' S.ABDUL JABBAR KHAN (CHAIRMAN).-- Sheikh Mumtaz Ali, District Attorney, Abdul Hafeez Wattoo, District Attorney, Barkat Ali Hussaini, Assistant District Attorney, Rashid Ahmad Siddique D.A. And Manzoor Hussain, A.D.A. Have filed appeals under section 4 of the Punjab Service Tribunals Act of 1974. Although there is difference of facts yet the legal points involved are identical in nature, therefore, after considering the facts of each appeal in brief we will decide all the five cases by single judgment.
2. By virtue of these appeals all the appellants have made a common prayer i,e, that the appeals be accepted and impugned seniority list so far as it relates to the appellants viz, contesting respondents be set aside, and they may be assigned seniority as claimed by them. It has been further prayed that the benefit of their services as P.Ps. And A.P.Ps. Be allowed to them from the date of their appointment towards pension, gratuity, leave and other benefits.
3. In case of Sheikh Mumtaz All he has impleaded Province of the Punjab, through Secretary to Government of the. Punjab, Law Department, Solicitor to Government of the Punjab, Lahore, Punjab Public Service Commission and M/s. Zulfiqar Ahmad Paracha, Syed Hassan Ali Shah, Abdul Hafiz Watoo, Nazam-ud-Din, Haroon Rashid Cheema, Muhammad Ashraf Bajwa, Abdul Haleem, Malik Abdul Haque and Mukhtar-ul-Ahsan Cheema while Abdul Hafeez Watoo, D.A., has impleaded besides the Government functionaries only two other respondents i,e, Mr.Zulfiqar Ahmad Piracha and Syed Hassan All Shah, in case of A.D.As. Mr.Barkat All Hussaini has impleaded besides the Government functionaries M/s. Muhammad Anwar Naseem, Akhtar Hussain, Syed Abbas Raza, Sheikh Muhammad Aurangzeb, Ch. Muhammad Siddique, Javid Ahmad Cheema and Malik Javaid Iqbal as respondents. In case of Rashid Ahmad Siddique besides the Government functionaries he has added Barkat All Hussaini, Athar Saeed Qureshi, Mian Munir Ahmad, Haider All Khawaja, Lutfullah Khan, Muhammad Noor Ellahi, and Saleem-ur-Rehman so impleaded by Barkat Ali Hussaini. In case of Ch. Manzoor Hussain A.D.A., the appellant, has impleaded all the respondents so impleaded by Rashid Ahmad Siddique and has added Rashid Ahmad Siddique as respondent also.
4. Brief facts of the case are that Sheikh Mumtaz All and Abdul Hafeez Watoo initially joined as Public Prosecutors and continued as such till it was decided by the Department to reorganize the department through selection by Public Service Commission. Similar is the case of the A.D.As. Who had joined as A.P.Ps. And continued serving as such till they were also required to appear before Public Service Commission for fresh appointment. All the appellants appeared before the Public Service Commission as required by the Government and with the exception of Mr. Rashid Ahmad Siddique and Manzoor Hussain they were selected and appointed as District Attornies and A.D.As.
Respectively. In case of Rashid Ahmad Siddique and Manzoor Hussain the Public Service Commission did not declare them successful but the Government ignoring the advice of the Public Service Commission (which it was competent to do so) made their appointment as A.D.As. After the selection and appointment the respondent No, 1 issued an impugned seniority list in which it was found that Sheikh Mumtaz All and Abdul Hafeez Watoo D.As. Were placed junior to their respondents as D.As. And similarly Barkat All Hussaini, Manzoor Hussain and Rashid Ahmad Siddique A.D.As. Were also palced junior to their contesting respondents. All of them filed representations to the Government which were rejected. Hence this appeal.
5. We have heard the learned counsel for the appellants, appellants themselves, learned D.A. And Malik Azam Rasul, Advocate on behalf of the Government respondents and many of the respondents themselves and have perused the record of this case carefully with their assistance.
The entire case of the appellants revolves against the following issues which have been brought forward by the learned counsel for the appellants during the course of arguments:-
(1) As appellants were of a regular service as P.Ps. And A.P.Ps., therefore, their case was that of absorption and not a case of initial recruitment.
(2) Public Service Commission has acted beyond its jurisdiction in assessing the case of the appellants on merits and by allocating them seniority according to its own assessment.
(3) Impugned seniority list published by the respondent No,1 was illegal as the same was based on basis which had no legal sanction behind it. The appellants were entitled to the benefit of their past services both in matter of pension etc. As well as the seniority.
6. In order to adjudicate the first issue whether the appellants were members of regular service by virtue of which they had to continue and to be absorbed only we shall have to look into the Rule 4.10 of the Law Department Manual of 1934. According to this Rule the period of such service was only for four years and the appellants service had to be renewed again at the discretion of the Government. It was also provided that this service could be terminated by the employer by giving a notice of three months. Similarly according to Rule 7 the service could be terminated without assigning any reason for not reappointing such incumbents and the claim of four years' service in no way bestowed upon a P.P. Or A .P.P. To claim reappointment as a right. They were also not entitled to pension benefit and were also allowed to be engaged in private practice if it did not affect the interest of their employer (Govt.). In view of above and by reading Rule 4.10 alongwith Rule 4.9 we have no hesitation to hold that the appellants were not members of a regular service as claimed by them and the impact of dictum of PLD 1970 Quetta 115 would not be applicable in their case. In the above-mentioned case two persons involved were regular Government servants who were initially appointed on an ad hoc basis but later on as no such notification was made to show that their ad hoc appointment was renewed, therefore, their Lordship in that case held that continuation of service of an ad hoc person without a positive renewal would be deemed to be regular in nature. In the present case the PP/Govt.Pleader cannot be clothed with a status of Civil Servant as defined in section 2 of the Punjab Civil Servants Act of 1974. This issue also came for adjudication in writ petition filed by Lal Akhtar Khan before single Judge of Lahore High Court before Mr.Justice Shafi-ur-Rehman and it was held that the class of the appellants to which the present appellant also belong was not that of Civil Servants and their case would not be a case of absorption but a case of fresh appointment by the Public Service Commission. The same was further discussed in I.C.A . When Lal Akhtar Khan agrieved by the Single Judge's judgment agitated the matter before a Division Bench. It was held by their Lordships that the previous continuous service of the appellants did not bestow upon him, the status of a Civil Servant and at the time of reorganization their case was that of initial recruitment only. For this rule 31 of the Punjab Civil Servants Appointment and Conditions of Service (Rules 1979) was relied upon. It has been laid down in the Rule as under:- "Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the post in grade from time to time."
' As the case of the appellant before us is neither a case of promotion nor a case of transfer, therefore, we are in full agreement with the considered judgment of the Lahore High Court in I.C.A.
That the case of the appellant would only be the case of initial recruitment.
7. With regard to the second issue that the Public Service Commission acted beyond its jurisdiction, it may be pointed out that according to the Public Service Commission function Rules, read with Appointment and Conditions of Service Rules ordinarily it would be the P.S.C. Who would exercise its jurisdiction for determining the suitability as well as other merits of candidates from N P S 16-20. In this exercise they would be empowered to hold a written test plus viva voce. This matter also came for adjudication before the Single Judge and it was also raised before the I.C.A. And it was held that the P.S.C. Had all powers in this regard and the decision of the Provincial Cabinet with regard to the absorption of the existing incumbents on selection after scrutiny of their record at the Secretariat level was not approved by the Governor, M.L.A. Their Lordships dilated at length on this issue and observed that Cabinet Decision in no way bestowed any right on the appellants when the same was rejected ultimately by the Supreme Authority in their case.
8. In this connection we also find that the appellants submitted themselves to the tests and examination so conducted by the Public Service Commission, therefore, it does not he in their mouth to say that they did not acquies in the matter of their selection and their acquiescence was either under some duress or under some compelling circumstances. Therefore, appellants, appointment letters would also disclose that the station to which they were assigned was shown as station of their first appointment which could also support the contention of the respondent that they had accepted their appointment as a fresh one and did not raise any objection or protest against it.
9. With regard to the third issue that the impugned seniority list so published by the Respondent No,1 was illegal it would be sufficient to say that we have repelled all the arguments in this behalf while dealing with issues Nos,1 and 2, therefore, the impact of the same would be applicable to this issue also. We have held that appellants were not members of a regular service, they appeared before the P.S.C. Voluntarily and accepted all the tests and examinations, they took over charge although they were told that this was their first appointment and that their ease was a case of initial recruitment and not that of absorption therefore, we hold that the list published by the respondent No,1 was fully according to the order of merits assigned to the appellants by the Public Service Commission after adjudging their suitability as well as their merits. We uphold the list as absolutely regular and justified.
10. With regard to the second prayer of the appellants to count their services rendered in the capacity as Public Prosecutor and Additional Public Prosecutor towards pension, it has been argued that they fulfil most of the conditions laid down under rule 2.1 of the West Pakistan Civil Servants Pension Rules. It has also been argued that their case is on a better footing than that of the teachers and staff of the Teaching Institutions which were provincialised and were given the benefit of pension for the services rendered in the said institutions because they had been working under the Government for all intents and purposes. They have also submitted that Land and Water Development Board, which was an autonomous body, was dissolved, and on the transfer of its employees in the I and P Department, the pensionary benefits for the past service rendered by its employees were given by the Government. In this way, the appellants have submitted that the Government has indulged in discriminations, by refusing to count their past service towards pensionary and other benefits.
11. We have given our anxious thoughts to this aspect of the case as well and have also gone through the rules so relied. Under rule 2.1 of the Pension Rules it has been laid down that in order to qualify a person for the grant of pension he must fulfil the conditions laid down thereunder which inter alia provides that his services must be under the Government, that the services must be paid by the Government from the Provincial Consolidated Fund and that it must not be non- pensionable we find that the appellant and the contesting respondent fulfil the conditions so laid down under the Pension Rules except clause 3 i,e, the service must be pensionable.
12. We have also taken note of the fact that the service of the teaching staff and other officials of the schools and colleges of Local Councils were provincialised by the Government and their past service was counted for the purpose of pension etc. Similarly the past service was also counted for the employees of the defunct Land and Water Development Board, when they were transferred to I and P Department. When we look into this background we fail to understand as to why the Government is reluctant to treat the period of service of the appellants and the contesting respondents for purpose of pensionary and other benefits when it has considered the past service of the staff of even autonomous bodies. The appellants admittedly were employed in connection with the affairs of the Province, and were in service continuously without any break, although on a contract basis, yet they were governed by all other service Rules including Disciplinary Rules, T.A., Medical Attendance Rules and other Financial Rules and enjoyed the benefits etc. Of the said rules.
So their case is definitely on a better footing than that of the staff of the aforementioned institutions. We are not oblivious of the facts that the appellants and the contesting respondents had spent their long years of life in the Prosecution Agency established by the Government without any break in service and many of them have gone grey and have kept a creditable record to their credit. Although rule 1.5 of Pension Rules has laid down that the said rules would not be applicable to the Government servants engaged on contract but as already held above, the Public Prosecutors/Additional Public Prosecutors are entitled to count their past service towards pension etc. Because all the tenants of a contractual service are non-existent in their case.
13. Before parting with the judgment we may also bring it on the record that Ch.Muhammad Yunis, Additional District and Sessions Judge also made an application under Order I, rule 10, C.P.C. For impleading him as a party in the appeal because he has served the respondent Government as Additional Public Prosecutor/Public Prosecutor, and he was likely to be affected by the judgment of this Tribunal regarding the prayer of counting the past service towards pension. This application was accepted by us and he has been treated as one of the parties to the appeal.
14. In view of the above we hold that the services rendered by the District Attorneys/Assistant District Attorneys in their capacity as Public Prosecutors under the Government, is liable to be counted towards leave, gratuity, pensionary and other benefits. As such, the appeal succeeds to this extent only.
15. Resultantly the appeal is dismissed in so far as seniority is concerned and it succeeds only to the extent discussed in para. 14 above.