' MRS. SYEDA TAHIRA SAFDAR (MEMBER-II).---It is case of the appellant that on recommendation of Public Service Commission, he was appointed as D.S. P.. Through Notification dated 21-3-1990, while respondent Nos.4 to 6 (Babar Gul, Muhammad Aslam Bhotani and Suleman Ali Haideri) were appointed as D.S.P. On ad hoc basis. For regularization of services they (respondents Nos.4 to 6)
Were directed to appear before Public Service Commission. Where upon respondents Nos.4, 5 and 6 appeared before the Commission and participated in written test but failed. Whereby the Commission, through letters dated 10-12-1988, 27-12-1988 and 27-12-1988, suggested that the appointment orders of said respondents be withdrawn. Thereafter the three vacancies for the post of D.S.P. Were withdrawn from the purview of the Commission. Afterwards the services of respondents Nos.4 to 6 were regularized through Notification dated 21-8-1990, 25-11-1990 and 6-1- 1991 with immediate effect.
2. It is further case of the appellant that seniority list was issued on 1-8-1992, wherein his (the appellant's) name was at S.No,48, while names of respondents Nos.4 to 6 were at S.Nos.51, 60 and
61. None of the parties raised objection whereby the seniority list attained finality. But, through Notification dated 19-10-1993 respondent No,1 regularized the services of respondents Nos.4 to 6 from the date of their ad hoc appointment. While another seniority list was issued, wherein the name of him (the appellant) was at S. No,50, while names of respondents Nos. 4 to 6 were at S.Nos.28, 29 and 34. Feeling aggrieved of the same, he preferred representation which remained pending. Meanwhile another seniority list was issued on 3-1-1995, wherein previous position was repeated, whereupon he filed representation which remained pending. Whereafter, he filed service appeal before the Tribunal. The case was remanded to the Department through order made on 25-7-1997 with direction for completion of formalities and issuance of final seniority list as no final seniority list has been issued and matter cannot be decided at the stage of provisional seniority list. In compliance of the same final seniority list was issued on 1-8-1997, wherein his (the appellant's) name was shown at S.No,49, while the names of respondent Nos.4 to 6 were at S.Nos.23, 24 and 26. Feeling aggrieved of the same he filed representation and challenged the final seniority list but to no avail.
3. The appellant has preferred present appeal on ground that as his objections were not considered by the Authorities before finalization of seniority list, therefore, he was condemned unheard. Further, he was shown senior in seniority list dated 1-8-1992, which was neither challenged nor disputed by anyone thus attained finality, the change afterwards is illegal and in violation of Rules. The appellant has prayed for declaration to the extent that he is senior to respondents Nos.4 to 6, impugned seniority list be corrected and set aside the impugned notification being illegal and in violation of Rules.
4. Respondent No,1 in reply has raised contention that as the services of private respondents were regularized from the date of their initial ad hoc appointment by Appointing Authority, due to the same change was made in seniority list, while their names were placed in appropriate place.
5. In reply respondent No,2 admitted issuance of seniority lists including the issuance of impugned seniority list. According to him the seniority of appellant as well as of private respondents was fixed as per directives of respondent No,1.
6. While respondent No,3 in reply has given no comments on merits rather only stated that application of the appellant was forwarded to I.-G. Police.
7. In their joint reply respondents Nos.4, 5 and 6 have raised objection that the present appeal is hit by principle of res judicata. Further no appeal lies against provisional ' seniority list, therefore, present appeal is incompetent. On merits it is their contention that on advertisement of Public Service Commission, they applied for the posts, they (respondents Nos.4 and 5) failed to clear the test while respondent No,6 cleared the written test. But before finalization of the matter, the Government withdrew these three posts from purview of the Commission, whereupon they were appointed as D.S.P. On ad hoc basis against clear vacancies, while afterwards their services were regularised after due consideration. Afterwards their case was again taken up for reconsideration, whereby their services were regularised from the date of their original induction in the service. Due to the same the seniority position is changed. Moreover, the appellant has failed to file the appeal within time, thus present appeal is time-barred and not maintainable. Further, the notification about regularization of their (respondents Nos.4 to 6) services has attained finality, thus the same cannot be reopened. They have prayed for dismissal of appeal.
8. The appellant being aggrieved with his seniority position as assigned to him in seniority list issued on 12-8-1997. Wherein the name of the appellant is at S.No,49, while names of respondents Nos.4, 5 and 6 are at S.Nos.23, 24 and 26. The appellant claimed himself to be the senior to that of respondents Nos.4, 5 and 6 on basis that he has been appointed on regular basis on recommendation of Public Service Commission on 21-3-1990, while the said respondents were appointed on ad hoc basis on 23-11-1988, 1-12-1988 and 19-2-1988, while their services were firstly regularized from 21-8-1990, 25-11-1990 and 6-1-1991, but afterwards through notification dated 19- 10-1993 their services were regualrized since dates of their initial ad hoc appointments. Official respondents Nos.1, 2 and 3 in reply only raised contention that seniority positions of the parties were fixed as per order of regularization of services since the date of initial ad hoc appointment, due to the same change was made in seniority list and name of respondents Nos.4, 5 and 6 were placed in appropriate place. While on the other hand respondents Nos.4, 5 and 6 in their joint reply though admitted their initial appointment on ad hoc basis, which was regularized afterwards but thereafter their cases were again considered and their services were regularized from the date of their initial appointment. Further no final seniority list has been issued, therefore, no appeal, lies against provisional seniority list. Present appeal being time-barred thus is liable to be dismissed.
9. The perusal of record reveals that the present appeal has been filed by the appellant feeling aggrieved of the seniority position assigned to him in seniority lis issued on 12-8-1997. It is to be noted that previously too the appellant filed an appeal feeling aggrieved of his seniority position, and prayed for correction of the same. The said appeal was disposed of by this Tribunal through order made on 25-7-1997. Whereby the case was remanded to the Authorities/Department with direction for completion of formalities and issuance of final seniority list by disposing of objections of the appellants and others at its provisional stage. Thereafter a seniority list of DSPs, PDSPs, Inspectors and Prosecuting Inspectors of Police Department as stood on 1-8-1997, was issued on 12-8-1997. This list is presently impugned before the Tribunal. According to appellant, the said list is final seniority list. While according to respondents Nos.4, 5 and 6 the impugned list is provisional, therefore, present appeal on basis of the same does not lie, as such not maintainable. The perusal of impugned seniority list reveals that nowhere words "provisional" or "final" have been used therein.
But the official respondents in their reply while admitting the relevant paragraph of the appeal has asserted that seniority list has been issued. Though the reply is evasive but there is admission of the official respondents, therefore, in view of the same the impugned seniority list shall be presumed to be final seniority list. Furthermore, it is highly objectionable that despite clear orders of this Tribunal the Authorities/Department have failed to finalize the matter after removing the objections. Thus in view of their own admission the impugned seniority list is deemed to be the final seniority list, therefore, the present appeal is very much maintainable. The objections raised by respondents Nos.4, 5 and 6 are rejected being baseless.
10. The other objection raised on maintainability of the appeal is that as the impugned notification whereby their (respondents Nos.4 to 6) services were regularized was issued on 19-10-1993, whereby the appellant filed time-barred representation, thereafter approached the Tribunal beyond period of limitation. To this effect the finding was given in the judgment of previous appeal.
Therefore, presently the impugned notification cannot be challenged being hit by principle of res judicata, further, the appeal is also filed beyond period of limitation. The perusal of the record reveals that alongwith memo. Of appeal the appellant has filed an application for condonation of delay wherein it is his contention that he had filed present appeal on 13-2-1998, which is barred by only three days, as he has filed Departmental appeal on 11-10-1997, which remained pending before 'the Authorities and never disposed of,
11. As per relevant law the provided time for filing of appeal against any final order is within 30 days of the communication of such order to the person aggrieved of the same. Further, in case appeal; review or representation has been filed to the Departmental Authority then the appellant has to wait for a period of 90 days from the date of filing of such appeal, review or representation, thereafter within a period of 30 days, limitation period of the appeal before the Service Tribunal. In present case the appellant has filed appeal before Departmental Authority on 11-10-1997, while present appeal has been filed on 13-2-1998, i,e, after lapse of 122 days, though in application for condonation of delay the reasons given by the appellant are not impressive, but in interest of justice it seems better to condone the delay of only two days, as the matter is quite old and valuable rights of the parties are involved. Further the appellant is fighting for his rights for quite a long time.
12. As far as objection in respect of appeal being hit by principle of res judicata is coneerned though some remarks are given to the extent of merits of the previous appeal in judgment made thereon, but as the appeal was not rejected being time-barred, rather the same was remanded to the Authorities for finalization of seniority list after removing, of objections raised by the appellant and others. Furthermore, in first round of litigation the Departmental Authority has not rejected the appeals/representations of the appellant on basis of limitation rather kept them pending.
Thereafter the appellant approached this Tribunal whereby matter was remanded to the Departmental Authorities. Thus in view of the same-the present appeal is not hit by limitation, as no final order has been passed by the Authorities, even after issuance of last seniority list, impugned before us. Therefore, in view of the same the present appeal is not hit by principle of res judicata nor barred by limitation, rather it is very much maintainable.
13. Now coming to merits of the case, the appellant is feeling aggrieved of his seniority position as assigned to him in final seniority list, presently impugned before the Tribunal. The perusal of the' record reveals that the appellant was appointed on regular basis as D.S.P. On 21-3-1990 on recommendation of Balochistan Public Service Commission. While on the other hand respondent No,4 (Babar Gul) was appointed as D.S.P. On ad hoc basis on 23-11-1998, respondent No,5 (Muhammad Aslam) was appointed' as D.S.P. On ad hoc basis on 1-12-1988, and respondent No,6 (Suleman Ali) was appointed as D.S.P. On ad hoc basis on 19-12-1988. The appointment order of all the three reveals that they were appointed by relaxing the recruitment policy pertaining to zonal allocation, further the posts on which they (respondents Nos.4 to 6) were appointed, were also withdrawn from the purview of Balochistan Public Service Commission. Thereafter their services were regularized with immediate effect through Notifications dated 21-8-1990 in case of respondent No,4 (Babar Gul), dated 6-1-1991 in case of respondent No,5 (Muhammad Aslam) and dated 25-11-1990 in case of respondent No,6 (Suleman Ali) uptil said stage there was no objection from any side. But thereafter another notification was issued on 19-10-1998, whereby the services of respondents Nos.4 to 6 were regularized from the dates of their initial ad hoc appointment. This notification is point in dispute between the parties.
14. It must be noted here that initially the posts, including the posts on which the respondents (Babar Gul, Muhammad Aslam and Sulman Ali) were appointed were advertised by Balochistan Public Service Commission, while written tests were held, wherein the said respondents also appeared but remained unsuccessful. Despite the same they were appointed on ad hoc basis, while zonal quota was also relaxed in their favour. Thereafter, their services were regularized with retrospective effect without any appeal or representation from said respondents. It is worst example of undue favour. The relaxation in the zonal quota was made arbitrarily. Despite their failure in passing the test respondents No,4 to 6 were appointed on ad hoc basis. This conduct of Authorities is highly objectionable.
15. Though the Government has the power to relax any Rule or change its policy in any case or can regularize the ad hoc appointment from retrospective effect, but this exercise of power must be not in conflict with any Rule or law and also not at the cost of right of any other person.
16. It is further to be noted that as per section 2(a) of Balochistan Civil Servants Act, 1974 term ad hoc appointment is defined as:
(a) "Ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method."
' It is further provided in Rules 18 and 19 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 that: ' Rule 18. "When under Balochistan Public Commission (Function) Rules, 1975 a post is required to be filled through the Commission the appointing authority shall forward a requisition in the prescribed form to the Commission immediately, it is decided to fill the post or if that is not practicable and the post is filled on ad hoc basis as provided in Rule 19 within two months of filling of the posts."
' Rule 19. "When the Appointing Authority considers it to be in the public interest to filling a post falling within the purview of the. Commission urgently it may, pending nomination of a candidate by the Commission proceed to fill such post on ad hoc basis for a period not exceeding six months by advertising the same in accordance with the procedure laid down for initial appointment in Part III."
' The relevant Rule of Part III. Of the Rules of 1979 is Rule 10(a) which speaks as under:- "10. Initial appointment to posts in Grade 16 to 22 shall be made if the post-
(a) falls within the purview of the Commission, on the basis of examination or test to be conducted by the Commission."
' Further as per Rule 5 of Balochistan Public Service Commission. (Functions) Rules, 1982:-- "5. Notwithstanding anything contained in Rule 3 Government may in the public interest, specify post which may be filled without reference to the Commission, by persons possessing such qualifications and experience in such manner as it may determine."
17. In view of abovementioned Law and Rules the Government has the authority for making appointments on "ad hoc basis", which has been done in present case, but one thing is to be noted that in the circumstances, as mentioned above, the Government has exercised its power unjustly.
As per Rule 19 no advertisement was made for filling of the post rather after making appointment the Government takes shelter of Rule 5 of Rules of 1982 which is not proper. In present case as the appellant has not challenged the initial appointment order of the mentioned respondents rather appellant's grievance is to the extent of his seniority position. Despite the fact that there are clear defects in initial appointment of respondents Nos.4 to 6 which required to be set aside, but as considerable long period has been passed and valuable rights have been accrued in favour of the said respondents, therefore, in interest of justice no such order is made at this stage. Rather it will be better to decide only the issue of seniority between the parties on merits.
18. It is an admitted position that the appellant was appointed on regular basis on recommendation of the Commission. On the other hand respondents Nos.4 to 6 were appointed on ad hoc basis, while firstly their services were regularized w,e,f, 21-8-1990, 25-11-1990 and 6-1-1991, thereafter regularized with retrospective effect from date of their initial appointment w.e.f 23-11- 1988, 1-12-1988 and 19-12-1988. Before issuance of impugned Notification dated 19-10-1993, 'a seniority list was issued wherein the appellant stands senior to respondents Nos.4 to 6. This seniority list was not challenged by any of the respondents. This fact has not come on record that any of the respondent filed any sort of representation or departmental appeal in respect of said seniority list or even in respect of orders whereby their services were regularized with immediate effect. But the position changed after issuance of impugned notification, which made the appellant junior to respondents Nos.4 to 6. Both the appellant and respondents Nos.4 to 6 were initially appointed at the post of D.S.P. But the only difference between their appointments is that the appellant was appointed on regular basis, while respondents Nos.4 to 6 were appointed on ad hoc basis. It is an established principle of law that ad hoc appointment does not confer any right of seniority from the date of appointment. Nor the ad hoc appointment can become regular only due to, lapse of time. It is also an established principle that the person appointed on regular basis is to be senior to one appointed on ad hoc basis, even on a substantive post. Further an ad hoc appointee may continue with his services till regularization of his services in accordance with law but his appointment does not confer any right on him in respect of seniority from the date of his ad hoc appointment.
19. In present case though the Authority has regularized the services of respondents Nos.4 to 6 from the date of their initial ad hoc appointment but it is clearly held by honourbale Supreme Court of Pakistan in judgment reported in 1996 SCMR page 1349 that:- ----Arts. 184 & 18---Huthan Rights case---Irregular appointments---Supreme Court while inquiring into various complaints of violation of Fundamental Human Rights, found that Federal Government, Provincial Government, Statutory Bodies and Public Authorities had been making initial recruitments, both ad hoc and regular, to posts and offices without. Publicly and pfoperly advertising vacancies and at times by converting ad hoc appointments into regular appointments---Such practice was prima facie violative of Fundamental Rights (Art.18) guaranteeing to every citizen freedom of profession---Supreme Court, after notice to all concerned and after full hearing in the matter ordered that violation of such Fundamental/Human Right should be discontinued forthwith---Authorities were directed to take immediate steps to rectify so as to bring such practice in accord with the Constitutional requirement."
20. Keeping in view the same, despite all the relevant provisions of law and authority of the Government, the impugned notification is made in violation of fundamental right of the appellant or of any other member of the service, accrued to them due to their regular appointment.
21. In view of above discussion it is now an established position that the appellant being a regular appointee stands senior to respondents Nos.4 to 6 being ad hoc appointees. The Authorities have acted unjustly and undue favour is made in cases of respondents Nos.4 to 6, which is highly objectionable. Due to this conduct of the Authorities the persons really deserve suffered a lot, which is quite unfortunate. Though the Government has the authority to relax the prescribed Rules and Policy, but only in accordance with law where public interest is involved. But there is nothing as such in present case, only in order to accommodate some persons all the Rules are kept aside. This sort of practice must be avoided by the Authorities. As the initial order is made in violation of law thus void and of no legal effect, therefore, no limitation runs in the case.
22. In view of above discussion the appeal is liable to be accepted. Therefore, appeal is accepted.
The appellant Sohail Ahmed Sheikh is declared senior to respondents Nos. 4 to 6 Babar Gul, Muhammad Aslam and Suleman Ali Haidri. The impugned Notification dated 19-10-1993 is hereby set aside being illegal and void. The Department/Authorities are directed to correct the impugned seniority list dated 1-8-1997 and place the name of the appellant at correct position, and also place the names of respondents Nos.4, 5 and 6 at correct position in said list.
23. No order as to costs. File after completion be consigned to record.