' DR. ABDUR RAUF (MEMBER).--- This appeal has been filed by Mst. Baseerat Naz, Head Mistress, Government Girls High School, Ekka Ghund, Mohmand Agency under section 4 of the N.-W.F.P.
Service Tribunals Act, 1974, against the Notification dated 5-3-2007, whereby the appellant had been appointed in terms of new policy within the meaning of amended section 19 of the N.-W.F.P.
Civil Servants Act, 1973, against which the departmental appeal of the appellant, dated 16-6-2007 has elicited no response within the statutory period.
2. Brief facts of the case are that the appellant served as S.E.T. BPS-16 in the Education Department on regular basis since 23-5-1995. The N.-W.F.P. Public Service Commission advertised certain posts including the post of Headmistress (BPS-17). In the advertisement it has been explicitly stated that the posts were on regular contract basis for non-Government servants and in case of regular Government servants, their appointments on selection would be on regular basis on the terms and conditions already available to them and would not be affected by the contract policy of the Provincial Government. The appellant applied through proper channel for post of Headmistress and after qualifying written test/interview of the N.-W.F.P. Public Service Commission, vide Notification dated 5-3-2007, she was appointed as Headmistress on the terms and conditions that she would be governed by N.-W.F.P. Civil Servants Act, 1973 (amended in 2005) and rules made thereunder. Feeling aggrieved, the appellant submitted her departmental appeal on 16-6-2007, which elicited no response within the statutory period; hence the present appeal.
3. The appeal was admitted to regular hearing on 1-10-2007 and notices were issued to the respondents for filing their written replies. Written replies on behalf of respondents 1, 2, 3 and 5 filed.
Respondent No,4 failed to file written reply, hence proceeded against ex parte. No replication was filed in rebuttal.
4. Arguments heard and record perused.
5. The learned counsel for the appellant argued that the impugned order was illegal, unlawful and in violation of the rules; and that the appellant had not been treated in accordance with the law and her right secured and guaranteed under the law and Constitution had been violated.
6. The learned counsel for the appellant further argued that in the advertisement made by the N.- W.F.P. Public Service Commission, it was explicitly stated that in case of regular Government servants, their appointments on selection would be on regular basis on the terms and conditions already available to them and those would not be affected by the contract policy of the Provincial Government.
7. It was stated by the learned counsel that in similar cases, the employees who on fresh appointments were treated as regular civil servants and their previous terms and conditions were made applicable to them while the appellant has been discriminated under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard he referred to Notification No,SOE-II(ED)3(81)/2005, dated 8-7-2006 and Notification No,SO(E-III)HE/1-17/06/Saltanat Begum, dated 6-1-2007. The learned counsel stated that it was strange that in the same Provincial Government and even in the sister education department employees were treated differently. He requested that the appellant should also be treated at par with them as all the citizens were equal before law and were entitled to equal protection of law under the Constitution of Islamic Republic of Pakistan.
8. In support of his arguments, the learned counsel for the appellant referred Notification of Establishment Department dated 16-4-2003 and to para.3 of the vernacular letter dated 10-8- 2005, wherein it had clearly been stated that all regular employees would continue to be regular after appointments on higher posts and that they would be entitled to pension. In this regard, he relied on the judgment dated 20-10-2004 in Writ Petition No,552 of 2004 of the Honourable Peshawar High Court and 2007 PLC (C.S) 833 of the august Supreme Court of Pakistan. On the basis of his arguments, the learned counsel for the appellant requested for acceptance of the appeal.
9. The learned Additional Government Pleader, on the other hand, argued that the advertisement did not accrue any right on the appellant and that Public Service Commission was a recommendatory body. Such body could not make any commitment on the part of the Government. He further argued that since the appellant was appointed after promulgation of amended Act, 2005, therefore, as per rules, her fresh terms and conditions of service would be determined under that Act.
10. The Tribunal heard arguments of both the parties and perused the available record on the file.
The record would show that the appellant had initially joined the Education Department as untrained S.E.T. In the year, 1992. Thereafter her services were regularized as S.E.T. (BPS-16) on 23-5- 1995. The N.-W.F.P. Public Service Commission advertised some posts of various categories including the post of Head Mistress (BPS-17) vide advertisement No,07/2007, dated 1-12-2004. In the advertisement it has clearly been stated that those posts are on contract basis for non- government servants initially for a period of three years extendable further at the direction of the government and in case of regular Government servants, their appointments on selection should be on regular basis on the terms and conditions already available to them and should not be affected by the contract policy of the government.
11. The Tribunal has noted discrimination on the part of the respondent department and other provincial departments like Establishment Department and Higher Education Department vis-a-vis the appellant as they have appointed some of their employees on regular basis and have allowed them the terms and conditions of service already available to them as explained above whereas civil servants rules are equally applicable to all civil servants. Similarly in para-3 of the vernacular letter dated 10-8-2007, it has been clearly stated that all regular employees will continue to be regular after appointments on higher posts and will be entitled to pentionary benefits.
12. In view of the aforementioned discussion, the Tribunal is fully convinced that the appellant has made out a case for indulgence of the Tribunal. The Tribunal, therefore, accepts the appeal and directs the respondent department that the impugned Notification dated 5-3-2007 be amended/varied to the extent to declare the appointment and service of the appellant as regular and pensionable with all back-benefits. No order as to cost. File be consigned to the record.