1989 PLC(CS) 4

Citation1989 PLC(CS) 4

CourtPeshawar High Court

Case No.Writ Petition No. 400 of 1987

Date1988-11-06

Judge(s)Fazal Elahi Khan and Raza Ahmad Khan

Authored byRaza Ahmad Khan

ResultPetition allowed

RAZA AHMAD KHAN, J.‑‑ In response to an advertisement appeared in daily "Mashriq" Peshawar published by respondent No. 1, the Selection Committee through its Chairman, Agriculture, Forest and Cooperative Department, Peshawar for the posts of Statistical Investigators; the two petitioners applied for and were selected by respondent No. 1 on merits and were appointed by Government of N.‑W.F.P. respondent No. 3 in BPS‑16 on ad hoc basis alongwith twenty other Statistical Investigators who were notified as such on 7th January, 1985 and informed accordingly vide an endorsement of the Notification by the Director of Agriculture, N.‑W.F.P., Peshawar vide his No. 11/98/E‑1/313‑83/DA, dated 7th January, 1985.

2. It was in September 1986 that the Government of N.‑W.F.P. decided to regularize the services of the ad hoc employees in the province and to this end the North‑West Frontier Province Ad hoc Civil Servants (Regularization of Service) Act, 1987 was enacted. Pursuant to the said legislative measure, respondent No. 2 issued a Notification No. SOE (AD) II (2) 286/86‑87, dated 14‑6‑1987 whereby the ad hoc appointments of the Statistical Investigators of Agriculture Department were regularized with effect from 21‑1‑1987. Respondent No. 2, vide another Notification seemingly dated 28‑6‑1987 of the even number, terminated the services of the petitioners with effect from 28th July, 1987 for the reason that the petitioners were found to have not studied Mathematical Statistics as one of the subjects in their M.Sc. (Maths.) examination and as such they do not possess the prescribed qualification for appointment to the posts of Statistical Investigators which is Master's Degree in Statistics or Mathematics or Maths with Statistics as one of the subjects.

3. Aggrieved from this situation, the petitioners have filed this Constitutional petition to seek a declaration that the impugned acts and orders of respondents are without lawful authority and of no legal effect, and prayed for withdrawal of the termination letter dated 28‑6‑1987 and to publish their names in the list of Regular Employees.

4. We have heard at length the learned counsel for the petitioners Mr. Jehanzeb Rahim Khan and the learned Additional Advocate‑General Mr. Bashiru!lah Khan appearing for the respondents.

5. The case of the petitioners is:

(i) That they were appointed by respondents on the basis of qualifications as mentioned in the advertisement dated 25‑10‑1984 published in daily "Mashriq" Peshawar on ad hoc basis and, holding M.Sc. (Maths) Degree, they fulfilled the qualification prescribed as such.

(ii) That the contention of the respondent No. 1 to the effect that the petitioners were found to have not studied Mathematical Statistics as one of the subjects in their M.Sc. (Maths) classes and as such not eligible for appointment, is ill‑founded inasmuch as, it is pot conformity with the qualifications required for the appointment of Statistical Investigator (BPS‑16), as mentioned in the rules for the said posts which are:

(a) Master's Degree in Statistics, or

(b) Master's Degree in Mathematics, or

(iii) That the petitioners cannot be denied regular appointment, the principle of locus poenitentiae notwithstanding, on a simple excuse that for want of requisite qualification they should not have been appointed at the first instance; particularly when they have already put in a service for about 2 1/ 2 years and are likely to become overage for all Government services.

5. The learned Additional Advocate‑General on behalf of the respondents contended that notwithstanding the qualifications mentioned in advertisement dated 25‑1.0‑1984, when the respondent found that the petitioners did not possess the requisite qualifications as mentioned in the rules or for that matter as mentioned in a latter advertisement dated 11‑7‑1987, the services of the petitioners have been rightly dispensed with because they were not possessed of the requisite qualifications m that the petitioners were having Degrees of M.Sc. (Mathematics) but not with Statistics as one of the subjects and since this was one of the requirements for their regularization as per clause. (ii) of the Proviso to section 3 of the N.‑W.F.P. Ad hoc Civil Servants (Regularization of Services) Act, 1987, the services of the petitioners were rightly terminated. He, however, conceded that at the relevant time there was no selectee of the N.‑W.F.P. Public Service Commission, who had preferential right of appointment to the post.

6. A reference to the advertisement, dated 25‑10‑1984 would show that the basic qualification prescribed for the post of Statistical Investigators was M.Sc. Degree in Statistics or Maths or Economics. The record also reveals that after receiving the applications of the petitioners, they were presumably interviewed and thereafter having been found to be duly qualified, were appointed as Statistical Investigators by the respondents on ad hoc basis. Meanwhile the N.‑W.F.P. Ad hoc Civil Servants (Regularization of Services) Act, 1987 was legislated whereby the services of all ad hoc employees were required to be regularized provided, inter alia such civil servants possess the qualifications and experience prescribed for the post to which they are appointed on regular basis. 1t seems that in the process of compliance with the requirement of the newly enacted law, the respondents found the petitioners deficient in the requisite qualifications and issued the impugned order of termination of their services.

7. A perusal of the comments submitted on behalf of the respondents would disclose that the M.Sc. (Maths), or for that matter M.Sc in Statistics, inevitably would be with Statistics as one of the subjects and it is this understanding of the relevant rules which weighed with the Government not to regularize the services of the petitioners. On the contrary, as the learned counsel for the petitioners contended, this interpretation of the rule is not only ill‑founded but also misleading inasmuch as the additional subject of Statistics, according to him, is only for Master's Degree in Economics and not for Master's Degree in Maths: nor for that matter for Master's Degree in Statistics, which, if insisted, would sound illogical. In this context of the matter there seems to be force in his argument that it is only Master's Degree in Economics with Statistics as one of the subjects and there being no such condition attached to the Master's Degree in Mathematics, the petitioners were qualified for regularization of the ad hoc service. The petitioners holding the degrees of Mathematics, therefore, were qualified and were entitled to have been regularized under the new law and their exclusion from the impugned order dated 14‑6‑1987 was unjustified.

8. Without entering into the merits or demerits of all the points raised by the learned counsel for the petitioners during the course of his arguments, the sole question which we consider as having material bearing on the fate of this petition is as to whether the petitioners did possess the qualifications prescribed for the posts as required under clause (ii) of the proviso to section 3 of the North West Frontier Province Ad hoc Civil Servants (Regularization of Services) Act, 1987 at the relevant time.

9. While we agree with the learned Additional Advocate‑General that an ad hoc appointee if not found to be possessed with all the requisite qualifications prescribed for the post, his services, under the North‑West Frontier Province Ad hoc Civil Servants (Regularization of Services) Act, 1987, cannot be regularized and the Government in such a situation will he within its rights to terminate the services of such appointees; in the instant case we find that the petitioners were duly qualified in accordance with the rules, as discussed above and non‑inclusion of their names in the Notification dated 14‑6‑1987 and for that matter order of termination of their se‑Aces as per Notification dated 28‑6‑1987 was unlawful and with no legal effect.

10. In the light of the foregoing, we allow this writ petition and declare the impugned orders of respondents as without lawful authority and of no legal effect In the result the services of the petitioners shall be deemed to have beer: regularized under section 3 of the N.‑W.F.P. Ad hoc Civil Servants (Regularization of Services) Act. 1987 and the respondents are directed to act in the matter in accordance with law and include their names in the list of Statistical Investigators dated 14‑6‑1987. We, however, leave the parties to bear their own costs.

A.A./663/P

Petition allowed.