' NAZIR AHMED BHATTI, J.--The facts of this writ petition are that an advertisement appeared in the Daily Khyber Mail Peshawar of 8th March, 1984 from the Secretary to Government of N.-W.F.P.
Industries, Commerce, Mineral Development, Labour and Transport Department (hereinafter referred to as the Government) for recruitment to one post of Economic Geologist. The qualifications required for the post of Economic Geologist were as under:- "Basic Pay Scale 18.--Master's Degree in Geology. Five years' experience of preparing feasibility reports/PC-1 schemes and economic evaluation of mineral deposits. Age 21-30 years, experience/qualification relaxable for outstanding persons."
' The post was temporary and subject to final selection by the Public Service Commission (hereinafter referred to as the Commission). Iqbal Jehangir Khan, petitioner herein, considering himself duly qualified for the said post, applied for recruitment to the said post. By order dated 25- 11-1984 the petitioner was selected on ad hoc basis and appointed as Economic Geologist in BPS-18 for a period of six months or till such time a nominee of the Commission was available whichever was earlier. The petitioner took charge of the said post on the same day. It appears that some delay occurred in completing formalities by the Commission for the regular selection of a candidate for this post and in the meantime the ad hoc appointment of the petitioner was extended for another period of six months beginning from 25-5-1985 or till the availability of a nominee of the Commission by order dated 3-8-1985. It further transpires that this period of ad hoc appointment of the petitioner was being extended from time to time and the last order in this respect was made on,29-11-1986 extending this period for another six months with effect from 25- 11-1986. In the meantime the Commission completed its formalities and petitioner was also one of the candidates but the Commission found that according to the qualifications prescribed by the Government the experience of the petitioner was short by one month and he was also required to submit evidence of preparation of PC-1 forms of any Government Department. The petitioner could not submit the aforesaid requisite PC-I forms and the Commission selected and nominated Qamar Hussain, respondent No, 5 herein for the said post on 17-1-1987. In the meantime a further development took place to the effect that an Ordinance was promulgated by the Governor of N.- W.F.P. On 21st of January, 1987 known as the N.-W.F.P. Ad hoc Civil Servants (Regularization of Services) Ordinance, 1987 (hereinafter referred to as the Ordinance). Under this Ordinance the services of ad hoc civil servants were regularised in accordance with the provisions laid down in section 3 thereof. It would be of profit to reproduce the provisions of section 3 as under:- "Notwithstanding anything contained in any law or rule, or in any decree, order or judgment of a Court, all civil servants holding ad hoc appointment to a post on or before 20th September, 1986, and continuing as such till the commencement of this Ordinance, shall be deemed to have been validly selected and appointed to the posts held by them on regular basis with effect from the date of commencement of this Ordinance: ' Provided that:
(i) the services of such civil servants shall be , deemed to have been regularized under this Ordinance only on the publication of their names in the official Gazette;
(ii) such civil servants possess the qualifications and experience prescribed for the posts; and
(iii) the commission has in respect of the posts held by such civil servants not recommended any other person on or before the commencement of the Ordinance."
' Iqbal Jehangir Khan petitioner requested the Government to regularize his ad hoc appointment in accordance with the aforesaid provisions of the Ordinance but failing to get redress he came up with the Writ Petition No, 589 of 1986 in hand.
2. In the same advertisement as referred to above another post of Financial Analyst was required to be filled in on temporary basis and the qualifications laid down for the said post were as under:- "Master's degree in Business Administration. Three years' experience of preparing feasibility reports/PC-1, financial appraisal of Industrial/mineral sector projects. Age 21-30 years. Experience relaxable in outstanding cases."
' Abdul Ishtiaa Ahmad petitioner of Writ Petition No, 429 of 1987 applied for the said post and he was also selected on temporary basis by order dated 30-12-1984 of the Government. It appears that this post was also then referred to the Commission for regular appointment thereto. Another advertisement with regard to this post appeared in the daily Khyber Mail Peshawar dated 11-8-1984 wherein former condition of five years' experience was reduced to three years' experience. Abdul Ishtiaq Ahmad was also a candidate before the Commission for the regular appointment to this post but it transpires that so far the Commission has not selected any candidate for this post.
Abdul Ishtiaq Ahmad also requested the Government to regularize his ad hoc appointment under the provision of section 3 of the Ordinance, but failing to get any redress from the Government he has also come up to this Court with Writ Petition No, 429 of 1987.
3. Since common points of fact and law are involved in both these writ petitions, the judgment in the Writ Petition No, 589 of 1986 Iqbal Jehangir Khan v. N.-W.F.P. Public Service Commission Peshawar and others will also dispose of Writ Petition No, 429 of 1987 Abdul Ishtiaq Ahmad v.
Secretary Industries Department and others.
4. We have heard learned counsel for the parties at length who have also led us through the record of both the writ petitions.
5. In so far as the writ petition in hand is concerned there are some further facts. Although Qamar Hussain, the selectee of the Commission has been impleaded as respondent No, 5 in the writ petition but he neither appeared in Court nor he contested the writ petition. Some documents have also been placed on record for our perusal by the learned Advocate-General today during hearing from which it transpires that there is some correspondence going on between the Commission and the Government and the Gemstone Corporation of Pakistan with regard to making available the Annual Confidential Reports of respondent No, 5 in order to finalize his case for regular appointment but the same were not being made available by the Gemstone Corporation. It is also noteworthy that although respondent No, 5 was selected on regular basis by the Commission on 17-1-1987 but he has so far not reported for duty and has not so far joined the service. It shall thus be seen that in spite of his selection on regular basis for the post of Economic Geologist on 17-1- 1987 by the Commission the respondent No, 5 had not joined his duty on 21-1-1987 when the Ordinance was promulgated and came into force. It is also further clear that the petitioner Iqbal Jehangir Khan was holding the post of Economic Geologist, on ad hoc basis on the date of enforcement of the Ordinance. The only objection with regard to the regularization of his post in accordance with the Ordinance appears to be the restrictions laid down by the proviso to section 3 of the Ordinance as reproduced above. It has been contended on behalf of the Government that Iqbal Jehangir Khan did not possess the requisite experience as also a selectee of the Commission was available to till the post and as such he could not claim benefit of regularization of his services under the Ordinance. It has already been noticed by us earlier in this judgment that when the petitioner applied for the post of Economic Geologist the period of his experience was short by one month only. There was also no condition in the advertisement that the candidate must be in possession of experience of preparation of PC-1 form of any Government Department. It was, therefore, much too oppressive on the part of the Government to lay down those conditions for the regularization of service of the petitioner which were initially not required from him. In so far as the point of experience is concerned, we notice with regret that the Government should show such callousness not to condone a shortage of one month in experience. No doubt the qualifications and experience for appointment on ad hoc basis are also the same as are required for appointment on regular basis under the provisions contained in the N.-W.F.P. Civil Servants Act, 1973 but the very fact that the petitioner was selected and appointed on ad hoc basis would show that the shortage of experience of one month was relaxed in his case. The actual position which thus emerges is that petitioner Iqbal Jehangir Khan was holding the post of Economic Geologist on ad hoc basis on 21-1-,1987 when the Ordinance came into force. The selectee of the Commission was available but he had not joined on the said date which would mean that the petitioner was continuing on the said date of his appointment on ad hoc basis. He was, therefore, entitled to claim the benefits of section 3 of the Ordinance. It is also noteworthy that although the post of Economic Geologist fell vacant in the year 1984 but a final selection on regular basis was made by the Commission in the year 1987 and in the meanwhile the petitioner had become overage for any other post under Government. This situation did not arise due to any fault on the part of the petitioner. This state of affairs was rather brought about by the Government and the Commission.
Had a regular candidate been selected in time, the petitioner could have sought appointment in any other field. But during this period he crossed the age of 35 years and has become ineligible for any direct recruitment under the Government. We can neither condone this Iaxity nor we can blame the petitioner for bringing about this situation. It has also to be kept in mind that the selectee of the Commission has also not so far reported for duty which would show that he is not interested in the job. We are, therefore, of the considered opinion that the refusal of the Government 16 grant the benefits arising from the provisions of the Ordinance to the petitioner was done without lawful authority.
6. In so far as the case of petitioner Abdul Ishtiaq Ahmad of Writ Petition No, 429 of 1987 is concerned, we have noticed that the Commission had not selected any candidate for the post of Financial Analyst before the coming into force of the Ordinance, and by a subsequent advertisement as referred to above the experience required for this post was also reduced to three years. As such the petitioner Abdul Ishtiaq Ahmad had got every right for the regularization of his services under the provisions of the Ordinance. The refusal of the Government to afford the benefit of such right to him is also without lawful authority and against the provisions of the Ordinance.
7. The net result of the above discussion is that we will accept both these writ petitions and would direct the Government to regularize the services of both the petitioners of both the writ petitions as admissible under the provisions of the Ordinance. There shall, however, be no order as to costs.