NASIMUL HAQUE MALIK Versus CHIEF SECRETARY TO GOVERNMENT OF SINDH and 4

ORDER

SAIDUZZAMAN SIDDIOUI, J.---The petitioner has sought leave to appeal against the judgment of Sindh Service Tribunal dated 14-9-1994. By the impugned judgment the service appeals of respondents Nos. 4 and 5 were allowed and they were declared senior to the petitioner.

2.The admitted position of the case is that the petitioner who is a direct recruit through the Public Service Commission was appointed as Assistant Registrar Cooperative Societies on 14-5-1981. The respondents Nos. 4 and 5 were promoted on regular basis as Assistant Registrar Cooperative Societies much earlier to the appointment of the petitioner. In the gradation list issued by the department the petitioner was shown junior to respondents Nos. 4 and 5 whereupon he made departmental representation which after protracted proceedings was finally accepted by the Chief Secretary, Government of Sindh and he was declared senior to Respondents Nos. 4 and 5 in service on the ground that at the time when respondents Nos. 4 and 5 were promoted as Assistant Registrars no vacancy in the quota of the departmental promotee was available and their promotion had taken place against .The vacancies of direct recruits which was not permissible under the service rules.

3.The learned Service Tribunal, however, reversed the judgment of the Chief Secretary and came to the conclusion that respondent No, 4 was first promoted on ad hoc basis as Assistant Registrar Cooperative Societies in 1970 while respondent No, 5 was promoted on ad hoc basis in the year 1973. The appointment of respondents Nos. 4 and 5 was later on regularized by the department in the year 1977 (after about 7 years of the appointment of respondent No, 4 on ad hoc basis and after about 4 years of the appointment of respondent No, 5 on ad hoc basis) which shows that at the time they were promoted on regular basis in the cadre of Assistant Registrar Cooperative Societies, the vacancies in the promotes quota were available. The learned counsel for the petitioner seriously challenged this observation of the learned Service Tribunal and contended that the documentary evidence on the record does not support the conclusion arrived at by the learned Service Tribunal. In this connection the learned counsel for the petitioner besides relying on the order of the Chief Secretary, Government of Sindh dated 15-6-1993 allowing the appeal of the petitioner relied on the letter dated 14-6-1990 addressed to the Registrar Cooperative Societies by the Food and Cooperation Department and reply thereto dated 1-7-1990. These documents prima facie support the contention of the petitioner that at the time respondents Nos. 4 and 5 were promoted as Assistant Registrar Cooperative Societies no vacancy in the quota of departmental pi-omotee was available and that their promotion was made against the quota reserved for direct recruitment. The petitioner in support of his contention to at in such circumstances promotion of a departmental candidate in the vacancy of a direct recruit shall be deemed to be an ad hoc appointment, relied on the case of Federation of Pakistan v. Azam Ali and others (1985 SCM R 386). The contention raised by the learned counsel for the petitioner raises a question of law and of public importance and accordingly leave to appeal is granted to consider whether the promotion of respondents Nos. 4 and 5 as Assistant Registrar on regular basis in the year 1977 violated the rule laid down by this Court in the case of Federation of Pakistan v. Azam All and others, supra.