' MUHAMMAD BASHIR JEHANGIRI, ACTG. C.J.---The titled appeals except Civil Appeal No,666 of 1999 with the leave of this Court under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973, are directed against a common judgment dated 12-10-1998 passed by the learned Federal Service Tribunal, Islamabad (the Tribunal) whereby the appeals filed by the respondents have been allowed by restoring the original Notification issued on 1-3-1994 and the consequential regularisation of the services of the respondents from the date of ad hoc appointments "with all consequential benefits and attending reliefs including seniority, if any" and further directed that "the respondents shall be considered for promotion".
CIVIL APPEALS NOS.646 TO 665 OF 1999
2. The brief facts forming the background of these appeals are that in the year 1987, the erstwhile Telephone and Telegraph Department advertised 214 posts of Assistant Divisional Engineers (BS-17) for ad hoc appointments in accordance with the policy of the then Government. The candidates so appointed against the said posts were also sent to the Federal Public Service Commission (FPSC) for their regularisation. Of them 33 candidates could not qualify the process of regularisation conducted by the FPSC and, therefore, they continued on ad hoc basis. During the period 1988-90, 42 more persons were appointed through the Placement Bureau as Assistant Divisional Engineers again on ad hoc basis-. On 16-12-1990, the Telephone and Telegraph Department was converted into Pakistan Telecommunication Corporation and was also excluded from the purview of the FPSC.
It is conceded by the appellants that the Assistant Divisional Engineers who were appointed on ad hoc basis had undergone two years' training at Telecommunication Staff College, Haripur. They had also qualified a test in May, 1992 and were subsequently interviewed by the Departmental- Selection Committee. The competent authority, therefore, decided that all these Assistant Divisional Engineers should be regularised from the date of their initial appointment during the year 1987-90 and a Notification was accordingly issued on 1-3-1994. The competent authority i.e, the Chairman, PTCL "realising that earlier Notification dated 1-3-1994 was violative of law on the subject of regularisation, through an order dated 22-12-1994 decided that regular appointment of ad hoc Assistant Divisional Engineers (ADEs) shall take effect from 1-3-1994 and not from the date of their final appointment on ad hoc basis which, according to the appellants, was in accordance with law and thus an error committed by inadvertence was remedied by issuance of subsequent impugned Notification dated 22-12-1994". The respondents (ADEs) were obviously aggrieved by the order dated 22-12-1994, therefore, some of them filed appeals before the Tribunal while others approached High Court of Sindh, Karachi and Peshawar High Court, Peshawar, for redressal of their grievances. The common grievance was that the impugned order dated 22-12-1994 was liable to be set aside while the initial order dated 1-3-1994 may be restored. Six of the respondents, namely, Amjad Ali, Abdul Rehman Sheikh, Altaf Hussain, Muhammad Ayub-ur-Rehman, Najeeb Ullah and Abdul Rahim Talpur filed Civil Petition No,D/S of 1995 against the appellants, Federation of Pakistan and 35 others who have been recruited after the petitioners on regular basis on coming into effect the Pakistan Telecommunication Corporation (Act No,XVIII of 1990). In the abovementioned Constitution Petition filed in the High Court of Sindh, Karachi, the learned Division Bench, seized of the matter, held on 14-4-1998 that the matter was squarely cognisable by the Tribunal and that the jurisdiction of the High Court in such matters was barred under Article 212(3) of the Constitution. In this context, reliance was placed on the judgment of this Court in the case of Muhammad Anis v.
Abdul Haseeb PLD 1994 SC 539, wherein it has been held that even though the appeal taken to the Supreme Court was from a judgment of the High Court, this Court thought it fit to remand the case not to the High Court but to the Service Tribunal, whose jurisdiction was apparently attracted. This plea for remanding the case of the respondents to the Tribunal did not find favour with the learned Judges of the High Court of Sindh inasmuch as according to them, "no greater difference would be caused in so doing than would be achievable through the process of condonation above-referred."
The learned High Court of Sindh also placed reliance on the dictum of the High Court of Sindh in Rahat Hussain Siddiqui v. Board of Education PLD 1997 Kar. 627, wherein it was pointed out that "the period of 90 days within the contemplation of section 4(1) of the Service Tribunals Act, 1973 was actually not a period of limitation but a period envisaging the removal of disabilities from approaching the Tribunal and once that period goes by, without the emergence of a final order, limitation does not tend to run". In consequence the Constitution Petitions were disposed of by the learned High Court of Sindh.
3. Ultimately the respondents approached the Tribunal at Karachi for getting the redressal of their grievance. The appellants filed their comments wherein the objections of limitation as well as maintainability of appeals were taken. The learned Tribunal by a common judgment, accepted all the appeals, condoned the delay and repelled the objection to the maintainability of the appeals.
The operative part of the impugned judgment reads as under:-- ' "Pursuant to the above and specially with reference to para. 3/4 ante and due to the unwarranted approach of the respondents with respect to meddling with the regularisation of the appellants, we condone the delay, if any and resultantly accept the appeals, set aside the impugned Notification dated 22-12-1993, and restore the original one which was issued on 1-3-1994 and vide which all the appellants' services were regularised in their appointments from the date of their initial appointments with all consequential and attending reliefs, including seniority, payment in pay and allowances, if any and further direct that the appellants shall be considered for promotion from the dates when their juniors, if any, were promoted."
CIVIL APPEAL NO.666 OF 1999
4. This appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, also with the leave of this Court, is directed against the judgment dated 12-10-1998 passed by the Tribunal whereby the appeal of the respondents was allowed and the Notification dated 22-12-1994 was annulled by restoring the original Notification dated 1-3-1994 allowing the regularisation of the service of the respondents from the date of their ad hoc appointment with all consequential benefits and attending reliefs including seniority and further direction that the respondents shall be considered for promotion. The grievance of the appellant is that in the appeals filed by the respondents giving rise to the impugned orders, the appellants were neither impleaded nor they had the knowledge of the pendency of and decision in the appeals filed by the respondents and, therefore, they had to file their appeal directly in this Court and were thus aggrieved of the impugned order of the learned Tribunal dated 12-10-1998.
5. Leave to appeal was granted in all the titled appeals to consider--
(i) as to whether the seniority in a post, service or cadre whereby a civil servant is promoted would take effect from the date of regular appointment to that post as envisaged in section 4-A of the Civil Servants Act (LXXI of 1973)? And
(ii) whether for the purpose of seniority in a particular grade regular appointment alone is the determining factor although a period of ad hoc appointment followed by regular service in the same scale would be counted for the purpose of promotion and move-over for the next grade?
6. Both the learned counsel for the parties had cited case-law in support of the proposition as to whether the delay in filing of these appeals in the Tribunal had been rightly condoned or not. Since the case-law cited by the learned counsel for the parties was fluid and inconsistent on the question of jurisdiction either of the High Court or of the Tribunal, therefore, we are of the considered view that the Tribunal had rightly condoned the delay in filing the appeals by the respondents before the Tribunal. The objection raised on behalf of the appellants that the Tribunal had erred in condoning the delay, therefore, outrightly stands repelled.
7. The condonation of delay in tiling Civil Appeal No,666 of 1999, is sought by the appellants on the ground that the appellants had not been impleaded as party in the Service Appeal filed either before the Tribunal or . The Constitution petition filed before the High Court of Sindh and Peshawar High Court, therefore, they were not aware of the judgments of the High Courts or of the Tribunal and that they had come to know of the impugned judgment of the Tribunal when the department took some steps in filing the appeals against the respondents; they obtained the copy of the judgment and tiled the titled appeal in this Court. It has been contended that the appeal is within time from the date of knowledge of the impugned judgment. It is not disputed by the learned counsel for the appellants that the appellants therein were not impleaded as party in the Service Appeals before the Tribunal. It is, however, contended that no cogent ground has been made out for condonation of long delay in filing Civil Appeal No,666 of 1999 as the appellants therein were aware of the order of the Tribunal much before the dates mentioned in the application for condonation of delay.
8. The appellants in Civil Appeal No,666 of 1999 claimed knowledge of the judgment of the Tribunal from the date they filed direct petition for leave to appeal. In any case, we condoned the delay in this case as well.
9. The objection of the learned counsel for the respondents as to the competency of this direct appeal by the appellants in Civil Appeal No,666 of 1999, is not tenable in view of the law laid down in the case of M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCM R 1145, wherein it was observed that:- ' "The learned counsel for the respondents contended that the right of appeal of this Court under the above Article of the Constitution is confined to the parties to the proceedings and, therefore, a person though may be affected adversely by the judgment of Tribunal, could not tile appeal under the above provisions of the Constitution, if he was not a party to the proceedings before the Tribunal. There is nothing in the language of Article 212 ibid to suggest that the right of appeal under this Article of Constitution is confined to the parties to the proceedings before the Tribunal. In fact, Article 212 ibid does not permit filing of appeal by a party as a matter of right. The appeal under Article 212 ibid can be filed only with the leave of the Court and on a substantial question of law of public importance. Therefore, in an appropriate case, this Court may permit filing of an appeal by a person, who may not be a party before the Tribunal, if the Court is of the opinion that the interest of such party; has been adversely affected by the judgment of the Tribunal and he is not able to seek effective remedy against the decision of Tribunal before any other forum."
10. We reiterate the law enunciated in the case of M.A. Rashid Rana, supra, that in a case like the one before us this Court may, in the interest of justice and in exercise of jurisdiction vesting in it under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973, finding that interest of a party has been adversely affected and that party is unable to seek effective remedy against the decision of the Tribunal or before any other forum, then such petition for leave to appeal shall be competent.
11. After hearing these appeals and with the consent of the learned counsel for the parties, all the appeals are accepted, the impugned judgment of the learned Tribunal is set aside and the cases are remanded to the learned Tribunal to afford an opportunity of hearing to the learned counsel for the parties and decide the appeals afresh in the light of the following propositions raised by the learned counsel for the parties before us:--
(i) Whether the answering respondents, in the factual background, could legally reckon their seniority from the date of initial appointment on ad hoc basis or else from the date of their regularisation?
(ii) Whether the principle of locus poenitentiae was available to the respondents?
(iii) Whether the impugned order dated 22-12-1994 was passed without hearing the respondents and was violative of maxim: audi alteram partem?
(iv) Whether the appeals filed before the Tribunal by the respondents were competent without filing any departmental appeals under the law?
12. Since the seniority of the Senior Officers of the PTCL who were parties before us is involved, the learned Tribunal shall decide the appeals expeditiously but not later than three months. CIVIL APPEAL NO.666 OF 1999
13. Since the appellants in this appeal were not party before the Tribunal at the initial stage, therefore, they shall be impleaded as party to the appeals and shall be heard afresh on the above- noted propositions of law.