KARAM ELAHEE "CAUHAN. J.-The petitioners were appointed in the P. C. S. (Executive Branch) in May; June, 1972. The order of appointment of Muhammad Nawaz (Petitioner No. 3 herein) which is contained at page 34 of the paper book reads as follows :- Government of N: W. F. P.
Services and General Administration Department (Service Wing)
Mr. Muhammad Nawaz Khan, son of Muhammad Faizullah Khan, is offered a post in the P.C.S. (E. B.) in the grade of Rs. 450-.50-I,OOU with usual allowance as admissible under the rules.
(2) His employment in the P.C.S. (E. B.) is purely temporary and on ad hoe basis, for a period of. Six months. His services are liable to be terminated without assigning any reason at 15 days' notice or on payment of 15 days' salary in lieu thereof.
(3) He shall join duty at his own expense.
(4) In case he wishes to resign at any time, 15 days' notice shall be necessary or in lieu thereof 15 days' pay shall be forfeited to Government.
(5) He shall have to produce a medical certificate of fitness if his service continues beyond six months.
(6) He shall be governed by such rules and orders relating to leave, travailing allowances, medical attendance, pay etc., as have been or may hereafter be prescribed by Government and made applicable to him or the service to which he belongs.
(7) This appointment order shall not confer any right on him for regular appointment to the same post nor shall his service be counted towards seniority.
(8) The post shall be filled on regular basis on the basis of competitive examination for P.C.S. (E. B.) to be conducted by the Public Service Commission, N: W. F. P. And he shall have to compete in the said Examination for regular appointment subject to eligibility.
(9) If he accepts the post on the aforesaid conditions, he should report himself for duty to the Commissioner, D.
1. Khan Division, D. I. Khan, as soon as possible.
(10) The offer shall be cancelled if he does not report for duty to the Commissioner, D.
1. Khan Division, D. I. Khan within one month of the receipt of this appointment order.
(Sd.) MUHAMMAD AMIN, Section Officer (S.)11, for Chief Secretary to Govt. Of N: W. F. P., Peshawar. To Mr. Muhammad Nawaz Khan son of Muhammad Faizullah Khan c/o Azam, S. H. O., Lady Reading Hospital, Peshawar."
2. It is conceded that the appointment letters of the other two peti--tioners (Zain Khan Khalil and Haider Gul) (petitioners Nos. 1 and I respec--tively) were also of the same type and pattern.
3. The initial appointment of the petitioners as is evident was for a part of six months, and they continued in service by similar-(extension of service or new appointment)-orders which were issued for small periods from time to time dates thereof need not be given.
4. On 27-11-1978 the Governor of the N.-W. F. P. Decided to absorb them in the P. C. S. (Executive Branch) on regular basis. For this purpose he issued a formal notification which is contained at page 27 of the paper book and reads as follows:- Government of N.-W. F. P.
Tourism, Sports, Services and General Administration Department (Services Wing)
Dated, Peshawar, the 27th November, 1978 Notification No. S.O.S.-II (S&GAD)2(6l)/73).-in exercise of the powers conferred by section 26 of the North-West Frontier Province Civil Servants Act, 1973 (N: W. F. P. Act XVIII of 1973), the Governor of the North-West Frontier Province is pleased to direct that in the West Pakistan Civil Service (Executive Branch)
Rules, 1964, the following further amendment shall be made namely AMENDMENT For rule 10, the following rule shall be substituted, namely :-- "10. Absorption of Lawyer Magistrates.-Notwithstanding anything elsewhere contained in these Rules, but subject to the provisions of rule 8, the Governor of the North-West Frontier Province may-
(a) absorb in the Service in such manner as he may determine such persons, as 'are holding the posts ofLawyer Magistrates in the Province, and whom he considers suitable for such absorp--tion ;
(b) assign the persons so absorbed suitable seniority in the Service, which shall not in any case be earlier than their respective dates of appointment as Lawyer Magistrates ; Provided that the conditions as to pay and superannuation of such persons shall not be varied to their disadvantage.
(Sd.) Chief Secretary to Government of North-West Frontier Province."
5. In accordance with the aforesaid the petitioners were appointed or absorbed as Lawyer Magistrates on various dates and were given seniority with reference to those dates. However, feeling that their seniority should be dated back to the year 1972 when they were initially appointed as Lawyer Magistrates in May/June, 1972, they filed an appeal before the N.-W. F. P. Service Tribunal but without any success as it was dismissed on 31-12-1979.
6. The petitioners have now come up in a petition for special leave to appeal against the order of the Tribunal to this Court.
7. Learned counsel for the petitioners has submitted that according to rules 10 as reproduced in para. 4 above their seniority should have been fixed with reference to their initial dates of appointment in year 1972 and not from the dates of their appointment/absorption on regular basis as Lawyer Magistrate in the P. C. S. (E. B.). The contention has no merit. Rule 10 above-quoted authorizes the Governor to "assign the persons so absorbed suitable seniority in the Service, which shall not in any case be earlier than their respective dates of appointment as Lawyer Magistrates."
The rider that their seniority "shall not in any case be earlier than their respective dates of 1appointment as Lawyer Magistrates" has reference to the date or dates on _A which they were to be appointed in the form of absorption as Lawyer Magistrates onward from and in implementation of the aforesaid rule, and not to their date of initial periodic induction in service, because, there could be no question of prohibiting the relegation of their seniority from a date still backward from that date, and as such there was no sense in making a rule prohibiting the doing of that which even otherwise was not possible. Rule 10 clearly shows that Lawyer Magistrates were to be absorbed in service and obviously in batches or from time to time onward from 27-11-1978. It was in that context and with reference to that eventuality that the rule was issued that they would be given suitable seniority which shall not relegate from any prior date but only from their respective dates of their regular appointment by absorption. The rule from that point of view was against the contention of the petitioners and not in their favour as they think. This was quite con--sistent with reference to the manner and terms in which they were initially appointed and then continued on periodic service from time to time on their separate conditions in which it was very clearly emphasised that they shall have no claim to seniority on the basis of the service then offered to them on those terms. Again grant of seniority to such periodic employees over those who may have in the meantime (say a period of 6/7 years)-come into the service on regular basis through a competitive examination by the N.-W. F. P. Public Service Commission was even otherwise. Not justified and it is 8 for this reason that it was laid down in rule 10 that they will not be given seniority from any date earlier than their date or dates of regular appointment by absorption as held by us.
8. When confronted with this situation learned counsel for the petitioners wanted to take exception to their periodic appointment from the very begin--ning or from time to time on contract basis, by pleading that these con--tractual terms were unconscionable and should be ignored and that they should be considered in service on regular basis from the very start throughout. Apart from the fact that this plea is factually incorrect even otherwise there is nothing unconscionable in the contracts of periodic appointments, because, they were on the peculiar facts and circumstances of the case rather a gesture of kindness on the part of the Provincial Government to keep them in service which otherwise could have come to an end on the terms contained in their very basic and initial appointment letters or subsequent letters of the same and similar type.
9. The result is that there is no merit in this petition which is dismissed hereby.