AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 6-2-1993 passed by a learned Single Judge of the Lahore High Court in Writ Petition No. 11849 of 1992, filed by respondents Nos. 1 to 5 inter alia against the present two petitioners, whereby the petitioners were directed to fill the posts of Assistant Divisional Engineer in accordance with Rule 2(a) of the Appointment, Promotion and Transfer Rules contained in S.R.O. No.1022(1)/76, dated 14-10-1976, hereinafter referred to-as the Rules.
2. The brief facts are that private respondents Nos. 1 to 5 were holding the post of Assistant Engineer in Grade-16 in the Telephone and Telegraph Department, Government of Pakistan, till the promulgation of Pakistan Telecommunication Corporation Ordinance, 1991 (Ordinance No. XXVII of 1991), hereinafter referred to as the Ordinance, on 13-8-1991, which was converted into Act No. XVIII of 1991, whereby under section 9, the above respondents stood transferred and became employees of the Corporation. It. May be advantageous to reproduce above section 9 of the Ordinance, which reads as follows:-- "9.Transfer of departmental employees to the Corporation.---(1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of service, all departmental employees shall, on the establishment of the Corporation, stand .Transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee.
(2).The terms and conditions of service of any such person as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantage.
(3)Notwithstanding anything contained in any law for the time being in force, no person who stands transferred to the Corporation by virtue of subsection (1) shall be entitled to any compensation because of such transfer." .
3.It appears that Rule 2(a) of the Rules provided as follows as to the appointment to the post of Assistant Divisional Engineer in Grade-17:-- ---(i) 40% of the posts of Assistant Divisional Engineers shall be filled by promotion provided that at least 20% posts shall be filled by promotion of persons possessing diploma in Engineering and 5% shall be filled by promotion of departmental employees possessing Degree in Engineering or Associate Membership of a recognised Institute of Engineering.
(ii) 60% of the posts shall be filled by direct recruitment:'
4. The above rule was amended in 1988, but it did not affect above clause (i) providing 40% of the posts of the Assistant Divisional Engineers to be filled by promotion. The above private respondents filed above writ petition averring therein that there were 200 posts of Assistant Divisional Engineers lying vacant and that the petitioners, instead of first exhausting the departmental quota of 40%, invited applications from direct recruits for filling 60% quota and held written examination for appointment for the said purpose in violation of the above rule. The petitioners had, therefore, sought direction of the High Court through the above writ petition, which was granted.
5. The case of the petitioners before the High Court was that the above private respondents were civil servants in terms of section 2(1)(b) of the Civil Servants Act, 1973, hereinafter referred to as the Act, and, therefore, writ petition was not competent and that the direction sought could not be granted. However, the High Court has held that in view of above section 9 of the Ordinance, the private respondents had become the employees of the Corporation and, therefore, were not civil servants and that since the petitioners were violating above Rule 2(a) of the Rules, the private respondents were entitled to the above relief. The petitioners have, therefore, filed the present petition for leave to appeal.
6. We have heard Mr. Tanvir Bashir Ansari, learned ASC appearing for the petitioners, and we are inclined to grant leave to consider inter alia the question, whether the High Court was justified in issuing the above direction which is in the nature of a writ of mandamus on the basis of above Rule 2(a) of the Rules. Leave is, accordingly, granted. Interim order dated 28-4-1993 to continue meanwhile.