' MUSARRAT HILALI, J.--- Prayer in this petition is to declare the impugned letter of respondents 1 and 2 dated 22-2-2011 as illegal, unlawful and of no legal effect with direction for holding the petitioner entitled not only for the post of Research Officer but also for requisite age relaxation for appointment against the said post.
2. According to the petitioner, he is a qualified Doctor of Veterinary Medicine and has completed his M.Phil in Veterinary Medicine and Research. Besides, excellent qualifications, he has also been associated as a Veterinary Officer (Research) at Veterinary Research and Diagnostic Center, Abbottabad from 23-9-2007 till 30-6-2008. He has also been working as Veterinary Officer (Research) in the project called as Preparation and Evaluation of Trivalent Foot and Mouth Disease Vaccine at Veterinary Research Institute, Peshawar since 1-8-2008 in BPS-17 till date.
3. It is asserted that respondent No,1 advertised certain posts including four posts of Research Officers in VRI, Agriculture Department. Out of four posts so advertised, petitioner while belonging - to Zone-4 could compete on only one post on merit, as no seat was allocated for his Zone.
Maximum age limit prescribed for the post was 32 years, however, as per clause (i) of the General Conditions of the advertisement, certain relaxations in maximum age were postulated, which included relaxation up to ten years for government servants having completed two years continuous service and certain other relaxations available under the N.-W.F.P. Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008. The petitioner, while fulfilling the prescribed qualification as well as other conditions, applied for the said post on quota allocated for open merit, however, on the closing date of the advertisement he was over age by two years eleven months and twelve days, which fact was duly mentioned in his application. After due process, the petitioner was placed at Sr.No,1 of the merit list. As the petitioner was over age, therefore, he approached the competent authorities including his department as well as Establishment and Administration Department through proper channel for relaxation in terms of Rule 3(iii) of the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 but the same is still pending.
Even the petitioner also applied in writing to the Chief Secretary, Khyber Pakhtunkhwa for the same purpose but the issue remained undecided. Thereafter, the petitioner received a letter dated 24-12- 2010 issued by respondent No,2 requiring him for submission of Departmental Permission Certificate duly countersigned by competent authority and Experience Certificate by 7-1-2011, which were provided within the stipulated period. In the meanwhile, further amendment was made by Chief Secretary, Khyber Pakhtunkhwa in the N.-W.F.P. Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 to the effect that employees and ex-employees of development project of the Government of Khyber Pakhtunkhwa have clearly been included for the purpose of age relaxation vide Notification dated 29-1-2011. Subsequently, the petitioner received a letter dated 22-2-2011 whereby his candidature for the disputed post was cancelled on the ground of being over age and his application was also rejected, hence necessitated the filing of instant constitutional petition.
4. Learned counsel for petitioner contended that the impugned decision of respondents is against the law on the subject as not only the petitioner was entitled to age relaxation under clause (i) of the General Conditions of the advertisement but also under the beneficial clause (iii) of Rule 3 of the N.-W.F.P. Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008; that the petitioner was condemned unheard as no opportunity of hearing was afforded to him while taking the impugned decision; that after declaring the petitioner as a candidate to be recommended for recruitment, the respondents could not cancel the candidature of the petitioner, which is against the principle of locus poenitentiae; that the respondents have previously accorded age relaxation to some others for competing the Posts of Research Officers, thus, they could not refuse the same treatment to petitioner, similarly placed; that the contention of respondent No,2 with regard to applicability of amendment in rules is not tenable in law as the rules stood amended on the date of impugned decision, thus, prayed for acceptance of writ petition, inter alia, on the above grounds.
5. Learned A.A.-G. while opposing this petition contended that the petitioner was ineligible being over age on the closing date of advertisement; that the recommendee has not been arrayed as party; that the petitioner produced Departmental Permission duly countersigned by the competent authority as well as the Experience Certificate on 7-1-2011, wherein, it came to limelight that he was an employee of project, thus, the Commission cancelled his candidature and rejected his application being over age; that the petitioner can not take benefit of the provision of clause (i) of the General Conditions of the advertisement being project employee as well as Rule 3(iii) of the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 hence his candidature was cancelled followed by rejection of his application being over age; that the amendment brought in the said Rules of 2008 was not applicable to the case of the petitioner as the same was issued after the closing date of the Commission and did not have retrospective effect, thus, the impugned decision/order is in accordance with law to which no exception could be taken.
' We have heard learned counsel for the parties and gone through the record appended with this petition.
6. In the instant case, the respondents advertised various posts including the post of Research Officers. The petitioner finding himself eligible also applied for the same. The application of the petitioner along with other relevant documents was processed and thereafter was rejected on the ground that the petitioner was a project employee, hence was not entitled to automatic age relaxation.
7. The petitioner claims that he being an employee of government based funded project served the Government of Khyber Pakhtunkhwa in connection with the affairs of the Province, therefore, falls within the definition of government servant and is entitled to 3 years age relaxation in terms of Rule 3(iii) of the Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008.
8. In the matter before us, the fundamental issue would be the question as to whether or not the project employees shall be treated as government servants. The dictionary meaning of Project is a proposal or a scheme. In projects, employment is fixed for a specific period and is not of a permanent nature. The services of project employees are regulated by the terms and conditions, namely, nature and tenure of the appointment along with pay and other benefits as against government servant is a regular employee appointed and paid by the government, his service is regulated by Government Servant (Conduct) Rules, 1964. Besides, the petitioner in his application dated 1-1-2011 addressed to the Chief Secretary, Government of Khyber Pakhtunkhwa has admitted in Para-5 thereof that for the last two years and eleven months he had been working as Research Officer (BPS-17) on contract basis on projects posts in Veterinary Research Institute, Khyber Pakhtunkhwa Peshawar, thus, being a project employee the petitioner stands absolutely on different pedestal than a government servant, hence he can not be treated as government servant.
9. The question as to whether the benefit of 3 years age relaxation can be extended to the petitioner, it would be advantageous to reproduce the Notification dated 19-1-2011, which reads as under:--- ' GOVERNMENT OF KHYBER PAKHTUNKHWA ESTABLISHMENT AND ADMINISTRATION DEPARTMENT (ESTABLISHMENT WING)
NOTIFICATION ' Peshawar, dated the 29th January, 2011.
No, SOE-II(E&D)2-1/2007.--- In exercise of the powers conferred by section 26 of the North-West Frontier Province Civil Servants Act, 1973 (N.-W.F.P. Act No,XVIII of 1973), the Chief Minister of the Khyber Pakhtunkhwa is pleased to direct that in the North-West Frontier Province Initial Appointment to Civil Posts (Relaxation, of Upper Age Limit) Rules, 2008, the following further amendment shall be made namely. In rule 3,---
(a) in clause (i), in the TABLE, after serial No,v, the following shall be added, namely: S.No.Category of candidate Age relaxation admissible 1 2 3 vi.Employees or ex-employees of development project of the Government of Khyber Pakhtunkhwa; and (b)Employees of ex- employees of development projects of the Federal Government under the administrative control of the Government of Khyber Pakhtunkhwa.Equal to the period served in the projects, subject to a maximum limit of ten years."
(b) before clause (ii), the following proviso shall be added, namely: "Provided that the age relaxation at serial No, vi above shall not be availed in conjunction with any other provisions of these rules."
Sd/- CHIEF SECRETARY, GOVERNMENT OF THE KHYBER PAKHTUNKHWA.
10. Before commenting on the above quoted Notification dated 19-1-2011, it would not be out of place to mention here that the closing date for submitting the applications was 15-8-2009 whereas the Notification was issued on 29-1-2011, which does not contain a clause indicating that it has retrospective effect. In absence of any such clause, the amendment so made in the rules is to be held as prospective in nature which is of no help to the petitioner and in such eventuality the prevalent rules would be applicable. Any candidate, who applies for a post in response to advertisement issued by the Public Service Commission, shall be considered for selection in accordance with the prevailing rules and he cannot take benefit of any subsequent amendment in the rules unless the amendment so made have retrospective effect. In the case of Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Bilal Ahmad Kakaizai and others (2013 SCM R 890), the Hon'ble Supreme Court has held that a Notification concerning a Government post not to be given retrospective effect to extend benefit of regularization.
11. In the case in hand, the respondents have acted in accordance with the prevalent rules on the subject and there is no dispute that the petitioner at the relevant time was over age and was not eligible. In the circumstances, the respondents have not committed any illegality while canceling the candidature of the petitioner and ultimately rejected his application being over age.
' Accordingly, for the reasons discussed above, this writ petition has no legal substance, which is hereby dismissed.