1. ' AMANULLAH KHAN, CHAIRMAN.---As identical questions of facts and law are involved in Service Appeals Nos. 77, 132 to 136, 139 to 148, 151 to 163, 165 to 167, 169, 170 and 172 of 2000, therefore, same are being disposed of by this common Judgment.
2. Briefly the facts are that, appellants in all the appeals were appointed in the Agriculture Department in various Projects, purely on temporary basis, on different dates ranging from 1982 to 1992. Their appointments were against different posts in various grades i,e, from Grades-1 to 11. After their appointment, alongwith number of other candidates, they served in different projects, and thereafter transferred and posted from time to time. The case of appellants is that vide order, dated 29th June, 2000, their services were terminated. Being aggrieved from the termination orders, appellants preferred appeals, before the department, which were rejected. Hence instant appeals have been filed.
3. ' We have heard M/s Tahir Iqbal Khattak, Ayaz Swati, Abdul Rahim Mengal and Mansoor Ahmad, Advocates for the appellants, whereas Mr. Ashraf Khan Tanoli, learned Advocate General, appeared on behalf of the official respondents.
4. ' Mr. Ayaz Swati, learned Counsel contended that most of the appellants have served for a period of more than ten years in the department and have been transferred and posted from time to time, thus their services could not be terminated. He further pointed out that, impugned orders are discriminatory, as majority of the employees who were also employed in various Projects on temporary basis, have been placed in surplus pool, whereas service of appellants have been dispensed with, as such, the termination orders are in violation of Article 25 of the Constitution of Islamic Republic of Pakistan. Learned Counsel further contended that, termination order is also in violation of section 11(2) of the Civil Servant Act, 1973 and further principles of lotus poenitentiae and doctrine of reasonable expectation, had created a vested right in favour of appellant, after their serving for such a long period.
5. ' Mr. Ashraf Khan Tanoli,. Learned Advocate-General, however, opposed the appeal by contending: that since appellants were appointed purely on temporary basis in different projects, therefore, on the abolishment of the Projects. Their services have been rightly terminated and no vested right has been created in them, thus they do not fall within the definition of a 'civil servant'.
6. ' We have heard the learned Counsel for parties and also minutely perused the record of case.
7. ' It is pertinent to mention here that, terms and conditions of appointment of appellants in all the cases are identical, therefore, for reference, contents of the appointment letter, from one of the appeal (S.A. No,77 of 2000) is reproduced hereinbelow:-- APPOINTMENT ORDER.
8. ' No,343-46/Estt:Mr. Muhammad Bakhsh Ram is offered a post of Chowkidar in scale of Rs:920-26- 1310 (BPS-1) with allowance as admissible under the Rules, subject to the approval of Departmental.
9. Selection Board and verification of his character and antecedents:-
(1) The post which is being offered to him has been sanctioned by the Government upto 31-6-1992, but likely to extend further, his employment in the Agriculture Department is purely temporary and his services can only be terminated at one month's notice without any reason being assigned at any time irrespective of the fact that he is holding a post other than the one to which he was originally recruited or on the payment of one month's salary in lieu of the notice.
(2) He has to join duty at his own expenses.
(3) The offer is subject to the conditions that he is local/Docmicile of Balochistan Province.
(4) In case he wishes to resign at any time a month's notice will be necessary or in lieu thereof one months's pay may be forfeited.
(5) He will be governed by such rules and orders relating to have travelling allowances, medical attendance pay etc. As may be issued by Government services to which he will belong.
(6) He will have to produce a Medical Certificate of fitness if his service continues beyond six months.
(7) If he accepts the post on these conditions he should report himself for duty to the Deputy Director of Agric: (BMIAD) Project, Quetta as soon as possible and produce original, certificate in connection with his qualification domicile and age.
(8) The offer will be cancelled if no reply is received by/or if he failed to report for duty upto 29-5- 1992."
10. ' It may further be observed that, all the termination orders were issued on 29th June, 2000 and contents of the said letters are identical, as such, for sake of convenience, one of the letter (from S.A. No,77 of 2000) is reproduced hereinbelow:-- "NOTICE FOR TERMINATION OF SERVICES.
11. ' On the prior approval of the Competent Authority, conveyed vide Letter No,SOA(II)/12-9178- 0ECF/8698-99 dated 29th June, 2000. Your services are hereby Terminated w,e,f, 1-7-2000, as the Project under which your appointment was made has been terminated w,e,f, 25-3-2000."
12. ' Mr. Ayaz Swati, learned Counsel contended that Provincial Cabinet took a decision for absorbing the employees appointed on temporary basis, against existing vacancies or placing them on surplus pool and in this regard, learned Counsel referred to Notification, dated 4th January, 2002, whereby 427 employees, employed in the Projects were placed on surplus pool.
13. ' It may be observed that, appellants were also appointed alongwith 427 employees and were working in the Agriculture Department in various projects, but their services were terminated and whereas others were accommodated by placing their services on surplus pool. List of all such employees has been placed on record, which has not been disputed by the learned Advocate- General.
14. ' Coming to the contention of Mr. Ayaz Swati, Advocate, that impugned orders are in violation of the provisions of section 11(2) of the Civil Servant Act. Before dealing with the said aspect of the case, it would be beneficial to reproduce section 11(2) of the Act, which reads as under:- " 11(2). Where, on abolition of a post or reduction in the number of posts in a cadre or service the service of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be the one who is the most-junior in such cadre or service. "
15. ' A bare perusal of the above section, leaves no hesitation in stretching the conclusion that, whenever the Government has to take decision regarding retrenchment of employees then policy of "last in first out" is to be adopted. But in the instant case, from the record, it appears that, this policy has been kept aside, and abruptly the termination orders have been passed without considering the mandate of section 11(2) of the Act. Therefore, impugned orders in our considered opinion, are in violation of the said section.
16. ' Reverting to the contention of learned Counsel that appellants have been discriminated, as other employees, who were also appointed on same terms and conditions have been retained, whereas appellants have been terminated. In this behalf, it may be observed that, 427 employees, who were appointed alongwith the appellants on same terms and conditions have been adjusted by placing their services on surplus pool, in view of the decision taken by the Provincial Cabinet vide Notification of 4th January, 2002, whereas services of appellants have been terminated.
17. ' When confronted with this situation, learned Advocate-General could not give any satisfactory reply for not treating the appellants at par with other appointees, whose terms and conditions of appointment, are identical to that of appellants.
18. ' It may be observed that impugned orders are in violation of clause-(1) of Article 25 of the Constitution of Islamic Republic of Pakistan, which provides; that all citizens are equal before law and entitled to equal protection of law. To appreciate the controversy in dispute, it would be advantageous to reproduce Article 25 of the Constitution, which reads as under:-- "25 (1). All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone.
(3) Nothing in this Article shall prevent the State from making any special provision of the protection of women and children."
19. ' The Hon'ble Supreme Court in the case of I.A. Sherwani v. Government of Pakistan (1991 SCM R 1041), while interpreting the provisions of Article 25, has laid down following principles of law:-
(i) That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed or to be treated alike.
(ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
(iii) That different laws can validly be enacted for different sexes, persons in different age groups.
20. Persons having different financial standings, and persons accused of heinous crimes;
(iv) That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in other set of circumstances;
(v) That a law applying to one person or one class of person may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) That in order to make a classification reasonable, it should be based--
(a) On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
(b) That the differentia must have rational nexus to the object sought to be achieved by such classification.
21. ' In PLC 2000 (C.S.) 467, it has been held as under:-- "Article 25 of the Constitution guarantees to all citizen of Pakistan equality before law and equal protection of law. The guarantee of equal protection of law requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The phrase 'equal protection of law' envisages by Article 25 of the Constitution means that no person or class of persons would be denied the same protection of law, which is enjoyed by persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness. Persons similarly situated or in similar circumstances are to be treated in the same manner."
22. In the instant case, all appellants alongwith numerous other candidates were appointed on same terms and conditions of service their appointments as such, cannot be distinguished from the other candidates. Appellants and other officials were terminated from service, only on the ground that they were appointed purely on temporary basis and the Projects have been abolished. The Provincial Cabinet had given decision for accommodating the officials and in implementation of the same, other candidates have been accommodated, whereas appellants have been denied. In such view of the matter, the case of appellant cannot be treated different from others. As all are circumstanced in similar situation, therefore, the differentiation so made is not logical and is in violation of Article 25 of the Constitution and thus, being irrational and unreasonable.
23. ' Needless to observe that after serving for such a long time, to the entire satisfaction of their superiors, in view of the principle of locus poenitentiae and the Doctrine of Reasonable Expectations, a vested right has also been created in their favour.
24. ' Thus, the upshot of the above discussion is that appeals are accepted and consequently.
25. Impugned Notifications. Dated 29th June, 2000, respectively are set aside and appellants are directed to be re-instated in service with immediate effect, without back-benefits.
26. ' No order as to costs.