BAHADUR SHAH Versus DIVISIONAL ENGINEER DEVELOPMENT II, I . T . R . , ISLAMABAD PAKISTAN

ORDER

1. NASIM HASAN SHAH, J .‑‑The petitioners are Assistant Divisional Engineers. They were recruited between December, 1975 and January, 1976, by the Public Service Commission in pursuance of a regular advertisement issued by it on different dates and may be described as batch of 1975. The respondents Nos. 5 to 23 are also Assistant Divisional Engineers who were recruited in pursuance of applications submitted directly by them to the then Prime Minister f Pakistan in 1974.

2. After the take‑over in July, 1977, the appointments of the respondents were reviewed by the Federal Public Service Commission under rule 4 of the Federal Public Service Commission (Functions) Rules, 1978 and the Federal Public Service Commission recommended the regularization of their service. However, it also fixed their seniority with effect from 27‑1‑1982 under rule 4 of the Federal Public Service Commission (Functions) Rules, 1978. The President was pleased to regularize the service of the engineers as per recommendation of the Federal Public Service Commission. The respondents Nos.5 to 23 submitted representations to the President against the fixation of their seniority from 27 1‑1982 instead of reckoning the same from the date of their joining in 1974. In view of the representations submitted by the respondents against the fixation of their seniority as from 27‑1‑1982 instead of their original date of joining, the President was pleased to over‑rule the stipulation made by the Federal Public Service Commission about the seniority of the respondents being fixed as from 27‑1‑1982 on the ground that the recommendations of the Federal Public Service Commission on this aspect of the matter were beyond the purview of rule 4 of the Federal Public Service Commission (Functions) Rules, 1978 and that the said recommendation was also not justified on the ground of equity and justice. The President was further pleased to assign the seniority of the respondents as from the date of their original appointment i.e. 22‑11‑1974.

3. The petitioners herein namely the members of the 1975 batch applied for review of this order of the President but the same was rejected on 22‑6‑1983. However, in the meanwhile they had also filed an appeal before the Service Tribunal. This appeal has been rejected by the Service Tribunal vide order dated 27‑3‑1985. Hence this petition for leave to appeal.

4. We have heard Mr. Bashir Ahmad Ansari, learned Advocate for the petitioners and Moulvi Sirajul Haq, learned counsel for respondents Nos. 5 to 23, who appeared in support of the caveat filed on their behalf.

5. The functions of the Federal Public Service Commission are of a an advisory nature since it has to advise the President on matters which may be referred to the Commission by him (vide Section T(b) of the Federal Public Service Commission's Ordinance 1977) . Furthermore, the advice tendered by the Commission is not binding on him as is clear from the terms of Section 8 which provides that "where the President does not accept the advice of the Commission, he shall inform the Commission accordingly".

6. Moreover in the reference made to the Commission its advice was sought with regard to the suitability and fitness of the candidates who were selected directly by the Prime Minister without strictly complying with the rules in order to determine whether the services of these appointees should or should not be regularized. The recommendations made by the Commission, in addition to its advice with regard to their suitability, namely, that they should be assigned seniority as from 27‑1‑1982, was beyond the terms of the reference and that part of the recommendation, therefore, was rightly over‑ruled by the President.

7. This petition, accordingly, must fail and is dismissed hereby.

8. M.I./B‑66/S Petition dismissed.