TAMEEZUDDIN, ASSISTANT DIRECTOR FOOD vs THE SECRETARY, FOOD
This appeal arose from a Service Tribunal decision regarding the seniority of an Assistant Director of Food. The appellant was appointed on March 5, 1977, in anticipation of rule amendments, despite existing service rules prohibiting direct recruitment at that time. The rules were subsequently amended on May 21, 1977. The appellant sought seniority from his initial appointment date, arguing that his subsequent retention in service regularized his appointment. The Service Tribunal held the initial appointment void ab initio due to non-compliance with prevailing rules. The Supreme Court examined whether an appointment made in violation of rules could be regularized retrospectively to confer seniority. The Court held that an appointment made in breach of existing rules cannot be considered regular or valid for seniority purposes until the rules actually permit such recruitment. Consequently, the Court affirmed the Tribunal's decision, ruling that the appellant's seniority could not be backdated to the date of his initial illegal appointment, as the regularization order did not retroactively validate the initial breach of service rules.
- Can an appointment made in violation of existing service rules be regularized retrospectively to grant seniority from the date of the initial appointment?
- Does an order of retention in service, issued after an amendment to service rules, retroactively validate an appointment that was void ab initio?
- Can a civil servant claim seniority from a date prior to the amendment of rules that permitted their specific method of recruitment?
- Article 212(3), Constitution of Pakistan 1973
- Section 12-A, Baluchistan Civil Servants Act, 1974
- Rule 18(2), Rules of Business
SHAFIUR RAHMAN, J.---Leave to appeal was granted to the appellant under Article 212(3) of the Constitution to examine whether the Tribunal has taken a correct view of law and of the judgment of this Court delivered on 1-6-1983 in Ghulam Sarwar Mangal v. Govt. Of Baluchistan and others (CPSLA; No. Q. 10 and Q-12 of 1983) in declaring the appointment of the appellant to be void ab initio, and for that reason not entitled to the seniority which he was claiming.
2. The admitted facts are that the appellant was appointed as Assistant Director Food by an Order dated 5th of March, 1977 alongwith others, in anticipation of the amendment to be made in the Service Rules applicable to the Assistant Directors Food which did not then provide for direct recruitment. The rules were in fact amended on 21st of May, 1977. Subsequently, in the Baluchistan Civil Servants Act, 1974, section 12-A came to be enacted in the following words:-- "12-A. Certain persons to be liable to removal or reversion Notwithstanding anything contained in his terms and conditions of service, a civil servant appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977 may be removed from service or reverted to his lower post, as the case may be, without notice, by the Governor or a person authorised by him in this behalf, on such date as the Governor or, as the case may be, the persons so authorised may, in the public interest, direct."
3. A Selection Board was constituted under Rule 18(2) of the Rules of "` Business which revivified the selection of the appellant and by Order of the Governor the following notification was issued:-- "On the recommendations of the specially constituted Board, the Governor Baluchistan is pleased to approve the retention in service of the following Assistant Directors Food on the date as noted against each and on the terms and conditions as prescribed in this Department letter No. SOG/64/Estt: dated the 5th March, 1979:-- (1)Mr. Tamizuddin s/o Shamsul Haque. 5-3-1977 AN.
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4. The seniority list which aggrieved the appellant made certain promotees promoted prior to 21-5- 1977 senior to the appellant though their promotion had, taken place after the fifth of March, 1977, the date of appointment of the appellant. The appellant took his grievance to the Service Tribunal which held as hereunder:-- "The appellant's appointment as an Assistant Director, Food, was made in disregard of the then prevailing rules and was void ab initio. The authority making initial appointment of the appellant ought to have kept the rules in view. Amended rules could not take effect retrospectively and Government could not order regularization of his case with retrospective effect."
5. The learned counsel for the appellant has taken up three grounds for maintaining this appeal.
Firstly, it is said that the order of the regularization passed by the Governor and reproduced above on the advice/recommendations of the Selection Board on the 25th of October, 1979 regularised the appointment. Of the appellant from fifth of March, 1977 and seniority had to be allocated to him from that date and no other. Secondly, it was contended that the promotion of the respondents Nos. 2 to 5 who were competing in seniority with the appellant was itself irregular and was awaiting regularisation. That having been not done, they could not rank senior to the appellant. Thirdly, it was stated, in an identical case the Governor under the same law and in similar circumstances passed an order and the Supreme Court had taken a different view. He referred to the judgment of this Court in C.P.S.LA. Nos.Q-10 and Q-12 of 1983 delivered on 1-6-1983.
6. The Government's case on the issues involved in the case finds mention as hereunder in the Concise Statement:-- "Mr. Tamizuddin was appointed -as Assistant Director Food by initial recruitment on the recommendations of the Board specially constituted in March, 1977. There. Was no provision for initial recruitment of Assistant Director Food in the service rules (Annexure R-1/B). Amendment in the rules providing for initial recruitment of Assistant Director Food was made on 21-5-1977 (Annexure R-1/C). The seniority of the officer who was appointed by initial recruitment was, therefore, recognised from the date of issue of the amendment to the rules i.e. 21-5-1977. The respondents Nos. 2 to 5 were promoted before 21-5-1977. Therefore, they have been shown senior to Mr. Tamizuddin (Annexure R-1/D):,
7. It is not disputed that when the appointment of the appellant was made, there was a properly promulgated service rule which prohibited direct recruitment to the post of the Assistant Director Food. The appointment was made in anticipation of the amendment of the rules: Amendment came on 21-5-1977: What was in breach of the rules could not, therefore, be considered to be either regular or of avail in the matter of determining the seniority. The order of his retention in service from 5-3-1977 had not the effect, directly or indirectly, of making his appointment regular and in accord with the rules applicable. It is only when the Rules permitted such a recruitment that the service rendered could be of avail to him.
8. The reference to the Supreme Court judgment in C.P.L.A. Nos.Q-10 and Q-12 of 1983 is not very useful because in that case though the other factors were the same, the rules! Applicable were not so stringent, nor had they been amended m the manner in which it was done in this case.
9. As regards the promotion of the respondents and it being -irregular, there was no such ground taken and no finding has been recorded that the promotion of the respondents suffered from and legal infirmity, Such a ground cannot be taken up for the first time before us.
10. No ground is made out for interference with the order of the Tribunal and appeal is dismissed.