MANAGING DIRECTOR, SUI SOUTHERN GAS COMPANY LTD., KARACHIMUHAMMAD TA_1650169d

IFTIKHAR MUHAMMAD CHAUDHRY, J.---In the Civil Appeals, Civil Petitions, and Civil Review Petitions, listed hereinabove, the judgments passed by the Federal Service Tribunal in different cases separately, relating to the cases of Sui Southern Gas Company Ltd. (SSGCL) have been assailed and as the decision thereon relates to common questions of fact, law and public importance, we intend to dispose them of by means of instant common judgment. However, bunch-wise cases shall be dealt with and disposed of separately. CIVIL APPEALS NOS.533 TO 539 OF 2002 AND CIVIL APPEALS NO. 1396 TO 1663 OF 2002

2. These appeals are with leave of the Court against the judgments dated 31st May, 2001 and 5th April, 2002 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as "Service Tribunal") whereby appeals filed by the respondents have been allowed. Leave &ranting order from Civil Appeal No,533 of. 2002 is reproduced hereinbelow:-- "1. Leave to appeal is granted to consider the following:--

(i) Whether Federal Service Tribunal, while exercising powers conferred upon it under section 5 of the Service Tribunals Act, 1973 viz. To confirm, set aside, vary or modify the order appealed against, could direct the petitioner-Company for regularization/ absorption of the respondents.

(ii) Whether Mr. Aftab Ahmed, having already retired from service could sit as a member of the Tribunal and whether this rendered the impugned judgment as coram non judice, unlawful and without jurisdiction?

(iii) Whether the law laid down by this Court in the cases of The Managing Director, Sui Northern Gas Co. Ltd. v. Saleem Mustafa Sheikh and others (PLD 2001 SC 176), Sui Southern Gas Company Ltd. v. Engr. Naraindas and others (PLD 2001 SC 555) and Abdul Samad v. Federation of Pakistan and others (decided on 28-3-2001) was correctly appreciated and applied by the Tribunal? The matters be fixed for regular hearing as early as possible alongwith review petitions preferred against judgment dated 22-10-2001 of this Court, whereby 340 Civil Petitions were disposed of by a common judgment. Meanwhile, status quo be maintained." It is to be noted that after grant of leave in Civil Appeals Nos. 533 to 539 of 2002, Service Tribunal passed another judgment dated 5th April, 2002 which was also assailed by the Federation of Pakistan, through Secretary Ministry of Petroleum and Natural Resources, Islamabad, Sui Southern Gas Company Ltd. And others. Leave to appeal was also granted in said cases, which are now covered by Civil Appeals Nos.1396 to 1663 of 2002. In both the sets of appeals, identical questions of fact and law are involved, therefore, they are being disposed of jointly.

3. Precisely stating the facts of the case are that appellant Sui Southern Gas Co. Ltd. (hereinafter referred to as "Appellant Company"), in pursuance of an advertisement appointed respondents as Trainee Engineers and Management Trainee on different dates ranging from 1994-1995. For convenience sake appointment letters i,e, one pertaining to Management Traineeand the other in respect of Trainee Engineers are reproduced hereinbelow:-- "Management Trainee Reference your application, we are pleased to offer you a training assignment for our temporary requirement for new projects as a Management Trainee for a period of six months only, extendable at the discretion of the Company, subject to our receiving a satisfactory report on your health from our medical officer, on the clear understanding that this assignment is without commitment to provide you employment in the Organization at any stage on the following terms and conditions:

1. You will receive a stipend of Rs,5,000 per month (all inclusive) during your temporary training assignment.

2. You will be entitled to free medical facilities for yourself only.

3. This training assignment is also likely to be considered for regularization on the basis of the requirements of the recruitment policy of the Government.

4. You may be posted for training anywhere in Pakistan.

5 Should you decide to accept our offer, please report for your training assignment to General Manager (P & A), Head Office, 4th Floor, State Life Building No,3, Dr. Ziauddin Ahmed Road, Karachi, within 15 days hereof, failing which this offer shall stand withdrawn. Yours faithfully, Sui Southern Gas Company Ltd.

(Sd.)

(Khurshid A. Khan) for Managing Director."

Trainee Engineers Reference your application and subsequent test/interview, we. Are pleased to offer you a training assignment for our temporary requirement for new projects as a Trainee Engineer for a period of six months only, extendable at the discretion of the Company, subject to our receiving a satisfactory report on your health, on the clear understanding that this assignment is without commitment to provide you employment in the Organization at any stage on the following terms and conditions:

1. You will receive a stipend of Rs,5,000 per month (all inclusive) during your temporary training assignment.

2. You will be entitled to free medical facilities for yourself only.

3. This training assignment is also likely to be considered for regularization as per the policy of the Government.

4. You may be posted for training anywhere in Pakistan.

5. Should you decide to accept our offer, please report for your training assignment to General Manager (Sindh), Regional Office, Opposite Eidgah, National Highway, Hyderabad, within 15 days hereof, failing which this offer shall stand withdrawn. Yours faithfully, Sui Southern Gas Company Ltd.

(Sd.)

Khurshid A. Khan) for Managing Director." Pursuant to above letters the respondents were put to jobs by the appellant-Company. All of them served in their respective capacity for a period of more than 4/5 years entirely to the satisfaction of employer as nothing adverse has been brought against them on record, However, abruptly vide letters of different dates, orders of discontinuance of their assignments were issued. The respondents alongwith many others approached the Sindh High Court and the Service Tribunal for redressal of their grievances. As a result whereof Service Tribunal allowed their appeals vide judgments noted hereinabove. The appellant-Company and others have assailed impugned judgments in listed appeals.

4. It may be noted that the question No,2 incorporated in leave granting order, arises only in Civil Appeals Nos.533 to 539 of 2002 and not in Appeals Nos.1396 to 1663 of 2002.

5. Learned counsel for appellant-Company argued as under:--

(1) The impugned judgment in Civil Appeals No,533 to 539 of 2002 deserves to be set aside being coram non judice as one of the Members of the Bench of Service Tribunal i,e, Mr. Aftab Ahmed, after having retired from the office of Member Service Tribunal, had no lawful authority to associate himself with the proceedings of the appeals being held by a Bench of the Tyibunal headed by the Chairman and comprising two other Members.

(2) The respondents being Trainee Engineers or Management Trainee are not civil servants in terms of section 2-A of the Service Tribunals Act, 1973 (hereinafter referred to as "The Act, 1973"), therefore, relief has been granted to them without jurisdiction by the Tribunal.

(3) The precedents relied upon by the Service Tribunal i,e, The Managing Director, Sui Northern Gas Co. Ltd. . v. Saleem Mustafa Sheikh and others (PLD 2001 SC 176), Engr. Naraindas and others v.

Federation of Pakistan and others (2002 SCMR 82) and Abdul Samad v. Federation of Pakistan and others (2002 SCMR 71), dealing with the cases of Trainee Engineers are not applicable to the cases of Management Trainee, therefore, both impugned judgments are not sustainable to their extent on this score.

(4) The direction of the Service Tribunal to appellant-Company to regularize or absorb the respondents is contrary to the law laid down by this Court in the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 SC 101).

(5) The Service Tribunal erred in law in holding that the appeals filed by respondents (in Appeals No,1396 to 1663 of 2002) before the Tribunal were within time, therefore the impugned judgment deserves to be set aside on the question of bar of limitation.

6. Mr. Wasim Sajjad, learned Senior Advocate Supreme Court for some of the respondents contended as follows:--

(a) Inclusion of Mr. Aftab Ahmed as a Member of the Betich has not caused prejudice to the case of appellants as besides him three other Members including the Chairman of the Service Tribunal were competent to hear appeals filed by respondents.

(b) That under de facto doctrine the judgment of Service Tribunal can be maintained, as decided in the case of Malik Asad Ali and others v. Federation of Pakistan (PLD 1998 SC 161).

(c) The status of the respondents as civil servants under section 2-A of the Act, 1973, has been settled in earlier judgments of this Court in the cases of Saleem Mustafa Sheikh, Narain Das, Abdul Samad and Dr. Anwar All Sahto (ibid) therefore, contention raised merits rejection.

(d) The principles discussed in the cases of Saleem Mustafa Sheikh, Engr. Narain Das, Abdul Samad

(ibid) pertaining to Trainee Engineers have been correctly applied in the cases of Management Trainee to the extent of law declared and principle enunciated therein.

(e) The Service Tribunal under section 5 of the Act, 1973, enjoys vast jurisdiction to issue direction to appellant-Company to absorb the employees in service or grant relief of back-benefits to aggrieved employees before it.

(f) The appeals filed by respondents being represented by him were within time. However he explained that in one is of the appeals applications for condonation of delay we-e not filed because they approached Service Tribunal after availing the remedy of departmental representations whereas in some of the appeals applications for condonation of delay were filed as no departmental appeals/representations were filed by the respondents. Mr. Abid Hassan Minto, learned Senior Advocate Supreme Court for some of the respondents adopted the arguments put forward by Mr. Wasim Sajjad, Senior Advocate Supreme Court and also added that:--

(g) The Service Tribunal in exercise of its jurisdiction, had condoned the delay in filing appeals of the respondents (in Civil Appeals Nos.1396--1663 of 2002), whereas the appellant-Company has failed to identify any illegality or irregularity in exercise of discretionary powers by the Service Tribunal, therefore, impugned judgments do not warrant any interference in this behalf.

(h) The appeals filed by the respondents being represented by him were within time as they approached Service Tribunal after exhausting departmental remedy of filing representations to next higher authority, and having regard to this aspect of the case Service Tribunal in its discretion rightly condoned the delay, if any in filing the appeals.

(j) The respondents successfully completed period of probation for two years thus they attained the status of regular employees of the appellant-Company being civil servants for the purpose of section 2-A of the Act, 1973 and Tribunal has granted relief to them with jurisdiction. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court representing some of the respondents argued that:--

(k) Under the provisions of paras 6.1, 6.2 and 6.3 of the Executive Service Rules of the appellant- Company, the respondents, after successfully completing the probation period of 2 years, eitheras Trainee Engineers or Management Trainee, being regular employees of the Company have become civil servants under section 2-A of the Act, 1973, thus the Service Tribunal was empowered to redress their grievance.

(1) The respondents instituted appeals before Tribunal within time prescribed by the law thus in absence of material on record to prove contrary, the plea advanced by the appellant's counsel to non-suit them on the point of limitation, merits no considerations.

(m) The discretionary order condoning the delay by the forum having jurisdiction normally is not interfered by this Court unless it is shown that it is perverse or has been passed contrary to the recognized principles or manifestly it has caused injustice to either of the party. Reliance was placed on 1986 SCMR 1086, 1997 SCMR 197, 1999 SCMR 880, 2000 SCMR 830. 2002 SCMR 142, 2002 SCMR 581, 2002 PLC (CS) 752, C.As.Nos.1707 of 1998, 75 of 1999 (Zafar Ali Amin v. Pakistan State Oil Company).

(n) The Supreme Court being a Court of ultimate jurisdiction enjoys vast powers to dispense justice, therefore, technicalities should not come into its way to achieve the object. As such respondent may not be non-suited if some of them have not approached the Service Tribunal within time in view of peculiar facts and circumstances of the case. Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court contended that:--

(o) The appeals filed by the respondents being represented by him were within time. Besides it the delay if any in filing of the appeals was rightly condoned by FST in view of the principle discussed by this Court in the case of Syed Imran Raza Zaidi v. Government of the Punjab (1996 SCMR 645).

(p) The respondents being first class Graduate Engineers were appointed on jobs as Trainee Engineers and on completion of training they were entitled to be confirmed and if there was any flaw in their appointments they cannot be blamed and Company cannot be benefited of its own mistakes thus they deserve to continue in the service as regular employees of the appellant in the cadre of engineers. Reliance was placed by him on Secretary to Government of N.-W.F.P. v.

Sadullah Khan (1996 .SCMR 413). Hafiz S.A. Rehman, D.A.-G. Contended on behalf of the appellants except in C.A. No,533 of 2002 and stated that: --

(i) Inclusion of Mr. Aftab Ahmad as Member of the Bench has rendered the judgment as illegal but it can be saved by de facto doctrine, therefore, insisted for decision of the cases on merits instead of remanding them to the Federal Service Tribunal for fresh decision.

(ii) Service Tribunal had exceeded its jurisdiction in directing the appellant-Company to absorb the respondents into service because it enjoys limited authority to grant relief to an aggrieved person within the parameters of section 5 of the Act, 1973 whereby the Tribunal is authorized to confirm, set aside, vary or modify the order appeal against. Ch. Sadiq Muhammad Warraich, ASC adopted the arguments advanced by Messrs Wasim Sajjad and Muhammad Akram Sheikh learned Senior Advocate Supreme Court on merits and limitation respectively and also relied upon Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation (2002.SCMR 1034) and Dr. Anwar Ali Sahto v.. Federation of Pakistan (PLD 2002 SC 101). Mr. Tariq Asad, ASC also adopted the arguments advanced by the Advocates, named hereinbefore.

7. We have heard learned counsel for the parties carefully and have examined their contentions in the light of the relevant provisions of the law. It would be appropriate to first of all attend the question of incompetency of the Service Tribunal to deliver judgment dated 31st May, 2001 challenged in Civil Appeals Nos.533--539 of 2002 on account-of presence of one of the Member Mr. Aftab Ahmed, who had retired prior to hearing of the appeals. Learned counsel for the appellant-Company informed that in identical situation a Bench of this Court comprising three Hon'ble Judges in the cases of Zareen Shal v. Director-General, Directorate of Education, Islamabad and another in C.Ps. 1777 of 2000, etc. [decided on 5th March, 2002] on setting aside the judgment, suffering from same defect, had remanded the cases to the Service Tribunal for fresh decision on merits, therefore, same order may be passed in these appeals as well. Mr. Wasim Sajjad, Senior Advocate Supreme Court for the respondents opposed the request of appellant's counsel and contended that the respondents had already suffered a lot because they are running from pillar to post for last so many years to get justice, therefore, suggestion of the learned counsel of appellant-Company would not advance the cause of justice. Besides, it, the superior Courts have always discouraged remand of the cases and insisted on decision of the cases on merits unless it is necessary to meet the ends of justice. It was also stated by him that the judgment relied upon by the learned counsel for appellant-Company was passed with the consent of the parties, as such instead of following the recourse of remand, appeals may be decided on merits.

8. It is to be seen that judgment dated 31st May, 2001 was delivered by a Bench of the Service Tribunal including its Chairman and three other Members, out of them, Mr. Aftab Ahmed had retired prior to hearing of the case, therefore, question for consideration would be "whether due to his inclusion in the Bench as a Member, impugned judgment has been delivered without jurisdiction?" Section .3-A of the Act, 1973 deals with the constitution of Benches of the Service Tribunal. For convenience same is reproduced hereinbelow:-- "3-A. Benches of the Tribunal.---(1) The powers and functions of a Tribunal may be exercised or performed by Benches consisting of not less than two Members of the Tribunal, including the Chairman, constituted by the Chairman.

(2) If the Members of a Bench differ in opinion as to the decision to be given on any point--

(a) the point shall be decided according to the opinion of the majority;

(b) if the Members are equally divided and the Chairman of the Tribunal is not himself a Member of the Bench, the case shall be referred to the Chairman and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman; and

(c) if the Members are equally divided and the Chairman of the Tribunal is himself a member of the Bench, the opinion of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman."

Perusal of subsection (1) of section 3-A of the Act, 1973 reveals that "minimum strength of a Bench to exercise or perform functions of the Tribunal is two Members, including the Chairman," meaning thereby that while conducting hearing the status of a Chairman is also of a Member. Whereas under clause (a) of section 3-A(2), decisions are to be pronounced by the majority of the.

Members. Clause (prof section 3-A (2) further provides that in case of division between Members of the Bench or in case of equal division of the Members, the case shall be referred to the Chairman and whatever opinion is expressed by him, would have supremacy and constitute the decision of the Tribunal. In this case impugned judgment has been authored by the Chairman and all the Members have concurred with him, therefore, presuming that Mr. Aftab Ahmed joined proceedings without lawful authority but nevertheless impugned judgment can sustain, as it has been rendered by the Bench comprising of more than two Members of the Service Tribunal and apprehension of influencing the judgment by Mr. Aftab Ahmed (Retired Member) stands excluded as it was authored by a former Judge of High Court being the Chairman of the Service Tribunal. In addition to above legal position, the impugned judgment can be treated to have been delivered validly under de facto doctrine. In this behalf reference may be made to following para from Colley's Constitutional Limitations, 8th Edition, Vol.2, page 137:- "No one is under obligation to recognize or respect the acts ofan intruder and for all legal purposes they are absolutely void. But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security or private rights the acts of Officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the Officer which he claims to be. In all other cases the acts of an Officer de facto are as valid and effectual, which he is suffered to retain the office, as though he were an Officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of Officers de facto cannot be questioned collaterally." The de facto doctrine has also been recognized by this Court in the case of Lt.-Col. Farzand Ali and others v. Province of West Pakistan through Secretary. Department of Agriculture (PLD 1970 SC 98).Relevant para.Therefrom is reproduced hereinbelow:-- "Upon these principles it was strenuously argued that the Third, Fourth and the Sixth Constitutional Amendments are now unassailable, because at any rate the allegedly disqualified respondents had acted as de facto Members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair color of title and they have also performed their duties with public acquiescence. They were not purely .Intruders. Therefore, their acts even apart from the provisions of sub-clause (d) of clause (I) of Article 110 were as good as those of de jure Members of the National Assembly. There is a great deal of force in this contention and since this is not 4. Direct attack upon their right to continue as members, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98 (2) (b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests have been affected by the legislative measures enacted in the meantime. Thus de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights." In this very context a para from the case of Gikaraju Rangarajuv. State of Andhra Pradesh (AIR 1981 SC 1473) being advantageous is reproduced hereinbelow:-- "A Judge, de facto is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. The de facto doctrine saves such acts. There is-yet another rule also based on public policy. The defective appointment of a de facto Judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in litigation between two private litigants, a litigation which is of no concern or consequence to the Judge except as Judge.

Two litigants litigating upon the title of a Judge to his office. Otherwise as soon as a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack." Lately this Court in the case of Malik Asad Ali (ibid) held as under:-- "142. From the above discussion, it follows that the recognition of the principle of de facto exercise of powers by a holder of the public office is based on sound principle of public policy to maintain regularity in the conduct of public business, to save the public from confusion and to protect private right which a person may acquire as a result of exercise of power by the de facto holder of the office. However in the present cases only the acts done and orders passed by respondent No,2 in his de facto capacity of Chief Justice of Pakistan before 26th November, 1997 will be protected under the doctrine of de facto exercise of power as on that date, he was restrained by a Bench of this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice of Pakistan."

Thus endorsing the principles discussed in above paras the impugned judgment is declared to have been passed validly because Mr. Aftab Ahmed immediately before his retirement had been performing same functions, therefore, it would be deemed that in exercise of same powers in good faith he associated himself in the proceedings. Besides above conclusion, the inclusion of Mr. Aftab Ahmed as a Member of the Bench, had also not caused prejudice to any of the parties because he has not authored the judgment nor there is any likelihood of his having influenced the judgment in any manner as it was authored by the Chairman and remaining two Members of the Bench had concurred with him. No useful purpose as such would be served by remanding the case to the Service Tribunal for fresh decision because dispute is lingering on between the parties for the last so many years, therefore, justice demands that now cases should be decided finally unless remand of the cases is inevitable under the circumstances of each case.

9. Learned counsel for appellant-Company, vehemently emphasized that respondents are not civil servants, therefore, the Service Tribunal had no jurisdiction to grant them relief under section 4 of the Service Tribunals Act, 1973. It is to be noted that this very question was also raised previously on behalf of the appellant- Company in the case of Saleem Mustafa Sheikh (ibid), etc. But without any success. Reference may be made to the following paras therefrom:--- "5. The main contention of the Company before the Service Tribunal was that the services of the respondent were never regularized and after the expiry of the terms of training his services were no longer required, therefore, his grievance could not be redressed by the Tribunal under section 4 of the Act, but the Tribunal rejected this argument and held:-- "The Executive Service Rules, as mentioned above provide that temporary/contract post is for the limited time otherwise the probationary period under the rules 6.1, 6.2 and 6.3 is initially for one year extendable for a further period not exceeding one year. We will apply the Executive Service Rules of the respondent-Company to the terms and conditions of service of the appellant with the respondent-Company, and therefore, as conceded by the learned counsel for the respondent- Company, we will set aside the letter of discontinuation of temporary/ training assignment dated 10-3-1999 of the appellant and direct the respondent-Company to issue the letter of absorption in Career Executive Cadre of the appellant in the respondent-Company as it was issued to Nisar A.

Sangi on 17-4-1998."

6. Learned counsel appearing for the petitioner before us argued that the company is public limited company and without statutory rules the relation between it and its employees would be that of master and servant. The learned counsel, however, could not deny the existence of the Rules called "Sui Southern Gas Company Limited Executive Service Rules". We fail to understand that if these rules were not to be acted upon merely on the pretext or ground that they were not statutory rules, then what was the sense in framing them. Does it mean that the company would with immunity violate these Rules. The Sui Gas Company is owned and controlled by the Federal Government, therefore, it could not be expected of the Federal Government to enact Rules and then not to enforce it or to violate it merely because these rules do not have the status of statutory rules. In our view the factum of the rules being statutory or non-statutory would not debar the Tribunal to enforce it as that point would be relevant in cases of exercise of writ jurisdiction because there the violation of statutory rules is prerequisite for issuance of the writ. Even otherwise under the principle of general law of estoppel the company cannot be allowed to object to the invocation of the rules by the employees/respondents and similarly they could not be permitted to violate and dishonour their commitments when the respondent entered in its service on the basis of the commitment/undertaking given by it. It is thus obvious that the Tribunal cannot be condemned in enforcing the rules which the Board of Directors of the company have framed. The relevant rules relating to the probation are rules 6.1, 6.2 and 6.3. Under these rules the company could keep the respondent on probation for the maximum period of two years and, therefore, he was either to be confirmed or if his work or conduct were found unsatisfactory then his services could be terminated. In the present case the respondent was kept on probation for more than four years then .His services were not terminated on account of inefficiency or misconduct but no reason whatsoever was assigned in this respect in termination order. The relevant portion of which reads:-- "You were offered a Training Assignment as Trainee Engineers vide Letter No,MW/C/0001. It is not possible to continue this assignment any further, which is terminated forthwith. As per our offer, it was clearly understood that the Company shall not be obliged to offer permanent employment. However, you may apply for the job with the Company if the vacancies are advertised in the respective cadres and your case snail be considered on merits."

A perusal of above paras indicates that while declining to grant leave to appeal the judgment of the Service Tribunal, rendered by it was maintained inter alia on the grounds that under section 4 of the Service Tribunals Act, 1973 respondentsgrievance could be redressed. It may also be noted that on completion of initial period of one year, extendable for another period of one year, under Rules 6.1, 6.2 and 6.3 of the Executive Service Rules of the Sui Southern Gas Co. Ltd. The appellant- Company was bound either to terminate the services of the respondents if their work and conduct were found unsatisfactory or to confirm them against the posts which were held by them. The respondents have completed successfully their period of probation as the letter of termination of their services does not indicate that on account of their unsatisfactory performance, they were removed from service, therefore, on having completed the period of 2 years of probation period successfully it would be d: med that they had attained the status of civil servants for the purpose of section 2-A of the Act, 1973, conferring thereby jurisdiction upon Service Tribunal to grant them relief under section 4 of the Act, 1973. An identical argument was raised by the learned counsel for the appellant-Company in the case of Abdul Samad (ibid) but his such contention was not entertained in the following words:-- "13. As regards the pleas raised by Mr. M.Jamil, learned Advocate Supreme Court to the effect that as the petitioners were not civil servants within the contemplation of the Civil Servants Act, 1973 for the purpose of resorting to the remedy of appeal before the Tribunal after the amendment with effect from 1-6-1997 and that rule 6.1 of the Rules was not correctly by the Tribunal in this case in that the Tribunal did not possess any jurisdiction in law to attend to the cases of persons in the employment of respondent-Company on contract basis to which rule 6.1 does not apply as it is applicable only to the cases of the members of the Executive Service of the respondent-Company, we suffice by observing that neither this point was arguments either before the Tribunal or through separate application/ concise statements in this Court. Be that as it may, the grievance of the petitioners before the respondent-Company as also the Tribunal related to the failure of the respondent-Company to regularize their employment in terms of the judgment in the case of Saleem Mustafa Sheikh (supra), therefore, the Tribunal was not in error in resolving the controversy before it through the impugned judgment dated 13-10-2000 to that extent." It is to be noted that in the case of Engineer Narain Do (ibid) initially aggrieved persons invoked the jurisdiction of the High Court by challenging the respective orders of their termination from service but the High Court without giving them relief disposed of their petitions on different dates. Against said orders o High Court aggrieved persons approached this Court by filing petitions, which have been decided with certain observations and consequently the cases were remanded to Service Tribunal. In the said petitions observations. Were also made with regard to the question relating to terms and condition of their services. Relevant para. Therefrom for convenience is reproduced hereinbelow:-- "15 We have considered the arguments addressed at the bar and have also gone through the material available on the record. It is not denied by either side that the petitioners were driven to making Constitutional petitions before the High Court with a view. To challenging the respective orders of termination of their service and that section 2-A was inserted in the Service Tribunals Act (LXX of 1973) with effect from 10-6-1997. It is also not the case of either side that the High Court of Sindh disposed of petitionersConstitutional petitions on different dates and that this Court disposed of Civil Petitions Nos. 418-K to 483-K of 1999 on 5-8-1999 with the observation that "Since the question relating to the termination of services of the petitioners relates to the terms and conditions of their service, the petitioners are free to approach the learned Service Tribunal for redress of their grievance and in case they take such a proceeding, the learned Tribunal will consider the question of limitation, if any, sympathetically. (Emphasis provided). The petitions stand dismissed subject to the observations made above. A perusal of above para. Indicates that this Court as back as in 1999 remanded the cases to the Service Tribunal to consider whether the cases of the employees relates to the terms and conditions of their service. Therefore, it can safely be concluded that in view of above observation, earlier judgment, it is not possible to form contrary opinion that the Service Tribunal had no jurisdiction to grant relief to the Trainee Engineers or Management Trainee against the order of their termination from service. After the decision of above cases, in the case of Dr. Anwar Ali Sahto (ibid). Above conclusion was reaffirmed once again. Relevant paras. Therefrom read as under thus :- "50. Ch. Muhammad Jamil, learned ASC argued that the petitioners were neither permanent, nor temporary or contractual employees but they were only Trainee/apprentices in the respondent- Company, therefore, their cases are distinguishable from the cases of Saleem Mustafa Sheikh and Engineer Naraindas (supra), inasmuch as, section 2-A of Service Tribunals Act, 1973 was not considered from the point of view that whether or not the persons who were not holding any post in a Corporation/Company could be deemed to be civil servants.

51. We have heard the learned counsel for the parties and also examined the record with their assistance. There is no need to make an in depth study of the contentions raised at the Bar, inasmuch as, there is no difficulty in disposing of the above appeals and petitions in that all the questions raised in them were considered and adjudicated upon in identical matters in Saleem Mustafa Sheikh and Naraindas (supra). In the present cases also the appellants were trainee engineers/management Trainee. We find no reason to strike a discordant note in these cases.

In view of above dictum it would not be out of context Et point out that right-to approach the Service Tribunal by an employee of an Authority, Corporation, Body or Organization, established by or under the Federal Law or which is owned or controlled by Federal Government or in which Federal Government has controlling share or interest was conferred vide section 2-A inserted by means of Service Tribunals (Amendment) Act, 1997 w,e,f, 10th June, 1997, according to which the employees of such Corporation, etc. Would be deemed to be civil servants for the purpose of Service Tribunals Act, 1973. Section 2-A of the Act, 1973 was interpreted in the case of Zahir Ullah and 13 others v. Chairman, WAPDA, Lahore and others (2000 SCMR 826) and held that its benefit is not extendable only to regular employees of the such Organization but also to the employees who were on contract or workman. Distinction may be noted that under the Civil Servants Act, an employee who is working on contract basis does not fall within the definition of civil servant but by promulgating section 2-A of the Act, 1973 such right has been conferred upon the contract employees as well as on workmen. Relevant para. From the judgment reads as under thus:- "The above view taken by the learned Tribunal does not appear to be correct as section 2-A which was inserted in the Service Tribunals Act, 1973, by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the learned Service Tribunal. Section 2-A ibid while providing that the service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such corporation or organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. We are, therefore, of the view that as the appellants were covered by the provisions of section 2-A for the purpose of availing remedy before the Service Tribunal. The fact that they were employed in the organization/corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of incorporation of section 2-A in the Service Tribunals Act, 1973. Accordingly, the above appeals are allowed, the order of the learned Service Tribunal is set aside and the cases are remanded to the learned Service Tribunal with the direction to decide the same afresh in the light of above observations.

Because of the principle laid down hereinabove we feel no hesitation to hold that if an employee who is in, the employment on contract or enjoys status of workman in the organization is covered by section 2-A of the Act, 1973 and shall be deemed to be a civil servant. Then as to why the respondents who had completed the period of probation of two years under the Executive Service Rules of Sui Southern Gas Co. Ltd. Successfully cannot be treated to be civil servants, eligible to seek relief from the Service Tribunal under section 4 of the Act, 1973.

On factual plan, it is an admitted position that appellant-Company offered assignments of Trainee Engineers or Management Trainee to the respondents in the year of 1994-1995 by issuing appointment letters on different dates being the persons who were fully qualified to hold the post and on their appointments they were posted in different parts of the Province of Sindh and Balochistan. They completed their initial period of six months of training without any complaint as nothing is available on record against them, thereafter, they were allowed to continue in service for a period of more than two years, but abruptly their service was discontinued on the pretext that the project against which they were appointed, has been completed. Whereas Rule 6 of the Executive Service Rules of the appellant-Company casts a duty upon the appellant-Company to confirm them permanently in the service on successful completion of probation period. The Rule is reproduced hereinbelow for convenience:-- "6.1. Persons appointed by direct recruitment shall be on probation for a period of one year of until such time as they are confirmed. This period may be curtailed for good and sufficient reasons to be recorded or if considered necessary, it may be extended by the Competent Authority for a further period not exceeding one year.

6.2. On the satisfactory conclusion of his probationary period theCompetent Authority may confirm the executive in his appointment.

6.3 If, in the opinion of the Manager of Department, the work or conduct of an executive on probation is unsatisfactory or shows that he is not likely to become efficient, the Competent Authority may terminate his services without assigning any reason with one month's notice or payment of remuneration in lieu thereof.

There should not be any doubt in any manner of whatsoever nature that the appellant-Company has framed these rules itself, therefore, it is bound to follow the same. As it has been observed hereinabove that appellant-Company is bound to confirm/absorb/regularize the respondents, if they have completed the probation period satisfactorily. Since in the instant cases, respondents were allowed to hold the posts assigned to them on completion of training of six months, for a period of I more than two years, therefore, presumption would be that on having completed the period of probation satisfactorily, they have acquired the status of regular employees of the appellant-Company, being controlled by the Government, and they would be deemed to be the civil servants under section 2-A of the Service Tribunals Act, 1973. Thus, Federal Service Tribunal had entertained their appeals lawfully under section 4 of the Service Tribunals Act, 1973.

10. Adverting to the question whether an employee can be ordered to be absorbed in the service by the Tribunal while deciding an appeal. The expressions used in section 5(1) of the Act namely confirm, set aside or modify the order appealed against are understandable in ordinary sense but expression "vary" needs to be defined to ascertain the powers of Tribunal. As per Shorter Oxford English Dictionary "vary" includes the meaning of to undergo change or alteration, to pass from one condition state etc. To another, to differ in respect of statement to give. -- Undoubtedly if this definition is accepted there would be no difficulty in concluding that the Service Tribunal had vast jurisdiction to redress the grievance of the person before it. As per dictum laid down in the case of Pakistan Railways through General Manager v. Ghulam Rasool (1997 SCMR 1581). Powers of Service Tribunal under section 5 of the Act are very wide and all questions of laws and facts arising therein are open to be gone into by the Tribunal. The Service Tribunal while hearing such an appeal has full power to confirm, alter, set aside or modify the order of Departmental Authority keeping in view the facts and circumstances of the case and to meet the ends of justice: It may be noted that learned counsel for appellant who also appeared in Dr. Anwar Ali Sahto (ibid) case argued that the Tribunal had no jurisdiction to order reinstatement of the petitioner in service.

The argument was ex facie found misconceived and the same was repelled and while relying upon the judgment of Pakistan Railways through General Manager (ibid) it was held that the Tribunal had very wide powers and all questions of law arising therein can be gone into by the Tribunal and the only limitation on the powers of the Service Tribunal is that it should satisfy the test of reasonableness. In the case of Dr. Anwar Ali Sahto besides relying on the judgment referred to hereinabove, reference to the case of Saleem Mustafa Shaikh (ibid) was also made . It may be noted that in the said case identical argument was raised namely the Tribunal could not direct the appellant-Company to issue letter of absorption of the employees but the argument did not find favour and it was repelled by making observation that Tribunal had given such direction in context of termination order and it has not determined the fitness or otherwise of the employees to be appointed or to hold a particular post and finally it was held that the contention is misconceived and the Tribunal had not exceeded its jurisdiction. It would be advantageous to note that in Dr. Anwar Ali Sahtos case it has been held that re- instatement and absorption for all intents and purposes are synonymous expressions. Relevant para. Reads as under: -- "59. After hearing the learned counsel appearing in support of the cases of their respective clients and going through the material available on record with their assistance, we are of the. Considered view that the impugned judgments are unexceptionable, inasmuch as, the petitioners herein have been reinstated in service, which fact meets the ends of justice and further that the respondent- Company has not challenged their reinstatement before this Court. Notwithstanding the originality and ingenuity of Mr. Wasim Sajjad in his endeavor to create a fine distinction in the words 'reinstatementand absorptionwe are of the view that 'reinstatementand 'absorptionfor all intents and purposes, are synonymous expressions, in that, `reinstatementin service involves an element of 'absorption', therefore, the expression 'absorbedused in Abdul Samad (supra) by this Court is to be constructed accordingly and to that extent the case of Abdul Samad (supra) also stands revisited.

The findings in this case shall not, however, affect the transactions past and closed."

But we are not persuaded to subscribe to above view because terms 'reinstatementand 'absorptionare distinct and different from each other, even as per dictionary meanings. As far as reinstatement is concerned it would mean to restore or replace in last position, privileges, etc., whereas absorption means disappearance through incorporation in something else. It is also to be noted that learned counsel for appellant-Company himself admitted that the connotation 'absorptionwith reference to instant cases was originally used by the Company itself while issuing a letter to Nisar A. Sangi on 17-4-1998 one of the Trainee-Engineers, whose service was also terminated at one stage, therefore, the Tribunal while accepting the appeal of Saleem Mustafa Shaikh (ibid) directed the Company to issue the same letter of absorption to him and the decision of the Tribunal was maintained in the petition filed by Managing Director, SSGC. As such since then this expression is being used invariably in all the identical cases. Similarly, this very connotation was used by this Court in the case of Engr. Naraindas (ibid) wherein on setting aside the appellate order directions were made to respondent to absorb the petitioners in their respective disciplines on the same lines as mentioned in the case of Saleem Mustafa Sheikh etc. Likewise, in the case of Abdul Samad (ibid) identical relief was given to the employees.

Admittedly the respondents on completion of training period were entitled for change over to regular employment of the Company because they have successfully completed their training and such incorporation to regular cadre has become necessary because despite of completing training period of six months they were not being absorbed against regular cadre of the company and 0 their fate was hanging in fire despite the fact that they had also completed the period of probation entirely to the satisfaction of the employer as termination order of service discloses nothing adverse against them. Thus in view of the facts and circumstances of the case the Tribunal had jurisdiction to grant such relief. Assuming for sake of arguments that if no direction for absorption of respondents had been issued by the Tribunal and had only passed an order of reinstatement then the authorities would restore them to the position of Trainee Engineers/Management Trainee after the lapse of more than a period of 7/8 years from the date of their joining the company notwithstanding the fact that under Rules 6.1, 6.2 and 6.3 of Sui Gas Transmission Company Limited Service Rules, 1982 they had completed the period of probation successfully. It is also to be kept in mind that the respondents were appointed as Trainee Engineers/Management Trainee on jobs as per the arguments advanced by Mr. Iftikhar Hussain Gillani learned Senior Advocate Supreme Court. In this context the advertisement made by the company indicates that applications were invited from fresh Graduate Engineers possessing a First Class Bachelor's degree for training/posting at any of the various Company Stations in the Provinces of Sindh and Balochistan which means that they were not recruited as apprentices but Trainee Engineers possessing requisite qualification and after completion of the period of training of six months they were to be posted at any of the company's station in the Provinces of Sindh and Balochistan. The respondents naturally had an expectation of posting ascareer Engineers and in Management cadre after the completion of pre-service training of six months but the appellant-Company for one or the other reason did not absorb them against the regular cadre and kept them running from pillar to post but without any success as ultimately after lapse of 7/8 years when they had become over-age to join any Government Service in Pakistan they were shown door with ulterior motives. For no other reason except that till then their absorption in the regular cadres had become mandatory. Therefore, simplicitor reinstatement of the respondents in service by the Service Tribunal would have not met the ends of justice. As such in exercise of the powers conferred upon the Tribunal and this Court in number of cases directions were made to absorb the employees of appellant-Company into the regular cadres. Learned counsel for the appellant relying upon the judgments reported in the cases of (i) Mian Abdul Malik v. Dr. Sabir Zamer Siddiqui and 4 others (1991 SCMR 1129), (ii) Z.A. Javed Raja v.

Secretary, Establishment Division, Islamabad and 3 others (1996 PLC (C.S.) 360) and (iii) Abdul Baqi and others v. Muhammad Akram and others (PLD 2003 SC 143) argued that it is the prerogative of the employer to absorb an employee into service. We afraid the judgments cited by him are not relevant with reference to the discussion on the subject because in these cases question of fitness, eligibility for promotion of the employees has been considered in context of jurisdiction of the Service Tribunal under section 4 of the Act.

11. Learned counsel for the appellants then contended that the judgments in the case of Sui Southern Gas Company Ltd. v. Engr. Naraindas and others, Abdul Samad and others v. Federation of Pakistan and others, Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh

(ibid) have not been properly appreciated and applied by the Tribunal. In this behalf he has made two-fold arguments firstly, the cited cases pertains to Trainee Engineers, thus they are not applicable on the cases of Management Trainee. Secondly, these cases are distinguishable from the case of Nisar A. Sangi because latter was appointed on merits after observing codal formalities i,e, invitation of applications, conducting tests/interview whereas the respondents got their appointments in both the categories i,e, Trainee Engineers or. Management Trainee by exerting political pressure upon the management of the Company. As such principle discussed in these judgments were not applicable to the instant cases.

As far as first contention of the learned counsel is concerned it has no force because in the case of Saleem Mustafa Shaikh (ibid), a question of fundamental nature was decided concerning application office Rules framed by the Company itself . Thus it is held that the impact on this judgment will have binding effect on the cases of all employees of the SSGCL, whose cases are covered by the Executive Service Rules, notwithstanding the fact whether they were appointed as Trainee Engineers or Management Trainee or in any other capacity.

As far as second argument is concerned, same is also not acceptable because a perusal of appointment letter reproduced hereinabove indicates that the appointment was given to them with reference to their applications and subsequent tests/interviews which would mean that they were also recruited on merits. In view of such position statement of the learned counsel that respondents got their appointment due to political influence does not seem to be correct.

Assuming that appointments of some of the respondents were contrary to Rules/Regulations then the authority who was in the helm of the affairs may have declined to honour the directions of political personalities. However, for any flaw or defect the appointments as far as respondents are concerned, they cannot be blamed as it has been held in the case of Secretary to Government of N.-W.F.P., Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan (1996 SCMR 413). Relevant para. Therefrom reads as under thus:- "6. It is disturbing to note that in this case petitioner No,2 had himself been guilty of making irregular appointment on what has been described 'purely temporary basis'. The petitioners have now turned around and terminated his services due to irregularity and violation of rule 10(2) ibid. The premise, to say the least, is utterly untenable. The case of the petitioner was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in reinstating the respondent." The above view has also been reiterated in the case of Abdul Hafeez Abbasi and others v.

Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034). It is to be noted that in the impugned judgment Federal Service Tribunal has correctly appreciated and applied the principle laid down in the judgments of Saleem Mustafa Sheikh, etc. Thus the contention of the learned counsel being without force is rejected.

12. Learned counsel for appellant-company with vehemence argued that appeals filed by respondents were barred by time, inasmuch as insome cases no application seeking condonation of delay were filed but the Tribunal suo motu condoned the delay contrary to settled law. To substantiate his plea he filed a chart indicating delay in each case in filing of appeal before the Service Tribunal. Reliance in this behalf was placed on the cases of Fazal Ahmad Siddiqi v. Pakistan through Secretary, Establishment Division and 2 others (PLD 1990 SC 692), Dr. Anwar Ali Sahto (ibid). Mr. Abid Hasan Minto, learned Senior Advocate Supreme Court stated that services of the respondents to whom he is representing were terminated on 30th May, 2000 and Departmental representations were filed by them to the next higher authority but no response was given to them despite lapse of 90 days. Thereafter during next 30 days they preferred appeals before the Service Tribunal on 2nd September, 2000. Learned counsel made statement of law that no representation under section 4 of the Service Tribunals Act, 1973 is competent to the next higher authority as far as the employees whose cases are covered under section 2-A of the Act, 1973 but if following the principle of section 4 of the Act. 1973 the employees have filed departmental appeals/representations in good faith, so the time consumed for waiting the result of the same is liable to be condoned in the interest of justice. A perusal of impugned judgment indicates that delay in filing the appeals before the Tribunal was condoned for the following reasons: - "26. As far as the limitation period was concerned similar issue was also raised in the case of Narain Das where the Supreme Court overruled the judgment of the Tribunal in the following words:- "Saleem Mustafa Shailch's appeal before the Tribunal was barred by 105 days and the observation by the Tribunal was that such delay was reasonable. The cases of the appellants are almost at par with the cases of Saleern Mustafa Sheikh and others. Here, the appeals were barred by 129 days, therefore, following the rule of consistency this was a fit case for condonation of delay by the Tribunal." Thus the issue of limitation in the present cases also needs to be viewed in the light of the dictum laid down by the Supreme Court in the cases of Saleem Mustafa Sheikh and others, Narain Das and others and Abdul Samad and others. The condonation of limitation was also supported by the learned counsel for the appellants in their favour and cited the Supreme Court's decisions reported in 1996 SCMR 645 and 1996 SCMR 230 wherein it has been decided that where the cause of grievance was continual and of financial nature, the limitation could not be applied. We tend to accept this stance put forth by the learned counsel for the appellants which is further reinforced by the Supreme Court's order in Civil Petition No,1381 of 2001 that the Federal Service Tribunal "shall decide the same afresh on merits, after sympathetically considering the delay, if any, in filing appeals before it by the appellants herein". Thus, delay in filing these such appeals is condoned." Learned counsel for respondents raised objection on filing of the chart in the Court and stated that complete data has not been provided to them including applications submitted by the employees alongwith the appeals for condonation of delay in some of the cases. They further stated that they have been supplied paper book only in Civil Appeal No,1396 of 2002. As far as remaining cases are concerned no paper book has been made available to them because appellant-Company did not file separate sets for the Advocates of the respondents. They also stated that in absence of material i,e, whether applications were filed for condonation of delay alongwith memo. Of appeals and if the same were barred by time then what order was passed on the same by the Service Tribunal and whether the time has been consumed by some of them in waiting the result of departmental appeal/representation and how much period was consumed in obtaining the copies etc. Mr.Abid Hasan Minto, learned counsel argued that the judgment in the case of Dr. Anwar Ali Sahto

(ibid) is distinguishable on the question of limitation because there were two types of delays i,e, one was in filing of the petitions before the Supreme Court which was not condoned and second was delay in filing of appeal before the Tribunal which has been condoned by the Service Tribunal itself but this Court did not intervene in discretionary order passed by the Service Tribunal. Mr. Muhammad Akram Sheikh, learned counsel contended that the Federal Service Tribunal in exercise of jurisdiction has condoned the delay leaving minimum scope of interference by this Court because it is the consistent practice of this Court that normally interference is not made by it if the lower forum/Tribunal had exercised discretionary powers judiciously.

At the outset it would be appropriate to examine whether a civil servant, covered by section 2-A of the Act, 1973, are obliged to file departmental appeal. Admittedly respondents are not governed by statutory rules neither they are civil servant as per its definition under section 2(2) of Civil Servants Act not there is any provision in the Rules for filing departmental appeal/representation, therefore, they are not obliged to file departmental appeal before approaching the Service Tribunal for redressal of their grievance as it has been held in the case of Syed Aftab Ahmad and others v.

K.E.S.C. (1999 SCMR 197), Dr. Anwar All Sahto and others v. Federation of Pakistan and others (PLD 2002 SC 101) and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034). Thus it is held that a civil servant under the provisions of section 2-A of the Act can directly approach the Service Tribunal within 30 days under section 4(1) of the Act after passing original order without filing departmental appeal or representation under proviso to section 4 of the Act, 1973. In this connection, now other aspect of the case would be that if an employee of SSGCL had filed a departmental appeal or representation what would be its effect as far as question of limitation is concerned. It is important to note that in the case of Engr. Naraindas (ibid) partiescounsel agreed on filing of departmental appeal by the employees of the Company. Relevant para therefrom is reproduced herein below: -- "The parties are also one on the point that the Service Appeals were resorted to by some of the petitioners after making departmental appeals and that appeals before the Tribunal were within 30 days of the expiry of the 90 daysperiod therefrom. It is settled law that a person who is deemed to be a civil servant for the purposes of Service Tribunals Act, 1973, can make a representation before the competent authority even if no departmental appeal has been provided. See Gulbat Khan v. WAPDA through its Chairman, Lahore and others (1992 SCMR 1789)."

The above noted observations persuade us to associate ourselves with the contention of Mr. Abid Hasan Minto, Senior Advocate Supreme Court that under the proviso of section 4(1) of the Act, 1973 departmental appeal/ representation was not competent but on following its principle, if some delay has been caused due to waiting the result of representation, same is liable to be condoned.

In this context, question for consideration would be that in how many cases departmental appeals were filed by the respondents and what was their fate. To answer this question we are handicapped for want of material available on record because we feel that if the appellant- Company was serious in agitating the point of limitation then it would have brought on record total material for our perusal with notice to the other side so they could have also answered the objection in a befitting manner. Therefore, it is not possible for us to attend this argument effectively. In forming this opinion we are fortified with the judgment in the case of Government of Sindh v. Masood Hussain (2002 PLC (C.S.) 752). Relevant para. Therefrom read as under thus:-- The learned Service Tribunal also recorded a categorical finding that the subsequent Selection Committee, had no existence as the petitioner could not place on record any order of S&GAD showing constitution of such a Committee or nomination of members of that Committee, for determining the question of regularization of appointment of respondents. Since these questions of fact were decided against the petitioner it was for the petitioner to have produced material before this Court to demonstrate that the findings of the learned Tribunal were either perverse or based on evidence. No such plea has been raised in the memo. Of petition filed before this Court. The question, therefore, agitated in these cases is purely a question of fact which has been decided against the petitioner and the petitioner has not been able to demonstrate that the findings of learned Service Tribunal suffered from any perversity. No question of law of public importance arises in these cases. The petitions are, accordingly dismissed and leave is refused." Now turning towards contention of Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court with regard to noninterference by the superior Courts in the exercise of discretionary orders passed by the Service Tribunal condoning -the delay in filing of appeals. In this behalf Reference may be made to the Allah Warayo Chana and 29 others v. Aijaz Ahmad Khan and 6 others (1999 SCMR 880). Relevant para therefrom reads as under thus:-- "It has been held in a number of cases that findings of the Tribunal, on the question of limitation, accepting version of the civil servant unless based on misreading of evidence, are not to be disturbed. The question as to condonation of delay being in the discretion of the Tribunal, the findings cannot be set aside on technical grounds alone. Nothing contrary to the respondents that, they were not aware of the ad hoc character of the appointments held by the appellants, was produced before the Tribunal. We would, therefore, refrain from disturbing the findings of the Tribunal on the question of limitation as well." Babar Gul and another v. Sohail Ahmad Sheikh and others (2002 SCMR 581). Relevant para. Therefrom is reproduced hereinbelow:-- "3. The only contention raised by Mr. Ibadur Rehman Lodhi, learned Advocate Supreme Court on behalf of petitioners involved around the question of limitation as according to learned Advocate Supreme Court the Balochistan Service Tribunal has wrongly condoned the period of limitation as the appeal filed by respondent No,1 was time-barred by two days. We have not been persuaded to agree with the said contention being not tenable because sufficiency of cause for condonation of delay being question of fact was within the exclusive jurisdiction of Service Tribunal. In this regard we are fortified by the dictum as laid down in case titled Ali Hasan Rizvi v. Islamic Republic of Pakistan (1986 SCMR 1086), Muhammad Azhar Khan v. Service Tribunal, Islamabad (1976 SCMR 262), Yousuf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar (1976 SCMR 268). It is well-settled by now that once discretion condoning the delay has been exercised by Service Tribunal it can neither be interfered with nor disturbed by this Court subject to certain exceptions, which are lacking in this case. If any authority is needed, reference can be made to cases titled WAPDA v. Abdul Rashid Dar (1990 SCMR 1513), Sher Bahadur v. Government of N.-W.F.P. (1990 SCMR 1519) and Zahida v. Deputy Director (1990 SCMR 1504)."

Besides above references, decision of the cases on merits have always been encouraged instead of non-suiting the litigants for technical reasons including on limitation. In this behalf good number of precedents V can be cited where question of limitation was considered sympathetically after taking into consideration the relevant facts. Reliance is placed on the cases of Muhammad Yaqub v. Pakistan Petroleum Limited and another (2000 SCMR 830), Messrs Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others (PLD 2001 SC 980), Teekam Das M. Haseja, Executive Engineer, WAPDA v. Chairman, WAPDA (2002 SCMR 142). There are cases where even delay has been condoned by the Tribunal without receiving application from the appellant but no interference was made by this Court on the premises that Service Tribunal had passed order in exercise of its discretionary powers. In this behalf reference may be made to the case of WAPDA v.

Muhammad Khalid (1991 SCMR 1765). Relevant para therefrom reads as under thus:-- As regards the question that no application for condonation of delay had been filed by the respondent, the matter being one of discretion, the finding of the Tribunalcannot be set aside on a technicality alone. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court argued that some of the appeals were within time, therefore, while considering cases of those on merits by the Service Tribunal it would have not been fair for the Tribunal to knock out the respondents on the ground that their appeals were barred by time. He built up his argument in view of the principle laid down by this Court in the case of Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-1, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others (1996 SCMR 645). We are not inclined to discuss above proposition because it has not been approved subsequently by this Court in the cases of Muhammad Hussain and others v. Muhammad and others (2000 SCMR 367), Ali Muhammad through Legal Heirs and others v. Chief Settlement Commissioner and others (2001 SCMR 1822).

Thus above discussion persuades us to hold that interference in the order of the Service Tribunal, condoning the delay in filing of appeals before it would not advance the cause of justice, therefore, contention of learned counsel for appellant-Company in this behalf being devoid of force is accordingly repelled. No other point was argued by the learned counsel for the parties. As a result of above conclusion, Civil Appeals Nos.533'to 539 and 1396 to 1663 of 2002 are dismissed, leaving the parties to bear their own costs.

CIVIL PETITIONS NOS. 25 TO 44 OF 2002

13. Petitioners filed instant petitions for leave to appeal challenging the judgment dated 8th November, 2001 passed by Federal Service Tribunal, Islamabad, claiming relief that impugned judgment may be modified in the following terms:-- "That the judgment of the Federal Service Tribunal dated 8th November, 2001 may kindly be modified and the petitioners be directed to be absorbed on the same lines as was done in the cases of Saleem Mustafa Sheikh and Narain Das decided by this Hon'ble Court." Precisely stating the facts of the cases are that petitioners took up assignment as Trainee Engineers and Management Trainee in Sui Southern Gas Co. Ltd (hereinafter referred to as "respondent-Company") during the period of 1994-1995. They successfully completed the training period followed by probation period but instead of absorbing them against the regular cadre post, respondent-Company intended to terminate their services, therefore, apprehending such an adverse action, they approached the High Court for redressal of their grievance/ But in the meanwhile section 2-A was inserted in Service Tribunals Act 1973, therefore, no relief was given to them and during this period on 5th January, 2001 respondent-Company terminated their assignments. Contents of one of the termination letters are reproduced hereinbelow for convenience:-- "Dear Sir, You were offered/given training assignment as a Training Engineer with effect from 27-6-1994 purely on temporary basis and on specific terms and conditions/contract. Pursuant to the completion of the projects, the requirement of the Trainee has been reviewed and it has not been found feasible to continue with the training scheme. We therefore regret to inform you that your training assignment stands terminated. This letter of termination of training assignment is being issued to you in pursuance of the order passed by the Honourable High Court of Sindh, Karachi dated 18-12-2000 in CP-305/98 as well as in accordance with the terms and conditions stated in your letter of training assignment. You have already been paid one month's stipend ex gratia. The Company's Finance Department is being advised separately to make payment of your dues, if any. Yours faithfully, For Sui Southern Gas Co. Ltd. For: Managing Director." Under the circumstances, petitioners preferred appeals before the Federal Service Tribunal and succeeded in getting partial relief. Concluding para from the impugned judgment is reproduced hereinbelow:-- "In the light of the guideline laid down by the august Supreme Court of Pakistan and in para. 59 of judgment dated 22-10-2001 referred to above, the appeals are accepted in terms that the letters of termination dated 5-1-2001 of the appellants are set aside under subsection (1) of section 5 of the Service Tribunals Act, 1973 and consequently the appellants are reinstated in the assignment of Trainee Engineers and Management Trainee and shall commence their assignment on arrival report in writing and the stipend is to be paid thereafter. We will also observe that the respondent- Corporation is at liberty to proceed in the cases of the appellants in accordance with the judgment of the august Supreme Court of Pakistan dated 22-10-2001, above referred. No order as to costs." As such instant petitions for leave to appeal have been filed.

14. Learned counsel contended that the petitioners, after serving the respondent-Company for more than a period of 8 years were entitled for reinstatement and absorption against the regular cadre in view of the judgments of this Court in the cases of Saleem Mustafa Sheikh,, Engr. Narain Das, Abdul Samad, Dr. Anwar Ali Sahto (ibid) but the Service Tribunal has erred in law in not making direction to the respondent-Company to absorb them, as a result whereof on reinstatement they would be restored to the original positions of Trainee Engineers and Management Trainee, whereas justice demands that on completion of training and probation period, they should have been absorbed as regular post holders in the respondent-Company. On the other hand learned counsel for caveator while relying upon the judgments reported in the cases of Mian Abdul Malik v. Dr. Shabbir Zaheer Siddiqui and 4 others (1991 SCMR 1129), Z.A. Javed Raja v. Secretary, Establishment Division, Islamabad and 3 others (1996 PLC (C.S.) 360) and Dr. Muhammad Hussain v. Principal, Ayub Medical College and another (PLD 2003 SC 143), argued that the Tribunal in exercise of powers under section 4 of the Service Tribunals Act, 1973 can only reinstate them into service. As far as their absorption is concerned, it remains within the domain of the employer.

15. We have heard learned counsel for the parties and have also gone through the judgments in the cases of Saleem Mustafa Sheikh, Engr. Narain Das, Abdul Samad and Dr. Anwar Ali Sahto (ibid).

It would be appropriate to observe that in the case of Dr.Anwar Ali Sahto it has been observed that reinstatement and absorption both are synonymous. Learned counsel for the parties were at variance, concerning powers of the Service Tribunal to direct respondent-Company to absorb the petitioners, but in para. No,10 (supra) it has been held that in view of facts and circumstances of the instant cases, the Service Tribunal had jurisdiction to direct the absorption of the employees of the company who are litigating with it. Similarly in the cases of Saleem Mustafa Sheikh, etc. (ibid) identical relief has been granted to Trainee Engineers and Management Trainee, therefore, petitioners legitimately cannot be discriminated on this score and they would be entitled for the same relief on the principle of equal protection of law, which has been given to the other employees whose services were terminated alongwith petitioners or under the same circumstances as they belong to same group. Thus they cannot be discriminated against under the provisions of Article 25 of the Constitution of Islamic Republic of Pakistan and law laid down by this Court in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) namely that "persons similarly situated or similarly placed are to be treated alike". This principle has been reiterated in the cases of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Messrs Ellahi Cotton Mills and others v. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others (PLD 2002 SC 994). So far as the judgments relied upon by the learned counsel for respondent-Company are concerned, needs no discussion matters discussed therein pertains to questions of fitness, eligibility and promotion etc., which are not relevant for decision of proposition of law under consideration.

16. Learned counsel for petitioners contended that the observation by Federal Service Tribunal that respondent-Company is at liberty to proceed in the cases of the petitioners in accordance with the judgment dated 22nd October, 2001 (Dr. Anwar Ali Sahto's case) also needs to be excised being erroneous. He explained that this condition has been placed by the Tribunal upon the petitioners in view of the observations in the case of Dr. Anwar Ali Sahto (ibid) but said portion of the judgment has also been challenged by some of the petitioners by filing review petitions on the ground that directions to SSGCL for holding IBA test of its employees is not based on correct assumption of facts. As according to him learned counsel appearing for some of the employees in some other cases i,e, Engineer Narain Das etc. (ibid) had made such offer at the time of decision of that case but it was not accepted by the Court and petitioner employees were reinstated in service without holding IBA test. Whereas in Dr. Anwar Ali Sahto's case no such argument was advanced, therefore, due to improper assistance directions for absorbing the Trainee Engineers and Management Trainee, subject to their qualifying IBA test has been made.

17. Learned counsel for respondent-Company opposed the argument and stated that at the time of appointments of the petitioners and so many others as Trainee Engineers or Management Trainee, no test was given by them to prove their academic qualification or skill to hold the post being offered to them, therefore, to promote the healthy competition amongst the competent persons, conducting of IBA test before absorbing them in the service of SSGCL was found necessary by the Court, as such directions in this behalf were made in the case of Dr. Anwar Ali Sahto.

18. It is to be seen that during hearing of the case of Engineer Narain Das (ibid), Mr. Fakharuddin G.

Ebrahim, learned counsel for respondent-Company submitted that his clients are interested in obtaining maximum benefit from their employees and that putting all concerned to IBA test in future is being resorted to ever since the year 1994. In response to such argument, learned counsel appearing for Engineer Narain Das and others made following statement:-- "14. While exercising their right of rebuttal Messrs Wasim Sajjad and Muhammad Akram Sheikh argued that the respondent-Company is not going in deficit and that their clients could also be made to sit in the IBA test before considering themfor absorption in the same manner as Saleem Mustafa Sheikh and others had been." It is quite interesting to note that in Engineer Narain Das's case neither offer made by the learned counsel of the Company nor its reply given by the learned counsel for employees was accepted and relief was granted to them in the following terms:-- "19. Resultantly, these petitions are converted into appeals and by allowing the same, the impugned judgments dated 23-9-2000, 11-2-2000 and 14-7-2000 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 cases of Saleem Mustafa Sheikh and others (supra). There shall be no orders as to costs." Interestingly, against the judgment in the case of Engineer Narain Das (ibid), a petition was filed wherein review of the earlier judgment was sought on number of grounds but not on the ground of non-making of directions to the employees to qualify IBA test before getting permanent absorption in the job. Thus in this manner. Offer made for IBA test of petitioners was not accepted in the case of Engineer Narain Das (ibid). But arguments in the case of Engineer Narain Das was considered erroneously to be arguments.

Perhaps, as if it has been raised in the case of Dr. Anwar Ali Sahto (ibid) and for such presumption directions have been made in the following terms:-- "52. Pursuant to the above observations in Naraindas (supra), the respondent-Company arranged IBA Test and issued letters to the employees therein to take the above Test in order to prove their fitness and suitability for retention in career employment. It would be advantageous to reproduce the contents of the above letter, which are to the following effect: "IBA TEST ARRANGEMENTS" In obedience to the orders of the Supreme Court/Federal Service Tribunal, you were absorbed in the Company. In order to determine your fitness and suitability for career employment, the Company has arranged through IBA a written test. The test is to be conducted on 15th July, 2001 at various IBA Centers located in Sindh, Balochistan and Punjab.

"In the meantime, you are .Required to send the following to General Manager (Human Resources) for issuance of Admit Card:

(a) Photocopy of NIC;

(b) Two Passport size photographs;

(c) Copies of matriculation certificate, degree/diploma.

"Please ensure furnishing of duly attested photocopies of the above documents by 22nd June, 2001.

The original shall be seen at the test center. In case you fail to comply with the above, it shall be assumed that you are not interested in the job and the Company shall be well within its rights to take any action under Law/Rules of the Company". Being dissatisfied with the decision of putting them to test by IBA, the employees in Saleem Mustafa Sheikh, Engineer Naraindas as well as Abdul Samad (supra) and others, brought contempt applications against the respondent-Company and this Court, after hearing the parties, disposed of the matters (Criminal Miscellaneous Appeals Nos. 11 to 17 of 2001 and Criminal Original Petitions Nos.27 to 33 of 2001 in C.Ps. Nos. 979, .1670, 1671, 1747, 1846, 402-K, 436-K-44-K of 2000 and C.Ps. Nos.

457 to 472, 481 to 506, 512 to 532, 541 to 556 of 2001) on 10-7-2001 wherein, while dealing with the question in relation to which notices were issued to the persons similarly placed as the present appellants/petitioners in IBA Test, it was observed: Whenever an order is passed against the appellants/petitioners they will be at liberty to take appropriate steps for seeking available remedy from the appropriate forum."

53. In this view of the matter, we convert the above petitions into appeals and by allowing the same set aside the impugned judgment of the Tribunal therein with the direction to respondent- Company to reinstate the appellants in their respective disciplines and thereafter put them to IBA Test and consider their further retention in service in the light of the results thereof. There shall be no order as to costs."

In our humble opinion the observations in above paras were not warranted because each case is to be decided independently on its own merits as well as arguments advanced before the Court.

Since in the case of Engineer Narain Das (ibid) the argument of directing to petitioners to qualify IBA Test before permanent absorption was not accepted and said petitioners were ordered to be reinstated in the service in terms of concluding para. Of the judgment which has been reproduced hereinabove, therefore, petitioners in instant cases cannot be discriminated by compelling them to qualify the IBA Test for absorption in service. In forming this view, we are fortified with the case of I.A.

Sharwani and others v. Government of Pakistan (1991 SCMR 1041). As such observation of the Federal Service Tribunal made in the concluding para of the impugned judgment being discriminatory is expunged. Thus for the foregoing reasons, instant petitions are converted into appeals and allowed. The impugned judgment is modified to the extent that the petitioners shall be reinstated and absorbed in the service by the respondent-Company being its regular employees. No order as to costs. CIVIL PETITIONS NOS.1779 to 1810 and 1812 OF 2002

19. These petitions have been filed for leave to appeal against the judgment dated 21st August, 2002, 26th August, 2002 and 6th September, 2002, respectively passed by Federal Service Tribunal, Islamabad. These petitions are divided bunch wise into following categories for disposal by means of instant common judgment:-- Bunch No,1 (C.Ps.1779 to 1784 of 2002) Category (a)

Bunch No,2 (C.Ps.1785 to 1810 and 1812 of 2002) Category (b)

Precisely stating the facts of the case are that respondents in all the abovenoted petitions were appointed as Trainee Engineers and Management Trainee in the petitioner-Company during the period of 1994-1996,- initially for a training period of six months. On successful completion of the training period of six months, respondents were allowed to continue in service of the Company. But abruptly vide orders dated 12th November, 1999, 11th May, 2001 and 11th February, 1999 respectively, their services were discontinued. The respondents feeling dissatisfied from the order of termination of their service ultimately approached the Federal Service Tribunal for their reinstatement. The appeals filed by them were allowed vide judgments noted hereinabove. As such instant petitions have been filed.

20. Learned counsel for petitioner-Company contended that:--

(i) As to whether Federal Service Tribunal condoned the delay in filing of appeals with lawful authority as no request for condonation of delay was made by the respondents.

(ii) As to whether Rules 6.1, 6.2 and 6.3 of the Executive Service Rules of the petitioner-Company have correctly been applied by the Tribunal on the cases of the respondents.

(iii) As to whether the Service Tribunal under section 5 of the Service Tribunals Act, 1973 can grant the relief of the back benefits.

(iv) Whether the judgment in the case of Dr. Anwar Ali Sahto (ibid), relating to qualifying IBA Test by the respondents is applicable on the respondents.

21. Rai Muhammad Nawaz Kharral, learned counsel for ceavator contended that:--

(a) The appeals filed by the respondents were within time and if in some of the cases there was delay in filing of the appeals, same has been condoned with lawful authority by the Federal Service Tribunal as such findings recorded by it in exercise of discretionary powers admits no interference.

(b) The respondents on successful completing the period of training were allowed to continue in employment of the petitioner-Company during course whereof they had also completed the period of their probation, therefore, the Executive Service Rules of he petitioner-Company were fully applicable to them.

(c) Under section 5 of the Service Tribunals Act, 1973, Service Tribunal is competent to grant relief of back-benefits.

(d) That the Tribunal has rightly applied the ratio of judgment in the case of Dr. Anwar Ali Sahto (ibid).

22. It is to be noted that in the bunch of category (a) learned counsel has not urged the question of limitation. In the cases of category (b) it was argued by the learned counsel for petitioner-Company that the Service Tribunal under section 5 of the Act, 1973 granted relief of back-benefits without jurisdiction.

23. It may be noted that in cases of category (a), Federal Service Tribunal condoned the delay for the following reasons:- "As regards the question of limitation, we are of the view that the appeals are well within time as the appellants, who were lastly working as Management Trainee and Trainee Engineers terminated on 12-11-1999 and they filed their departmental appeal on 26-11-1999. Legally speaking they ought to have filed their appeals by 25-3-2000 after waiting for the mandatory waiting period of 120 days, but they have filed their appeals on 7-2-2000, as such, the argument advanced by learned counsel for the respondents is devoid of any force."

Learned counsel for petitioner-Company contended that departmental appeals were not competent, therefore, petitioners may have approached the Federal Service Tribunal within 30 days from the date of issuance of termination letter.

Learned counsel for caveator emphasized that although under Executive Service Rules of petitioner-Company, no departmental representation or appeal is competent but despite of that following the principles of proviso to section 4 of the Act, 1973, if departmental representation/appeal is filed, that can be treated maintainable. He further emphasized that if representations/appeals were not competent then the same should have been returned to them immediately. In this behalf reliance was placed by him on the cases of Engineer Narain Das, Dr. Anwar Ali 'Sahto, Abdul Samad (ibid).

The question of limitation needs no detailed discussion with reference to the facts and circumstances of above noted cases because we have already discussed this question in para No,12 (supra) as such we are inclined to hold that the Federal Service Tribunal has rightly treated the appeals filed by the respondents within time.

24. As far as question relating to applicability of Rules 6.1, 6.2 and 6.3 of the Executive Service Rules of the petitioner-company on the cases of the respondents-employees is concerned, it has also been decided by this Court in the cases of Saleem Mustafa Sheikh and Dr. Anwar Ali Sahto (ibid), therefore, needs no further discussion.

25. So far as arguments of the learned counsel for petitioner-Company relating to grant of back- benefits to the respondent by the .Federal Service Tribunal is concerned, it enjoys vast jurisdiction under section 5 of the Act, 1973 to set aside, vary or modify order appealed against. In this behalf as well the detailed discussion has been made in para. No,10 (supra) while discussing the question whether Service Tribunal can issue direction to the departmental authority for the absorption of its aggrieved employees, therefore, no separate discussion in this behalf is called for as well.

26. Now adverting towards the observation of this Court i,e, "whether the judgment of this Court in the case of Dr. Anwar Ali Sahto (ibid), relating to qualifying IBA Test by the respondents is applicable on the respondents?" In this behalf it is to be seen that in Dr. Anwar Ali Sahto's case directions were made to the employees to qualify IBA Test in view of the arguments advanced by the partiescounsel in the case of Engineer Narain Das (ibid). Surprisingly, in the said case no such directions were issued, therefore, we are of the opinion that the respondents are entitled for the same treatment and deserve absorption as regular employees in petitioner-Company on the same premises as it has been held in the case of Engineer Narain Das and the earlier judgment in the case of Saleem Mustafa Sheikh (ibid) because they all belong to the same category/class as such deserve equal protection of law under the principles of Article 25 (1) of the Constitution of Islamic Republic of Pakistan, in view of the judgments in the case of I.A. Sherwani andothers v.

Government of Pakistan (1991 SCMR 1041), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Messrs Ellahi Cotton Mills and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others (PLD 2002 SC 994). Thus, we are of the opinion that the respondents cannot be directed to qualify IBA Test for permanent absorption in service o Z petitioner-Company, therefore, petitions are dismissed. No order as to costs. CIVIL PETITIONS NOS. 1850, 1861 to 1914, 1992 to 2040, 2051 to 2100, 2117 to 2161, 2169 to 2317 and 2327 OF 2002.

27. Petitioners seek leave to appeal against the judgment dated 29th July, 2002 whereby service appeals filed by the respondents have been accepted.

28. Briefly stating the facts of the case are the petitioner-Company recruited/appointed the respondents as Helpers, Meter Readers, Junior Clerks and Assistants by issuing separate letters of appointment to them, during the period 1994-1995 for temporary assignments. Subsequent thereto, jobs offered to them were terminated as such they approached the Federal Service Tribunal for the redressal of their grievances. Appeals filed by them have been allowed by means of impugned judgment dated 29th July, 2002. As such instant petitions have been filed.

29. Learned counsel for petitioner-Company contended that:--

(1) Appeals filed by respondents were hopelessly barred by time, inasmuch as some of them were barred by 2 to 3 years but delay has been condoned by the Service Tribunal for consideration other than the recognized principle of law.

(2) The respondents being Helpers, Meter Readers, Junior Clerks and Assistants were not governed by the statutory or non-statutory rules nor their cases are governed under the Executive Service Rules of Sui Southern Gas Co. Ltd. As such they will be governed under the principle of master and servant. Thus they were not entitled for reinstatement/absorption in service as held in the case of Dr. Anwar Ali Sahto (ibid).

30. On the other hand learned counsel for the respondents contended that:--

(a) The Federal Service Tribunal in exercise of its discretionary jurisdiction had condoned the delay in filing of appeals, therefore, impugned judgment does not admit of any interference on the ground of bar of limitation.

(b) The respondents are workmen, therefore, their cases will be governed by the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI), 1968.

(c) Relief cannot be declined to the respondents in view of the judgment in the case of Dr. Anwar Ali Sahto (ibid) because in that case reliance on the case of WAPDA and others v. Khanimullah and others (2000 SCMR 879) was not placed correctly.

31. It may be noted that in the judgment of Dr. Anwar All Sahto's case, the status of the employees was decided in view of identical letter of appointment, which is reproduced hereinbelow for convenience:-- "TEMPORARY ASSIGNMEMT"

"Reference your application, we are pleased to offer you a temporary assignment as Meter Reader for our temporary requirement of new projects on the following terms and conditions:--

(1) Your temporary assignment is subject to your medical fitness for the job as declared by the Company's authorized Medical Officer.

(2) Your temporary assignment is strictly in connection with our project work requirement initially for a duration of three months subject always to your satisfactory performance conduct and shall automatically stand terminated on the expiry of this period unless otherwise extended.

(3) In the event of termination/cessation of your assignment, you shall not be entitled to claim as a right for your absorption or any other project and/or continuation of your assignment against any requirement of the Company.

(4) You may be posted at any location of the Company where your services could be utilized and you will carry out all the duties assigned to you from time to time.

(5) (5) You will be paid a consolidated emolument of Rs,3,500 per month, all inclusive.

(6) You will be entitled to tree medical facilities for yourself only during the period of your assignment with the Company.

(7) It is to be clearly understood that any unauthorized absence may forthwith result in termination of your assignment.

(8) The above only shall constitute your terms and conditions of service for the temporary assignment and you shall not be entitled to any other facilities, allowances, rights, privileges and/or benefit saving those contained in this letter of temporary assignment.

(9) This temporary assignment is also likely to be considered for induction in the Company's regular service as per the policy of the Government. If the above terms of temporary assignment are acceptable to you, please report for duty within 15 days hereof to General Manager (P&A), Head Office, 4th Floor, State Life Building No,3, Ziauddin Ahmed Road, Karachi, at the latest, failing which this offer will lapse automatically.- A perusal of above letter reveals that temporary assignment had been offered to respondents by the petitioner-Company for duration of three months in connection with the projects of the Company subject to their satisfactory performance/conduct and on the expiry of stipulated period, their services were liable to be terminated automatically, unless otherwise extended. In the letters of appointments the description of the projects, against which assignment were offered to them, were not specified. Likewise, petitioner-Company failed to disclose in the termination letter that on completion of which project the services of the respondents were terminated respectively. For convenience letter of termination of one of the respondents i,e, Muhammad Saleh (in C.P.1850 of 2002) is reproduced hereinbelow:-- "Dear Sir, You were offered a temporary assignment as a Helper with effect from 30-10-1994 purely on a temporary basis and on specific terms. Pursuant to the completion of projects, the requirement of temporary assignees was reviewed and it was not found feasible to continue with the temporary assignment scheme. You were, therefore, to be relieved from your temporary assignment, but in view of the status quo granted by the Honourable High Court of Sindh, and the Federal Service Tribunal. Islamabad this action could not be taken. As you are, aware, the Hon'ble High Court of Sindh had dismissed your petition and your appeal has also now been dismissed by the Federal Service Tribunal, Islamabad. We, therefore, regret to inform you that your temporary assignment stands terminated with immediate effect. You will be paid your dues, if any, including one month's payment, which you may collect from Company's Finance Department. We would like to thank you for your association with thecompany and wish you success in your future endeavors.

Yours faithfully, SUI SOUTHERN GAS COMPANY LIMITED.

(Sd.)

For Managing Director."

Learned counsel for petitioner-Company was called upon to disclose the names of the projects, which were completed, for the purpose of terminating the services of the respondents but no satisfactory answer was given by him. It is to be observed that respondents had been performing their duties for more than stipulated period at the places of their postings in the Province of Sindh or Balochistan without any complaint as evident from the termination letters but abruptly their services were terminated perhaps under the impression that no protection of service is available to them under Executive Service Rules of SSGCL. It is an admitted position that petitioner-Company had not promulgated any other statutory or non-statutory rules to govern the service of its employees falling under the category of Helpers, Meter Readers, Assistants and Junior Clerks etc. Therefore, question for consideration would be as to whether respondentsservice will be governed under the principle of master and servants or under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI), 1968 'hereinafter referred to as Ordinance 1968'].

Answer to the proposition has already been provided in the case of Mst. Zeba Mumtaz v. First Women Bank Ltd. And others (PLD 1999 SC 1106). Relevant para therefrom is reproduced hereinbelow:-- It may be observed here that this Court has consistently held that in the absence of any statutoryrules, relationship between the employer and an employee of a corporation where protection cannot be sought under the Labour Laws or any statutory instrument is that of master and servant. The above dictum persuades us to determine as to whether respondents are workmen in terms of section 2(i) of the Ordinance, 1968, which provides that workman means any person employed, in any Industrial or Commercial Establishment to do any skilled or unskilled, manual or clerical work for hire or reward. Essentially when the respondents are not civil servants under the Civil Servants Act, 1973 being Meter Readers, etc. They would fall within the definition of workman. The Ordinance, 1968 would apply to every Industrial Establishment or Commercial Establishment as per section 1 (4)(a) wherein twenty or more workmen are employed, directly or through any A other person whether on behalf of himself or any other person, or were A so employed on any day during the preceding twelve months. As such respondents being workmen would enjoy the protection of Ordinance of 1968 and their services will not be governed by the principle of master and servant. In the case of Dr. Anwar Ali Sahto (ibid) relief was declined to Helpers, Meter Readers, Junior Clerks, Assistants, etc. (staffers) in view of the judgment in the case of WAPDA v. Khanimullah, etc. (2000 SCMR 879). Relevant para. Therefrom is reproduced hereinbelow for further discussion:-- "The Tribunal was quite right in observing that the nature of the assignment given to the appellants/petitioners being what it was, the respondent-Company was within the domain of its authority/ jurisdiction under the very charter of its incorporation to take an action with regard to the termination/recalling of their assignments whenever it thought feasible/appropriate on account of closure/ completion of the project against which they were employed temporarily.

Therefore, mere fact that the project/s for which the appellants/petitioners were employed for a specific period could not be completed within the specified time and they continued in service till completion of such project/s does not entitle them to be permanently absorbed in service of the respondent-Company. No doubt, the appellants/petitioners had served the respondent-Company for a number of years in its various projects, which continued beyond their normal period within which they were to be completed but the continuing in service due to delayed completion of the project/s for a longer period than the initial period of temporary assignment, would not be a determining factor of the nature of their employment. As soon as the particular project/s for which they were engaged, came to a close their services also came to an end. Reliance can be placed on an excerpt from WAPDA v. Khanimullah (2000 SCMR 879), wherein one of us (Irshad Hasan Khan, CJ) observed:-- "It would, thus be seen that permanent workmen are those workmen who are engaged on work of permanent nature likely to last more than nine months and who have completed a probationary period of three months satisfactorily in any occupation in the relevant establishment. In the case in hand, the respondents were not engaged as permanent employees as defined in Standing Order 1

(b) vide their appointment letters, they were employed on work-charged basis and their appointments were liable to be terminated at any time without assigning any reason whatsoever.

Mere absence of the specified nature of the project for which they were employed, in employment letters of the respondents is of no consequence in present case. The impugned orders are based on misreading of material on record and misinterpretation of the Standing Orders as discussed above. After thorough scrutiny of the available material and relevant provisions of law, we are of the considered view that the respondents were employed on work-charged basis against a specified project, i,e, "Mardan Scarp". Therefore, on completion of work on the said project, their appointments were rightly terminated by the competent authority."

It is to be seen that in 1994-1995 the respondents commenced their services with the petitioner- Company and continued the same for a considerably long period i,e, more than nine months. At that time they were enjoying the protection of Ordinance 1968, therefore, Labour Courts established under Industrial Relations Ordinance, 1969 had jurisdiction for the redressal of their grievance. But on 10th June, 1997 on insertion of section 2-A in Service Tribunals Act, 1973, the forum was changed in respect of an Organization Corporation, etc. Owned/controlled by the Government and the remedy for redressal of their grievance was provided to them before the Federal Service Tribunal without touching to substantive laws under which their services were being governed. Thus,- conclusion would be that the Federal Service Tribunal, while dealing with the cases of workmen, shall decide their cases according to Labour Laws by applying the procedure envisaged under section 4 of the Service Tribunals Act, 1973.

We may also submit with all humility at our command that at the time of hearing of the case of Dr. Anwar Ali Sahto (ibid) the judgment in the case of Zeba Mumtaz (ibid) was not cited nor the facts of the Khanimullah's case were presented properly. It may be noted that the employees in the case of Khanimullah were engaged against a specified project i,e, Mardan Scarp and on completion of same, the services of the employees were terminated and relief was declined to them because delay in completion of a project for a longer 'period within the initial period of temporary assignment would not be determining factor fornature of their employment and as soon as the project came to an end, the services of temporary employees working on daily wages was also terminated. Whereas in the cases in hand, petitioner-company has failed to substantiate as to against which specified project the respondents were employed and when said project has been completed. Contrary to it during the course of hearing Mr. Waqar I. Sheikh, a representative of the petitioner-Company was examined to ascertain as to whether projects against which the respondents were recruited have been completed. He filed his affidavit and admitted during cross- examination that in the appointment letters the name of the specific project was not mentioned and he also did not disclose specific date of the completion of the project against which the respondents were appointed. Similarly he had no knowledge about the next date or month of completion of the project. In view of such position, no difficulty is experienced to hold that the project against which the respondents were appointed was likely to continue for a period of more than nine months. It may also be noted that once it is concluded that respondents enjoy the protection of the Ordinance 1968, next question for determination would be as to whether they enjoy status of a temporary workman or a permanent workman. For convenience definitions of both the expressions under Orders 1(b), 1(e) of the Ordinance, 1968 are reproduced hereinbelow:- "(b) A 'Permanent workmanis a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment and includes a Badli who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months."

(e) A 'temporary workmanis a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months."

Above expressions were interpreted by this Court in the cases of Pakistan International Airlines v.

Sindh Labour Court No,5 and others (PLD 1980 SC 323). In this case respondents-employees were appointed temporarily against the project of PIA which was likely to be completed within a period of 15 months but PIA terminated the project as a result whereof services of respondents were also terminated. Thus they approached the Labour Court for redressal of their grievance and ultimately after taking into consideration the respective contentions of petitionerscounsel it was held as under:-- "The result of this discussion is that the concept of employment of a permanent nature is an essential ingredient of the definition of a permanent workman. But, the respondents had not been employed on a permanent basis, because they had been employed to supervise a contract, which was of limited duration. Therefore, the High Court and the Labour Courts erred in law in holding that they were permanent workmen. Accordingly this appeal has to be allowed."

Similarly in the case of Muhammad Yaqub v. The Punjab Labour Court No,1 and 5 others (1990 SCMR 1539) it was opined as under:-- "4. In order to get the benefit of the Standing Orders Ordinance in the matter of .Termination of service, the petitioner had to show that he was a permanent workman. A 'permanent workmanhas been defined in the Standing Orders Ordinance by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever, long may be his employment, he cannot be taken to be a permanent workman. The length of the period of employment by itself has not been made the ground or a test for determining the nature of the work. Keeping in view the nature of the work on which the petitioner was employed, namely, an addition to the regular strength of Malis for the maintenance of the gardens and the grounds on daily wages or on work charge basis, it cannot be said that "such additional work being done by him was of permanent nature necessarily. As regards the stigma attaching to the permanence of his service, the petitioner has as witness admitted that the termination order was oral and not in writing."

In another case, services of the employees of Pak. P.W.D. Were terminated after a period of more than 10 years. Ultimately matter came up for consideration in the case of Executive Engineer, Central Civil Division, Pak. P.W.D., Quetta v. Abdul Aziz and others (PLD 1996 SC 610) wherein following observations were made:-- "14. The ratio of the above judgment in the case of Muhammad Yaqoob (supra) seems to be that the period of employment is not the sole determining factor on the question, as to whether a workman is a permanent workman or not but the nature of the work will be the main factor for deciding the above question: In other words, if the nature of work for which a person is employed is of a permanent nature, then he may become permanent upon the expiry of the period of nine months mentioned in terms of clause (b) of paragraph 1 of the Schedule to the Standing Orders Ordinance provided, he is covered by the definition of the term "worker" given in section 2 (i) thereof. But if the work is not of permanent nature and is not likely to last for more than nine months, then he is not covered by the above provision. It may be observed that once it was proved that the respondents without any interruption remained employees between a period from two years to seven years, the burden of proof was on the appellant-Department to have shown that the respondents were employed on the works which were not of permanent nature and which could not have lasted for more than nine months. From the side of the appellant nothing has been brought on record in this behalf. The appellant-Department is engaged in maintaining the Government residential and nonresidential buildings and constructing itself and/or causing construction thereof. The above work as far as the appellant-Department is concerned is of permanent nature. In this view of the matter, the finding recorded by the Labour Courts in this respect cannot be said to be not founded on evidence on record."

It is pertinent to point out that in the above judgment, this Court has specifically observed that once it was proved that the respondents without any interruption remained employees between the period from 2 to 7 years, the burden of proof was upon the petitioners to have shown that the respondents were employed on the works which were not permanent in nature and which could not have lasted for more than nine months. Admittedly in present case as well, it was the responsibility of the petitioner-Company to substantiate that the project against which respondents were employed has been completed, therefore, on the completion of the same, notwithstanding the fact whether it has consumed the period of more than nine months, the respondentsservices were liable to be terminated. Contrary to it material has come on record through a representative of the petitioner-Company that neither there was any specific project against which they were recruited/appointed, nor the project against which their appointments had taken place, has been completed, therefore, quite conveniently inference can be drawn that the respondents were put on the jobs which were likely to continue for a period of more than nine months, as such in view of the provision of Order 1 (b) of the Ordinance, 1968 they have attained the status of a permanent workman.

It is important to note that same proposition was examined in the case of Khanimullah (ibid) by making reference to the judgment in the case of Muhammad Yaqub (ibid) and the judgments in the cases of Deputy Director, Administration and Coordination, Faisalabad Development Authority and another v. Muhammad Amin and others (1995 SCMR 21) and Izhar Ahmed Khan and another v.

Punjab Labour Appellate Tribunal, Lahore (1999 SCMR 2557) but declined to grant status of the permanent workman to the employees of WAPDA i,e, Khanimullah and others, firstly for the reason that they were appointed against a specified project of Mardan Scarp and secondly they were employed on work-charged basis, whereas in the cases in hand the respondents were not employed against a specified project which was not likely to continue for a period of more than three months as per Order 1 (e) of the Ordinance, 1968 likewise they are not work-charged employees. In addition to it, evidence has come on record to hold that the projects against which their appointments had taken place are not liable to be completed within a period of nine months as per Order 1 (b) of the Ordinance, 1968.

Thus for the above reasons, we are inclined to hold that the respondents being workmen enjoy the protection of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI), 1968 and for determination of their rights, after 10th June, 1997, remedy would be available to them before Federal Service Tribunal vis-a-vis termination simpliciter of their service as well as in consequence of disciplinary action who, on following the procedure laid down under section 4 of the Service Tribunals Act, 1973 shall decide their cases.

32. Now adverting towards the question of maintainability of the appeals of the respondents before the Federal Service Tribunal being barred by time. According to learned counsel for petitioner- Company the Service Tribunal had condoned the delay for consideration which are not recognized under the law inasmuch as in some of the cases delay has been condoned without the request of the respondents. . On the other hand it is contended by the learned counsel for respondents that discretion has been judiciously exercised by the Service Tribunal for condoning delay in filing of appeals therefore, interference would not advance the cause of justice. Reliance was placed by them on Allah Warayo Chana and 29 others v. Aijaz Ahmad Khan and 6 others (1999 SCMR 880) and Baber Gul and another v. Sohail Ahmad Sheikh and others (2002 SCMR 581).

The question of interference in the orders passed by a Tribunal in exercise of discretionary powers, condoning the delay has been dealt with in detail in para. No,12 (supra), therefore, in the light of said discussion, we are inclined to hold that as the Federal Service Tribunal had condoned the delay in filing of appeals, following the dictum laid down in the above judgment, we are not inclined to disturb the findings recorded by the Federal Service Tribunal on limitation. Thus for the foregoing reasons, all these petitions are dismissed and leave refused.

CIVIL PETITIONS NOS.762 to 765 of 2002 AND CIVIL PETITIONS NO. 1219 to 1225, 1242 to 1244 of 2002 AND CIVIL PETITIONS NOS,. 1294 to 1298, 1364 to 1366 of 2002 AND CIVIL PETITIONS NO. 2792 to 2798 AND 2801 of 2001 Above petitions have been filed for leave to appeal against the judgments of the Federal Service Tribunal noted categories-wise hereinbelow, whereby appeals filed by the petitioners have been dismissed: Sr. No,Case number(s) Date of judgment.Categories

1. C.Ps.762 to 765 of 2002 29-3-2002 (a)

2. C.Ps.1219 to 1225 and 1242 to 1244 of 200216-4-2002 (b)

3. C.Ps.1294 to 1298 and 1364 to 1366 of 200214-5-2002 (c)

4. C.Ps.2792 to 2798 and 2801 of 2002 27-7-2001 (d)

33. Petitioners in category (a) were appointed as Trainee Engineers during the year 1995 and after having worked for more than four years, their services were terminated by the respondents on 20th July, 1999. Ultimately they approached the Federal Service Tribunal by filing appeals which have been dismissed on the point of limitation vide impugned judgment.

34. In the cases of category (b) petitioners were appointed as Trainee Engineers, Management Trainee and Meter Readers on different dates during the years 1994-1996 and they put in service of more than one year, 3 years and 4 to 5 years. They ought to have been regularized but respondent-Company instead of doing so terminated their services on different dates without issuance of show-cause notices to them. They filed departmental appeals and some of them had approached different forums including High Court, where contempt application was also moved but same was subsequently dismissed as withdrawn. Ultimately, they approached the Federal Service Tribunal but their appeals have been dismissed being barred by time vide impugned order.

35. In the cases of category (c) petitioners were appointed as Trainee Engineers, Management Trainee, Junior Clerks and Meter Readers on different dates during the years 1995-1996 and were put in service of more than 3/4 years. They ought to have been regularized but respondent- Company instead of doing so, terminated their services vide letters dated 10th July, 1999 and 30th truly, 1999.They filed departmental appeals and ultimately approached the Federal Service Tribunal but their appeals have been dismissed being barred by time.

36. In the cases of category (d) petitioners apprehending their termination at the hands of respondents approached High Court of Sindh by filing C.P. No,150 of 1998, which was disposed of vide order dated 18th February, 1998 with the observation that the petitioners could not be terminated except in due course of law and if .And when aggrieved, they would remain free to pursue appropriate remedies. Thereafter, on 12th March, 1998, the services of the petitioners were terminated and ultimately after a lapse of about three years, they approached the Federal Service Tribunal for the redressal of their grievance, in the light of observation of the High Court that Tribunal will take benevolent view as to the question of limitation. Federal Service Tribunal, after taking into consideration attending facts and circumstances of the cases dismissed the appeals filed by the petitioners.

37. Learned counsel appearing for petitioners contended that petitioners sought condonation of delay in filing of appeals before the Federal Service Tribunal on the ground that on account of poverty, they could not institute proceedings well within time before the Federal Service Tribunal but their such plea was not entertained. Contrary to it in the identical cases, the Service Tribunal condoned the delay in filing of appeals by the Trainee Engineers, Management Trainee and Staffers, therefore, the petitioners have been discriminated in violation of Article 25(1) of the Constitution of Islamic Republic of Pakistan because all the citizens are equal in the eye of law unless a reasonable classification has been shown on intelligible differentia. Besides it, the petitioners are also entitled for the same relief, which has been allowed to the employees of Sui Southern Gas Company whose services were terminated on identical grounds and their appeals were also barred by time but delay was condoned by the Federal Service Tribunal in exercise of its discretionary powers. Reliance was placed by them on the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185).

38. Learned counsel for the respondent-Company opposed the petitions and contended that as the Service Tribunal had not exercised discretionary powers for condonation of delay in filing of appeals in favour of the petitioners, therefore, impugned judgment may not be interfered. Reliance was placed by him on the judgments reported as Fazal Ellahi Siddiqui v. Pakistan through Secretary, Establishment Division and 2 others (PLD 1990 SC 692) and Dr. Anwar Ali Sahto (ibid). He also added that no benefit of judgment in the case of Hameed Akhtar Niazi (ibid) can be extended to the petitioners because this Court in a subsequent judgment i,e, Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Training, Walton, Lahore and others (2003 PLC (C.S.) 212) has held that said judgment is in personam and not in rem.

39. We have heard the learned counsel for both the sides and have also gone through the judgments relied upon by them. It is to be noted that the Federal Service Tribunal vide impugned judgment declined to condone the delay in filing of appeals on the ground of poverty but simultaneously, had also entered into merits of the case. It would be appropriate to reproduce relevant para therefrom hereinbelow for convenience:-- "5. No doubt, the Hon'ble High Court had expressed that the Tribunal will take a benevolent view as to the question of limitation but it is pertinent to bring it on record that the appellants have themselves remained lethargic by not following their legal remedy, which was available there in this Tribunal. In all fairness, they should have immediately filed their respective appeals within one month of the termination order but they chose to remain silent over the matter or all the period, which comes to over three years. No doubt, this Tribunal has shown leniency as to the question of limitation, but that was all in cases of ailment or considering the fact that the appellants therein were belonging to some far-flung areas where there were no means of communication but in the instant appeals when the appellants have themselves chosen to remain silent over the matter for over three years, we are afraid, we will not be in a position to take any benevolent view as has been desired by the Hon'ble High Court because law helps the vigilant and not he indolent."

It is a consistent practice of this Court that the findings recorded by the Tribunal condoning the delay in filing of proceedings before it are G not interfered, as it has been held in the cases of WAPDA v. Muhammad Khalid (1991 SCMR 1765), Allah Warayo Chana and 29 others v. Aijaz Ahmad Khan and 6 others (1999 SCMR 880) and Baber Gul and another v. Sohail Ahmed Sheikh and others (2002 SCMR 581). But I it is shown that discretion has been exercised discriminately qua the H cases in which identical question of condonation of delay in filing appeal H is involved the interference becomes essential to meet the ends of justice.During course of hearing of instant cases we had an occasion to go through the judgments passed by the different benches of the Tribunal,H condoning the delay in filing of appeals. Reference in this behalf may be made to a decision of a Bench of the Service Tribunal comprising of Mr. Nazar Muhammad Sheikh and Mr. Hassan Raza Pasha, who while deciding as many as 345 appeals being No,509(R)(CS)/2000, etc'. Vide judgment dated 29th July, 2002 out of which few were barred by 2 to 3 years, condoned the delay by advancing following reasons:-- "26. Adverting to the question of limitation raised by the learned counsel for the respondent, we feel that for the reasons stated in the termination orders are void ab initio and, as such, the limitation issue is not relevant. Furthermore, there are Supreme Court's rulings where delay has been condoned in the case of SSGC's employees. The history of litigation of SSGC's employees reveals that some employees waited for the outcome of the decision of their colleagues and after Saleem Mustafa Sheikh and others and Engineer Naraindas's cases with a legitimate hope that the respondents would take them in service. It would have been appropriate if the respondent- Company has reinstated all such employees after Supreme Court's decision in the case of Saleem Mustafa Sheikh and others on the basis of the dictum spelled out in Hamid Akhtar Niazi's case and subsequently dispensed with their services after due process if not required any more. Here the appellantsdelay in filing appeals is condoned and while doing so we are strengthened by the Supreme Court's remand order in Civil Appeal No,1381 of 2001 filed by some SSGC's employees where the Federal Service Tribunal has been directed to consider the appeals "afresh on merits, after sympathetically considering the delay, if any, in filing appeal before it by the appellant herein." It may not be out of context to note that there are cases in which delay has been condoned by the Service Tribunal in exercise of its discretionary powers, even in absence of a request from the employee. Reference may be made to the case of WAPDA v. Muhammad Khalid (1991 SCMR 1765), wherein it has been held that "regarding question that no application for condonation of delay had been filed by civil servant such matter being one of discretion, finding of Service Tribunal could not be set aside on technicality alone". Similarly observations in this behalf have been made at number of time that in view of facts and circumstances of the case the question of condonation of delay may be considered.

Sympathetically. Moreover, some of the cases were remanded to lower forums where parties were non-suited on technical grounds including the observation to consider therequest of condonation of delay. Reference, in this behalf, may be made to the cases of Muhammad Yaqub v. Pakistan Petroleum Ltd. And another (2000 SCMR 830) and Messrs Pakistan State Oil Col. Ltd. v. Muhammad Tahir Khan and others (PLD 2001 SC 980). Relevant para. From the latter judgment is reproduced hereinbelow:-- "2. Messrs Riazul Haq Sheikh, Fateh Muhammad Khan and Abdul Hafeez Lakhoo, learned counsel for the petitioners/employees argued that notwithstanding the fact that their appeals before the Tribunal were barred by time, the question of condonation of delay should have been considered by the Tribunal sympathetically on account of prevailing confusion with regard to the availability of remedy to an aggrieved person who was an employee in an organization controlled by the Government. Reliance was also placed on Muhammad Nazir Malik v. S.A.T. Wasti and others (2000 SCMR 1255) wherein, in similar circumstances, the order of the Service Tribunal was set aside and the case was remanded with the observation that the Service Tribunal would reconsider the application for condonation of delay in the light of the observations of this Court in Muhammad Afzal v. Karachi Electric Supply Corporation (1999 SCMR 92). Before dealing with the merits of the case, suffice it to say that delay in filing appeals before the Tribunal is condoned in view of the peculiar facts and circumstances of these cases."

In the case of Teekam Das M. Haseeja, Executive Engineer, WAPDA v. Chairman, WAPDA and another (2002 SCMR 142), it was observed that "petitioner may apply for the condonation of the delay and the Service Tribunal will take into consideration all the relevant facts for deciding such an application, sympathetically". However, we are not inclined to agree with the learned counsel that as per dictum laid down by this Court in the case of Hameed Akhtar Niazi, petitioners are also entitled for condonation of delay.

As in the, cases of some of their colleagues, despite of the fact that their appeals were hopelessly barred by time but delay was condoned by the Service Tribunal. As the question of limitation is always considered/treated a mix question of facts and law and condonation of delay in filing of proceedings depends upon facts of each case. Whereas in the case iof Hameed Akhtar Niazi (ibid) rule has been laid down that "if the Service Tribunal or Supreme Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates and rule of good governance demand that the benefit of such judgment by Service Tribunal/Supreme Court be extended to other civil servants, who maynot be parties to the litigation instead of compelling them to approach the Service Tribunal or any other forum".

Essentially, in instant cases on point of limitation no question relating to the terms and conditions of the service of the petitioners has been decided, therefore, delay in filing of appeals cannot be condoned following the ratio in the case of Hameed Akhtar Niazi (ibid). Besides it, another Bench of this Court in the case of Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi (2003 PLC (C.S.) 212) has held that said judgment is in personam and not in rem, thus for this added reason as well, its benefit can be extended to them.

41. But, on account of inconsistency and discriminatory judgments of Federal Service Tribunal regarding condonation of delay in different cases by its different Benches, cases can be remanded to Service Tribunal for reconsidering the plea of the petitioners on limitation sympathetically as it has already been done in a number of others cases. Reference to some of which has been made hereinabove.

42. It is significant to note that on the one hand Service Tribunal had non-suited the petitioners on limitation in filing of appeals ,if Civil Petitions No,1219 to 1225 of 2002 but surprisingly these cases been decided on merits as it is evident from the relevant para Ntibaxh has been reproduced hereinabove. Therefore, to do complete justiciable between the parties, it would be appropriate from this angle as well to remand the cases to the Federal Service Tribunal for examining the question of limitation on priority and thereafter enter into merits of the cases, if need be.

Thus for the foregoing reasons, petitions are converted into appeals and allowed and cases are remanded to the Federal Service Tribunal for reconsideration as it has been observed hereinabove.

No order as to costs.

CIVIL REVIEW PETITION NO. 420 OF 2001

43. Petitioners have sought review of the judgment dated 22nd October, 2001 whereby Civil Appeals Nos.985-986 of 2001 has been dismissed. Relevant para. Reads thus as under:- "Be that as it may, both the appeals are respectively barred by 8 and 9 days. The pleas of poverty under the law does not constitute a valid ground for condoning the delay. The appeals are dismissed being barred by time."

44. Learned counsel contended that petitioners have been non-suited because they could not arrange funds on account of their poverty to approach this Court within time for redressal of their grievance, therefore, under the concept of justice for all the petitioners should have not been deprived of their rights. The observations of this Court that poverty of a person does not constitute ground for condoning the delay had closed doors of justice for the majority of the litigants who could not bear expenses of litigation for determination of their rights. As such according to him this Court may have not dismissed the appeals on this ground because such verdict had not only created sense of deprivation for petitioners as well for public at large because majority Of them belongs to poor class, therefore, in the interest of justice observation under challenge may be expunged and delay in filing of appeals may be, and an opportunity be provided to petitioners so they may put up tlieir cases on merits.

45. Ch. Muhammad Jamil, learned counsel for the respondents contended that no case is made out for review of the judgment because the learned counsel has repeated same arguments which were earlier advanced by him. To substantiate his arguments he relied upon the judgments of this Court in the cases of Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363) and Federation of Pakistan through Secretary, Establishment Division, Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada (1999 SCMR 2189).

46. We have considered the contention of both the learned counsel appearing for the parties and have also gone through the judgment under review carefully.

472 Before considering-the plea put forward by the learned counsel for thepetitioners for condonation of delay in filing of appeals, it would be imperative to examine the scope of jurisdiction of this Court under Article 188 of the Constitution of Islamic Republic of Pakistan as well as Order XXVI, Rule 1 of Supreme Court Rules, 1980. In the case of Federation of Pakistan (ibid) it has been laid down that "reversal of J conclusion earlier reached by the Court, after full consideration of the J question is not possible in exercise of the review jurisdiction under Article 188 of the Constitution of Islamic Republic of Pakistan". A larger Bench of the Court has also examined the scope of review under Article 188 of the Constitution of Islamic Republic of Pakistan in the case of Wasim Sajjad v. Federation of Pakistan through Secretary, Cabinet Division and others (PLD 2001 SC 233) and held that "if nothing had been overlooked by the Supreme Court nor the Court had failed to consider any important aspect of the matter, review petition Is would not sustain". In the judgment under review plea of not approaching the Court within time on account of poverty raised by the petitioners was duly taken into consideration but without any favour, therefore, in view of law laid down in the above judgments, we are not inclined to re-consider the plea of the learned counsel for review of the judgment. Thus for the foregoing reasons, instant review petition is dismissed being without substance. Nor order as to costs.

Civil Review Petitions Nos. 421 and 431 of 2001

48. Petitioners seek review of the judgment dated 22nd October, 2001 whereby relief was declined to them as they were held to be contract employees.

49. Precisely stating facts of the case are that petitioners were appointed by Sui Southern Gas Co.

Ltd. (respondent-Company) as Medical Officers initially on contract basis for a period of six months. On completion of the trial period, neither their contract was terminated nor it was extended. As a result whereof they continued to serve the respondent-Company for the period ranging between 11/2 years to 21/2 years respectively. But later on, their services were terminated for the purported reason that project for which they were appointed has been completed. For the redressal of their grievance, they approached the Service Tribunal but without any success as appeals filed by them were dismissed on the ground that as they were contract employees, therefore, their service can be terminated by the respondent-Company.

50. Leave to appeal was granted in a number of cases to consider the points noted therein including:-- "As to whether the petitioners have attained the status of confirmed employees, after completion of initial period of 6 months because after this period the contract of their service was not terminated and no letter of fresh contract was issued by the Company. If so, to what effect?"

51. Vide judgment under review the appeals filed by them were dismissed.

52. Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court argued that:-

(a) In the case of Fecto Mart's Tractors Ltd. v. Pakistan through Ministry of Finance Economic Affairs and another (2001 PTD 1829), it has been held that "where Court had overlooked some material question of fact or law which would have a bearing on the decision or there was otherwise some mistake or error apparent on the face of the record, the power of review could be exercised". As such in instant case as well material available on record on which the fate of their case is based, has been overlooked, warranting review of the judgment.

(b) The question formulated in the leave granting order, noted hereinabove has not been examined in the judgment under review.

(c) On insertion of section 2-A in the Service Tribunals Act, 1973, petitioners would be deemed to be permanent employees of the Company and their contract shall be deemed to have come to an end on expiry of the period of six months, because thereafter, they were allowed to continue as permanent employees of the respondent-Company.

(d) The petitioners had a legitimate expectation of confirmation in service as permanent employees of the respondent-company on expiry of the period of contract but this aspect of the case has not been examined in the judgment under review.

(e) The petitioners have been discriminated by the respondent-Company as one of their colleagues Dr. Humaira Shaheen has been absorbed permanently despite the fact that she was also a contract employee. Argument in this behalf was specifically raised at the time of hearing of appeals but it has not been dealt with in the light of material available on record.

53. Mr. Wasim Sajjad, Senior Advocate Supreme Court for petitioner in C.R.P.431 of 2001 adopted the arguments advanced by Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court and he also added that:--

(i) Termination order of service of petitioners is based on mala fides because respondent- Company had absorbed Dr. Humaira Shaheen, one of their colleagues, who was also appointed on contract basis.

54. Ch. Muhammad Jamil, Advocate Supreme Court for respondent-Company contended that:--

(a) The findings recorded in the judgment under review are not erroneous nor material available on record had been kept out of consideration at the time of earlier decision, therefore, no interference in the judgment under review is called for.

(b) Learned counsel for petitioners have repeated same arguments, which were advanced at the time of hearing of appeals, therefore, permission may not be accorded to them to re-open the case.

55. We have heard both the sides at a considerable length and have also gone through relevant paras of the judgment under review. A careful perusal whereof reveals that contentions noted at (b),(c),(d) have already been examined and repelled in the judgment vide paras. Nos. 10 and 11.

Therefore, we are left only to examine whether the petitioners have been discriminated against because Dr. Humaira Shaheen, equally placed with them, has been absorbed permanently by the respondent-Company. It is noteworthy that the question of discrimination wasspecifically argued by the learned counsel for petitioner but their contention, was found to be misconceived as such was repelled. Contents of relevant para. Reads as under,- "13. Messrs Wasim Sajjad and Abdul Hafeez Pirzada vehemently argued that discriminatory treatment hac been meted out to the appellants, inasmuch as, Dr. Humaira Shaheen's case was at par with those of the appellants, nevertheless her services were regularized. The above contention is misconceived because in the case of Dr. Humaira, her contract period was not considered as probationary period. On the contrary, she was appointed on regular basis through formal letter, dated 19th July, 1998, which notwithstanding her satisfactory performance during the contract period, is to be treated as a fresh appointment on regular basis."

In all humility at our command, we may say that observation, in above para to the extent that in the case of Dr. Humaira Shaheen, her contract period was not considered as probationary period, is not borne out from the record. Besides it, there was no question of treating the contract period of either of the Doctors as a probationary period as per the contents of appointment letters. It may be noted that Dr. Humaira Shaheen was appointed in the similar manner as the appointments of the petitioners took place initially for six months vide contract letter dated 4th December, 1994, followed by a training order dated 20th December 1994. She did discharge her duty as contract employee up to 17th July, 1996, when she tendered her resignation but before it, on 30th June, 1996, she was given a new/fresh contract appointment specifically for another period of two years in pursuance whereof posting order was given to her on 18th July, 1996. Surprisingly, on the conclusion of second contract period she was absorbed in executive cadre career on 19th July, 1998. Thus there was no question of treating any of the contract period of Dr. Humaira Shaheen as probationary period. Factual position is that with mala fide intention before the expiry of the initial contract period of two years, resignation was obtained from her but earlier to it, another contract appointment was offered to her on 30th June, 1996, in order to make her case distinguishable on the facts from the petitionerscase. Accordingly, on its expiry .She was absorbed on 19th July, 1998 in the regular cadre of respondent-Company, considering that her performance had been found satisfactory. If these facts were taken into consideration in the judgment under review perhaps the opinion would have been different because the petitionerscase is o better footing than the case of Dr. Humaira Shaheen as they continuously served the respondent-Company despite of expiry of initial period of six months and they never tendered resignation, nor there was any complain about their performance from the concerned quarters. We have, therefore, no hesitation in saying that petitioners an Dr. Humaira Shaheen belong to same class as all of them were initially appointed for a period of six months and thereafter all of them were allowed to hold the contract post for a period of more than four years, but in order to accommodate Dr. Humaira Shaheen, she was absorbed I the executive cadre of the respondent- Company whereas petitioners L services were discontinued altogether. Their service credentials an L performance were not less in any manner from her. Thus they have been discriminated against in violation of Article 25(1) of the Constitution o Islamic Republic of Pakistan. Reliance in this behalf may be placed I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041).

Accordingly it is held that due to non-consideration of the documents referred to hereinabove, a case for the review of the judgment to the extent of petitionerscase has been made out. We are fortified in this behalf by the judgment in the case of Suba through Legal Heirs v. Fatima Bibi through Legal Heirs (1996 SCMR 158), wherein it has bee held that "review petition would also be competent if something which is M obvious in the judgment had been overlooked and that if it would have M been considered by the Court, the final result of the case would have been otherwise". It may also be observed that in the case of Salee Mustafa Sheikh, Engineer Narain Das (ibid), absorption of the Trainee Engineers was directed for the reason that the respondent- Company itself had absorbed one of the Trainee Engineers i,e, Nisar Sangi, therefore, treating the case of all these employees at par, they were also directed to be absorbed in the service of the respondent-Company. Similarly in subsequent judgments in the cases of Engineer Narain Das etc., Abdul Samad etc. (ibid) same criteria was followed and a good number of employees of the company was directed to be absorbed preferably.

Thus, it is concluded that petitioners and Dr. Humaira Shaheen belong to same class, therefore, former were also entitled to equal protection of law in respect of privileges conferred and liabilities N imposed in terms of Article 25(1) of the Constitution of Islamic Republic of Pakistan.

In view of above discussion, instant review petitions are allowed and the judgment under review dated 22nd October, 2002 is set aside to the extent of petitioners. Respondent-company is directed to absorb them in executive cadre accordingly. No order as to costs.

CIVIL REVIEW PETITION NO. 426 OF 2001

58. Above noted petition has been filed to seek review of the judgment dated 22nd October, 2001, challenging following observations in the impugned judgment. -- "However, we would like to highlight the striking feature to the effect that after the absorption of the appellants/petitioners, the respondent-Company may make them to take the IBA Test and in the light of the result thereof proceed with the retention or otherwise of the appellants/petitioners in accordance with law."

59. Learned counsel for petitioners explained that above conclusion has been drawn in view of the arguments which were advanced in the case of Engineer Narain Das (ibid) but it did not find favour with the Court as respondent-Company was directed to absorb the employees I their respective disciplines without qualifying IBA Test. The respondent Company sought review of the above judgment on the ground that subject to qualifying IBA Test, petitioner/ appellants would be absorbed permanently. However, Review Petition was dismissed vide judgment Sui Southern Gas Company Ltd. v. Engineer Narain Das and others (PLD 2001 SC 555). He contended that the arguments, which were advanced in some other case without success cannot form basis in the judgment under review for imposing condition upon the petitioners for their absorption, subject to qualifying IBA Test. Thus, an error is apparent on the face of the record, sufficient to review the judgment, to grant them relief that petitioners shall also be absorbed into service without qualifying IBA Test in the same manner as other Trainee Engineers i,e, Saleem Mustafa Sheikh and others, Narain Das and others and Abdul Samad and others have been absorbed in the service.

60. Learned counsel for respondent-Company attempted to oppose the petitions but when called upon to explain as to how such condition can be imposed upon the petitioners by making reference to the arguments advanced by the learned counsel in some other case i,e, Engineer Narain Das (ibid), he could not answer satisfactorily except contending that the petitioners were appointed without taking any test or interview, therefore, to test their ability for absorption into service, directions were rightly made to them to qualify IBA Test.

61. After hearing learned counsel for the parties and having considered the arguments put forward before us by both the sides, we are inclined to subscribe the contentions of the learned counsel for petitioners being based upon principle of equal protection of law under Article 25 (1) of the Constitution of Islamic Republic of Pakistan which envisages that all persons equally placed to be treated alike both in privileges conferred and liabilities imposed. Since in the cases of Saleem Mustafa Sheikh, Narain Das and Abdul Samad (ibid) Trainee Engineers and Management Trainee were absorbed as regular employees of the respondent-Company without qualifying IBA Test, therefore, petitioners also deserve to be treated alike. Therefore, an error in the judgment under review being apparent on the record, case is covered, under Article 188 of the Constitution of Islamic Republic of Pakistan. Thus in view of above discussion, review petition is allowed. Resultantly, direction contained in para. No, 53 of the judgment under review, to the respondent- Company to absorb the petitioners in their respective disciplines subject to qualifying IBA Test by them, is P expunged and respondent-Company is directed to absorb the petitioners in the similar manner as has been done in the cases of Saleem Mustafa Sheikh, Narain Das and Abdul Samad etc. (ibid). No order as to costs. CIVIL REVIEW PETITIONS Nos. 427, 428, 430 and 432 OF 2001

62. Above-noted petitions have been filed to seek review of the judgment dated 22nd October, 2001 by staffers i,e, Helpers, Meter Readers, Assistants, Junior Clerks etc. As they were appointed by the respondent-Company on temporary basis, therefore their services were terminated when they had completed period of 3/4 years successfully. Federal Service Tribunal declined to grant them relief on the premises that they were appointed on temporary basis for temporary assignments/projects.

63. Learned counsel for petitioners contended that in the judgment under review, petitioners have been non-suited by placing reliance on the judgment of WAPDA v. Khanimullah, etc. (2000 SCMR 879), which is distinguishable on merits. In the reported judgment the respondents were employed against the specified project of "Mardan Scarp" which was not likely to continue for a period of more than nine months whereas in instant cases the projects against which the petitioners were employed are continuously going on as in the letters of termination of their service it has not been disclosed by the employer that on the completion of which specific project the services of the petitioners are being discontinued.

64. Learned counsel placed reliance on Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 SC 610) and contended that the burden was upon the employers to have shown that the posts being held by the petitioners were of temporary nature and their tenure of service was not likely to continue for a period of more than nine months, as such being temporary employees their services were likely to be discontinued. He further stated that after passing the judgment under review, the Service Tribunal had allowed service appeals of staffers who were also appointed temporarily, vide judgment dated 29th July, 2002 and this judgment was challenged by the respondent-Company vide Civil Petitions Nos.1850, 1861 to 1914, 1992 to 2040, 2051 to 2100, 2117 to 2161, 2169 to 2317 and 2327 of 2002. It was also pointed out by him that during hearing of these cases the Service Tribunal itself conducted an inquiry by examining one of the witnesses from the respondent-Company to ascertain as to whether the projects against which the staffers i,e, Meter Readers, Helpers, etc. Were employed, have been completed or not and on the basis of such material it opened in favour of the employees and held that the projects against which their appointments had taken place has not been completed so they have attained the status of permanent employees.

65. Learned counsel for respondent-Company argued that scope of review is limited under Article 188 of the Constitution of Islamic Republic of Pakistan and the petitioners in the garb of review petitions want to re-argue same points which have already been decided in the judgment under review, therefore, petitions deserve dismissal. It was also contended by him that petitioners were appointed against temporary assignments for a period of three months and the assignments/projects against which their recruitment took place has been completed, therefore, it was found not feasible by the company to continue with the temporary assignments/projects, as such the services of the petitioners were rightly terminated.

66. We have considered respective contentions put forward by the learned counsel for parties. It may be seen that in the judgment under review relief was declined to the petitioners because they were found to be temporary employees. Initially when they approached the Federal Service Tribunal for the redressal of their grievances they were non-suited, in view of the judgment in the case of Khanimullah (ibid). Crux of the said judgment is as follows:-- "The employees were 'employed on work-charged basis against the specified projects, therefore, on completion of work on the said projects, their appointments can be 'terminated by the competent authority."

67. In the judgment under review, above principle was fully applied, presuming that "during the course of arguments both the sides were not unanimous on the existence or otherwise of the projects against which appellants/ petitioners were taken on job by the respondent-Company temporarily. This question can hardly be resolved without holding a detailed inquiry into the facts duly stated in the documents of the respondent-Company or in the possession of the appellants/petitioners". Surprisingly, in the judgment noted hereinbefore i,e, Civil Petition No, 1850 of 2002 etc. Same Service Tribunal undertook an inquiry during the hearing of the case in the light of the observation in the case of Dr. Anwar Ali Sahto, and respondent-Company was called upon to submit affidavit, which .Should show Serial No,, names, designation, project(s), date of appointment, date of completion of project(s) and date of termination of service. Accordingly, an affidavit was submitted in the Court by Mr. Waqar I. Sheikh, Manager (HR) on 29th May, 2002. He was subjected to cross-examination by the counsel of the employees. As a result of the inquiry it was concluded that the petitioners therein were permanent employees. Resultantly vide order dated 29th July, 2002 allthe employees were reinstated. Against the said judgment respondent- Company preferred Civil Petitions No, 1850 of 2002 etc., which have been dismissed vide paras.

Nos.27 to 32 (supra). In said paras. While discussing different aspect of the case it has also been held that the case of Khanimullah (ibid) is distinguishable on facts.

68. Thus, we are of the opinion that in the judgment under review, the ratio decidendi in Khanimullah's case (ibid) may have not been applied and if there was a necessity to conduct an inquiry, to ascertain as to whether the projects against which the petitioners were working, the case may have been remanded to Federal Service Tribunal for further inquiry in the interest of justice. It is true that scope of review is limited as per command of Article 188 of the Constitution of Islamic Republic of Pakistan read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980, but if it is established that the Court has failed to consider any important aspect of the matter, review petition can be filed. In this behalf reference can be made to the case of Wagim Sajjad and others v. Federation of Pakistan (PLD 2001 SC 233). Thus it is held that in the Q instant cases in the judgment under review to the extent of petitioners an error has crept in, on account of applying ratio decidendi in the case of Khanimullah (ibid) as well as for want of inquiry, coupled with the fact that rule laid down in the case of Executive Engineer, Central Civil Division, Pak. P.W.D., Quetta v.

Abdul Aziz and others (PLD 1996 SC 610) namely that once if it was proved that the employees remained in service without any interruption between the period of 2 to 7 years, the burden of proof was on the employer department to have shown that the employees were employed on the works which were not of permanent nature and which could not have lasted for more than nine months.

Therefore respondent-Company had an obligation to establish that the specified projects against which petitioners were implemented had been completed. As such, under the above circumstances, to meet the ends of justice, it would be appropriate to recall the judgment under review to the extent of non-suiting the petitioners. Thus in view of above discussion, review petitions are allowed as a result whereof the cases of the petitioners are remanded to the Federal Service Tribunal for decision afresh, keeping in view observations made in para (supra). No order as to costs.

CIVIL REVIEW PETITION NO. 429 OF 2001

69. Petitioners seek review of the following para of the judgment dated 22nd October, 2001:-- "59. After hearing the learned counsel appearing in support of thecases of their respective clients and going through the material available on record with their assistance, we are of the considered view that the impugned judgments are unexceptionable, inasmuch as the petitioners herein have been reinstated in service, which fact meets the ends of justice and further that the respondent- Company has not challenged their reinstatement before this Court. Notwithstanding the originality and ingenuity of Mr. Wasim Sajjad in his endeavour to create a fine distinction in the words 'reinstatementand 'absorptionwe are of the view that 'reinstatementand 'absorptionfor all intents and purposes are synonymous expressions, in that, 'reinstatementin service involves as element of 'absorption', therefore, the expression 'absorbedused in Abdul Samad (supra) by this Court is to be construed accordingly and to that extent the case of Abdul Samad (supra) also stands revisited.

The findings in this case shall not, however, affect the transitions past and closed."

70. Precisely stating the facts of the case are that petitioners and others were appointed in respondent-Company as Trainee Engineers during the years 1994, 1995 and 1996. After rendering service for 4-5 years, respondent-Company vide letter dated 26th May, 2000 abruptly discontinued their assignment. Feeling aggrieved against such action of the respondent-Company, petitioners preferred appeals before the Federal Service Tribunal which were allowed and the respondent- Company was directed to reinstate them in service.. The petitioners feeling aggrieved from the judgment of the Service Tribunal as it has not directed their absorption in service but only granted them relief of reinstatement, filed Civil Petitions Nos. 1263 to 1341 of 2001 to seek relief to the extent that instead of reinstating them, they may be absorbed. Request so made by them has been turned down vide judgment under review, for the reason noted in the para. Reproduced hereinabove.

71. Learned counsel for petitioners contended that observation in the above para. Of the judgment under review, reproduced hereinabove that words 'reinstatementand 'absorptionare synonymous is not based on correct interpretation, in view of the peculiar circumstances of the instant case because both these terms are distinct and different from each other, therefore, a mistake is apparent on the face of the record warranting review of the judgment, as per the dictum laid down in the case of Mohtarma Benair Bhutto v. The State (PLD 1999 SC 937) is warranted. On the other hand learned counsel for respondent-Company opposed the review petition and stated that observation in the para. Of the judgment under review was made in view of the arguments advanced by the learned counsel for petitioners i,e, Mr. Wasim Sajjad, therefore,petitioners are stopped to re-agitate same question, which has already been considered and decided, as such review petition deserves dismissal. It would be appropriate to note that in the judgment relied upon by the petitionerscounsel, scope of review by this Court in exercise of powers under Order XXVI, Rule 1 of the Supreme Court Rules, 1980 read with Order XLVII, rule 1, C.P.C. Has been examined as under:-- "6. The fact of above review petitions depends on the scope and applicability of Order XXVI, Rule 1 of the Supreme Court Rules, 1980 (hereinafter referred to as the Rules). Under Rule 1 above, the power of review is to be exercised in a criminal proceedings on the ground of an error apparent on the face of the record and in a civil proceedings on ground similar to those mentioned in Order XLVII, Rule 1 of the C.P.C. Under the latter provision, the power of review can also be exercised if there is a mistake or 'error apparent on the fact of the record', apart from other grounds mentioned in Order XLVII, Rule 1 of the C.P.C." During hearing of the above cases identical question with reference to synonymity of the expressions 'reinstatementand `absorptionhas been examined in para. 10 (supra) wherein it has been held that both these terms are distinct and different from each other even as per dictionary meaning, according to which reinstatement means to restore or replace in last position, privileges, etc., whereas absorption means disappearance through incorporation in something else. It is to be emphasized that considering the expression reinstatement as absorption shall amount to changing the service status of the petitioners because if it is presumed that after serving the company for a. Period of 6/7 years, they will be reinstated, it would mean that position being have by them at R the time of issuance of appointment letters as Trainee Engineers will be restored whereas the fact is that they have not only successfully completed the training period but have also completed the probation period of two years, as per Rule 6 of the Executive Service Rules of SSGCL. Thus, on acceptance of appeals filed by them before the Service Tribunal, they would be deemed to be in the regular service of the respondent-Company having 6/7 years length of service to their credit. As such error apparent on the face of the record regarding interpretation of both the expression i,e, 'reinstatementand `absorptionin view of above discussion, needs to be rectified, in view of the observation in the case of Mohtarma Benazir Bhutto (ibid).

For the above reasons, review petition is allowed to the extent that the expressions 'reinstatementand 'absorptionare distinct and different from each other, therefore, conclusion in above-quoted para. Of the judgment under review is expunged holding that the petitioners shall R be absorbed into service, as it has been done in the cases of Saleem Mustafa Sheikh, Narain Das and Abdul Samad (ibid) in view of principles of Article 25(1) of the Constitution of Islamic Republic of Pakistan. No order as to costs.

72. For the sake of convenience, precise decision of the cases bunch-wise is as follows:-

1. CIVIL APPEALS NOS. 533 TO 539 OF 2002 AND CIVIL APPEALS NOS. 1396 TO 1663 OF 2002 These appeals are dismissed, leaving the parties to bear their own costs.

2. CIVIL PETITIONS NOS. 25 TO 44 OF 2002 Petitions are converted into appeals and allowed. The impugned judgment is modified to the extent that the petitioners shall be reinstated and absorbed in the service of respondent-Company being regular employees. No order as to costs.

3. CIVIL PETITIONS NOS.1779 to 1810 and 1812 of 2002 All these petitions are dismissed and leave refused.

4. CIVIL PETITIONS NOS. 1850, 1861 to 1914, 1992 to 2040, 2051 to 2100, 2117 to 2161, 2169 to 2317 and 2327 of 2002 All these petitions are dismissed and leave refused.

5. CIVIL PETITIONS NOS.762 to 765 of 2002 and CIVIL PETITIONS NOS. 1219 to 1225, 1242 to 1244 of 2002 and CIVIL PETITIONS NOS. 1294 to 1298 AND1364 to 1366 of 2002 and CIVIL PETITIONS NOS. 2792 to 2798 and 2801 of 2001 All these petitions are converted into appeals and allowed and cases are remanded to the Federal Service Tribunal for reconsideration as it has been observed hereinabove. No order as to costs. CIVIL REVIEW PETITION NO. 420 OF 2001 Review petition is dismissed being without substance. CIVIL REVIEW PETITIONS NOS. 421 AND 431 OF 2001 Instant review petitions are allowed and the judgment under review dated 22nd October, 2002 is set aside to the extent of petitioners. Respondent-Company is directed to absorb them in executive cadre accordingly. No order as to costs. CIVIL REVIEW PETITIONS NOS. 426 OF 2001. Instant review petition is allowed.Resultantly,direction contained in para. No, 53 of the judgment under review, to the respondent-Company to absorb the petitioners in their respective disciplines subject to qualifying IBA Test by them, is expunged and respondent-Company is directed to absorb the petitioners in the similar manner as it has been done in the cases of Saleem Mustafa Sheikh, Narain Das and Abdul Samad etc. (ibid). No order as to costs. CIVIL REVIEW PETITIONS NOS. 427, 428, 430 AND 432 OF 2001 Instant review petitions are allowed and cases of the petitioners are remanded to the Federal Service Tribunal for decision afresh, keeping in view observation in para. (supra). No order as to costs. CIVIL REVIEW PETITION NO. 429 OF 2001 Instant review petition is allowed to the extent that the expressions 'reinstatementand `absorptionare distinct and different from each other, therefore, conclusion in above quoted para. Of the judgment under review is expunged holding that the petitioners shall be absorbed into service, as it has been done in the cases of Saleem Mustafa Sheikh, Narain Das andAbdul Samad in view of principles of Article 25(1) of the Constitution of Islamic Republic of Pakistan. No order as to costs.