' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition by leave of this Court is directed against the judgment dated 24-3-2009 of the learned Federal Service Tribunal passed in Appeal No,1052(R)
(C.S.) of 2006. The concluding paras. Are reproduced herein below:--- "(8) We have examined the final appellate order dated 25-11-2006 whereby the order of reinstatement has been turned into an order of fresh appointment. In view of the judgment passed by the Honourable High Court in Writ Petition No,144 of 1998 as also the judgment passed by this Tribunal in Appeal No,645(L)(C.S.) of 2000 the case of the appellant was examined by the FPSC and it was correctly decided to reinstate the appellant in service. We do not find any legal justification for conversion of the order of reinstatement into an order of fresh appointment.
(9) We are also conscious of the fact that the FPSC did not refuse the question of determination of seniority and the payment for the intervening period from 20-12-1999 up till 28-12-2005. The FPSC has decided that this question shall be settled on the receipt of advice from the Law and Justice and Establishment Divisions. We have been referred to a number of directions issued by this Tribunal both to Law and Justice Division and Establishment Division to give its opinion. Despite repeated directions both the said divisions have failed to furnish their opinion on the subject.
(10) Be that as it may, we are convinced that the appellant has been duly reinstated in service and that the order of dispensation of her service dated 20-12-1999 have been held to be illegal and have been set aside by the FPSC. This being so the appellant was prevented from performing her functions from 20-12-1999 to 28-12-2005 for no fault of her own. Consequent to her order of reinstatement, the appellant shall be entitled to the payment of full back benefits from 20-12-1999 to 28-12-2005. She also retains her seniority in accordance with law."
2. The facts necessary for disposal of the instant petition are that the respondent had joined the Education Department as Lecturer on ad hoc basis w.e.f, 24-8-1989 for a period of six months.
However, the period of six months was extended from time to time up to 29-9-1999. When her services were terminated. The respondent was reinstated as back as on 14-12-1993 in pursuance of the order of Government of the Pakistan, Federal Directorate of Education dated 1-1-1994 subsequent thereto again her services were terminated in view of the fact that permanent lecturer was selected against the vacancy which respondent was holding as an ad hoc appointee of Category II as such vide Notification dated 20-12-1999 she was relieved from duty. She agitated the matter before the High Court by filing Writ Petition No, 161 of 2000 and ultimately approached the Service Tribunal and she was reinstated from the date of her termination of her service i.e, 20-12- 1999. This decision of the service Tribunal has been incorporated in the order of the Government of Pakistan Federal Directorate of Education dated 25-11-2006, which issued the direction to the Education and the Establishment Division to consider her case in pursuance of the policy which has been issued in the matter to be case of Category No.1, the same is reproduced here in below:- ' Subject: REGULARISATION OF AD HOC SERVICE AND PAYMENT FOR INTERVENING PERIOD 20-12-1999 TO 27-12-2005.
' I am directed to refer Mrs. Naheed Naushahi, Lecturer in Persian of your college, applications dated 6-7-2006 on the subject cited above and to state that the matter has been examined in the Establishment Division and the view held is that in terms of subsection (3) of section 11-B of the Civil Servant Act, 1973 where an order of appointment is made on the advice of the Commission it shall be treated as case of fresh appointment and seniority of such an appointee shall be determined in accordance with the Civil Servants Seniority Rules 1993. She may be informed accordingly, please.
2. This issued with the approval of Establishment Division."
' In pursuance of the above order, respondent joined the duty and thereafter again approached the Service Tribunal for payment of financial benefits during the period when she was out of the job, as well as, for claiming the seniority. The learned Service Tribunal thus disposed of the appeal filed by her by impugned order, the relevant paras have been reproduced hereinabove.
3. Learned D.A.-G. Contended that according to the law settled by this Court in pursuance of the judgment, the employee, who is entitled for the financial back benefits, could establish that he was not making any earnings during the period when he or she was out of job. He further contended that in this behalf a Committee is to be constituted under Si. No,155 of the Civil Establishment Code Vol.II (Edition 2007), hereinafter referred to as "the Code", which was determined as to whether he or she was not earning livelihood when he or she was out of job: He further contended that as far as the seniority of the ad hoc employee is concerned, it is settled law that the seniority is always given to the ad hoc employees from the date of regularization and not from the date of initial appointment. In this behalf, he placed reliance on the case of Nadir Shah, SDO Minor Canal Cell, Irrigation Sub Division, Dera Murad Jamali and 2 others v. Secretary, Irrigation and Power Department, Balochistan, Quetta and 7 others 2003 PLC (C.S.) 961.
' On the other hand, learned counsel for the respondent contended that she had been approaching to the ,department for referring her case to the Establishment Division for taking a decision in view of the policy framed in the year of 1997 for the purpose of considering the case for regularization by the Public Service Commission, which was delayed due to certain reasons and, as such; she could not be allowed the seniority. He further stated that as the respondent had been working in the Education Department since 1989, therefore, she was entitled the seniority notwithstanding the fact that she was ad hoc appointee or not.
4. We have heard the learned counsel for the parties and have minutely perused the record by considering the contentions so put forward by the learned counsel.
5. It is to be noted that as far as the issue of regularization of the appointee is concerned, this question has already been settled as argued by the learned counsel for the petitioners by relying upon the above said case, the relevant part of the said case is reproduced herein below:--- "This principle of seniority is also embodied in . The parallel provision in the Province of Balochistan and applying the said principle, Nadir Shah and others petitioners herein, would be entitled to count seniority from the date of their regularization and not from the date of initial appointment."
' So far as the question of back benefits is concerned, in this behalf without conducting any inquiry as it has been noted in SI. No,151 of the Code, the question of back benefits could be determined by constituting Committee, the same is reproduced herein below:--- ' Sl.No,155.
Reinstatement of Government Servants on Court decision and Functions of Enquiry Committee.
' A reference is invited to the O.M. From the Law Division No,F.7(8)-70-Sol(1), dated 12th August, 1970 Sl. No,154, which states, inter alia, that, in accordance with the Supreme Court's judgment in CA No,28 of 1969. (West Pakistan v. Mrs.. A.V. Issacs), if the dismissal of a Government servant is held to be unlawful, he has to be allowed salary for the period he was kept out of service, reduced by the amount, if any, that he might have earned by way of salary, or as profits, on account of having accepted some employment, or having been engaged in some profitable business, during the above period. Thus, the legal status of Governments' claims for arrears of pay and allowances is no longer the same as had been indicated in para.3 of this Ministry's circular D.O.No,F.9(15)-RI (Rwp.)/61 dated 23rd December, 1961 (Annex). Consequently, it is no longer appropriate for the enquiry committee referred to in para.4 of that circular D.O. To consider on merits, in cases in which Government servants are restored to their posts as a result of Court's decisions, as to whether or not, and not to what extent, pay and allowance for the period of their absence from duty should be restored.
(2) It has accordingly been decided that, in cases where a Government servant is reinstated retrospectively as a result of a Court's decision, the functions bf the enquiry committee to be set up under para.4 of this Ministry's Circular D.O.No,F.9(15)- RI(Rwp)/61 dated 23rd December, 1961 (Annex) would henceforth be as follows:--
(a) The 1VIinistry/Division/Department as the case may be, may obtain from the Government servant concerned a solemn declaration, supported by an affidavit, as to the particulars of his employment, or engagement in profitable business, during the period of his absence from duty, and the amount earned by him by way of salary from such employment, or as profits in such business.
(b) After examining such evidence as might be available, and cross-examining, if necessary, the government servant, the Ministry/ Division/Department, as the case may be, may give their findings as to whether or not the above declaration is, 'prima facie' acceptable and on what grounds.
(c) If the declaration is found to be, 'prima facie' unacceptable, the Ministry/Division/Department, as the case may be, should refer the case to the committee, which, before giving their finding as to the amount earned by the government servant during the period of absence from duty, may get the declaration properly verified/scrutinized by any agency they consider appropriate. For example, if the case had been dealt with by the Special Police Establishment at any earlier stage in any connection, this verification/scrutiny may be arranged to be carried out by that Establishment.
For purpose of this verification/scrutiny, assistance of the relevant Income-tax authorities, may also be sought, if the Government servant concerned be an Income-tax payer.
(d) In case the reinstatement of the Government servant has been ordered, by the Court on account of the relevant administrative action having been found to be defective, the committee should also give their findings:
(i) As to which officers were responsible for that defectiveness of a administrative action; and
(ii) As to whether any, and what part, of the amount payable to the government servant by way of net salary for the period of his absence 'from duty, might justifiably be recovered from such officers. The recovery from such officers will, of course, follow departmental proceedings under the Government Servants (Efficiency and Discipline) Rules.
(3) The above instructions do not apply to cases in which government servants are reinstated as a result of acceptance of appeals by departmental appellate authorities, which will continue to be regulated by provisions of FR-54 , as hitherto.
(Extract of paras.4 and 5 of the Finance Division letter No,F.1(15)R1 (Rwp)/61, dated 23rd December, 1961 as amended).
(4) If as a result of Court decisions, a Government servant restored to his post, the question whether pay and allowances for the period he was under suspension or was removed from service should be decided on merit of each case. For this purpose, it is suggested that in all cases the Ministry or Department concerned should order a departmental enquiry headed by the representative of the Ministry/Department Administratively concerned with their Financial Adviser/Deputy Financial Adviser as a member of the committee. This committee should consider whether, on the merits of the case, Government would be justified in restoring the official concerned, the pay and allowances for the period involved and, if so, whether in full or in part. In coming to a conclusion whether pay and allowances to the individual should or should not be restored, following considerations will have to kept in view:--
(a) Whether the person concerned was acquitted on a purely technical or procedural grounds or whether the actually allegations against him had been gone into and were found to be incorrect;
(b) Whether the individual during the period he was away from active duty and other sources of income; and so on.
(5) It has further been decided that in cases where the total period involved does not exceed 12 months from the time the individual was suspended or removed from service, the final decision should be taken by the Ministry concerned at the level of Secretary and in all other cases the matter should be referred to the Ministry of Finance for prior occurrence.
6. Thus we are of the considered opinion that the Service Tribunal instead of granting relief as it is evident from the concluding paras. With regard to the financial back benefits may have referred the case to the department for establishing a Committee for the purpose as noted above. Before parting with this order it is to be noted that the department shall refer the case of the respondent to the Committee, which will be constitute in view of the above instructions contained in Sl.No,151 of the Code for determining whether she is entitled for the claimed financial benefits or not. However, the department is directed to dispose of the matter in respect of her back benefits expeditiously but not beyond the period of two months on receipt of this order.
7. Thus in view of the above discussion, the impugned judgment is set aside and the petition is converted into appeal and the same is allowed, leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.