TO GOVERNMENT OF N.-W.F.P. And Another vs Dr. MUHAMMAD AKHTAR And Another
This review petition concerns the interpretation of Section 3 of the North-West Frontier Province Civil Servants (Regularization of Services) Act, 1988, specifically regarding the conditions for claiming a preferential right of appointment over a civil servant regularized under the Act. The core legal question was whether the respondent, Dr. Muhammad Saleem, possessed a preferential right of appointment over the petitioner, Dr. Muhammad Akhtar, based on his selection by the Public Service Commission prior to the commencement of the Act. The Supreme Court held that the petitioner failed to satisfy the statutory requirements for such a preferential right. The Court determined that the respondent's selection by the Public Service Commission was merely provisional, as the critical assessment of Annual Confidential Reports (A.C.Rs) occurred after the target date of January 23, 1988. Consequently, the Court dismissed the review petition, affirming that a claim of preferential right under the Act requires strict adherence to the conditions of selection by the Public Service Commission before the Act's commencement, which was not established in this instance.
- Does a provisional selection by the Public Service Commission satisfy the requirement of 'selection' under Section 3 of the North-West Frontier Province Civil Servants (Regularization of Services) Act, 1988?
- Can a preferential right of appointment be established under the North-West Frontier Province Civil Servants (Regularization of Services) Act, 1988, if the final selection process was completed after the commencement of the Act?
- Is the grading by the Public Service Commission a statutory standard for determining preferential rights in civil service appointments?
- Section 3, North-West Frontier Province Civil Servants (Regularization of Services) Act, 1988
ORDER
1. MUHAMMAD AFZAL ZULLAH, CJ.---This order should be read in continuance of the order dated 25-5- 1991 in Civil Appeal No.73 of 1990.
2. In this review petition, the question raised is limited to the interpretation of section 3 of the North- West Frontier Province Civil Servants (Regularization of Services) Act, 1988. The relevant provision thereof reads as follows:- "3. Notwithstanding anything contained in any law or rule for the time being in force, but subject to preferential right of appointment of a selectee of the Public Service Commission, if any selected before the commencement of this Act, all civil servants holding appointment to a post on ad hoc basis in any Department of Government immediately before the commencement of this Act shall be deemed to have been selected for appointment on regular basis on the commencement of this Act Provided that-_----------------------------- The learned counsel for the Review petitioner firstly remained under a wrong impression as if the clearance of the respondent (successful appellant in this Court) by the Public Service Commission was necessary as condition precedent for his taking benefit under this Act. Soon after the commencement of the arguments he realised that the words "selected before the commencement of this Act" in section 3 would apply to the preferential right of appointment of another person as against the respondent (appellant) whole appeal had been allowed by this Court.
3. He then vehemently contended that Dr. Muhammad Saleem having a preferential right of appointment as against Dr. Muhammad Akhtar (respondent herein) and further that he being a selectee of the Public Service Commission and that too before the commencement of the Act, the judgment of this Court merited to be reviewed.
4. Despite addressing fairly lengthy arguments the learned counsel has not been able to satisfy all the conditions laid down in section 3 regarding the preferential right of appointment of the other person; namely, Dr. Muhammad Saleem respondent No.2 herein.
5. Firstly, we have checked the seniority of both the contestants even in their earlier grade; namely, 17.
6. Broadly speaking Dr. Muhammad Akhtar was senior to Dr. Muhammad Saleem. If the initial date of induction is kept in view Dr. Muhammad Akhtar joined in Grade-17 on ad hoc basis in 1978 while Dr. Muhammad Saleem similarly joined in 1980. The date of regularisation of both of them in Grade-17, however, is stated to be the same i.e. 4-10-1981. In Grade-18 while Dr. Muhammad Akhtar was appointed on ad hoc basis in January, 1987 Dr. Muhammad Saleem was appointed in June, 1987.
7. The effort of the learned counsel to prove preferential right for Dr. Muhammad Saleem on the basis of grading by the Public Service Commission is not shown to be a statutory or sub-statutory standard for measuring the preferential right. And even in that behalf the initial provisional selection by the Public Service Commission of Dr. Muhammad Saleem, as would be presently noticed was without seeing his A.C.Rs. It was not known by that timenor anything has been said before us in that behalf whether overall picture in A.C.Rs. Of Dr. Muhammad Saleem was superior to that of Dr. Muhammad Akhtar. Had it been so even that by itself might not have been the sole criteria for determining the preferential right.
8. Be that as it may, even if Dr. Muhammad Saleem would have had a preferential right it was necessary for him to have satisfied another condition as against Dr. Muhammad Akhtar; namely, of "selection" by the Public Service Commission before 23-1-1988 the date of enactment of the regularization law. In this case although the review petitioner has attached a certificate from Public Service Commission showing as if the selection of Dr. Muhammad Saleem had taken place on 7-1-1988 but on deeper scrutiny it has been found that it was only a provisional selection. The one major task of scrutiny and assessment of A.C.Rs. Was postponed to a date after 23-1-1988-- the target date. This exercise probably was done on 31-1-1988 and as contended by the learned counsel it is doubtful whether, the final selection did take place even on this day i.e. 31-1-1988.
9. Accordingly, the conditions in section 3 not having been satisfied by respondent No.2 no justification has been made out for review. This petition, therefore, is dismissed with costs throughout.