have the mettle or caliber to qualify the Public Service Commission and this procedure of reference to the Commission/qualifying its written test/interviews is avoided at the behest of the appointees in connivance with the Departmental Authorities, as a result of which post falling within the purview of the Commission are not referred to it in time nor reference for extension for such ad hoc appointment is made in time, leaving it no option but to extend it ex post facto to avoid any hardship to the incumbents for failure of Government machinery. Even where such ad hoc appointees' services are terminated for repeated failures to qualify Public Service Commission, they invariably .Bring undue political pressures to regularize their ad hoc appointment without reference to the Commission. Successive Governments since 1973 per force had to pass Regularization Acts for such ad hoc employees on the grounds of hardships. Actually the failure to qualify Public Service Commission does not came within ambit of any hardship but it proves that the failures did not have the caliber or required mettle for the job of Government Officers, in BPS-16 and above.
24. In view of the above the impugned termination order dated 28-5-1997 is modified to the extent that the appellant is entitled for 14 days notice pay in lieu of notice as required under section 11(3) of the Sindh Civil Servants Act, 1973. There are no order as to costs.