' MUHAMMAD AZIM KHAN AFRIDI, J.--- Mir Ahmad Khan, Director (M&E), Pakistan Bait-ul-Mal hereinafter referred to as the petitioner is seeking issuance of writ under Article 199 of the Constitution of Islamic Republic of Pakistan hereinafter referred to as the Constitution with a prayer to declare order dated 6-3-2009 as unlawful, void as initio and in consequence of the above, directions to consider the petitioner for promotion in BPS-20 with all consequential benefits be issued.
2. Facts emanating from the constitutional petition are that the petitioner was employed as Director, Monitoring and Evaluation (BPS-19) on regular basis w,e,f, 19-11-1992 while Tariq Khurshid, hereinafter referred to as respondent No,4, was appointed in BPS-19 on 23-1-1997 as Director on ad hoc basis and, later on terminated from service vide order dated 1-3-1998. That on promulgation of Sacked Employees (Re-instatement) Act, 2010, hereinafter referred to as the Act, respondent No,4 was reinstated and illegally appointed as Deputy Manager BPS-20 in Pakistan Bait-ul-Mal vide order dated 6-3-2009. That against the said illegal and unlawful order petitioner submitted departmental representation to the Secretary, Establishment Division hereinafter referred to as respondent No,1 but the same has not been responded to so far.
3. That the case of respondent No,4 would not fall within the ambit of "sacked employees" as he was not appointed within the specified period i,e, 1st November, 1993 to 30th November, 1996 and that he was holding the post on ad hoc basis while he has been appointed as a regular employee in higher position in BPS-20. That the petitioner was not considered for promotion to BPS-20 in spite of his entitlement as the said post was illegally and unlawfully filled in by reinstating and appointing respondent No,4 against the same. That the petitioner having no other alternate efficacious remedy, has resorted to invoke the constitutional jurisdiction of this Court.
4. Learned counsel for the petitioner has argued that those sacked employees were to be reconsidered for reinstatement who were appointed within specified period i,e, 1st November 1993 to 30th November, 1996 and dismissed, removed or terminated from service during the period from 1st November, 1996 to 31st December, 1998. That respondent No,4 was appointed in the service of Pakistan Bait-ul-Mal on 23-1-1997 and that too on ad hoc basis for a period of six months. That he was even not a regular employee and as such his restoration of service under the Act to the post of BPS-20 was unlawful, ultra vires and contrary to law which act of the respondents has adversely affected the right of legitimate expectancy vested in the petitioner, as in case of vacant position, the petitioner was to be considered for promotion. He further argued that the petitioner has since been retired from service, however, in view of the judgment of the August Supreme Court of Pakistan (unreported) passed in Civil Appeal No, 539 of 2009 (Mrs. Shagufta Razzaq Mirza v.
Government of Pakistan through Secretary Education) the case of the petitioner can be considered for promotion irrespective of factum of retirement as impediment in his promotion. He also placed reliance on the case-law reported in 2008 SCM R 1138 (Federation of Pakistan and others v. Amir Zaman Shinwari, Superintendenting Engineer) wherein a retired civil servant was granted emoluments of the stipulated period.
5. On the other hand, learned counsel for the respondent has argued that the post of Deputy Manager (BPS-20) was not available to the cadre for promotion as the same was to be filled in by the Federal Government through initial recruitment. That respondent No,4 was initially appointed on 20th November, 1995 and was later on inducted to the organization of Pakistan Bait-ul-Mal through proper channel and as such respondent No,4 was a regular employee. That the appointment and termination orders of his services are covered by the time limit specified in the Act.
6. Arguments of the learned counsel for the parties heard and record perused.
7. The points arising out of the case of the parties for determination are:---
(i) Availability of the post of Deputy Manager (BPS-20) with reference to legitimate expectency of consideration for promotion of the petitioner;
(ii) Factum of retirement of the petitioner; and
(iii) Eligibility of respondent No,4 against the said post.
8. According to Chapter XVI of Pakistan Bait-ul-Mal Services Regulation, post of Deputy Managing Director (BPS-20) is to be filled in by the Federal Government through direct appointment. The said position and other positions in BPS-20 to BPS-22 are, therefore, not made available for promotion and appointments to such posts are to be made available by initial recruitment. Thus the petitioner cannot claim appointment to the said post by promotion and as such no vested right of the petitioner including his alleged vested right of legitimate expectency to the higher scale BPS-20 was neither available nor violated or infringed.
9. It is not disputed that the petitioner has retired from service though during the pendency of constitutional petition. Facts of the cases (Civil Appeal No,5398 of 2009 and 2008 SCM R 1138 are quite distinguishable from the case in hand as in the said cases the employees were superceded by promotion of junior officers and as such retrospective effect to the appointments order of the employees in the said cases were given while in the case in hand the petitioner was neither superceded by any junior officer nor he was entitled to be considered for the same.
10. According to section 2(f) of the Act, persons appointed in corporation service, autonomous, semi-autonomous body or any government service during the period from 1st day of November, 1993 to 30th day of November, 1996 (both days inclusive) and dismissed, removed or terminated from service during the period from 1st day of November, 1996 to 12th October, 1999 (both days inclusive) were covered by the definition of "sacked employee" and sacked employees were to be reinstated in service in the manners prescribed under the provisions of section 4 of the Act and their services regularized w,e,f, date of promulgation of the Act i,e, 8th December, 2010. Respondent No,4 was initially appointed on 20th November, 1995 and, on the strength of letter No,PAL-CH-1(1)/97 dated 22-1-1997 relieved from his assignment of Special Assistant to the Chairman National Commission of History and Culture, Pakistan Academy of Letters w,e,f, 22-1-1997, to join the post of Director (BPS- 19) Bat-ul-Mal, Lahore. On the basis of office order dated 4-2-1997, respondent No,4 was absorbed and appointed as Director (IFA) BPS-19 w,e,f, 23-1-1997 as an ad hoc employee. He was terminated from service vide order dated 1-3-1998. The Special Committee of the cabinet on sacked employees in its meeting dated 20-5-2009 had declared ad hoc employees entitled for reinstatement. Thus respondent No,4 was neither disqualified on the basis of date of appointment in service nor on the basis of date of termination from service or due to the fact that he was an ad hoc employee.
11. In view of the above writ petition is found devoid of merits, same is, therefore, dismissed leaving the parties to bear their own costs.