Major (R) NISAR ALI vs PAKISTAN ATOMIC ENERGY COMMISSION and another

ORDER

' JAVED IQBAL, J---This petition for leave to appeal is directed against the judgment dated 2-9- 2000 passed by the learned Federal Service Tribunal, Lahore, whereby the appeal preferred on behalf of petitioner has been dismissed and order dated 16-3-1998 passed by the Chairman, Pakistan Atomic Energy Commission, has been kept intact whereby the stance of the petitioner for counting his service on contract basis towards regular one was rejected.

2. Precisely stated that facts of the case as enumerated in the judgment impugned are that "the appellant was initially appointed in the Pakistan Atomic Energy Commission (hereinafter called as PAEC) as Senior Security Officer on contract basis vide letter of appointment dated 24-11-1988.

Later on he was appointed in the same organization as Senior Security Officer on regular basis with effect from 8-1-1989 vide Office Memorandum dated 11-3-1990. Accordingly the appellant made a request to respondent No,1 i,e, Chairman, PAEC for counting his service on contract basis towards regular one which was turned down vide O.M. Dated 9-1-1995. Against this rejection order the appellant preferred a departmental appeal which was finally rejected vide order dated 16-3-1998."

Being aggrieved an appeal was preferred before Service Tribunal which has been rejected, hence this petition.

3. Sh. Masood Akhtar, learned Advocate-on-Record entered appearance on behalf of petitioner and mainly contended that the memo issued by the Government of Pakistan bearing No, O.M.8/9/90/AF-2 dated 27-1-1990 could not be made applicable with retrospective effect and the service rendered on contract basis should have been counted towards regular service rendered by the petitioner. It is also contended that the petitioner was discriminated and the Officers placed in similar situation were benefited and their period of service on contract basis was counted as regular. Service. In this regard it is pointed out that Major Muhammad Ali Shah who joined on contract basis in 1982 was regularized in 1986 retrospectively with effect from the date of his initial appointment. It is urged with vehemence that the petitioner was never asked to exercise his option for appointment either on contract basis or on regular basis which resulted in serious prejudice and the petitioner cannot be deprived of the benefit of his service rendered on contract basis which should have been treated as regular service.

4. We have carefully examined the contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have perused the judgment impugned carefully. The pivotal question which needs determination would be as to whether the contractual appointment could be converted to regular appointment with retrospective effects by counting contractual period of service as regular one? Let we make it clear that the contractual appointment is for a specific period and cannot be equated to that of regular appointment. The contractual appointment and regular appointment are neither synonymous nor interchangeable terms. The contractual appointment is subject to the terms and conditions as enumerated in the contract executed between the employer and the employee while regular appointment is subject to Service Laws and rules made thereunder and the question of its applicability depends upon the terms and conditions of the appointment. In fact the employees who were appointed on contract basis are entirely a distinct class and they don't belong to any integrated service. A line of distinction is to be drawn between service under the rules and contract service. In case titled Ghulam Sarwar v. Pakistan (PLD 1962 SC 142) the distinction between service under the rules and contract service was highlighted, relevant portion whereof is reproduced herein below for ready reference:-- "There' is a fundamental distinction between service under the Rules and contract service.

Ordinarily, service under the Government has to be governed by Rules relating to the conditions of service as provided by Art.

241. The Government may employ persons under contract in exceptional eases, but such employees are entirely a different class. There are between them and the Government binding contracts. The Government would be bound to pay them the salary that it has agreed to pay and to perform the other terms and conditions contained in the contract subject of course, to any law which may govern such contracts."

5. In sequel to above mentioned discussion it can be inferred safely that contractual appointment is not a regular appointment and the period of service rendered on contract basis cannot be equated to that of regular service. It transpires from the scrutiny of record that the contract service of the petitioner was not counted towards regular service due to the then prevalent policy (Office memorandum dated 27-1-1990) which, interalia, provides that "since the retired Military personnel had already opted to serve in the PAEC on contract basis, now their contractual appointment cannot be converted into regular one with retrospective effect," which makes it abundant clear that contractual appointment would not be converted into regular appointment. Besides that petitioner was not appointed on regular basis due to "sub-standard" record of his service which could have been considered by the Pakistan Atomic Energy Commission being a sensitive organization. It would be pertinent to mention here that pursuant to offer of appointment dated, 24-11-1988 the petitioner himself had accepted his appointment on contract basis without raising any objection and joined duties as Senior Security Officer. The petitioner was subsequently appointed as Sehior Security Officer (B-18) on regular basis by means of order dated 11-3-1990 which was complied with by joining the new assignment on regular basis w,e,f, 27-9-1990 without any protest worth the name regarding regular appointment with retrospective effect by treating his contract service as regular one. The petitioner had accepted the terms and conditions of his c contractual appointment by means of letter dated 11-12-1988 and therefore, the, question of his appointment on regular basis does not arise. The acceptance by the petitioner amounts to exercise of his option which once exercised was to be considered as final in view of the policy as "numerated in Establishment Division Islamabad's O.M. No:8/8/90-A-B-2, dated 27-1-1990.

6. We have also adverted to the question of discrimination which has been dilated upon and decided in a comprehensive manner by the learned Service Tribunal as follows:-- "5. As regards the discrimination alleged by the appellant in two cases referred to above, admittedly Major (R) Akbar Altaf exercised, option for regular appointment and as such he was so regularly appointed -in the PAEC. As for Major (R) Muhammad Ali Shah is concerned, he was appointed on contract basis and his services were regularized before the clarification of the Establishment Division O.M. Dated 27-1-1990 whereas the appellant's appointment was regularized after receipt of the said clarification i,e, 27-1-1990."

' No discrimination whatsoever has been done with the petitioner as his case is not identical to the of Maj. (R) Akbar Altaf and Maj. (R) Muhammad Ali Shah.

7. The, conclusion as arrived at by the learned Service Tribunal being well based hardly' calls for any interference. It may be a case of individual grievance but no question of law of public importance is D involved in the matter which could persuade us to grant leave to appeal. Viewed in this context the petition being meritless is dismissed and leave refused.