' 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 Mad 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 Mad 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) Rules, 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)/2005 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 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 Oficer (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 ' The Principal Secretary to Chief Minister Punjab, Lahore ' The Secretary to Govt of the Punjab Information technology Department.
' The Superintendent, Govt. Printing Press Punjab Lahore for publication in official gazette.
' 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 reside& 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 Services 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, ahore
3. The Superintendent, Govt. Printing Press Punjab Lahore for publication in official gazette.
4. The Section Officer (Accounts), S&GAD
5. Mst. Nana 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: ' Appellant's appeal may very kindly be accepted.
(i) Impugned orders dated 27.2.2013 and 29.6.2015 may kindly be set aside.
(ii) In pursuance of Honb'le Chief Minister's order of 2007, and law laid down by Hon'ble Supreme Court in 1993 SCM R 1323, 2003 SCM R 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.
(iii) The period of probation of Appellant as already fixed also kindly be curtailed.
(iv) 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 Tayyab)
"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 (Shafq 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-DDEXI/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 gradution 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:- {{TABLE}} from 16.2.2001 to 15.2.2003 from 16.2.2003 to 15.2.2008 from 16.2,2008 to 15.2.2013 {{TABLE}} Mrs. Naila Tavvab ' 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 cilia 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 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.
(iv)
(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 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 she 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 SO. (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 appella,nt. 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. Furthe-z added that the seniority of the appellant will be counted from the date when the appellant was inducted in service on contract basis, 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 condition 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)-W 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 Servant 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 let '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 P1VIS (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 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) (0
(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 probationers 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 Section 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-I/2012/115-Ex dated 24.4.2012. 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 cutoff 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.