SHAHID ANWAR BAJWA, J.--- Factual context of this petition is that in 1995 a separate Sales Tax service was established through notification dated 24-8-1995 and posts of Senior Auditors were created. Private respondents were recruited upon the basis of recommendations of Special Selection Committee and subsequent approval by the competent authority as Senior Auditor (BS- 16) in Sales Tax Department. This was done in 1996. On the other hand the petitioners joined service of the Federal Government in Customs and Excise Group and were serving on different posts when in 1996 the petitioners, it is claimed in the petition were appointed through transfer under section 10 of the Civil Servants Act as Senior Auditors in BS-16. Subsequently in July, 1998 options were solicited whether they were willing to be absorbed in the Sales Tax Department in which they were posted at the time as deputationists. The petitioner exercised their option. On February 12, 2008 a summary was put up before the Prime Minister. It was stated in the summary while some posts were filled through direct recruitment others were transferred from Customs and Excise Group. It was pointed out that on 22-1-1997 the interim cabinet in respect of the Senior Auditors decided as under:--- "(iii) The recruitment of Computer Programmers, Computer Operators and Senior Auditors, may be treated as differently. The selectees for these posts should be asked to appear before the FPSC.
Those qualifying will be retained and those failing to qualify will be removed from service. The Establishment Division should advise about the modalities in this regard."
' Thereafter it was stated in the summary that services could not be regularized due to various Court orders and it was recommended as under:--- "In the circumstances explained above, the services, of the above mentioned cadres could not be regularized unless exemption from recruitment rules and over-ruling of Cabinet decision is made by the competent authority. The following proposals are, therefore, made:---
(a) One time exemption of the Recruitment Rules may be allowed to induct 22 Senior Auditors (BS- 16) and 42 Auditors (BS-14) after completion of three years deputation period, subject to their satisfactory service record. After induction, their seniority will be determined in accordance with the Rule-4 of the Civil Servants (Seniority) Rules, 1993.
(b) The services of Assistant Collectors, Computer Programmers, Computer Operator and Senior Auditors, appointed through direct recruitment in the year 1996 mentioned in para 2 may be regularized, over-ruling the Cabinet decision dated 22-1-1997."
2. This summary was approved by the Prime Minister. Consequently notification dated October 14, 2008 was issued. Notification stated that the officials of Customs and Excise Department appointed under section 10 of the Civil Servants Act were thereby appointed as Senior Auditors (BS-16) on regular basis, in relaxation of rules, with effect from a date three years after they were originally transferred to/ posted on deputation in the Sales Tax Department. The notification has been followed with a Seniority List. This Constitution ' Petition has been filed with the prayer that the notification dated 14-10-2008 be set aside and regularization of service with effect from date of initial transfer/deputation in 1996 be ordered.
3. Learned counsel for the petitioners made the following submissions:---
(1) That the appointment of the private respondents was in violation of the Federal Public Service Commission (Function) Rules, 1978, Rule 3. Learned counsel submitted that Entry 7 in the Schedule to the Rules was inserted by notification dated 14-4-1999 and since all notifications are prospective therefore notification could not have the effect of excepting the private respondents from the rigors of Rule 3 as it stood at the time in 1996 when the present respondent entered employment.
However, learned counsel quickly hastened to add that he is not seeking relief in the nature of quo warranto against the present private respondents.
(2) Learned counsel submitted that present respondents were ad hoc employees as defined in section 2(a) and therefore could not have been given seniority and other benefits with effect from the date they were made ad hoc employees.
(3) Learned counsel submitted that the petitioners were never on deputation and they were transferred in accordance with the provisions contained in section 10 of the Civil Servants Act.
(4) That the petitioners and private respondents belong to the same category because both of them are working as Senior Auditors and there are no reasonable basis of classifying them separately and therefore decision vide notification for regularizing the petitioners three years after their induction while granting regularization to the respondents simultaneously with their induction is without lawful authority and of no legal effect. Learned counsel relied upon I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others, 1991 SCMR 1041 and S.S. Moghe and others v. Union of India and others, AIR 1981 SC 1495.
(5) Learned counsel submitted that direct recruitment and ad hoc employees are different in nature. He relied upon Muhammad Asim and others v. Telecommunication and others, 1997 PLC (C.S.) 1131.
(6) On the question of maintainability of the petition learned counsel submitted that he as not challenged the seniority list but is calling in question a notification and therefore he is entitled to maintain the petition. Learned counsel relied upon Pakistan International Airlines Corporation through Chairman and others v. Saima Masood and others, PLD 2005 SC 831 and Abdul Hameed Anjum and others v. Federation of Pakistan, Civil Appeal No,1745 of 2002 decided by the honourable Supreme Court on 29-9-2009.
4. Mr. M.M. Aqil Awan, learned counsel for the private respondents submitted that seniority is always given effect from the date of regularization. He submitted that the private respondents are not ad hoc employee's. He further contended that if two procedures are prescribed government is at liberty to follow any such procedure and such appointment shall not be irregular. On the maintainability of the petition learned counsel relied upon Jamal Khan Jaffar and another v. Rahim Shah and 3 others, 1994 SCMR 759 and Mukhtar Ahmad Junejo and 2 others v. Province of Sindh and others, PLD 1988 SC 560.
5. Learned counsel also referred to the order passed on 23-4-2009 in C.P. No,1516 of 2005 and this petition. The order indicates that the petition was held maintainable for reasons to be recorded later. He submitted that Raja M. Irshad, Advocate stated that he wanted to challenge that order but that order was not challenged and no reasons were recorded. That order is without reasons and is not a valid order therefore maintainability of petition is an open issue.
6. Mr. Sohail Muzaffar learned counsel for the respondent No,2, Collector of Sales Tax and Federal Excise adopted arguments of Mr. M.M. Aqil Awan. He produced a summary dated 31-5-1995 approved by the President of Pakistan to contend that it was in 1995 that it was approved by the President of Pakistan to allow recruitment by taking out specific posts from the purview of the Public Service Commission.
7. Exercising his right of 'reply Mr. Khalid Javed Khan learned counsel for the petitioners submitted that the petitioners were never a deputationists as they remained within their cadre and did not go out of their cadre. He relied upon Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and others v. Prime Minister of Pakistan, Islamabad and 31 others 1997 PLC (C.S.) 451.
Both Mr. Kbalid Javed Khan and Mr. M.M. Aqil Awan submitted written synopsis of arguments.
8. We have considered the submissions made by the learned counsel and have also gone through the record and synopsis as well as extensive case-law relied upon by the learned counsel.
9. We will first take up the question of maintainability of this petition. It is contended by Mr. Khalid Jawaid Khan that he has not challenged the seniority list but has challenged only the notification.
On the other hand it is contended by Mr. M.M. Aqil Awan that in essence the petitioners have challenged seniority list. Mr. Khalid Jawaid Khan relied upon Samina Masood's case (supra). The facts of that case were that the respondent who was employed as a Airhostess in Pakistan International Airlines Corporation challenged the rules of the Organization which provided for a different age of retirement for female Cabin Crew and a different age of retirement of male Cabin Crew and she challenged it on the touchstone of Article 25 of the Constitution of Islamic Republic of Pakistan. This High Court and consequently the Supreme Court held that such a rule was in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan. It was contended before the Supreme Court that the matter pertained to terms and conditions of service and therefore, jurisdiction was with the Service Tribunal and High Court's jurisdiction was barred by Article 212 of the Constitution. The Supreme Court observed as under:--- "(10) The second controversy raised by both the learned counsel for P.I.A. Was that the matter brought about by the respondent's before the High Courts essentially related to the terms and conditions of service and, hence, in view of newly added section 2-A of Service Tribunals Act, 1973, the remedy of the respondents lay before the Federal Service Tribunal and not before the High Court. In this behalf as well, we feel ourselves in disagreement with the learned counsel on two-fold ground. Firstly, that at the time of filing the writ petitions no order, whether original or appellate, made by a departmental authority against the respondents was in field within the contemplation of section 4 of the Service Tribunals Act, 1973 so as to challenged before the Tribunal. Secondly, the age of retirement fixed by Regulation 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985, was a term and condition of the service of the respondents. Had this term and condition been violated by the department, the respondents would have had the right to challenge the same before the Tribunal.
(11) Conversely, the situation in hand is quite the reverse because the vires of the very term and condition arising out of Regulation 25 is challenged for being violative of Article 25 of the Constitution and for being a discrimination purely based on sex. This challenge as such and singularly could not have been brought before the Tribunal, which in turn, had no authority to create a term and condition. It could only go into the question of violation or otherwise of an existing term and condition which may be challenged by a civil servant on numerous available grounds including one of being discriminatory. But that discrimination is referable only to the final order passed by a departmental authority within the purview of section 4 of the Service Tribunals Act. In the instant case, there was no order passed by the departmental authority original or appellate in violation of the already existing terms and conditions of service and thus, for getting a term and condition struck down on the basis of being violative of the fundamental rights guaranteed by the Constitution, the respondents could only resort to the High Court under Article 199 of the Constitution.
10. On the other hand, Mr. Aqil Awan relied upon Jamal Khan Jaffar's case (supra). Facts of the case were that two parties joined service of Government of Balochistan as Naib-Tehsildars in 1962. The respondent Rahim Shah was firstly thereafter directly employed as Tehsildar. However his employment was subsequently terminated with the result that he reverted as Naib-Tehsildar.
Subsequently Rahim Shah was promoted as Tehsildar. Thereafter a recommendation was made by member Board of Revenue for allowing him seniority and seniority was allowed with the approval of the Governor. Such was challenged by Jamal Khan Jaffar before the Service Tribunal.
In this context of facts it was contended by Mr. Aqil Awan that jurisdiction was with the Service Tribunal. Mr. Aqil Awan also relied upon Mukhtar Ahmad Junejo's case (Supra). In this case it was held by the Supreme Court that question of seniority can be agitated before Service Tribunal which has jurisdiction to decide it and the High Court cannot in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan adjudicate such questions.
11. A perusal of the above case-law indicates that it is now well-settled proposition that when the dispute is in respect of interse seniority of petitioner and respondent the jurisdiction is exclusively that of the Federal Service Tribunal and this Court cannot enter upon such an exercise in exercise of its Constitutional jurisdiction. However, as has been held in Samina Masood's case where a particular term and condition of employment exists and what is challenged is that term and condition of employment and not a specific order passed by the competent authority in respect of that term and condition of employment, constitution petition would be maintainable. What has happened in this case is that a term and condition of employment has been decided by the President that the petitioners ought to be regularized with effect from a date three years after the date they were taken on deputation, as canvassed by the private respondents, or transferred as canvassed by the petitioners. The petitioner does not challenge seniority but the very basis of regularization. Consequently this Constitution Petition is held to be maintainable.
12. It has been argued by Mr. Khalid Jawaid Khan that the private respondents are ad hoc employees. Basis of such an argument by Mr. Khalid Jawaid Khan is with reference to Rule 3 of the Federal Public Service Commission (Functions) Rules, 1978. This rule mandates that the Federal Public Service Commission shall conduct test and examination for recruitment in all posts in connection with the affairs of the Federation in BS-16 or above or equivalent except, inter alia, posts specified in the schedule to the rules. Entry 7 in the Schedule prescribes "posts of Senior Auditors (BS-16)" in the Sales Tax Department, under Central Board of Revenue. This entry was inserted by notification No,S.R.O.477(I)/99. Mr. Khalid Jawaid Khan is perfectly right in contending that this notification is prospective in nature (and it could not have been otherwise) and since the notification came in 1999 and since the private respondents came in employment in 1996 they could not have been granted benefit of this notification.
13. Mr. Sohail Muzaffar placed on record a summary dated 31-5-1995. It was recommended to the .President that the posts of Senior Auditors BS-16, amongst many other posts be taken out purview of the Federal Public Service Commission by including them in Schedule to the Rules of 1978 for a period of 9 months. The President approved it and consequently notification dated 14-6-1995 was issued. It therefore appears that exclusion of the posts in question was approved by the President on or about 31-5-1995. The respondents were recruited on March 31, 1996 and it is claimed, in terms of the special exemption granted by the President of Pakistan. However, the President on 31-5-1995 granted exemption for nine months. The period of nine months expired on last day of February 1996. Their appointment therefore cannot be said to be irregular. Therefore it is held that the private respondents entered in employment as ad hoc employees and would remain as such till regularized.
14. The third question that has to be looked at is whether the petitioners are deputationists or whether they were transferred. The first letter in this regard is dated 12-8-1996. Relevant part of the letter is as under:--- "In pursuance of the options solicited by the Central Board of Revenue and conveyed by the Collectorate on the subject matter, the following officials have been selected for appointment to the posts of Senior Auditor (BS-16) and Auditor (BS-14) in the Sales Tax Collectorates on deputation basis under section 10 of the Civil Servants Act, 1973 on usual terms and conditions:"
' Thereafter on 8-7-1998 letter was issued, whose material part stated as under:-- "I am directed to say that during 1996 auditors and Senior Auditors were recruited by transfer from Customs, Central Excise Auditor General Department in Sales Tax Department. In regard their retention/reversion the following information may be furnished to the Board by 25-7-98.
(1) They are willing to be absorbed in the Sales Tax Department in the Sales Tax position and grade in which they are presently on deputation;
(2) They have earned no average/below average/adverse remarks in their ACRs during the period of such deputation;
(3) No prosecution/ disciplinary proceeding is pending against them; and
(4) The respective Collector is willing to retain/absorb him in his Collectorate."
' In consequence of this letter option forms were submitted and the option letter read as under:--- "It is most respectfully submitted that I was recruited as Senior Auditor in BPS 16 in the year 1996 and I am willing to work as Senior Auditor in the Sales Tax Department.
' It is, therefore, requested that my services as Senior Auditor may please be absorbed in the Collectorate of Sales Tax (West) Karachi."
15. Mr. Khalid Jawaid Khan relied upon Muhammad Arshad Sultan's case (supra). Facts of the case were that the appellant was appointed as Section Officer in the Cabinet Division through Federal Service Commission and his services were regularized on 14-11-1998. Private respondents were posted as Section Officers (BS-17) in Office Management Group on deputation from other departments between 1976 and 1985 and they were finally absorbed through transfer of their services with effect from 18-2-1989. However in the seniority list the private respondents were shown as senior to appellants. The appellants filed an appeal before Service Tribunal which was dismissed. Leave was granted by the Supreme Court to consider whether the. Private respondents who were initially appointed on deputation basis and were absorbed subsequently by transfer of their services were entitled to claim seniority from the date of joining as Section Officers or from the date of their regular appointment as Section Officers. The Supreme Court noticed that through Ordinance No, 3 of 1984 in section 8 (relating to seniority) words "post", "service or cadre" and "cadre" were substituted with words "grade", "service, cadre or grade" and "grade" respectively were substituted in subsections (1), (2) and (3) of section 8 respectively. Thereafter the Supreme Court observed that prior to amendments seniority list of civil servants was prepared on the basis of such civil servants being member of a service but after amendment concept of preparation of seniority list of civil servants on the basis of being in a particular grade was done away with. Thereafter the Supreme Court noted the definition of deputation as given in ESTACODE. Thereafter the Supreme Court reproduced Para-6 appearing on page 335 of ESTACODE which para is in the following words:--- "(6) Seniority on transfer form one office to another--- (i) The instructions in the foregoing paragraphs regulate the position of a deputationist in his parent office. As regards his seniority in the office to which he is transferred it should be determined in the following manner:--
(a) When it 'is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office.
(b) When a person is compulsory transferred to another office as a result of conscription, or along with the post and his work, he should be allowed to count his previous continuous service in the grade forwards seniority in the grade in(?) the new office. It may be pointed out that separate seniority lists be prepared in respect of (i) persons appointed on a permanent or a quasi- permanent basis; and (ii) persons appointed on a purely 'temporary should be assigned his appropriate place, in' accordance with the above instructions in the list of the persons to which category he belongs.
(ii) The seniority of a person who went on deputation from one office to another before 31st March, 1951 should be determined in his new office, in accordance with the following instructions:-
(a) In order to get the benefit of continuous service in a grade, a deputationist be permanent in that grade in his parent office, and not merely eligible for being made permanent. In case, however, he is subsequently made permanent in a grade in his parent office from a retrospective date, his seniority should be changeable in the borrowing Ministry/Department, and he should be considered to be permanent on the date of transfer, and given the benefit of his continuous service in the borrowing Ministry/Department in that grade;
(b) A- deputationist can get the benefit of his continuous service in a grade in the borrowing Ministry/Department only if he is appointed in the borrowing Ministry against a regular post in accordance with the roster prescribed in the Establishment Division Office memorandum No, 54/2/48-Ests. (ME), dated the 21st November, 1949 (Reproduced at pages 161-165 in Chapter XXII, Establishment Manual, Vol.111). If, however, he is appointed in the borrowing Ministry/Department against a temporary post, he will take seniority with effect from the date he is appointed against a regular post, and all persons in the borrowing Ministry who are permanent in that grade, or have been appointed according to the prescribed roster on the date of the deputationist's temporary appointment, will take seniority over him."
' Thereafter the Supreme Court observed that since the record before it did not reflects whether appellants were asked to exercise option or not therefore, the matter was remanded to Service Tribunal. The Supreme Court finally observed that seniority is computed differently in cases where transfer is at the option of the employer than in cases where employees are compulsorily transferred.
16. Mr. M.M. Aqil Awan, relied upon Anwar-ul-Haq v. The Director, Commercial Audit and others, 1992 SCMR 939. Facts of the case were that initially recruitment examination was held by the Auditor General of Pakistan in January, 1981 and petitioner was selected as Apprentice Accountant in Pakistan Audit Department. Subsequently an offer for appointment was made to him containing terms and conditions. It was also stated that he was required to pass a department examination and if he failed to pass that examination he would be reverted to his position at the time of enrolment as Apprentice Accountant. Offer was accepted. Subsequently the petitioner could not qualify examination. Consequently his Apprenticeship was terminated and he was offered job of Senior Auditor which option he accepted. Subsequently petitioner passed the promotion examination and was promoted to BS-16. He applied that reversion may be reconsidered. His application was rejected. Supreme Court observed that the regularization from the date of appointment as trainee could not be with retrospective effect. Facts of the case are distinguishable. Maj. (Retd.) Muhammad Matlub Khan v. Government of Pakistan through Secretaries, Establishment and Defence Divisions, Islamabad and 2 others, 1993 SCMR 798. The facts were that the petitioner came over from Pakistan Army on secondment to the civil post of BS- 18 (Assistant Director) in Intelligence Bureau initially for a period of two years which was extended up to 15-2-1983 and with effect from the date he was re-employed in the Intelligence Bureau on contract basis for a period of three years. However, subsequently contract was extended up to 15- 12-1988 when vide notification dated 16-12-1988 he was inducted in the Intelligence Bureau on regular basis with effect from 15-2-1983 i.e, the date on which he retired from Pakistan Army. He claimed seniority in the cadre of Assistant Director with effect from 1-7-1978 i.e, the date he came to the Intelligence Bureau on secondment. The Supreme Court noted that the appellant was on contract till 1988 and therefore he fully knew that his employment did not qualify him for the status of civil servant.
17. Reference may also be made to the Establishment of Sales Tax Service Rules, 1995 issued by notification S.R.0.843(1)/95, dated 24th August, 1995. Under that notification a service to be known as Sales Tax Service was established (Rule 3) "cadre post" were defined service was defined as Sales Tax Service which was deemed to be a service under Rule 3 of the Occupational Groups and Service (Promotion, Training and Seniority) Rules, 1990. Rule 4 related to Composition of the Service and prescribed that it shall consist of members of the Customs and Excise Group who opt to become members of the Service and also the persons directly appointed through the Commission or those appointed in accordance with the law. Rules of seniority were also laid down.
18. Now one may conveniently refer to the documents through which the petitioners claim to become the Senior Auditors. These have been produced up in extenso. The first. Is letter dated August 12th, 1996. This letter says that the persons have been selected for appointment to the posts of Senior Auditors on deputation basis under section 10 of the Civil Servants Act on usual terms and conditions. Thus, the appointment was originally on deputation basis and was on usual terms and conditions i.e, usual terms and condition of deputation. Thereafter option was asked from them in respect of their retention or reversion which option they duly exercised and requested that they may be absorbed. The above narration clearly indicates that they came to the service on deputation. Under para (ii)(b) of Para-6 quoted above a deputationist takes seniority with effect from the date he is permanently absorbed in the other department. It is also prescribed in ESTACODE that normal deputation period shall be three years (S.No,29-B page 429 ESTACODE, 2005 Edition) and it is also prescribed that the maximum period of deputation can be 5 years. Thus, normal period of deputation is three years and, as quoted above, the petitioners were transferred on deputation basis on usual terms and conditions.
19. The sum of the above discussion is that:--
(1) The petitioners came to their present service on deputation basis on usual terms and conditions.
(2) Normal period of deputation is three years.
(3) The private respondents were not regularly appointed and were ad hoc employees all along till regularized.
(4) Since the petitioners' normal period of deputation expired after three years they are entitled to regularization after three years and this is what has been now decided by the Prime Minister.
(5) The private respondents who have been ad hoc employees could not be given retrospective regularization in such a way that they become senior to the petitioners. Therefore the order that the private respondents be regularized with effect from the date of induction in employment is ex- facie discriminatory and therefore void and has caused prejudice, in violation of law, to the rights of the petitioners.
19. Consequently while we uphold the action of the department authorities in absorbing the petitioners' three years after they came to the department on deputation, we direct that regularization of service of the private respondents shall be with effect from a date in such a way that they remain juniors to the petitioners.
' This Constitution Petition is disposed of in the above terms.