' CH. MUHAMMAD ARIF, J.---Leave to appeal is sought by the petitioners against judgment dated 2- 3-2000 passed by a learned Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby petitioners' (and others') Writ Petition No,1062 of 1999 alongwith 8 other Writ Petitions of the same year were disposed of together. Writ Petition No,1062 of 1999 was brought by as many as 161 individuals but only 69 of them have filed the instant petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
2. The petitioners and others had been working in various Educational Institutions under the control and management of the Federal Directorate of Education, Islamabad, hereinafter referred to as the FDE, since the year 1987 in various capacities on contract, ad hoc, short term, daily wages and work charge basis. The FDE advertised 733 posts of teaching and 438 of non-teaching staff vide advertisement, dated 2-4-1999 (copy available at page 55 of the Paper Book). In all the 9 Writ Petitions before the High Court the right of the Government to make appointment of teaching staff on the basis of advertisement, dated 2-4-1999 was challenged on the ground that they had been in service since the year 1987; had rendered meritorious services to the Government and had acquired vast and rich experience during the interregnum. Inviting applications from the general public/open market was highly unjust on the part of the Government in that the above course is tantamount to disregarding their rights in that behalf. Briefly put the case before the High Court was that the Government can ill-afford to make appointments pursuant to advertisement, dated 2-4-1999 without regularizing the services of the petitioners on permanent/regular basis, earlier.
3. The F.D.E. Took the stand that Government had the absolute right to make appointment of teachers pursuant to the advertisement, dated 2-4-1999 and that no clog could be placed on its such powers particularly when it had held the petitioners eligible to apply for the posts advertised.
This course, it was maintained by and on behalf of the FDE, was neither derogatory to the rights of the petitioners nor could be termed as discriminatory. More so when the advertisement itself provides for equal opportunity to both: (i) the petitioners and (ii) the prospective applicants from the general public.
4. The learned Judge in Chambers took notice of....(i) the plea of petitioners that the upper age limit for filling of vacancies was fixed at years and most of them had crossed the same .
(ii) the F.D.E. Was not pushed for having any regard for the services rendered by the petitioners over the years ; (iii) the petitioners were entitled to be given preference over the outsiders. and (iv) the pleas of the F.D.E. To the effect that: (a) those who had crossed the upper age limit fixed in the advertisement could also apply for the posts advertised and that their cases shall be considered sympathetically and (b) the 'Revised Policy' also provides for five marks to each petitioner for every year of service rendered and three marks for each year of service to those who had rendered service with the 'Provincial Institutions'..To come to the conclusion that he does not feel persuaded to question the legality and the propriety of the recruitment-policy of the Government (a) as advertised on 2-4-1999 and (b) as revised later on. The following reasons found favor with the learned Judge in Chambers for coming to the above conclusions:--
(i) that the Constitution of the Islamic Republic of Pakistan, 1973 provides for separation of powers between the Judiciary, Executive and the Legislature. Each of the three Organs of the State machinery is sovereign in the sphere allotted to it and the other Organ cannot assume unto itself any right to interfere in the affairs of the other. Viewed in this perspective, framing of the Recruitment Policy and giving affect to it is an executive function which falls squarely within the sphere allotted to the Government. No interference can be made by this Court, so long as the Government remains within the sphere allotted to it by the Constitution;
(ii) that the petitioners could only question the legality and the propriety of the right of the Government to make the recruitment, if their rights had been ignored and discriminated against.
As hereinabove shown, the Federal Directorate of Education in the Recruitment Policy announced by it vide the advertisement, dated 2-4-1999 has made therein a provision that the petitioners can also apply for the posts advertised, no matter what is the nature of their service already rendered.
This way an equal opportunity has been thrown open to both the petitioners as also the prospective applicants from the general public;
(iii) that the Recruitment Policy of the Government could have been questioned on the basis of discrimination but that element is also missing in this case as the petitioners who are already in service have not only been made eligible to apply for the posts advertised. Rather in the Revised Policy of the Government due regard has been shown to the experience acquired by them over the years. There is no merit therefore, in the contention_ of the petitioners that the recruitment was being made by the Government in disregard of the petitioners' rights;
(iv) that during the course of submissions at the bar, the petitioners' learned counsel expressed concern for their being thrown out of consideration on the basis of the upper age limit. It was however, conceded at the bar by and on behalf of the Federal Directorate of Education that those of the petitioners who had crossed the upper age limit of 25 years could also make applications against the posts advertised and that their applications shall be considered sympathetically on merits;
(v) that during the pendency of these Constitutional petitions in this Court, change of Government took place on 12th of October, 1999. It was pleaded by and of behalf of the petitioners that the petitioners had voiced their grievances before the Federal Minister for Education Mrs. Zubaida Jalal and that the Federal Minister for Education had assured them that all such petitioners as were already working whether on contract, ad hoc, short-terms, daily wages or work charge basis shall be accommodated and appointed on the post advertised. With a view therefore, to have the position clarified in this behalf, a reference was made to the Federal Minister for Education so as to clarify the aforesaid assertion of the petitioners. When confronted with the claim of the petitioners, the Federal Minister for Education answered the same as follows: "Surely, the correspondent of "Daily Asas" has misunderstood me and has quoted me completely out of context. While I fully sympathize with affectees, we cannot justifiably give any assurance to these teachers that their services would be regularized en bloc. In this regard, I have, however, asked the office to consider their cases on the basis of merit and fair play with a view to ameliorating the sufferings of affected teachers." ..."
' Last paragraph of the impugned judgment, dated 2-3-2000 reads thus:-- "5. As a net result of the foregoing discussion, these Constitutional petitions are disposed of with the observation that the petitioners' applications if made for the posts advertised shall also be considered on merits along with those of the outsiders. The petitioners shall be given additional marks as hereinabove indicated on the basis of the experience already acquired by them. Efforts shall also be made by the Government to accommodate as far as possible even those from amongst the petitioners who have although crossed the upper age limit yet their cases merit consideration on the basis of the meritorious services rendered by them in the past and the assurance extended by the Federal Minister for Education shall also be given due regard."
5. It may be mentioned that the following Civil Miscellaneous Applications were brought by the respective applicants therein for impleadment as petitioners in this CPSLA No,754 of 2000 on the ground that their cases also fall within the parameters of the case of the petitioners therein:
(1) CMA 44 of 2001 (be 1 person) 11-1-2001 pp. 81-82 of main pb.
(2) CMA 45 of 2001 -do- ) 12-1-2001 pp. 85-86 of maip pb.
(3) CMA 92 of 2001 (. -do- ) 29-1-2001 pp. 89-90 of main pb.
(4) CMA 1048 of 2001 (by 11 persons) -Nil- separate/additional pb.
(5) CMA 1360 of 2001 (by 1 person) 16-5-2001 -do-
(6) CMA 1444 of 2001 (by 5 persons) -Nil- -do- ' We allow all the above applications and direct the office to affect appropriate additions in the Memo. Of Petition by adding the names of the applicants therein
6. It was on 8-12-2000 that this Court took notice of the arguments addressed at the Bar by Sahibzada Ahmad Raza Khan Qasuri, learned, Advocate Supreme Court appearing on behalf of the petitioner to the effect that (i) on 15-5-2000 the Ministry of Education had moved a summary for being placed before the Chief Executive for approval through the Establishment Division to the following effect: "(a) The teaching and non-teaching staff, recruited on contract/short term basis, as mentioned in para. 2 above may be regularized on the basis of meritorious services rendered by them, without any consideration of the upper age-limit, as observed by the learned Court; "(b) The remaining vacant posts of teaching and non-teaching staff may be filled in, pursuant to the advertisement released by the Federal Directorate of Education in the year 1999."
(ii) that 18 male-teachers and one lady-teacher similarly placed as the petitioners were regularized without adopting the procedure detailed in the advertisement dated 2-4-1999 (iii) earlier also despite ban on fresh recruitment the FDE regularized the services of 29 trained/untrained ad hoc teachers on 29-6-1991 and (iv) in addition to regularization of above teaching staff belonging to another batch of 8 teachers were regularized on 14-7-1999 and the Establishment Division was directed to submit the said summary within one month from 8-12-2000 to the Chief Executive with its own comments by making a mention to the regularization of: (i) 18 male teachers, (ii) 1 Mst. Amna Khatoon, (iii) 29-trained/untrained ad hoc teachers on 29-6-1991 and (iv) 8 teachers on 14-7-1999. It was also directed that the selection process under the advertisement may continue but the result shall not be announced. "...Except the appointment letters which have already been issued in pursuance of the advertisement, no further appointment shall be made in the meantime."
7. On 14-5-2001, the F.D.E. Was directed to provide the following information to the then Bench:-- "(a) List of Ex-Teaching Staff working on contract basis in Federal Government Educational Institution, Islamabad whose contract was not extended beyond 31-5-1999.
(b) Criteria adopted for their selection.
(c) Authority on whose recommendation/instruction, these Ex-Contract employees were inducted.
(d) Recruitment record of Mst. Shazia Kausar d/o Mr. Sarfraz Ahmed Raja, Ex-Director (Schools).
(e) Details of teaching staff whose services have been regularized since 31-5-1999.
(f) Criteria adopted for the selection of teachers in the recruitment made in November, December, 2000.
(g) The details of appointments made by the F.D.E. Vide office order NO.F.1-17/96 (SA) F.D.E., dated 25-6-1999 and F.1-17/96 (SA) F.D.E., dated 14-7-1999. (As per order of the Honourable Supreme Court dated 8-12-2000)."
' Requisite information was provided through C.M.A. No,1289 of 2001. Through C.M.A. No,.1303 of 2001, the petitioners sought submission of Additional Documents under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, hereinafter referred to as 1980 Rules, as a rejoinder to CMA No, 1289 of 2001. CMA No,1373 of 2001 was filed on behalf of the respondents as "Reply of the Department (respondent) against the points raised by the petitioners in their rejoinder." to CMA No,1289 of 2001.
Petitioners filed CMA No,1434 of 2001 with a view to filing additional documents under 1980 Rules through a chart elaborating discriminatory treatment having been meted out to the petitioners as also fraud committed by the F.D.E. In preparing the merit list of various Provinces. After the petitioners had submitted the chart through C.M.A. No,1434 of 2001, the F.D.E. Submitted a reply thereto in rebuttal through CMA No,1475 of 2001, para. 3 whereof reads thus:-- "3. The order of august Supreme Court as attached with the additional chart submitted by petitioner has no reliance with the titled case. However, necessary action was taken by the Ministry of Education as per rules and the report has already been submitted before the Registrar of Supreme Court of Pakistan on 17-5-2001."
8. We have heard, in details, the arguments addressed at the Bar by Mr. Qasuri, both the learned Law Officers on different dates of hearing and also perused the available material including Civil Miscellaneous Applications Nos. 1289, 1303, 1373, 1434 and 1475 of 2001.
9. The mainstay of the case of the petitioners and others similarly placed as the former was that their services did fall for regularization/confirmation before the FDE went ahead with taking action under advertisement, dated 2-4-1999.
10. The above plea of the petitioners in Writ Petition No,1062 of 1999 was duly considered by the learned Judge in Chambers. Similarly, the contention of the learned counsel for the petitioners that his clients will be thrown out of consideration as, during the interregnum, they had become overage was also considered in juxtaposition with the concession made by the FDE that those who had crossed the upper age limit of 25 years could apply against the advertised posts which shall be considered sympathetically. Moreover, a reference was made to the observations of the Federal Minister for Education that their services will fall for consideration on the basis of merits and fair play "... With a view to ameliorating the sufferings of affected teachers." We find that the petitioners did obtain the chance to apply for their future absorption alongside others affected under the Revised Policy, but did not avail of the same.
11. The stage is now set to consider the result of the attitude adopted by the petitioners with regard to the aforementioned opportunity. It is an admitted position that the petitioners did not apply for the consideration of their respective cases for absorption in the respective disciplines. Mr. Qausri was asked, more than once, to indicate any reason for his clients not applying for the advertised posts under the existing circumstances. His persistent reply was that as his clients were entitled to regualrization/absorption much before the proposed action under the advertisement, therefore, the efforts on the part of the FDE to work in terms of advertisement, dated 2-4-1999 cannot but be reversed so that they are absorbed first and only thereafter the others are inducted into service according to the 'Revised Scheme'. He was at his lowest in contending that in the presence of many as instances surfacing themselves in the past for the regularization of the services of the employees of the FDE, including his clients, the FDE did regularize others but not the petitioners therefore, his clients' entitlement 'then' can be resurrected even now to bring them at par with others. We are afraid the petitioners cannot be heard complaining as above now in that neither the post working of the FDE to the prejudice of the petitioners, if any, was made the subject-matter of any proceedings whatsoever by the petitioners then nor the petitioners availed of the favourable observations made by the learned Judge in Chambers in the impugned judgment, dated 2-3- 2000.
12. As regards the criticism by Mr. Qasuri regarding the FDE not delivering the goods to the extent of the petitioners either in the past or in present, we suffice by observing that much water has flown under the bridge to undo the adverse affects of the past and closed transaction in relation to the service structure of the FDE being contrary to the well-established principle/mandate that all concerned are required to follow the Law/Rules on the subject; 'regulation of the exercise of their such powers'. Further, the references made to the alleged mala fides on the part of the then officials responsible for carrying into effect the processes of law without any fear or favour, were not brought by the petitioners before the relevant/appropriate forum at that juncture. We hasten to add that our above observation is not, we repeat not, tantamount to upsetting that which was made the subject-matter of appropriate proceedings by the aggrieved persons/individuals in the past. A reference by Mr. Qasuri to the then officials of the? DE and the Government exerting their influence for the appointment of their kith and kin on contract, ad hoc, short term, daily wage and work charge basis need not detain us any further in that general condemnation of any part/faction of the Government/FDE is of little help to the petitioners, the moment petitioners' own inaction is brought to bear upon the attending facts and circumstances of this cause.
13. Same is the position with regard to the plea of Mr. Qasuri that discriminatory treatment has been meted out to his clients who had qualified for their services being regularized much before the issuance of advertisement, dated 2-4-1999. It is not his case that the nature of employment of his clients was in any manner different from that of others. It was with a view to putting an end to the uncertain conditions. Of service of a number of employees in the FDE that:...(i) advertisement dated 2-4-1999 was issued....., (ii) cases of all concerned directed to be processed......(iii) favourable consideration of cases of employees who had crossed the upper age limit 25 years promisedand
(iv) petitioners allowed a chance to compete with others on the basis of their appointment in the FDE during the period under consideration ' The petitioners are themselves to blame for the predicament in which they find themselves today.
14. Moreover, the prayer clause in this petition makes the following reading:-- "In the above circumstances, it is most humbly prayed that this august Court may graciously grant leave to appeal to the above-named petitioners. It is further prayed that this petition may be converted into an appeal, impugned judgment of honorable Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No,1062 dated 20-3-2000 be set aside and finally petitioners may be regularized against the advertised posts as prior rights over the other applicants in the interest of justice. Any other relief, which this honourable Court may deem appropriate, to meet the ends of justice."
' This is a clear instance of persistence on the part of the petitioners in asking for their regularization in service against the advertised posts prior to those who had at for the same under advertisement, dated 2-4-1999. In the absence of any preferential treatment partaking of the entitlement of the petitioners for such a course, the above prayer cannot but be disallowed.
15. Be that as it may, the above questions may fall for determination in some other cause/s and can be attended to then.
16. Before parting with this order we may observe that even the reliance placed by Mr. Qasuri upon two unreported judgments of this Court in C.Ps.
' Nos.979-K to 1012-K of 2000 and 1670 of 2000 etc. Respectively dated 10-7-2000 and 2-2-2001, are of little help to his clients. In the former precedent one of us (Muhammad Bashir Jehangiri, J.) was a Member of the Bench and in the lacer (Muhammad Arif, J.) authored the same. Para. 9 of the former precedent reads thus:-- "9. It is to be noted that in the memo. Of appeal before the Tribunal extensive and detailed allegations were made regarding the mala fide of the company in the matter and the discrimination meted out to the respondent as in similar situation those, named in the appeal, had been retained in service. But it is curious that no specific reply about those allegations was given by the company in its comments, but rather general and vague comments were filed in reply to these allegations. The Tribunal has positively held that appellant before it was discriminated as others similarly placed have been absorbed and regularized but the learned counsel was unable to rebut the observation of the Tribunal in this regard."
' Paras. 17, 18 and 19 of the later precedent read thus:-- "17 As regards the case of the respondent-Company that they were on the right rails in putting an end to the services of the petitioners by issuing them show-cause notice within the contemplation of the Rules, we suffice by observing that concerned quarters can ill afford to meet out different treatment to two groups of its employees and that too when the dictates of law, justice and equity require exercise of power by all concerned to advance the cause of justice and not to thwart the same. We are not inclined to agree with Mr. Fakhruddin G. Ebrahim that the cases of Saleem Mustafa Sheikh and others were different from those of the petitioners.
"18 Before parting with this order, it may be noticed that in the case of Saleem Mustafa Sheikh and others (Appeal No,1097(R) of 1999) the Tribunal did observe that the then learned counsel appearing on behalf of the respondent-company conceded that the Rules are applicable to the terms and conditions of services of Saleem Mustafa Sheikh and others. We are of the view that in the absence of any justifiable reason for putting an end to the services of the petitioners by the respondent-company, the termination orders passed against the petitioners without considering the import and implication of Rules 6.1, 6.2 and 6.3 ibid the impugned judgments cannot be sustained.
"19 Resultantly, these petitions are converted into appeals and by allowing the same, the impugned judgments dated 23-9-2000, 11-2-2000 and 17-4-2000 are set aside with a direction to the , respondents to absorb the petitioners in their respective disciplines on the same lines as has been done in the case of Saleem Mustafa Sheikh and others (supra). There shall be no orders as to costs."
' Here, it is not the case of the petitioners that either the learned Judge in Chamber had upheld the plea that the petitioners were discriminated against or that any termination orders were passed against them by the FDE to bring their case within the ambit of the precedents/case-law referred to by the learned counsel.
17. Resultantly, the petition is dismissed and leave refused.