1985 PLP 51 (SCMR)

SHAFIUR RAHMAN, J.-- Leave to appeal was granted under Article 212(3) of the Constitution to 7 Lecturers, the appellants, who are civil servants of the Federal Government to examine whether the decision of the Establishment Division (contained in Notification, dated 17-7-1974) "is rooted in the rights conferred" upon the appellants "under sub-paragraph 2 of paragraph 17 of the Martial Law Regulation 118 and it could not be modified so as to deprive the appellants of their service rights". The appellants were at first appointed ad-hoc Lecturers on various dates between September, 1967 and March, 1971 in the Federal Government College for Women, Islamabad. Theirs was a gazetted Class II post corresponding to N.P.S.-16 later upgraded to Class I Junior (N.P.S.-17) with effect from 1-6-1972. After the promulgation and enforcement of Martial Law Regulation No. 118 on 1st of April, 1972, the appellants and other ad hoc civil servants of the province in the Education Department represented for adjustment in terms as were to be adjusted the teachers and staff of the privately-managed educational institutions in terms of sub-paragraph 2 of paragraph 17 of Martial Law Regulation

118. The Education Division which was the administrative department of the appellants at first attempted to accomplish it by reference to the Public Service Commission direct. Failing in its effort, it moved the Establishment Division of the Government of Pakistan as required under the, Rules of Business. On the 17th of July, 1974, the Establishment Division conveyed in respect of 10 such civil servants the decision of the Government in the following terms: "... The undersigned is directed to refer to the Ministry of Education O.M. No. F.7-3/72-CEI, dated 2nd January 1974, on the above subject, and to say that the Minister for Establishment has approved that the appointment of the following lecturers may be excluded from the purview of Commission and that they should be appointed on regular basis against the posts they are holding on ad hoc basis:- (1) Mrs. Rehana Saeed. (2) Miss Shamim Kausar. (3) Miss Shamima Qasim. (4) Miss Sabeeha Nasir. (5) Miss Mumtaz Fatima Jaffari. (6) Mrs. Asma Kamal. (7) Miss Tasneem Akhtar. (8) Mrs. Farrukh Junaid. (9) Miss. Arifun Nisa. (10) Mr. Muhammad Mohsin." The Ministry of Education issued the consequential orders on the 24th of July, 1974 and mentioned therein the date of regularisation of their service with effect from 1-9-1972. Confirmation orders were also passed by the Ministry of Education on 23rd of December, 1975. The respondents 2-5 who were adversely affected in the matter of seniority by the ante-dating of the date of regular appointment of the appellant, represented to the department and not getting proper redress appealed to the Service Tribunal. It was during the pendency of their appeal that the Education Ministry modified its Notification, dated 24th of July, 1974 and regularised the services of the appellants with effect from 17-7-1974 instead of 1-9-1972. The appellants approached the Service Tribunal for redress against the alteration in the date of regularisation of their ad hoc appointment from 1-9-1972 to 17-7-1974 as it in turn -had affected adversely their seniority. The Service Tribunal rejected their claim holding that:- "The Establishment Division never approved the date of regularisation of the services of the appellants from any date prior to the date of the notification. Ministry of Education appears to have misinterpreted the approval of the Establishment Division and regularised the services of the appellants with effect from 1-9-1972 of their own accord." It was further held that correction of an error could not be legally objected to or avoided. Finally, it was observed by the Tribunal that seniority was not a vested right any more and the appellants could not seek redress against the alteration in the dates in the regularisation of their appointment, Mr. S.M. Zaffar, the learned counsel for the appellants contended that it was within the plenary powers of the Government under the Civil Servants Act to regularise an ad hoc appointment. It could do from any date that it chose. The Government having decided upon date the appellants were entitled to successfully avoid any alteration of the same particularly so because it had attained finality for all purpose as it had not been questioned for a number of years and had been given due effect to. It is not the seniority but the date of their regularisation which the appellants want to protect. It has been conceded and rightly so that Martial Law Regulation, 118 does not in terms apply to the case of the appellants. They were never the employees of the privately managed colleges which stood nationalized nor sought enforcement of any right on the basis of provisions of Martial Law Regulation

118. Therefore, the decision of this Court in Province of Punjab v. Syed Bashir Ahmad Bukhari PLD 1982 S C 27 will not be strictly relevant. The closet that the appellants' claim comes to MLR 118 is that on the analogy of treatment afforded staff and teachers of the privately-managed nationalised teaching institutions, the appellants and other ad hoc employees of the Central and the Provincial Governments sought adjustment, regularisation and recognition. It may be at the back of the mind of the decision making authorities. Neither the express provisions of it nor the principles contained in it will be of avail to the appellants, as the statutory orders and law applicable to them makes no express mentioned of it. It is true that the basis of the entire claim of the appellants icy notification of the Establishment Division, dated 17th of July, 1974. A look at the notification makes it clear that it was as from 17th of July, 1974 that the posts which the appellants were holding were excluded from the purview of the Commission. Their appointment, therefore. could not be without consultation with the Public Service Commissioner taken to a date earlier to 17-7-1974 because before that date consultation with the Public Service Commission was mandatory. Their appointment without consultation with the Public Service Commission could be mad by the Government as and after 17th of July, 1974 and not earlier. The law till such regularisation was allowed required that regular appointment to the post held by the appellants be made by consultation and the occurrence of the Public Service Commission. It is on this interpretation of the notification, dated 17-7-1974 and the inapplicability, of the provisions of MLR 118 that the notification of the Ministry of Education making their appointments regular as from 1st of October, 1972 would appear to be erroneous and the mistake is obvious. Such mistaken view of the rights of the parties and the functioning of the department cannot attain finality because what the Education Ministry did was beyond its jurisdiction. It was beyond its jurisdiction for more than one reason. In the first place, the Education Ministry could not regularise the appointment during a period when consultation with the: Public Service Commission was necessary. The Ministry of Education could not arbitrarily adopt 1-9-1972 as the date when the dates o their ad hoc appointment were different. The Ministry of Education was not authorised under the notification of the Establishment Division go behind 17-7-1974. For these reasons, the order of the Ministry of Education was not sustainable and there is no question of such an order attaining finality conferring vested rights, or becoming irrevocable. We find that the view taken by the Service Tribunal is in accord with law and there is no merit in this appeal which is dismissed with no order as to costs. M. Z. M. Appeal dismissed.