MUHAMMAD NAWAZ vs FEDERATION OF PAKISTAN and 61 others

' NAIMUDDIN, J.---The petitioner seeks leave to appeal from the judgment and order of the Federal 'Service Tribunal, Islamabad dated 20-1-1991 whereby the appeals filed by respondents Nos.3 and 44 to 62 against the Secretary, Establishment Division; Islamabad and the Secretary, Ministry of Information and Broadcasting, Islamabad and others were allowed and the Ministry of Information and Broadcasting's Notification No,1(1)/89-PNC dated 19-4-1989 was cancelled and the Directorate General's Office Order No,F-2-50/PNC(Estt), dated 15-11-1988 and Notification No,F-1-98/Estt/89 dated 3-1-1989 were restored.

2. The two Ministries have accepted the judgment of the Service Tribunal and have not filed any petition as stated at the Bar. However, the petitioner, who was one of the respondents before the Service Tribunal, has filed this petition. Another petition, being No,101 of 1991, has been filed by four other respondents before the Service Tribunal,

3. The facts giving rise to this petition are that respondents 3 and 44 to 62 were Programme Managers (BPS 16) in Pakistan National Centre. They objected to the notification No,1(1)/89-PNC dated 19-4-1989 of the Ministry of Information and Broadcasting whereby the Directorate General, Pakistan National Centre's Office Order No,F.2-50/PNC(Estt) dated 15-11-1988 and notification NO.F.1- 98/Estt/89 dated 3-1-1989 were superseded. All the aforesaid respondents, except Mir Hafeezur Rehman Mari, were appointed on 15-3-1981 as Programme Managers BPS 16, in the then Directorate of Mobile Information Unit of the Ministry of Information and Broadcasting on ad hoc basis before the merger of the Directorate of Mobile Information Unit and the Directorate General, Pakistan National Centre, Islamabad. Respondent 58 was appointed as Programme Manager on ad hoc basis after the merger. When the aforesaid respondents were appointed on ad hoc basis, there were no rules for the post of Programme Manager. The rules were framed and enforced, for the first time, on 14-10-1986. Thereafter, the Directorate General, Pakistan National Centre issued Office Order No,F-2-50/PNC(Estt), dated 15-11-1988, the opening paragraph whereof reads as follows:-- "In terms of Rule 7 of the Existing Rules of Recruitment pertaining to the posts of the Directorate General, Pakistan National Centre and its subordinate offices as well as recommendations of O&M Division contained in para.Tof item No,9 vide their No,6-3/88/O&M-II, dated 3-11-1988 the services of the following Programme Managers in various Pakistan National Centres are regularised in the basic pay scale and with effect from the date shown against each."

' The list below this para included the names of the said respondents with the dates of their appointments. Some of them had been appointed as Programme Managers on ad hoc basis in the first instance. However, subsequently, another notification No,F.1-98/Estt/89 dated 3-1-1989 was issued by the Directorate General, Pakistan National Centre the opening paragraph whereof reads as follows:-- t "In terms of Establishment Division's O.M. No,1/PT/1/R-1, dated 1-9-1987 the Competent Authority is pleased to confirm the following Programme Managers, working in various Pakistan National Centres as well as at Directorate-General, Islamabad, against BPS-16 posts with effect from 1-1- 1989."

' The list below this paragraph included the names of the said respondents. However, this order and notification were supreseded by another notification dated 19-4-1989, issued by the Ministry of Information and Broadcasting, the opening paragraph whereof reads as follows:-- "No, 1(1)/89-PNC. In terms of Rule 7 of the Recruitment Rules pertaining to the posts of the Directorate General, Pakistan National Centre, and its subordinate offices, and on the recommendation of the 25th Meeting of the Standing Organization Committee, the services of the following ad hoc Programme Managers (BPS 16) arc regularised in their basic pay scale, without affecting their inter se seniority, with effect from November 15, 1988."

' This last notification was objected to by the said respondents in the appeals before the Federal Service Tribunal.

4. It was urged before the Service Tribunal that para. 7 of the Recruitment Rules, dated 14-10-1986 was included in the Rules for regularisation of the appointments to various posts made before the issuance of the Rules. Rule 7 provided that appointments made prior to the notification containing the rules shall be deemed to have been made on regular basis if the persons fulfil the qualifications and other conditions prescribed at the time of appointment and were appointed/regularised with the approval of the competent authority. It was further contended before the Service Tribunal that the said respondents fulfilled the requisite conditions prescribed at the time of their appointments and were eligible for regularisation under the Recruitment Rules and that the Director-General, who was head of the Department and a BPS 20 Officer was competent to regularise the appointments of said respondents under Rule 7 of the Rules. Rule 7 of the Rules reads as follows:--

7. The appointments made prior to the Notification of these Recruitment Rules shall be deemed to have been made on a regular basis provided the persons appointed as such, fulfilled the qualifications and other conditions prescribed at the time of their appointment, and were appointed/regularised with the approval of the competent authority. The appointments not covered by this rule shall be regularised in accordance with these Recruitment Rules."

' The learned counsel further submitted that rule of locus pocnitentiae was not available, as a valuable right had already accrued.

5. In reply, the learned counsel for the petitioner relied on Office Memorandum No,1(8)/72-D-II dated 4-5-1972 (Estacode 1989 edition page 235) and contended that ad hoc service does not reckon for the purpose of seniority when the ad hoc appointment is converted into regular appointment. It was further contended that the Government can rescind an order in view of section 21 of the General Clauses Act, 1897.

6. The Service Tribunal noted that in the case the competent authority, namely, the Director- General, Pakistan National Centre, passed the order, dated 15-11-1988, regularising the service of certain Programme Managers and the same competent authority confirmed the services of some officer on 3-1-1989 and that the two orders, having been passed competently, had taken effect and created valuable rights in favour of the persons mentioned in the orders and, accordingly, held that the cancellation of these two orders by the Ministry of Information and Broadcasting was, therefore, not valid and thus, allowed the appeals.

7. We have heard the learned counsel for the petitioner. The learned counsel submitted that rule 7 of Notification No,47(77)-AD.I(PT) dated 14-10-1986, by which the appointments made prior to this notification were deemed to have been made on regular basis, was dependent on the fulfilment of certain qualifications and conditions prescribed at the time of respondents' appointments, and they did not fulfil those conditions.

8. The submission is without force, for, rule 7 governs their cases and the mention of qualifications and conditions, in our opinion, relates to their personal qualifications.

9. It was next contended that the Government could rescind its earlier orders, dated 15-11-1988 and 3-1-1989 but this contention is misconceived because these orders were acted upon and created a vested right in the respondents. Therefore, under the rule of locus poenitentiae, the said orders could not be cancelled.

10. Therefore, the order of the Federal Service Tribunal . Is unexceptionable. Accordingly, we find no merits in this petition and dismiss it.