1. SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine the questions of law of public importance; whether the appellant was not entitled to count the period of contract employment between 24-7-1977 and 23-7-1980, for the purposes of pension and to join the two periods of ad-hoc appointments for the purposes of pension, the one preceding the contract employment and the other following it; and whether the Tribunal had no jurisdiction to do what it recommended to the competent authority to do, if otherwise on merits of the case the appellant was, as held in the impugned judgment, entitled to such relief.
2. 2.By an order dated 14th of October, 1975, the appellant, Mr. Jam Rahman Durrani alongwith one Mr. Faizuddin, was selected for appointment to the post of Public Prosecutor in the Interior Division on the following conditions relevant to this appeal:-- "(iv) The appointment would be on probation and would also be governed by rule 4 of the Temporary Employment Rules, 1965 under which the appointment would be terminable at a fortnight's notice from either side.
3. (2)
(3) It is also added for their information that the two posts had been allocated to the Provincial quotas of (i) Sind (urban)--one post and (ii) Balochistan, Northern Areas and Centrally Administered Tribal Areas and Azad Kashmir--one post (i.e, persons domiciled in any of these areas would be eligible) and had been advertised through the F.P.S.C. But the Commission have informed this Division that applications of suitable candidates had not been received by them. It is, therefore, proposed to re-advertise the posts with suitable relaxation, if possible, and they may apply in response to the advertisement of the Commission in case they fulfil the conditions prescribed in the said advertisement,"
4. The period of ad hoc appointment was continued by periodically extending it upto 23rd of July, 1977. Thereafter, an Order/Notification issued on 25th of August, 1977, to the following effect:-- "Mr. Jamalur Rehman Durrani, whose period of appointment as Public Prosecutor (Grade-18), Interior Division, Rawalpindi, on ad hoc basis, expired on the 23rd July, 1977, is appointed to the same post, on contract basis, for a period of two years with effect from the 24th July, 1977. During the period of this employment on contract, the services of Mr. Jamalur Rehman Durrani will be liable to be terminated on one month's notice from either side."
5. 3.The period of contract employment was extended for a further period of one year expiring on 23rd July, 1980. The appellant was continued in service, thereafter, without specifying the terms and conditions thereof. On a summary submitted by the Interior Division, the following order was passed on 10-1-1982:-- "The competent authority has been pleased to grant ex post facto approval to the ad-hoc appointment of Mr. Jamal-ur-Rahman Durrani, as Public Prosecutor (Grade-18), in the Ministry of Interior on ad hoc basis for the period from 24-7-1980 to 23-1-1982, and to extend the tenure for a further period from 24-1-1982 to 30-6-1982, or till the availability of an F.P.S.C. Nominee, whichever is earlier."
6. 4.The appellant was finally approved by the Public Service Commission and was regularly appointed to that post as from 25-10-1982 though his ad-hoc appointment stood extended till 31st December, 1982.
7. 5.After retirement of the appellant, the question of the entitlement of the pension and the period counting towards pension arose and the Office of the Accountant-General informed the appellant on 17-4-1984, as hereunder:- "You have been appointed as Public Prosecutor (Grade-18) in the Ministry of Interior on ad hoc/Contract/regular basis as follows:-- 24-10-1975 to 23-7- 1977Ad hoc appointment.
8. 24-7-1977 to 23-7-1980Contract appointment.
9. 24-7-1980 to 31-12- 1982Ad hoc appointment.
10. 1-1-1983 to date. Regular appointment.
11. As such you are not entitled to the benefits of the Services rendered on contract basis 'towards the fixation of pay unless the period of contract service is regularized and counted by the Government.
12. Therefore, it is advised to approach the competent authority, through your department, in this respect for necessary action enabling us to proceed further in the matter."
13. 6.The appellant had already represented to the Ministry but the Establishment Division after examining it had rejected his claim observing as hereunder:-- "The facts relating to Mr. Durrani's appointment as Public Prosecutor, rather make interesting reading. Mr. Durrani, was first put on ad-hoc appointment, with effect from 24-10-1975, which period was extended from time to time and lastly upto 23-7-1977. During the period, Mr. Durrani appeared before the Federal Public Service Commission, perhaps twice, but was not selected.
14. Since his ad-hoc appointment, after his rejection, by the Commission, could not be extended, he was given a "contractual" appointment to override the impasse. In this position he continued uptil 23-7-1980. On the expiry of his contractual appointment, Mr. Durrani was again placed on ad-hoc appointment, as the contract period, could not be extended beyond two years, under the rules.
15. Given the above position the period served by Mr. Jamal-ur-Rahman Durrani, on ad-hoc (twice) and then on contract, cannot be reckoned for the purpose of his seniority in the post. His seniority will start with effect from 25-10-1982 when he was regularly appointed as Public Prosecutor, after his nomination by the Commission."
16. 7.The appellant represented to the Chief Martial Law Administrator/President. The Cabinet Division communicated to him the rejection of the application. Disappointed with the Department, the respondent approached the Service Tribunal. In its comments, the Department took up the plea that initially the vacancies against which the appellant was appointed were reserved for Balochistan and Sindh Provinces and not for Punjab, where the appellant was domiciled. Only when the Public Service Commission on account of non-availability of the candidates from those two Provinces advertised the posts on merit basis that the appellant was able to obtain the recommendation for his appointment and was in fact regularly appointed.
17. 8.The Service Tribunal, after examining the claim of the appellant to have the contract service treated as ad-hoc or temporary employment, held as hereunder:-- "Two orders making the appointment of the appellant on contract basis are clear and there can be no two opinions, that the period spent from 24-7-1977 to 23-7-1980 was on contract basis;" and concluded by observing as hereunder:- "For the reasons stated above, we are unable to accept the claim of the appellant that service on contract basis should be treated as service on Ad hoc basis. We, however, do feel that since service had been continuous, the department should move a case in favour of the appellant for obtaining the orders of the competent authority for converting the appellant's period of service from 24-7- 1977 to 23-7-1980 on ad-hoc basis to count towards pension.
18. 9.The appellant who was present in person and argued his appeal, took us through the various instruments of the Government in order to show that the contract appointment is as much a Government employment as ad-hoc or temporary employment; that the Government has been at times retrospectively treating the appointment as ad-hoc and in the absence of the terns of the contract offered to the appellant or accepted by him, it was the case where his contract appointment should have been treated as a mere continuation of the hoc appointment and the benefits as were available for the period of ad-hoc service should have been available for the contract service as well.
10. It is to be noted that the appellant in this case was the Public Prosecutor, ordinarily supposed to be well conversant with the laws of the land, particularly those governing him in the matter of his employment in service, The Orders relating to his employment were all passed in writing and communicated to him. The nature of the appointment had manifestly changed for the period 24- 7-1977 to 23-7-1980 inasmuch as it had become a contract employment. Contract employment could not earn for the employee a right to earn pension nor could it be combined with any other period of service rendered in other capacity unless there was specific condition of the contract.
19. 11.At the same time, the Interior Division which was the employer of the appellant had been at fault in not formalizing or ever disclosing to the appellant the terms of the contract on which he was employed. Instead, the contract employment was referable to the post which he was already holding. In such a situation, though not legally but honestly and equitably, the appellant or anyone placed in such a situation could believe that in order to overcome a technical difficulty, the department has or was continuing his service on the same terms and conditions as he was enjoying earlier by periodical extensions and subsequently also to the contract appointment. There was no difference in either the discharge of the responsibilities or the availing of the benefits, while on contract employment. The record shows that he was allowed the recreation allowance also during the year 1978 for the year 1977, which was partly the period when he was on contract. An assurance was extended while making this benefit available that he will continue in Government service. In this background it would be only fair to expect of the Government to exercise its dispensing powers under section 23 of the Civil Servants Act which provides as hereunder:- "23. Aming.--Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
12. The Service Tribunal, or for that matter this Cow t, can grant relief which a civil servant legally deserves or which, in the discretion of the competent authority, can be granted to him. However, the exerdse of plenary and residual power which transcends the rules and the law and which is embedded in the justness, fairness and equities of the case and where the civil servant is not entirely at fault, the powers reserved for the President cannot be appropriated by the Tribunal or this Court. Only the circumstances justifying the exercise of such D a power can be brought to the notice of the Authority concerned and with the expectation and in the hope that the Authority shall afford the necessary relief. It is eminently a case where the law does not help the appellant but the facts of the case and the failures of the Department and the nature of the service rendered by the appellant, all justify the exercise of the power of treating the contract service rendered by the appellant as one pensionable without causing an interruption in the ad-hoc service which preceded and followed such contract employment.
20. 13.In the circumstances the appeal is dismissed but it is hoped and expected that necessary amends shall be made in the light of the observations made, under section 23 of the Civil Servants Act, 1973.