' NASIM SABIR SYED (MEMBER).---These are fifteen identical appeals with Nos, 766(R) of 1997 to 780(R) of 1997. It is proposed to dispose of all these appeals by the joint order.
2. The relevant facts of the case are that all of them were recruited in BPS-16, in Rebuild Factory, Kamra without advertisement in the press and without approval of the Federal Public Service Commission. Another fact to be noted- which is quite important is that in these appeal cases, thirteen are those of Armed Forces Personnel who were working equivalent to posts of B-16 in the Armed Forces whereas the other are those of civilians. A letter has been placed on file about the matter in hand the gist of which is that their cases of regularization of initial appointment in BPS-16 was taken up with the Ministry vide Kamra Factory. Letter No, F. 6-RF/3102/2/PC, dated 5-12-1991.
After lengthy correspondence with the Ministry, the Ministry of Defence, Defence Production Division, the Factory was advised to revoke all irregular appointments forthwith and furnish necessary requisition to the FPSC at the earliest. After receipt of this letter the case was taken up with the Ministry vide letter dated 6-2-1995 for regularization considering their level of experience, very high technical skill and humanitarian issue involved. The Establishment Division vide their O.M. No,F.
8/46/94-R. 4 Islamabad, dated 9-6-1997 and Defence Production Division vide their letter dated 1- 7-1997 have desired that a compliance report terminating the services of the appointment made by PAC Kamra in these cases may please be submitted. The Factory has taken up the cases again with the Ministry on humanitarian grounds. The Defence Production Division has also taken up the case with the Establishment Division vide their letter dated 14-8-1997. It is quite obvious that in case of non-regularisation of the services by the Ministry the Factory will have no option but to proceed with the termination of the services of these appellants in accordance with the procedure in vogue.
The appellants are apprehending the termination of their services and this is why these appeals have been filed.
3. The respondents have taken the plea that the Director-General, PAC, is the appointing authority and D.P.D. Secretary is the appellate authority. It was contended that the appeal is incompetent as no departmental appeal or representation has been filed. It was brought to our notice that the appellants in a joint petition requested the President of Pakistan to intervene in the matter. The reply given by the President's Office was that your case is of judicial nature and so if you want you can approach the competent Court for getting justice so that the Court can issue necessary order in the light of the law and rules in the matter. It was contended by the learned counsel for the appellants that actually it was the President of Pakistan who was the appointing authority and only the powers had been delegated to the D.G., P.A.C. And D.P.D. Secretary. It was vehemently argued that a delegatee exercises only those powers which are delegated to it and not beyond that.
Secondly it was argued that the President's Office had given the advice after considering the matter in detail and so it can be treated as a departmental appeal. Counsel for the department also took the plea that a joint appeal is not permissible under the law. We have considered this matter and are of the view that the President Office has not given its finding on the joint appeal by saying it was incompetent. The President Office had only conveyed that the appeal be filed before the proper forum. So this, objection is overruled alongwith the objection that the appeal to the President was not an appeal to the Departmental Appellate Authority, because in view of advice from Establishment Division the President becomes the Appellate Authority.
4. Coming to the merit of the case it was claimed by the learned counsel for the appellants that the selection had been made by a High Powered Committee on temporary basis whereas the posts were permanent and the department is persistently pressing for the regularisation of the appellants being satisfied with their experience, skill and utility in the Factory. In this context reference was made to notification by the Ministry of Defence regarding appointment in F-6, Rebuild Factory Kamra. The relevant provisions, are reproduced hereunder for ready reference; {{TABLE}} Name of Powers
(a) To create temporary civilian posts in NPS 1-16 according to the equivalence prevalent in the PAF/Pak Army against the sanctioned regular Airmen/Army Establishment if not made available in schedule time PAF/Pak Powers delegated ' Powers to create temporary posts for a specified period subject to the conditions specified against para. 4(a) of O.M. And item I of Annexure 'II' to Government of Pakistan Ministry of Finance O.M. No, F. 1(3)EL/72, dated 18th May, 1973 subject to deficiencies of Airmen/Army Personnel and in the induction plans given in Government Letters No, 1492/DP-3/75 (120)11/DMP (Air) dated 13-5-1975 and No,1801/ 1/P 751/1047/DP-1 dated 8th April, 1976 and any future establishment that is to be approved later by the Government for the Project.
(b) To recruit, appoint, promote or to have disciplinary powers in respect of all civilian posts in NPS 1-16 established vide M/O Defence Letter Nos,92/75 (1201)/11/DMP/(Air) dated 13.5-1975 and No, 1801 dated 8-4-1976 according to the induction plans given in the said letters and any future establishment that is to be approved later by the Government for the Project. Full powers subject to (i) the provision of the prescribed/to be prescribed recruitment rules and other orders regulating the recruitment, promotion and discipline as laid down by the Government in Civil Servants (Appointment Promotion and Transfer)
Rules, 1973 and Government Servants (E&D) Rules, 1973 and (ii) the terms and conditions of service being not inconsistent with those specified in Civil Servants Act, 1973. {{TABLE}} ' The aforesaid delegation of powers shall be subject to the following conditions:
(a) Notwithstanding the delegation of powers under this letter the Government may exercise all or any of these powers either generally or in any particular case or class of cases.
(b) Director-General Aeronautical Projects or Project Director (P-751)/Managing Director Aircraft Manufacturing Factory shall not exercise any of the powers delegated to him under this letter in a manner which may not be consistent with any order which have been or may hereafter be issued by the Government.
(c) Director-General Aeronautical Projects or Project Director (P-751)/Managing Director Aircraft Manufacturing Factory shall not delegate any of the power delegated to him under this letter to any officer subordinate to him except with the prior consent of the Government.
(d) The expenditure is met from within the establishment cost of the sanctioned estimates of the Project and subject to budget provisions.
(e) The posts are regarded as essential for which full justification is available.
' It was asserted that according to this notification the Director-General, Aeronautical Projects had been given specific powers to create temporary civilian posts in 'NPS-1 to 16 according to the equivalence prevalent in the PAF/Pak Army against the sanctioned regular posts and the Director- General was given full powers to recruit appoint, poromote or to have disciplinary powers in respect of all civilian posts in NPS-1 to 16. The learned counsel for the respondents on the other hand pointed out that the learned counsel for the appellant was only relying on the left side of the notification whereas the exercise of the powers delegated .Was subject to the prescribed recruitment rules and other orders regulating the recruitment. It was emphasized that by not 'advertising the posts in the Press and by not getting the approval of the FPSC gross irregularities have been committed and this is why the Establishment Division has ordered that their services be immediately terminated. The learned counsel for the appellant on the other hand referred to FPSC Regularization Rules, 1978. In the schedule which refers to Rule 3(a) the posts excluded from the purview of the Commission have been mentioned wherein it has been laid clown that in the Defence Production Division the posts in the Pakistan Ordnance Factory and Projects P-751 will be excluded. Reference was also made to Rule 3 of these Rules of the F.P.S.C. It has been laid down that Commission shall conduct test and examinations for recruitment to civil posts in connection with the affairs of the Federation in. BPS-16 or above other than the posts as laid down in clause (e) of this rule to be filled by the employment or re-employment of or have been officers of the Armed Forces of Pakistan and hold persons who are or have held such posts therein as are declared by the President to be equivalent to the posts to be so filled. As far as the Armed Personnel are concerned the following details have been given about the ranks held in the Armed Forces before induction to the Kamra Factory:--
(1) Mr. Muhammad Iqbal, Ex-Warrant Officer.
(2) Mr. Ghulam Rasool, Ex-Chief Warrant Officer.
(3) Mr. Zafar Ahmad, Ex-Chief Warrant Officer.
(4) Mr. Noor Muhammad, Ex-Warrant Officer.
(5) Mr. Muhammad Nazir, Ex-Warrant Officer.
(6) Mr. Karam Dad Khan, Ex-Chief Warrant Officer.
(7) Mr. Muhammad Nazir, Ex-Chief Warrant Officer.
(8) Raja Muhammad Altaf, Ex-Chief Warrant Officer.
(9) Mr. Abdul Aziz, Ex-Naib Subedar.
(10) Mr. Tariq Javed Toor, Ex-Master Warrant Officer.
(11) Mr. Hafeezur Rahman, Ex-Master Warrant Officer.
(12) Mr. Muhammad Arif, Ex-Chief Warrant Officer.
(13) Mr. Abdul Khaliq, Master Warrant Officer.
The Warrant Officers and ,Chief Warrant Officers are equivalent to B-16 in the Civil Service in PAF.
Similar is the case with the Subedar and Naib-Subedar in the Army. So as far as these Army Personnel are concerned we are of the considered opinion that they were excluded from the appearance in the test or interview' before the FPSC. Reference is also made to PLD 1965 SC 106 wherein it has been held that the letter by the Government cannot replace rules. However, letters by Establishment Division and the Ministry are of no legal consequence as far as the exemption from appearing before the FPSC is concerned. Coming to the civilian employees Mr. Saleem Akhtar is B.Sc. (Hon.) with Arboriculture/Agriculture Forestry with three years' experience, Mr. Ishtiaq Ahmed is B.Sc. With Chemistry Physics and has three years' experience of Rubber Synthetic Industry. Mr. Muhammad Arif, Supply Assistant is a Graduate with five years' practical experience in store keeping and management procedure. From the details about the civilian recruitment, it is quite evident that as far as Mr. Saleem Akhtar and Mr. Ishtiaq Ahmad are concerned, both are B.Sc. And M.Sc. Respectively. Mr. Ishtiaq Ahmad also is with three years' experience of Rubber Synthetic Industry which is very relevant experience in Aeronautical Engineering. These civilians were under the rules to appear before the FPSC because there is no exclusion in their case. As far as the Armed Forces Personnel are concerned they should be regularized immediately in the light of the observations already made. We are also of the positive view that the principle of locus poenitentiae and the Doctrine of Reasonable Expectations had created a vested right after such a long service with devotion, expertise and the entire satisfaction of the superiors. Kamra complex was one of the great leaps in the technological field and at the time of its establishment the management was looking around in all fields for suitable persons to be recruited to make this experience succeed which ultimately turned out to be a centre of excellence. The management is full of praises for technical skill a these persons And their devoted services, After all it is not the fault of the employees that their cases were not sent to the FPSC or they were not advertized in Press. The services of such persons in two other projects under the Ministry of Defence Production have already been regularized. We fail to understand as to why this exception.
5. Considering all these things we are of the opinion that all fifteen of them should be immediately regularized.