1991 PLP (C (PLC(CS))

QAZI HAMID-UD-DIN (CHAIRMAN).--Ahmad Jan, Isa Khan and Amanullah Khan have filed this appeal against the Chief Secretary, Secretary Education and Director of Education (Colleges). Government of N.-W.F.P. Peshawar wherein it has been averred that the appellants joined service in Education Department as temporary Lecturers on ad hoc basis in BPS-17 vide Notification No. S.O. (Colleges) 1-1/87/1-2/87, dated 17-12-1987 (copy Annexure `A' on the file). The appointments of the appellants were subject to the production of prescribed medical certificates from the Standing Medical Board. The appellants appeared before the Board and were declared medically fit. The respondent No. 3 transmitted the proceedings of the Medical Board to the respective District Accounts Offices for further necessary action. In the appointment order at S.No. 10 it has been provided that candidates appointed in the Colleges situated in hilly areas should take over charge on the reopening of the colleges after winter vacation. On 23rd January, 1988 N.-W.F.P. Civil Servants (Regularisation of Services) Act, 1988 had been issued by virtue of which all the ad hoc appointees holding the ad hoc appointments were regularised with effect from 23-1-1988. The appellants were posted to hilly stations and therefore they could not take charge immediately on the issuance of the above Notification and took over charge on 1-3-1988 after the re-opening of the Colleges in the hilly stations after winter vacation. The services of all the ad hoc appointees were regularised except the appellants on the pretext that they had not assumed the charge of their posts and as such the respondent No. 3 treated the ad hoc appointment of the appellants to have ceased in terms of section 5(1) of the N.-W.F.P. Civil Servants (Regularisation of Services) Act, 1988. However, they were re-appointed on 24-3-1989 on contract basis for a period of one year (Annexure `D'). The appellants made a departmental representation on 1-3-1989 in which they contended that non-assumption of charge cannot deprive them from the status of a civil servants, therefore, they are at par with their counter parts and entitled for regularisation. No final reply has been received by the appellants, hence the present appeal. The appellants' contention is that the appellants were civil servants prior to the commencement of Regularisation Act, 1988 and that appointment order of the appellants dated 17-12-1987 is effective and partial modification, Notification issued on 29-3-1989 is illegal and void. The prayer of the appellants is that they were inducted in service, medically examined and therefore their services should have been regularised in pursuance to the Regularisation Act, 1988. The respondents have challenged the jurisdiction of this Tribunal, the competency of the appeal, the locus standi of the appellants that the appeal is bad for non-joinder of necessary party and is not within time. The contention of the respondents is that the appellants have not taken over on 23-1-1988, the date of promulgation of the Act, 1988, therefore, they were not regularised in the terms of the aforesaid Act. Arguments heard and the record perused. In this case the point for determination in addition to limitation etc. is as to whether the Notification No. S.O. (Colleges) 1-1/87/1-2/87, dated 17-12-1987 confers any right on the appellants to seek regularisation of their services with effect from 23-1-1988 in the light of the Regularisation Act, 1988. On limitation it was suffice to state that the N: W.F.P. Civil Servants (Regularisation of Services) Act, 1988 came into operation immediately and all those ad hoc appointees on that date were regularised. However, the services of the appellants were not regularised and were re-appointed on 24-3-1989 on contract basis for a period of one year vide Annexure `D'. The appellants made a departmental representation on 1-3-1989 in which the appellants contended that non-assumption of charge cannot deprive them from the status of a civil servant. This representation has not been replied so far hence the present appeal after a lapse of 90 days, therefore, the appeal is not time-barred. The appeal is well within time and the appellants have cause of action a: they are aggrieved with the impugned order. In this case the main point that is to be determined is as to whether on 23-1-1988, the date of commencement of Regularisation of Service Act, 1988, the appellants were or were not holding appointments to the posts of Lecturers. Section 3 of the N.-W.F.P. Civil Servant: (Regularisation of Services Act, 1988) (Act I of 1988) reproduced below clear13 refers to `holding appointment to the post': "Notwithstanding anything contained in any law or rule for the time being in force, but subject to preferential right of appointment of selectee of the Public Service Commission, if any, selected before this commencement of this Act, all civil servants holding appointment to a post on ad hoc basis in any department of Government immediately before the commencement of this Act shall be deemed to have been selected for appointment on regular basis on the commencement of this Act, provided that:-- (a) the services of such civil servants shall be deemed to have been regularised under this Act only on the publication of their names in the official Gazette; and (b) such civil servants possess the qualifications and experience prescribed for the posts to which they are appointed on regular basis." The appellants were definitely holding appointment to the posts on 23-1-1988 when the Act was promulgated though they could not take charge of the posts because the colleges to which they were posted were closed. Therefore, on 23-1-1988 the appellants should have been deemed to be ad hoc appointee and their services should have been regularised in accordance with section 3 of the Regularisation Act, which has not been done and instead the impugned Notification has been incorrectly issued. By accepting this appeal, the Tribunal directs that the impugned Notification shall be withdrawn and instead a notification regularising the services of the appellants from the date of their appointment to the posts shall be issued in accordance with section 3 of the said Act. Parties are, however, left to bear their own costs and file be consigned to the record room. M.Y.H./137/Sr.N Order accordingly.