2026 PLP (C (PLC(CS))

SYED HASAN AZHAR RIZVI, J.

Through this petition, the Petitioner-department assails the judgment dated 26.03.2024 passed by the Federal Service Tribunal, Camp Office, Peshawar [ the Tribunal ] whereby the office order dated 11.10.2022 [ Regularization Order ] issued by the competent authority was modified to the extent of altering the date of regularization of the Respondent s service from 08.09.2021 to February 2017. The impugned judgment also granted pay protection to the Respondent and clarified that seniority would be determined from February 2017.

2. Brief facts of the case are that the Respondent was engaged by the Petitioner as Junior Engineer (Electrical), BPS-17, vide letter dated 21.11.2013 [ First Engagement Letter ]. The Respondent was appointed on ad-hoc basis through a walk-in-interview. The First Engagement Letter excluded pension, gratuity, provident fund and seniority, and provided that any later placement in the regular cadre would depend on a competitive examination process. According to the learned counsel for the parties, on 07.08.2016, the Petitioner advertised the post of Junior Engineer (Power) and by way of departmental intimation dated 12.08.2016, the Respondent was advised to appear in the test conducted by National Testing Service [ NTS test ] which was to be held on 13.11.2016. The Respondent appeared in the NTS test and secured 68% marks as per the result dated 22.11.2016.

3. On 25.11.2016, the Respondent filed a representation seeking regularization on the ground that the medical staff who appeared in the same NTS batch had been regularized by February 2017. Such representation remained unheard, and therefore, the Respondent filed a writ petition before the Lahore High Court in February 2017, which was disposed of vide order dated 09.07.2021 on the basis of an undertaking given by Petitioner s counsel that the Respondent would also be considered for regularization along with other candidates. The operative part of such order is reproduced herein: . The counsel for the Respondent-WAPDA has submitted minutes of the meeting of the Authority dated 16.08.2016 which have been placed on record. According to these minutes, applications for regular appointment of those persons who are working on temporary basis and who have cleared the written tests have been undertaken to be considered by way of interviews. The petitioner falls within the sweep of this decision. The counsel for the respondent submits that the petitioner shall also be considered in the light of this decision. The counsel for the petitioner accepts this offer made and submits that for the present this petition has fructified . Pursuant to the above, the Respondent was re-interviewed on 27.08.2021 and the Petitioner issued another engagement letter dated 01.09.2021 [ Second Engagement Letter ] to the Respondent. The Respondent vide letter dated 02.12.2021 to the General Manager (Hydel), WAPDA, sought pay protection and upon receiving no reasoned response, the Respondent submitted a representation dated 26.10.2022 to the Petitioner for pay protection and regularization from his initial appointment in 2013. It remained unheard and then the Respondent filed an appeal before the Tribunal on 27.01.2023 seeking pay protection and regularization w.e.f. November 2013 (date of initial appointment), or alternatively w.e.f. 25.11.2016 (when regularization conditions stood fulfilled) or February 2017 (i.e. 90 days after the NTS result dated 22.11.2016). The Tribunal through the impugned judgment allowed the appeal, holding that seniority accrue from February 2017, and that pension/gratuity shall be governed by the applicable rules upon completion of twenty-five (25) years of qualifying service.

4. Learned ASC for the Petitioner submits that the Tribunal erred in law by antedating regularization and the First Engagement Letter issued to the Respondent explicitly excluded pension, gratuity, provident fund and seniority; that the acceptance of the First Engagement Letter in itself stops the Respondent to ask for gratuity for the period of his ad-hoc service. The learned counsel places reliance on Serial No. 90, Chapter 3 of the Estacode and also argues that his substantive appointment through the Second Engagement Letter did not flow from ad-hoc service rather arose from the fresh competitive process. The learned ASC states that several junior engineers were recruited in the same manner and none has sought what the Respondent claimed. The learned ASC further submits that only candidates who secured more than 80% marks in NTS test were called for interview, while the Respondent secured 68% marks.

5. Conversely, learned ASC for the respondent has opposed the contentions advanced by the learned ASC for the Petitioner.

6. We have heard the learned counsel for the parties and perused the material available on the record with their able assistance.

7. It is pertinent to highlight that the Federal Government s recruitment policy dated 22.10.2014 was issued to prevent open-ended processes. Rule XIII of the aforementioned policy requires recruitment to be finalized within sixty (60) days of the advertisement, later extended to ninety (90) days by amendment dated 21.09.2017. In the instant case, the Respondent was regularized nearly five years after the advertisement, well beyond the prescribed timeline. Furthermore, the Respondent has relied upon Serial No. 7(5), Chapter 4 of the Estacode which reads as follows: (5) Confirmation of a civil servant in a service or post shall take effect from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiation, in such service or post, whichever is later . In the present case, the Respondent continuously officiated on a sanctioned Grade-17 post from 02.12.2013 without break. If the post was permanent throughout, this rule supports treating him against that permanent vacancy from his initial engagement, subject to completion of the notified competitive process. At the very least, once he cleared the NTS test, the Petitioner could not lawfully push effect to 2021. The aforementioned provision explicitly cuts off delay beyond the later of those two dates.

8. Furthermore, no notified rule requiring 80% marks to qualify for interview has been pointed out by the learned counsel for the Petitioner. Para 7 of the memo of Petition itself states that the candidates having upto 80 marks in written test were called for interview against relevant quota. The phrase upto 80 marks negates the Petitioner s stance that only those scoring above 80 marks were eligible for interview. In any event, the result sheets of medical staff from the same batch indicate that candidates even below 80% were regularized in February 2017. Regularizing similarly placed candidates from the same NTS batch within three (3) months of the test while withholding the Respondent s regularization for five (5) years constitutes discrimination in violation of Article 25 of the Constitution.

9. While arguing, the Petitioner relied upon the following specific portion of Serial No. 90, Chapter 3 of the Estacode: .ad-hoc service does not reckon for purposes of seniority when the ad-hoc appointment is later on converted to regular appointment . . The Petitioner s reliance of the aforementioned provision is correct and is also affirmed in the case titled as Muhammad Sami Ullah Ghauri, Research Officer, Islamabad v. Secretary, Establishment Division, Government of Pakistan

1. The relevant portion of the judgment is reproduced herein below: .

6. In view of above principle if the case of respondent is adjudged no other conclusion can be formed except that respondent Mushtaq Ahmad after his selection though worked against ad hoc post but his length of service for determining seniority will be counted from the date of recommendation made in his favour by the Federal Public Service Commission in BPS-17 and petitioner who was admittedly promoted after respondent's recruitment would be junior to him in rank . The learned ASC for the Petitioner stated the rule correctly but failed to show how the Tribunal erred in applying the same. In our view, the impugned judgment kept seniority from February 2017 whereas denied credit for the ad hoc period. Hence, the Tribunal properly applied the Estacode and Muhammad Sami Ullah Ghauri (supra).

10. For what has been stated above, we find the impugned judgment to be well-reasoned, based on proper appreciation of facts and law and no illegality or perversity has been noticed therein. No substantial question of law of public importance within the ambit of Article 212(3) of the Constitution has been raised by the Petitioner s counsel warranting interference by this Court. Accordingly, the instant Petition is dismissed and Leave to Appeal is refused. UN/M-97/SC Petition dismissed. 1 2002 SCMR 698.