1999 PLP (C (PLC(CS))

AJMAL MIAN, C.J.‑‑‑This is a petition for leave to appeal against the judgment dated 3‑6‑1997, passed by the learned Federal Service Tribunal (hereinafter referred to as the Tribunal) in Appeal No.206(R) of 1997 filed by the (sic) on 4‑12‑1996 by respondent No.3 (Director, N.‑W.F.P. Armed Services Board, Peshawar), allowing the same as follows: "With these observations we accept this appeal, set aside the impugned original and appellate orders and direct the Respondent-Department to reinstate the appellant in service. This order will be without prejudice to the discretion of the Department to proceed against the appellant in accordance with law and the rules as and when considered appropriate." The brief facts are that the respondent after his retirement from the Army as Lance Naik was re‑employed as Naib‑Qasid in the District Armed Services Board on 15‑4‑1981. He continued to serve as such for about 16‑1/2 years. It seems that his services were terminated by the aforesaid order dated 4‑12‑1996. After availing of the departmental appeal without any success, the respondent filed above appeal before the Tribunal and contended that he was a regular employee since 1981 and that his services‑could not be dispensed with simply by treating the same as being on contract basis. The above appeal was resisted by the petitioners, inasmuch as written statement was filed in which it was pleaded that the respondent was serving on contract basis and, therefore, he was not a civil servant and that the competent Authority had not allowed to extend the period of contact any more, hence the services of the petitioner were rightly dispensed with. The learned Tribunal after hearing the parties concluded that the petitioner was selected by a properly constituted Selection Committee in its meeting dated 31‑3‑1981 as an Ex‑Serviceman for employment as Naib -Qasid. The above recommendation was approved by the then Director, N.‑W.F.P. Armed Services Board, Peshawar on 12‑4‑1981. It was further concluded that pursuant to the above selection the respondent was appointed as Naib‑Qasid by order dated 16‑4‑1981. It was also concluded that the appointment order did not indicate anywhere that the appointment was being made on contract basis, on the contrary the same mentioned that the appointment of the petitioner was made as Naib‑Qasid in Grade‑1 in the National Pay Scale (250‑5‑280/6‑340), plus usual allowances as admissible under the 'Rules, against the then existing vacancy with effect from 15‑4‑1981 on probation for a period of six months from the date of appointment. It was further concluded that a controversy arose as to the respondent's entitlement to pay and allowance after re‑employment during the period of L.P.R. This controversy was resolved when no objection certificate was issued on 31‑3‑1981 for re‑employment of the respondent during his ‑L.P.R. It was also concluded that a new objection was raised by the concerned quarters that the respondent was already receiving pension after his retirement from active service as Lance Naik and, therefore, he could not be given regular employment, and that the original order of appointment dated 16‑4‑1981 was modified unilaterally on 18‑4‑1981 and he was shown to be appointed on contract basis. After having concluded as above, the Tribunal allowed the above appeal in the above terms. The Secretary, Ministry of Defence, Government of Pakistan has filed the above petition against--petition against the above judgment. In support of the above petition Maulvi Anwarul Haq learned Deputy Attorney‑General had argued the case inter alia on 6‑10‑1998. The thrust of his argument was that since the respondent was drawing pension from the Army after his retirement, he could not have been permanently employed as Naib‑Qasid without his surrendering the pension. The respondent who was present in person submitted that factually the appellant had been deducting certain amount from his salary towards the pension received by him. On the above date the Court passed the following order: "It has been pointed out by the respondent, who is present in person, that the petitioners have been recovering the pension amount received by him from the Army in instalments and that they have already recovered a sum of Rs.13,229.65. Maulvi Anwarul Haq, learned Deputy Attorney‑General states that he will ascertain the factual position and if it is so, he will not press this petition. " Maulvi Anwarul Haq has submitted today that factually the petitioner department had been deducting certain amount from the respondent's salary towards the pension received by him, but the same relates to the increased amount of pension and not against the pension as a whole received by the respondent after retirement. The respondents stated that he had no objection if the actual pension amount received by him is deducted. In view of the above concession, the controversy has become academic. Even otherwise too, we are inclined to agree with the finding recorded by the Tribunal that the respondent was employed against a permanent vacancy through the mechanism of Selection Committee in accordance with the Rules and not on contract basis, but the appointment order was unilaterally amended so as to convert the above regular appointment as an appointment on contract basis. The above finding of the Tribunal is also in consonance with a recent judgment of this Court in the case of Executive Engineer, Central Civil Division, Pak P.W.D., Quetta v. Abdul Aziz and others (PLD 1996 SC 6.10), in which this Court while upholding the judgment of the Labour Appellate Tribunal, held that temporary and work charge employees working in the Pak. P.W.D. were permanent. The leave is refused and the above undertaking of the respondent is recorded as a part of this judgment. H.B.T./S‑102/S Petition dismissed.