1. ' S. NASIM HAIDER (SENIOR MEMBER).---The brief facts of this appeal, according to the appellant are that he was appointed as Research Officer (BPS-17) in Finance Department by the competent Authority on 9-12-1992 on the recommendation of the Departmental Selection Committee, on ad hoc basis and continued till the Provincial Assembly passed the Sindh Civil Servants (Regularisation of Ad Hoc Appointment) Act, 1989 and notified it on 28-7-1994. Despite the passage/notification of the said Act, the services of the appellant were not regularised and his services were terminated vide impugned order dated 19-9-1995. The appellant filed representation/appeal against that order meanwhile the Secretary, Finance Department/respondent No,2, directed the appellant to continue his work as the Government of Sindh/respondent No,1, was not in a position to print BM-II, and the Computer Research (Pvt.) Ltd.
2. Had demanded a huge sum of Rs,1,75,000 for the same. At the directions of respondent No,2, the appellant completed this assignment. In recognition of this good work, the appellant on 11-10-1994 was made Incharge of Computer Cell of Finance Department.
3. ' The appellant possesses the Degree of M.B.A. And according to him fully qualified for the job. The services of the appellant allegedly were terminated on the grounds that he does not possess the prescribed qualifications of M.A. (Economics) though nothing was communicated to him in writing.
4. Even if, it was so, he produced a certificate dated 4-2-1995, from the Additional Registrar, University of Sindh which categorically states that 'M.B.A. Is much higher in status than that of M.A. In (Economics) and that most of the courses of M.A. (Economics) are covered, under the degree of M.B.A.'
5. ' The Advocate for the appellant mainly contended that the services of the appellant were terminated, without issuance of a show-cause notice or departmental inquiry/he was condemned unheard, against the principles of . Natural justice, fairplay and equity. He contended that the impugned order was mala fide, because the appellant was not only fully eligible for the post of Research Officer (BPS-17) F.D.--but also regularised in the job by an Act of the Provincial Assembly.
6. He, therefore, prayed that the impugned order be set aside with the grant of all service benefits including seniority.
7. ' Mr. Zaidi, A.A.-G. Argued at length. He submitted' that the procedure for appointment of a civil servant is provided under the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. According to Rule 10, of the said Rules, the post of BPS-17 (Research Officer to which the appointment of the appellant was made) falls within the purview of the Sindh Public Service Commission, after due advertisement. He contended that the appellant, as per his appointment order was appointed on 'ad hoc' basis. Therefore, in accordance with the provisions of section 11(3) of the Sindh Civil Servants Act, 1973 his services were liable to be terminated on fourteen days' notice or pay, in lieu thereof. He pointed out that as per appeal of the appellant dated 26-11-1996, the termination order was in the knowledge of the appellant, yet he did not file any departmental appeal. He argued that his appeal was time-barred and was hit by section 4 of the Sindh Service Tribunals Act, 1973, whereunder filing of departmental appeal is a must and prerequisite of filing an appeal before Sindh Service Tribunal. He specifically pointed out that the services of the appellant were terminated on 19-9-1995 and appeal against that order was filed to the then Chief Minister on 26-11-1996 whereas this appeal before Sindh Service Tribunal was filed on 9-9-1997. He, therefore, pleaded and prayed that this appeal may be dismissed.
8. ' We have gone through the arguments of either side, carefully perused the written statement filed by the respondents and record produced before us.
9. ' We would like to record here that 'ad hoc appointment' is defined in section 2(1)(a) of the Sindh Civil Servants Act, 1973 and reads 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.
10. ' The crucial words used by the Legislature are: 'duly qualified person' and 'pending recruitment in accordance with such (prescribed) method'. Since the appointment order of the appellant 'dated 9-12-1992 contains the words 'with the recommendations of the Departmental Selection B Committee and the approval of the competent Authority this leads to the only presumption that the competent Authority as well as the Departmental Selection Committee prima facie had 'consensus' of opinion that the appellant was duly qualified. The objection, later on that the appellant, was 'M.B.A. Whereas the prescribed qualification was M.A. (Economics), as taken in the written statement of the respondents to justify the termination of his services, appears to be an 'afterthought' and smacks of mala fide. More so because the Sindh University, in its letter dated 4- 2-1995 had categorically stated that M.B.A. Was 'much higher in status than that of M.A. Economics and had further clarified that most of the courses of M.A. (Economics) are covered under the degree of M.B.A. We are, therefore, of the considered opinion that the case of the appellant did not require relaxation of prescribed qualification, because possession of a higher qualification is an additional feather in the cap of the appellant and cannot be considered a disqualification except by a biased mind.
11. ' We may also point out that there is a prescribed method for extension of ad hoc appointments. In the Sindh Public Service Commission (Functions) Rules, 1974 as provided under Rule 4 which reads as follows:-- "4. Notwithstanding anything contained in Rule 3, the Commission shall not conduct tests for recruitment to posts which are to be filled--
(i) on contract for a specified period; or
(ii) for a period of six months or less pending selection of a candidate on the basis of test conducted by the commission: ' Provided that the above period may be extended---
(a) for further period of six months with the approval of the Commission, if a requisition, for filling the post was sent to the Commission within two months of the filling of the post on ad hoc basis and the Commission has failed to nominate a candidate; or
(b) in any other case by order of the Chief Minister."
12. ' What is evident from the above provision of law is that the respondents were required:--
(i) After ad hoc appointment of the appellant to 'surrender' the post to the Sindh Public Service Commission and request to advertise the same, hold P.S.C. Examination/viva voce and make its recommendations about the 'Selectee' if any. Nothing has been produced in evidence before us by the respondents that they discharged this legal obligation. What has been produced in evidence is the impugned order, dated 19th September, 1995 which states that the services of the appellant (ad hoc appointee) alongwith another are terminated with immediate effect on payment of 14 days' pay and allowances in lieu of notice period. The big question is what is the legality and validity of this order in view of the Sindh Civil Servants (Regularisation of Ad Hoc Appointments) Act, 1994, which was passed by the Provincial Assembly on 15-6-1994, and assented to by the Governor on 18-7-1994 and gazetted in the Sindh Government Gazettee on 28-7-1994?
13. ' Section 3 of the said Regularisation Act, provides as under:- 3.--(1) Notwithstanding anything contained in the Act or Rules thereunder (viz. The Sindh Civil Servants Act, 1973) or in any decree, order or judgment of a Court, but subject to other provisions of this Act, a civil servant holding ad hoc appointment against a post in BPS-16 or above and is in employment on the commencement of this 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.
(2) The orders under subsection (1) shall not be made unless antecedents of such civil servant, his academic qualification, experience and place of domicile are scrutinised and cleared by a Special Committee appointed by Government.
(3) The Special Committee under subsection (2) shall be headed by the Secretary Incharge of the Department concerned and amongst others shall consist of a representative each from that Department and the Services and General Administration Department."
14. ' It is, therefore, crystal clear from this Act that all ad hoc appointees as on 28-7-1994 are deemed to have 'been validly appointed to their posts on regular basis with effect from the commencement of the Act, except those not cleared by the Special Committee described in the Act. Nothing has been shown to us in evidence, that the appellant was not cleared by the concerned Special Committee and, therefore, we are of the considered opinion that the ad hoc appointment of the appellant stood regularised with effect from 28-7-1994 and, therefore, his services could not be terminated on 14 days', notice or payment of salary, in lieu thereof, as contained in the impugned order dated 19-9-1995 because the appellant was no more an ad hoc employee on that date.
15. ' In view of what has been stated above, we are left with no other alternate but to set aside the impugned order dated 19-9-1995. As regards limitation, it is an accepted principle that limitation does not operate against an illegal/void order.
16. ' It is also noteworthy, that the respondents did keep the appellant in service--he being 'indispensable' having saved Rs,1,75,000 for preparation of Budget document BM-II--but on the other hand for reasons not on record 'have been callous' to him and denied him the right of regularisation in service, as vested upon him by an Act of the Provincial Legislature. It is, therefore, further ordered that consequent upon regularisation of his services w,e,f, 28th July, 1994 under the abovesaid Regularisation Act he is entitled to all consequential service benefits, including his seniority from the said date. There are no orders as to the cost.
17. ' Announced in open Court this 5th day of March, 1999 at Karachi.