ANJUM SHAFI vs SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 3
This matter arises from a petition for leave to appeal concerning a seniority dispute between the petitioner, appointed as a Pharmacist on a regular basis on March 9, 1987, and the fourth respondent, initially appointed on a contract basis on March 24, 1986, and subsequently regularized with retrospective effect from his initial contract appointment date. The core legal question revolves around whether a contractual appointment can be regularized retrospectively and whether the Civil Servants Act, 1973, grants powers to the competent authority to make such retrospective regularizations affecting seniority. The Service Tribunal had upheld the regularization based on fairness, recommendations of the Board of Governors, and absence of specific enforced rules at the time. The Supreme Court granted leave to appeal to examine the extent of the competent authority's powers under the Civil Servants Act, 1973, to accord retrospective regular effect to contract appointments.
- Whether a contractual appointment can be regularised retrospectively under the Civil Servants Act, 1973?
- Does the competent authority have the power under the Civil Servants Act, 1973, to give effect to a regular appointment from the date of an earlier contract appointment?
- Can the regularization of contract employees from the date of their initial contractual appointments affect the seniority of regularly appointed employees?
- Civil Servants Act, 1973
ORDER
' FAZAL KARIM, J.---The question requiring determination in this case relates to the seniority of the petitioner, Anjum Shafi, vis-a-vis the 4th respondent herein, named Abdul Qadir Javed Iqbal. The petitioner was appointed as Pharmacist on regular basis on 9-3-1987 whereas the 4th respondent was appointed in the same capacity on contract basis on 24-3-1986. By an order dated 27-2-1989 the 4th respondent was also appointed on regular basis but his appointment was given effect to from 24-3-1986 that is, the date of his appointment on contract basis. This is, however, the 4th respondent has become senior to the petitioner. The Tribunal has traced the history of the employees of PIMS; it posed a question "whether a contractual appointment could be regularised retrospectively and whether there is any provision in the Civil Servants Act, 1973 for doing so" and observed: "No doubt, under the Civil Servants Act, 1973, appointment on contract could hardly be converted into regular appointment". The Tribunal, however, found that there were distinguishing features in the present case namely that the 4th respondent and other employees of PIMS similarly situated had continued on contract basis "right from 1986 who were regularised from date of their contractual appointments in 1981 and in all fairness, his such service was to be regularised". In the view of the Tribunal "the regularisation of services of respondent No,4 alongwith Medical Officers was not a solitary case but was made on the recommendations of the Board of Governors" and "in case we allow the appeal, it will mean that we are making discrimination and interfering in the discretion exercised by the competent Authority". The Tribunal found "no just and valid ground to disturb the position taken in regularising the services of respondent No,4 when at that time they were not civil servants nor specific rules were made or were enforced under the Civil Servants Act, 1973".
2. Learned counsel for the petitioner maintains that the question is that of the petitioner's right and that must turn upon the powers of the competent Authority under the Civil Servants Act, 1973 to treat the 4th respondent as an employee of the PIMS on regular basis with effect from 24-3-1986, when admittedly he was appointed on contract basis and he had continued on contract basis till 27-2-1989.
3. Leave to appeal is granted, inter alia, to consider this contention.