JAWAD-UL-HASSAN, MEMBER-I --- Since common questions of law and facts are involved in the above titled three appeals, therefore, I intend to dispose of the same by consolidated judgment as all the appeals are similar and arising out of the same facts and circumstances.
2. Brief facts of the case are that the appellants Asad Abbas Magsi, Naila Tayyab and Shafaq Saleem were appointed as Section Officer on contract basis vide notification dated 4.4.2005, 2.10.2004 and 13.2.1999 respectively. In the case of appellants Asad Abbas and Naila Tayyab the period of appointment was five years and their appointment was made in relaxation of rule 3(1) of the Punjab Civil Servants (A&C of Service) Act, 1974 and rule 4 of the Punjab Provincial Managements Service Rules, 2004. In the matter of appellant, Shafaq Saleem the period of appointment was two years and she was posted in the Education Department against an existing vacancy. Their appointment letters are reproduced verbatim for ready reference: No. A.III(S&GAD)15(38)/2005 GOVERNMENT OF THE PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (Section Admn. III)
Dated Lahore the 4th April, 2005 NOTIFICATION On acceptance of offer of appointment issued vide letter No. A-III(S&GAD)15(38)/20056, dated 18.3.2005, Mr. Muhammad Asad Abbas Magsi s/o late Akhtar Abbas Magsi is appointed on contract basis as Section Officer (BS-17) in the Punjab Civil Secretariat, Lahore with immediate effect for a period of 5 years in relaxation of Rule 3(1) of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 and Rule 4 of the Punjab of Provincial Management Services Rules, 2004. Terms and Conditions of her contractual appointment will be settled separately in consultation with the Finance Department.
2. Consequent upon his appointment as Section Officer (PMS/BS-17) on contract basis Mr. Muhammad Asad Abbas Magsi is posted in the Information Technology against an existing vacancy of Section Officer.
Khushnood Akhtar Lashari Additional Chief Secretary No. & Date Even A copy is forwarded for information/necessary action to:--- 1 The Accountant General Punjab, Lahore
2. The Principal Secretary to Chief Minister Punjab, Lahore
3. The Secretary to Govt. of the Punjab Information Technology Department.
4. The Superintendent, Govt. Printing Press, Punjab Lahore for publication in official Gazette.
5. The Under Secretary (A-II) S&GAD with reference to his letter No. SO. Admn-II/1-152/86, dated 15.3.2005.
6. The Section Officer (Accounts), S&GAD 7 Mr. Muhammad Asad Abbas Magsi son of Late Mr. Akhtar Abbas Magsi r/o Riazabad near DHQ Hospital, Muzaffargarh.
8. The P.S. to Additional Chief Secretary, Punjab
9. The P.A. to A.S. (Admn) S&GAD.
Sd/- Section Officer (Admn-III)
No. A.III(S&GAD)15(27)/2004 GOVERNMENT OF THE PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (Section Admn.III)
Dated Lahore the 2nd October, 2004 NOTIFICATION Mst. Naila Tayyab resident of Flat No. 5, Civil Lines Apartments, Queens Road, Lahore is appointed on contract basis as Section Officer (BS-17) in the Punjab Civil Secretariat, Lahore with immediate effect for a period of 5 years in relaxation of Rule 3(1) of the Punjab Civil Servants (Appointment &.
Conditions of Service) Rules, 1974 and Rule 4 of the Punjab Provincial Management Service Rules, 2004.
2. Terms and Conditions of her contractual appointment will be settled separately.
Khushnood Akhtar Lashari Additional Chief Secretary No. & Date Even A copy is forwarded for information/necessary action to:---
1. The Accountant General Punjab, Lahore
2. The Principal Secretary to Chief Minister Punjab, Lahore
3. The Superintendent, Govt. Printing Press Punjab, Lahore for publication in official Gazette.
4. The Section Officer (Accounts), S&GAD
5. Mst. Naila Tayyab r/o Flat No. 5, Civil Lines Apartments, Queens Road, Lahore.
6. The P.S. to Additional Chief Secretary, Punjab.
7. The P.A. to A.S. (Admn) S&GAD.
Sd/- Section Officer (Admn-III)
GOVERNMENT OF THE PUNJAB SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (Section Admn.III)
Dated Lahore the 13th February, 1999.
No. 4-III(S&GAD) 15(3)/99. Miss Shafaq Saleem d/o late Ch. Muhammad Saleem is hereby appointed as Section Officer (BS-17) on contractual basis for a period of 2 years with immediate effect and is posted in Education Department against an existing vacancy.
2. Terms and Conditions of her contractual appointment will be settled in consultation with Finance Department in due course.
Additional Chief Secretary No. & Date Even A copy is forwarded to:---
1. The Accountant General Punjab, Lahore
2. Secretary to Govt. of the Punjab, Lahore Education Department
3. The Secretary to Chief Minister Punjab, Lahore
4. Miss Shafaq Saleem d/o Late Ch. Muhammad Saleem Ex-Commissioner Bahawalpur r/o 362 Ravi Block Allama Iqbal Town, Lahore Sd/- Section Officer (Admn-III)
3. All the appellants through the appeals in hand sought the following relief:--- Appeal No. 3732/2015 (Asad Abbas Magsi)
"It is therefore prayed as follows:---
(i) Appellant's appeal may very kindly accepted.
(ii) Impugned orders dated 27.2.2013 and 29.6.2015 may kindly be set aside.
(iii) In pursuance of Honb'le Chief Minister's order of 2007, and law laid down by Hon'ble Supreme Court in 1993 SCMR 1323, 2003 SCMR 291 and above-noted precedents appellant may kindly be ordered to be regularized as PMS/Section Officer/DDO in BS-17 from 4.4.2005 and necessary order/notification to this effect be issued by modifying Notification dated 1.8.2012.
(iv) The period of probation of Appellant as already fixed also kindly be curtailed.
(v) Appellant may kindly be awarded such other relief/reliefs to which I am considered under the law and facts as narrated above.
Appeal No. 3735/2015 (Naila Tayya b)
"Keeping in view above-mentioned facts it is respectfully prayed that the impugned orders may kindly be set aside and respondent be directed to regularize the services of the appellant w.e.f the dates when they actually assured the charge of the post of Section Officer in the Punjab Civil Secretariat, in the interest of justice."
Appeal No. 3736/2015 (Shafaq Saleem)
"Keeping in view above-mentioned facts it is respectfully prayed that the impugned orders may kindly be set aside and respondent be directed to regularize the services of the appellant w.e.f. the dates when they actually assured the charge of the post of Section Officer in the Punjab Civil Secretariat, in the interest of justice."
4. It is evident from the communique bearing No PSC-DDEX-I/2012/115-EX dated 24.4.2012 (as addressed to the Addl. Chief Secretary) of the Secretary Punjab Public Service Commission with respect to the regularization of services of the appellants some facts were noted as under:--- Asad Abbas Magsi "Mr. Akhter Abbas Magsi, then EAC Khanewal was murdered on 15.8.1988 when his son Asad Abbas Magsi was 4 years old. Upon boy's graduation his mother approached S&GAD for appointment as S.0, ,which the Chief Minister approved on contract basis for five years w.e.f. 4.4.2005. The contract period was extended for further 5 years from 4.4.2010 to 3.4.2015."
Ms Shafaq Saleem Ch. Muhammad Saleem, the. Commissioner Bahawalpur Division died on 17.12.1998 in a helicopter crash near Lahore while being on duty. His daughter Shafaq Saleem was appointed on compassionate grounds as Section Officer on contract basis from 16.2.1999 and further extended as under:---
(i) from 16.2.2001 to 15.2.2003
(ii) from 16.2.2003 to 15.2.2008 (iii)from 16.2.2008 to 15.2.2013 Mrs. Naila Tayya b Mr. Tayyab Saeed, then DPO, Narowal got martyred on 6.5.2004 while performing his official duties.
In recognition of his sacrifice his wife Naila Tayyab was appointed as Section Officer on contract basis for five years from 15.10.2004 to 14.10.2009 and the same was extended for another five years from 15.10.2009 to 14.10.2014."
5. Govt. of the Punjab (S&GAD) sent a letter dated 17.6.2010 to the PPSC, Lahore for determining the suitability and eligibility for the post of Section Officer/Dy. District Officer and whereby the names and details of the appellants were specifically mentioned. The PPSC, Lahore evaluated the service record and after interview declared and held them suitable vide its report bearing No. PSC-DDEX- I/2012/115-EX, dated 24.4.2012. The PPSC while declaring them suitable recommended for their appointments on regular basis. Thereafter, the authority (CM Punjab) appointed the appellants in PMS service in BS-17 on regular basis on recommendations of the 'PPSC in relaxation of rules 17 and 18 of the Punjab Civil Servants (A&C of Services) Rules, 1974 and rule 3(1) of the Punjab Public Service Commission (Functions) Rules, 1978 with immediate effect. Their regular appointment was made inter alia subject to the following conditions:---
(i) The appointment of the above-mentioned persons will be governed under the provisions of the Punjab Civil Servants Act, 1974 and rules framed thereunder, as well as instructions issued thereunder by the Government from time to time.
(ii) They will remain on probation as prescribed under Section 5 of the Punjab Civil Servants Act, 1974 read with Rule 7 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and will be required to complete training satisfactorily and will pass departmental examination as prescribed under the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012. They will be governed by the PMS Rules, 2004 and other rules, regulations and instructions applicable to PMS Service as enforced heretofore and issued in future.
(iii)They will not claim any benefit including seniority for the period of their contractual appointment.
(vii)..................
(v) ....................
(vi) ...............
(vii) ..................
(viii)The period of their contract appointment, shall not be counted for any purpose (pension, gratuity, leave etc.) on their appointment under the Punjab Civil Servants Act, 1974 and the rules framed thereunder. The salary component of such employees shall be in accordance with the pay scales plus the usual allowances prescribed for the posts against which they are being appointed. They will however, not be entitled the payment of 30% social security benefits in lieu of pension or any other pay package being drawn by them.
(ix)..................
(x).................................
The appellant Asad Abbas Magsi through a representation dated 26.9.2012 approached the authority for curtailment of probation period and conditions attached to his appointment letter.
The appellant Naila Tayyab also submitted a representation with regard to conditions and probation period which was not decided and later on 22.8.2014 she again reiterated her contention seeking the curtailment of her probation period and counting the period of service on contract basis towards to seniority and pension contribution. Likewise, Shafaq Saleem also made representation against the conditions of probation and counting the previous service w.e.f, 16.2.1999 to 31.7.2012 towards seniority. Such representations of the appellants were rejected on 27.2.2013 by the competent authority (Addl. Chief Secretary) as conveyed by the S.O. (Admn-IV) through the official letter. This order was called in question by the appellants before the Chief Secretary in a departmental appeal. The departmental appeals of the appellants remained abortive. The Chief Secretary, Government of the Punjab dismissed the same vide impugned order dated 29.6.2015, hence these appeals.
6. Mr. M.A. Riaz Ahmad, Advocate, counsel for the appellant namely Asad Magsi stated that the conditions attached with the regular appointment letter are illegal. According to him the appellant is not probationer in terms of PMS (Probationer) Training and Final Passing Out Examination and Seniority Rules, 2012 because the appellant was not inducted into service through combined competitive examination by the Commission and such rules are not applicable in case of the appellant. According to him, the probation period as envisaged in Section 5 of the PCS Act, 1974 read with rule 7 of the Punjab Civil Servants (A & C of Service) Rules, 1974. Further added that the seniority of the appellant will be counted from the date when the appellant was inducted in service on contract basis, therefore; he argued away while professing that the impugned orders are against law and deserve to be set aside. In this regard, he relied upon judgment of the Supreme Court of Pakistan dated 6.3.2015 passed in CP No. 1462/2013.
7. Mr. Inam-ul-Haq, Advocate, counsel for the appellants namely Shafaq Saleem and Naila Tayyab, opted the argument of the learned counsel Mr. M.A. Riaz and further stated that the appellants if accepted the terms and conditions of the appointment letters are not binding upon them as they were not in possession to deny the same which in fact were not acceptable under the law to them.
Their contract period in no case be excluded for determination of their seniority and other benefits.
Added that actually the appointment of the appellants was not on regular basis because at the relevant time the contract policy was not in vogue. He prayed for acceptance of the appeals.
8. Conversely, learned District Attorney assisted by the D.R. vehemently opposed the contentions of the learned counsel for the appellants and contended that the appellants accepted the terms and conditions attached to the appointment letters whereby the contractual period shall not be counted towards seniority. Likewise, they cannot claim the seniority from the date of commencement of the contractual period. It was added that no rights recognized by the law were infringed, therefore, they have no right to invoke the jurisdiction of this Tribunal. He prayed for dismissal, of the instant appeals.
9. Arguments heard and record perused.
10. Undeniably the appellants were inducted into service by Government of the Punjab by adopting mode of contracts which were extended from time to time. Finally, the matter was referred to the Punjab Public Service Commission, Lahore with the intention to find out their eligibility and suitability to appoint them on regular basis. Upon recommendations of the Punjab Public Service Commission, the Government of the Punjab through order/notification bearing No. 2- 4/2012(Admn)-IV, dated 1.8.2012 appointed all the appellants as PMS officer in BS-17 regular basis with immediate effect. While doing so, Government of the Punjab relaxed rules 17 and 18 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Likewise, rule 3(1)(i) of the Punjab. Public Service Commission (Functions) Rules, 1978 was also relaxed. It is also evident that when the contracts were offered to the appellants, the relevant rules were also relaxed, meaning thereby the requirements of examination or test for initial recruitments were dispensed with and modes of recruitment in BS-17 as envisaged from Punjab Civil Servants, Act, 1974 and Punjab Civil Servant (Appointment and Conditions of Service) Rules, 1974 like advertisement etc. were dispensed with. Moreover, the requirement of the advertisement in the newspapers was also dispensed with. It is evident from the record that the competent authority (Govt. of the Punjab) also dispensed with the requirement of the rule 3(1)(i) of the Punjab Public Service Commission (Functions) Rules meaning thereby examination and test by the Punjab Public Service Commission was iet off. At the time of issuance of the order/notification dated 1.8.2012 after appointing the appellants on regular basis with immediate effect, a dispute arose between the parties when the Government of the Punjab subjected their regular appointments to some conditions attached with notification dated 1.8.2012. Such conditions are subject-matter of this lis before this Tribunal. The appellants requested the department for curtailment of the probation period i.e. the most important condition. Such request was declined by the department which led the appellants to invoke jurisdiction of this Tribunal accordingly. Following certain questions are involved for resolution of the controversy:
(i) Whether the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules. 2012 are applicable in case of the appellants.
(ii) Whether the appellants are probationer within the meaning of the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012.
(iii) Whether the conditions of passing departmental examination as prescribed under the PMS probations rules are applicable.
(iv) Whether the appellants cannot claim the benefits including the seniority for period of service on contract basis.
(v) Whether the period during which the appellants were on contract basis be accounted for their seniority.
(vi) Whether the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 is applicable in case of the appellants inclusion of the PMS Probation Rules.
11. In respect of questions regarding the applicability of the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012 in case of the appellants and to determine whether their probationer in view of the said rules. The rules ibid were notified by the Secretary Regulations S&GAD on 17.5.2012 which came into force at once according to definition clause i.e. 2(i)(g) the probationer means a person appointed to a post through combined competitive examination of the Commission i.e. the Punjab Public Service Commission. Undeniably, the appellants were inducted into service while dispensing all the rules relating to the .competitive examination as envisaged in the appointment letters i.e. rules 17 & 18 the Punjab Civil Servants (Appointment and conditions of Service) Rules, 1974 and rule 3(1)(i) of the Punjab Public Service Commission (Functions) Rules, 1978. The definition of probationer in the words speak as under:-- 2(1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)probationer means a person appointed to a post through the combined competitive examination of the Commission.
The above definition and words used therein convey a definite means which cannot be cut down so as to alter the meaning. When the words perfectly plain and clear must be given their natural meaning. The appellants are not probationer because they have not been inducted through combined competitive service thus, it is found and held that the appellants are not probationer within the meaning of rule 2(1)(g) of the above-referred rules. Next question arises as to whether the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012 are applicable and conditions attached with their regular appointments notification are valid in nature.
According to Rule 1(2) of Rules ibid this rule came into existence at once and no retrospective effect was given meaning thereby these rules are operative from the date of its notification dated 17.5.2012 but at the same time, according to sub-rule (3) of rule 1 of Rules ibid these Rules are applicable to PMS (BS-17) officers appointed pursuant to the recommendations of the Commission made on or after the commencement of these Rules. The words used recommendation of commission made on or after the commencement of the rules actually resolve the controversy itself because in these terms these rules are, applicable to those officers who were recommended by the PPSC on 17.5.2012 or thereafter but in case in hand, the Punjab Public Service Commission recommended the appellants for appointment on regular basis on 24.4.2015 through a letter bearing No. DDEX-112012/115-Ex,dated24.4.2012. The date of recommendations i.e. 24.4.2012 and date of commencement of the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012 are very important. Such rules came into existence on 17.5.2012 and before this cut-off date the Punjab Public Service Commission had already recommended the appellants for their regular appointments meaning thereby the recommendation by the Punjab Public Service Commission was prior to promulgation of the rules, therefore, rules of the PMS (Probationers)
Training, Final Passing Out Examination and Seniority Rules, 2012 are not applicable in the case of the appellants at all. The condition attached with the appointment letter regarding applicability of the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012 is contradictory to the law itself. It appears that the authority while attaching this condition has erred in law and could not understand the wisdom, meaning and purpose of the PMS (Probationers)
Training, Final Passing Out Examination and Seniority Rules, 2012. in its true perspective. Thus the condition in hand is violative of law being not applicable in case of the appellants, therefore, this condition is waived and set aside.
12.The condition (ii) as attached with the appellant letter dated 1.8.2012 speaks that the appellants will remain on probation as prescribed under Section 5 of the Punjab Civil Servants Act, 1974 read with Section 7 of the Punjab Civil Servants (A & C of Service) Rules, 1974 because it is valid in nature and the law and rules ibid are general law on the subject. According to Section 5 of the Punjab Civil Servants Act, 1974 all appointments to a service shall be on such probation for such period of probation as may be prescribed. The period of such probation has been prescribed by the legislative in rule 7 of the Punjab Civil Servants (A & C of Service) Rules, 1974 according to which the period of probation was fixed for one year, two years which was further extendable for not more than two years. Sub-rule (3) of the rule 7 makes it clear that if no order has been made by the day following the completion of the initial probation period the period of probation shall be deemed to have been extended. The proviso of rule 7 of rules ibid change the scenario while commanding that where the period of probation was extended the date of confirmation shall be the date on which the probation period was lastly extended. No such record was produced by the department in terms of the rules ibid. They have completed the period of probation as envisaged in Section 5 of the Punjab Civil Servants Act, 1974 and rule 7 of Punjab Civil Servants (A & C of Service) Rules, 1974.
No wisdom and reasons were found why both the conditions of probation as contained in Section 5 of the Punjab Civil Servants Act, 1974 and rule 7 of Punjab Civil Servants (A & C of Service) Rules, 1974 and PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012 and such reasons were not explained by the department as found and held in the preceding paragragh, the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012 are not applicable in case of the appellant, therefore, the conditions are contradictory in nature which violates the mandate of law i.e. Section 5 of PCS Act, 1974 and rules framed thereunder.
13. The condition (iii) as attached with the appointment letter restrict that the appellants cannot claim any benefits including the seniority for the period of their contractual appointments. Likewise, the condition as contained in item No. viii regarding excluding the period of their contract appointment for the purpose of pension, gratuity, leave etc. The "seniority" of a civil servant is actually an advantage that he gets by working for provincial government for a long time. In a widely celebrated judgment the honourable Supreme Court of Pakistan Muhammad Aslam Awan, Advocate Supreme Court v. Federation of Pakistan (see 2014 SCMR 1289 at page 1312 in paragraph 31) held as under:--- "We find that even in service matters, while considering the seniority of civil servants, the seniority is reckoned from the date of initial appointment and not from the date of confirmation or regularization,"
The question arises what was the date of initial appointment of the appellants. The appellants were appointed on contract basis in the years 1999, 2004 and 2005 and were regularized accordingly on the recommendations of the Punjab Public Service Commission on 24.4.2012 with immediate effect.
The honourable Lahore High Court, Lahore in Dr. Khawaja Khursheed Ahmad's case (see 2014 PLC
(CS) 1068) at page 1075 in para 13 held as under:--- "Another question raised during arguments is whether Associate Professors working on contract basis in the Provincial Government should be offered regularization in service if they satisfy the prescribed qualification applicable on the date of their contract appointment or must they fulfill the qualification prescribed on the date when their services are considered for regularization. To simply, this question translates to whether the regularization amounts to initial recruitment or confirmation of an existing employment. This Court has in the case of Aftab Ahmad and others v.
Government of the Punjab and others (2012 PLC (CS) 6C2) concluded that the prescribed qualification for the purpose of regularization of service of a contract appointee should be that which was prevalent at the time of his appointment. This view has the support of reason in that regularization in service is not an initial recruitment but the confirmation of an existing employment."
According to the dictum laid down in 2014 SCMR 1289 and 2014 PLC (CS) 1068 the date of the initial recruitment of the appellant is from the dates (i.e. 4.4.2005, 2.10.2004 and 13.2.1999 respectively) when they were initially appointed as Section Officer on contract basis. Their seniority will be reckoned from the said date and not from the date of their regular appointment i.e. 1.8.2012. Thus from the above discussion it is found that the exclusion of their contract period for the purpose of seniority and pensionary benefits, gratuity and leave etc. is illegal and violative of law.
14. The contentions of the D.R. as well as D.A. is that the appellants cannot invoke the jurisdiction of this Tribunal as they accepted terms and conditions of their regular appointment. Thus, no relief can be granted. According to them, they have been stopped to challenge the terms and conditions of their regular appointment, in this regard, no formal acceptance of the appellants was produced for consideration. It is noticeable that at the relevant time, the appellants were not in position to deny the terms and conditions on account of fear of unemployment and losing the job.
In case of Abdul Bari and 524 others v. National Bank of Pakistan reported as 2005 SCMR 100 at page 116 the honourable Supreme Court of Pakistan considered such circumstances and held as under:--- "In the case of Pakistan v. Public-at-Large PLD 1987 SC 304 it was contended that before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it as not in the nature of a free consent between the agents. On one hand, State power was projected in the form of statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v.
Government of the Punjab and 5 others PLD 1980 Lah. 37 it was held that the employer being placed in position of authority and strength could always coerce employees to their legal protection and accept contractual terms and the pains of his job."
(underlines are mine)
5. Upshot of above discussions is that the impugned orders are not sustainable in the eye of law.
Thus, it is declared that the appellants are not probationers within the meaning of the PMS (Probationers) Training, Final Passing Out Examination and Seniority Rules, 2012 and these rules are not applicable in case of the appellants. Moreover, the previous service rendered by the appellants on contractual basis with the department shall be counted towards seniority, retirement, pensionary benefits.
15. For what has been discussed above, the appeals are accepted and impugned orders are set aside. The office is directed to place on record copy of the instant judgment in connected appeals.