' ZULFIQAR AHMAD KHAN, J.--- Brief facts of the case are that advertisements were published in the local, newspapers by Respondent No,1 in the year 2004, inviting applications from the eligible aspirant for 210 posts of Audit Officers (BPS-17) on contract basis for one year. After going through the process of tests and interviews respondents Nos. 6 to 67 (totaling 62 in number) were appointed for one year and contract letters were issued to them. They accordingly assumed charge in the year 2005. Key terms of the appointment letter included:
(a) "Period of Contract: One year from the date of assumption of charge. The period of contract may be extended for another year on the basis of your performance;
(b) Seniority: You will not have any seniority and will not be placed on regular gradation list of the cadre in which the post for the time being held by you is included".
2. The Respondent No,4 (Secretary Cabinet Division) issued directives on 17.05.2012 vide order No, 3- 5/2011-Admin-1 to the Respondent No,1 (Auditor General of Pakistan) to regularize the services of these 62 private respondents (having been appointed as Audit Officers) in accordance with "fulfillment of recruitment criterion and availability of posts".
3. The petitioners' grievance is that the Respondent No,1 instead of considering the condition precedent of fulfillment of recruitment criterion and availability of posts issued orders dated 21.05.2012 thereby regularized and upgraded the services of these 62 Audit Officers to BPS-18, merely placing reliance on the aforesaid letter.
4. The counsel for the Petitioners drew our attention to S.R.O. 977(1)/2008 dated 12.09.2008 (2008 SRO) wherein methods, qualifications and other conditions including quota have been laid down for the posts of Assistant Audit Officers ana Audit Officers pertaining to the departmental cadre in the Department of the Auditor General of Pakistan wherein per paragraph 2, the appointment to the post of Audit Officer (PBS-17) is required to be filled on 100% by promotion and on 50-50 basis for the post of Assistant Audit Officer (BPS-16) between 'promotion' and by initial appointment' basis. The said SRO also provided that an Assistant Audit Officer has to have 3 years of service to be promoted to the post of Audit Officer.
5. Meaning thereby, the counsel contended that: (a) there is no quota reserved for direct (permanent) recruitment of Audit Officers (BPS-17), as pursuant to the above referred 2008 SRO, only Assistant Audit Officers can be promoted to the permanency of Audit Officer, and that too after they have completed 3 years of initial service of Assistant Audit Officer; and (b) there are no provisions that Audit Officers (BPS-17), hired on contract basis, can he regularized and promoted to BPS-18.
6. The counsel thus submits that the 62 respondents having been regularized vide the said notification dated 21.05.2012 without considering the requisite experience, qualification, age and availability of the positions of Audit Officers and contrary to the provisions and policies set by the above referred 2008 SRO.
7. While replying to the assertions of the counsel for the petitioners, the learned standing counsel submitted that these 210 new posts as advertised, are part of the department's new field Audit Officers deployed at District level as a result of devolution reforms for considering audit and certifying accounts of the District Governments. These posts were sanctioned by Ministry of Finance during 2003 and were filled at the ratio of 50-50 between retired Audit Officers and fresh graduates on contract basis. While the contract of retired Audit Officers expired, the contract for the graduates was extended for another term of two years, followed by one more year. They drew our attention to a proviso provided under paragraph 2 of the said 2008 SRO which reads "provided that if no suitable person is available for promotion, the post(s) reserved for promotion shall be filled by initial appointment and failing to transfer".
8. With regards the promotion to BPS-18, the learned DAG relied on S.R.O. 829(1)/2000 dated 16.11.2000 where the Auditor General of Pakistan (Respondent No,1) being the head of the department, is fully competent authority to make appointments for BPS-17 to 18.
9. The learned counsel for the Respondents and the respondent representing himself contended that all the new recruits are highly qualified as MBA, M.Com and ACMA and possess usually more than 9 years of, experience in the required field. Since their services were satisfactory, their term of employment was extended again and again and to continue to retain them, offer of making them permanent employees was made. It was contended that the Government through Federal Cabinet Committee has already regularized employees on contract basis in many other ministries. Cases of all these respondents were placed before the said Committee who regularized them totally on merit. It was submitted that these 62 respondents were selected amongst more than 4,000 persons who applied for the post advertised. The process of selection was totally transparent and competitive tests and interviews were held.
10. It was also contended that most of these 62 respondents were appointed in 2005 at which time, the 2008 SRO was not in field and the appointments were made under S.R.O. 17(1)/2000 dated 22.01.2000 ("the 2000 SRO") which had pari materia provisions and provided that if no suitable person(s) is available for promotion, the posts reserved for promotion shall be filled by initial appointment and failing to transfer. Since the respondents were appointed under the 2000 SRO, therefore any subsequent alternation or deviation affecting adversely to them would not apply thus provisions of 2008 SRO cannot prejudice the respondents' case.
11. While both the sides supported their contentions with a few case-laws, the learned counsel for the petitioners specifically filed a statement attaching a copy of orders passed in C.P. D-4215/2011 by this Court wherein certain employees of NHA who were temporarily taken into service for a short period of time (89 days), upon their completion of these days' of service, were regularized in the responsible posts of BPS-17 to BPS-19 in violation of NHA Service Rules and NHA Act. The court held such regularization was without lawful authority and of no legal effect. Upon a review was sought wherein, the court did not prefer to intervene and upheld the earlier orders. However, in the instant case, as it can be seen, facts are entirely different as well as the circumstances have also changed.
Here the employees were engaged on contract-basis in 2005 and served for seven years before their services were regularized in 2012. Per the above referred SROs, there is no irregularity committed either at the time of their employment, as both the said SROs permitted the department to fill the posts by initial employment if no suitable persons(s) were available for promotion. Therefore, in our view, the orders passed in the above referred C.P. D-4215/2011 relate to different circumstances and distinguishable to the facts and circumstances of the instant case.
12. It was also contended that majority of the petitioners are junior to the present respondents as they were employed in the year 2009 and it require more than 5 years to be promoted into higher cadre through DPCs, therefore no grievance could have been caused to their rights by the present private respondents who joined the department long before them (in 2005), therefore the said respondents have vested right of regularization in view of the law laid down by the Hon'ble Supreme Court in the case of 2015 SCM R 1257. This case has striking similarities with the case in hand. Here the appellants were appointed in Telephone Industries of Pakistan ("TIP") on a contract for one year which was extended on year to year basis and were not regularized till a cabinet sub- committee on regularization approved their regularization, however the MD TIP did not heed to it whereupon the employees of TIP filed writ petitions before Peshawar High Court, which were dismissed. Thereafter they moved to the Apex Court, which held that "TIP's non-compliance, rather defiance of the decision of the cabinet sub-committee to regularize the services of the appellants, and not heeding to the directive of their Ministry to comply with said decision, compliance whereof is being sought by the appellants, is wholly illegal and mala fide. Even otherwise, since as noted earlier, the retention of the appellants by TIP for a period of more than 12 years and repeated renewal of their contracts of employment, clearly shows that the posts/positions held by the appellants were/are of permanent nature which were essentially required by TIP for its functioning and that repeated renewal of the appellants' contracts and the increments granted to them show also, that, the appellants have been discharging their duties to the satisfaction of their employer and therefore, employing/retaining the appellants on contract, instead on permanent basis was/is wholly male fide, whimsical and unfair. Such practice/conduct has also been deprecated through judicial pronouncements. The appellants have rendered prime time of their life in serving 77P and in the process may now have become overage for any other suitable." Services of the appellants in the above case were regularized from the date of the decision of the Cabinet's Sub- Committee for Regularization.
13. When we see the instant case through the prism of the said Apex Court judgment, we come to the same conclusion in respect of the regularization of the 62 respondents, who spent more than 7 years of their precious youth-time in a contract employment with the respondents and performed their services with employer's satisfaction. These respondents stand on good grounds of being regularized and promoted pursuant to the same decision of the Cabinet Sub-committee for Regularization, which was duly implemented by the respondent in letter and spirit (opposite to the above referred case of TIP, where the employers approached to Apex court against the department, who despite orders from the said Cabinet Sub-committee for Regularization were not regularizing their employees).
14. For the foregoing reasons, we don't see any merit in this petition, which is accordingly dismissed.