' IMTIAZ ALI, J.--- Through this constitutional petition, Miss. Rukhsana Qureshi, a Computer Operator in Planning Cell, Sports, Culture, Tourism, Archaeology & Museum Department Peshawar (hereinafter referred, to as the Department), has prayed for following reliefs from this Court:-- "(a) Declaration to the effect that the petitioner is a regular employee of the Department.
(b) Declaration to the effect that she is entitled for pay at an equal stage of BPS-11, being regular employee.
(c) Declaration to the effect that she being regular employee is entitled for allotment of plot in Regi Model Township Scheme as per rules."
2. Facts of the case, giving rise to present controversy, are that on the recommendation of Departmental Selection Committee and with the approval of Competent Authority petitioner was appointed as Data Entry Operator (BPS-11) in the Project Planning Cell, Information Department, N.- W.F.P. Peshawar on 30-6-1995 and continued to serve as such till the year 2000. In May, 2000, the said Development Scheme namely, Planning Cell, Information Department was converted to Revenue Budget, however, no post of Data Entry Operator (BPS- 11) was created whereagainst she could be adjusted. She was, therefore, offered appointment against the down graded post of Key Punch Operator in (BPS-10) to which she gave her consent and was, thus, appointed as Key Punch Operator (BPS-10) vide order dated 23-5-2000 against the aforesaid newly created regular post.
On her such reversion to BPS-10 when her case for fixation of pay in the lower grade came up for consideration, Finance Department observed as under:-- "This is a case of initial appointment against a newly created post in BPS-10. The service rendered under the Project being on contract basis does not count for any purpose. Her pay is, therefore, to be fixed without any reference to the service under the Project. Thus the pay in BPS-10 would start from minimum of B-10, provided her appointment was made on regular basis after observing the prescribed method under the N.-W.F.P. Civil Servants Act, 1973 and the rules made thereunder."
' Her request for relaxation by recourse to FR-22(b) was, thus, turned down and she was allowed minimum pay of BPS-10. In the meanwhile, a post of Computer Operator (BPS-12) fell vacant and on the recommendation of Departmental Selection Committee, petitioner was promoted to the post of Computer Operator (BPS-12) vide order dated 25-10-2003.
3. It was for the first time in the year 2008 and that too, because petitioner had applied for grant/allotment of a plot in Regi Model Township Scheme, as per her status/entitlement under the Scheme, when she was informed vide Letter No,SOE-V (E&AD)/8-9/2007 dated Peshawar, the June 26th, 2008 of Establishment Department that her status was that of a contract employee and not a regular'civil servant, hence, her request for allotment of plot cannot be considered. This revelation was not only a shock for the petitioner but also for the Department, who vide their letter No,SOG(S&C)2-26/2002/S dated Peshawar, the 24th July, 2008, took up the matter with the Establishment Department for reconsidering and review of the case of petitioner by observing that she was regular civil servant for all intents and purposes. The reasons, advanced by the Department in the aforesaid letter for treating the petitioner and other similar employees, as regular civil servants, were as follows:- "(i) They were initially appointed after fulfillment of all the Government laid down procedures/rules.
(ii) Miss Rukhsana Qureshi, Computer Operator, was reappointed on a regular post as Key Punch Operator (BPS-10) after conversion of Planning Cell from Development to Current side.
(iii) She was promoted on a regular post of Computer Operator (BPS-12) through Departmental Promotion Committee.
(iv) She is getting salary from the revenue side since February 18, 2000 and her service book is also maintained regularly."
4. The department in their said letter concluded as under:- "During the year 2000, due to oversight proper procedure of re-advertisement of the posts was not adopted when the posts were converted from Developmental to current side. However, they have served the Department for thirteen years (including five years of project service) and one of them has been promoted against a regular post after fulfillment of laid down procedure and on the recommendation of the Departmental Promotion Committee. Declaring their services at this stage as contract employees has not been appropriate. Keeping in view the position/facts explained above I would request that the case may be reviewed and these officials be treated as regular civil servants for all intents and purposes.
5. When the Establishment Department did not accede to the request of petitioner as well as the Department and representation, filed by petitioner to the Chief Secretary, also remained unattended to, she was constrained to approach this Court for the aforesaid reliefs through present constitutional petition.
6. Learned counsel for petitioner contended that petitioner was regular civil servants for all intents and purposes for the reason that she had been appointed/adjusted on regular post and her pay was fixed at the minimum of BPS-10 by the Finance Department, treating her adjustment as initial appointment against a newly created post in BPS-10; she had accepted her down grading to BPS- 10 from BPS-11 on the clear understanding that she was to be adjusted/appointed as a regular employee; she was considered and promoted as Computer Operator (BPS-12) on the recommendations of Departmental Selection Committee, treating her to be regular civil servant; her service book was being maintained and verified on annual basis and annual increments and promotion entries were made therein regularly; and even necessary deduction of GP Fund etc were also being made from her pay. According to learned counsel, if there had been any oversight or non-observance of codal formalities by the department concerned, she could not be penalized for the same. Specially so, when the department itself had admitted such oversight in observing proper procedure of re-advertisement of the post etc. He in this behalf relied upon 2006 MLD 855, 2004 SCMR 303=2004 PLC (C.S.) 301, 2004 SCMR 1662, 2006 SCMR 285=2006 PLC (C.S.) 1216, 1996 SCMR 413 and 2004 SCMR 1077.
7. As against this, the only defense offered by the respondents in their comments as well as before us was that her services were not regularized by observing the proper procedure and there being no concept of automatic regularization, she was still a contract employee. It is interesting to note that in sharp contrast to their such assertion, they have also raised a preliminary objection in their comments to the effect that honourable High Court has no jurisdiction in the matter, as the matter falls under terms and conditions of service.
8. When learned Deputy Advocate-General was confronted with the documents, available on file and the facts of the case narrated above, he frankly conceded that petitioner had in fact been all along treated as regular civil servant and this in fact was a dispute between the two departments which should have been resolved by them in favour of the petitioner because if there was any formal deficiency in the regular appointment of petitioner, it was on the part of respondents and not for any fault or omission on the part of petitioner.
9. After considering the arguments of learned counsel for parties and on going through the record, we are afraid that once an offer was made to the petitioner way back in the year 1995 in pursuance to which she gave consent to her down gradation from BPS-11 to BPS-10 for the only benefit that she was being appointed/adjusted against a regular post, respondents are estopped now to turn around and claim that she remained a temporary and/or a contract employee. Moreso, when for all these 8-10 years she has been treated as a regular employee. In holding so, we also take guidance from judgment of august Supreme Court of Pakistan in Civil Appeals No,44 to 79 of 2004 and Civil Petitions No,1409 of 2004 and 319 of 2005 (Zafarullah Khan and 35 others v. Government of N.-W.F.P. And others), relevant portion whereof is reproduced below:-- "The appellants, who had served the Department for 15 years, had been treated as regular employees of the Department and not as employees of a project. Circumstances indicative of this treatment have been highlighted by the Service Tribunal in the impugned judgment and have not been controverted by the Department, either before the Tribunal or before us. The appellants had been granted, revised basic pay scales like all other civil servants in the years 1991 and 1994 along with annual increments. They were given the benefit of the Scheme of basic pay, allowances and pension enhanced by the Provincial Government in the year 2001 for the provincial civil servants.
The appellants were regular subscribers to the G.P Fund and the Benevolent Fund, and it is stated that on transfer of one of the appellants to Peshawar, the G.P. Fund was also transferred to the office of Accountant General, N.-W.F.P. Peshawar. These are normal incidence of service of civil servants and not of employment in a project. The source of funds for paying the salaries to the appellants or the contents of any PC-1 is a matter of internal administration of the Provincial Government. The nature of the appellants' employment is to be decided on the basis of the letters of appointment and the manner in which their employments have been considered thereafter. The foregoing discussion shows that the appellants were employees of the Department and not of any Scheme or Project."
10. The case of the petitioner is even on better footing than that of the petitioners before august Supreme Court in the aforesaid matters, as in the present case even the Department admits that she is an employee of the Government working against regular sanctioned permanent posts, but on contract basis. Besides, she is not only drawing salary from the revenue side since February, 2000, but was also promoted to a higher A post in BPS-11 on recommendation of Departmental Promotion Committee. So much so, that she was also enlisted in the seniority list. All these are incidents of regular service as against contract or temporary employment.
11. So for as non-observance of proper procedure/codal formalities by the Department in regularization of service of petitioner are concerned, learned counsel for petitioner has rightly relied upon the case law, referred to in the preceding paras. The basis judgment on the subject is 1996 SCMR 413, wherein, it was held as under:-- "It is disturbing to note that in this case petitioner No,2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated his services due to irregularity and violation of rule 10(2) ibid. The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in re-instating the respondent."
Even otherwise, if there was any formal deficiency, the same stood removed when petitioner being treated as a regular employee was promoted as Computer Operator (BPS-12) on the recommendations of Department Selection Committee.
12. For what has been stated above, we entertain no doubts in holding that petitioner is a regular civil servant within -the meaning of section 2 Clause (b) of N.-W.F.P. Civil Servants Act, 1973 and is entitled to all benefits/privileges attached to her such status. We, resultantly, grant declarations (a) and (c) in terms that she is a civil servant/regular employee of the Department and is entitled for allotment of plot in Regi Model Township Scheme, if permissible under the rules. However, we could not grant declaration at clause (b)-with regard to re-fixation of her pay by counting her service rendered in the Project, for the reason that since we have held, the petitioner to be a civil servant, grant of such relief is beyond the jurisdiction of this Court in view of the bar contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, as the matter relates to her terms and conditions of service.