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Appeals Nos. 178/171, 803/490, 331, 868/489, 162, 470/211 of 1974 and 44/420 of 1975, decided on 10th September 1977.

‑‑ Read with M. L. R. No. 118 of 1972‑Provisions regarding national ization of private educational institutions‑M. L. R. 118 Punjab (Amendment) and valid statute‑Paras. 9 & 10, M. L. R. 118 stood amended retrospectively‑Contract employees of private institutions‑Did not have, after nationalization of institu tions, either status of temporary Government servants or statutory employees or that of civil servants‑Constitution of Pakistan (1972), Arts. 217 & 290(1), West Pakistan Government Temporary Employment Rules, 1968, r. 2(4) and Punjab Civil Servants Act (VIII of 1974), S. 2 and Punjab Service Tribunals Act (IX of 1974), S. 2(b)‑[P L D 1971. S C 252 held not applicable].

The Province of East Pakistan v. Muhammad Mehdi Ali Khan P L D 1959 S C (Pak.) 387; P L D 1971 Lah. 371 ; P L D 1958 Lah. 169 and P L D 1962 S C 142 ref.

P L D 1971 S C 252 held not applicable.

‑‑‑ S. 4‑Pre‑emptive appeals‑Not contemplated‑Appellant filing appeal against order yet to be issued‑Appeal, held, not entertainable.

‑These seven appeals involve common questions of law and similar facts, and are disposed of by the same order.

In Appeal No. 178/171 of 1974, Kh. Muhammad Aslam, appellant was the Principal of Islamia College, Lahore, managed by Anjuman‑e‑Himayat‑e‑Islam, Lahore. After attaining the age of 60 years on 1‑4‑1970 he was allowed to continue in service for 10 years more vide Resolution No. X15‑A passed by the General Council of the Anjuman in its meeting held on 10‑11‑1969. The aforesaid College was nationalized under M. L. R. 118 and vide Govern ment Order No. S. O. (NC) 6/3‑72 dated 1‑9‑1972, the services of the appel lant were terminated by the Punjab Education Department on the ground that since he had already attained the age of 58 years, he was not eligible for absorption in Government Service. He made a representation to the Governor of the Punjab on the 8th September 1972. His case was also recom mended by the then Central Education Minister, Mr. Abdul Hafiz Pirzada on 14‑9‑1972 to the Provincial Minister for Education, for special relaxation to re‑employ him on contract basis beyond the age of 60 years. The present appeal before this Tribunal was filed on 22‑8‑1974.

2. In Appeal No. 803/74, Prof. A. D. Arahad appellant was appointed by Anjuman Himayat‑e‑Islam, Lahore, as Principal of the Islamia College, Railway Road, Lahore on 13‑7‑1972 in place of Prof. Abdul Hayee who, on 14.3‑1972, resigned from the said post. The appellant was due to retire on 5‑5‑1972 after attaining the age of 60 years. He represented to the Governing Body of the College for extension of his term of service. The Governing Body allowed him to work as Acting Principal till 1‑9‑1972 when the Govern ment actually took over the College alongwith other such Educational Institutions. The appellant's continuation after 30‑8‑1972 was subject to the decision of the Government who, however, on the 4th of September decided to retire him on the ground that he had already completed 58 years of age. The appellant challenged the order of the Government by Writ Petition No. 401‑S of 1973 in the Lahore High Court which was dismissed by Mr. Justice Shafi‑ur‑Rehman on 2 ‑5‑1973. The Letters Patent Appeal was preferred against the aforesaid order and was declared to have abated on 20‑9‑1974 by the High Court, Consequently the present appeal was filed before us on 19‑11‑1974.

3. In Appeal No. 331/74 the appellant, Prof. Hamidullah Siddiqui was appointed as Principal of the Anjuman Himayat‑e‑Islam Law College, Lahore on 15‑12‑1969 for 3 years. On 1‑7‑1972 the term of the appellant was further extended upto 10‑1‑1974 when the appellant was due to attain the age of 65 years. After nationalization of the aforesaid college under M. L. R. 118 with effect from 1‑9‑1972, the Governor of the Punjab appointed the appellant as Principal of the College on 4‑9‑1972 on the condition that the appointment was on purely temporary basis and was to last until further orders. The appointment was also subject to the approval of the Public Service Com mission and the constitutional provisions regarding superannuation, citizenship and such rules as may be framed with regard to the service conditions of the staff of the nationalized college by the Government. On 23‑9‑1972 the services of the appellant were terminated and it was directed that in the Notification of appointment the name of C. M. Hanif be read as Principal of the Govern ment Anjuman Himayat‑e‑Islam Law College, Lahore. The appellant assailed this order vide Writ Petition No. 1435‑S of 1972 before the Lahore High Court which was dismissed by Mr. Justice Shafi‑ur‑Rehman by his order dated 25‑5‑1973. Aggrieved by the same the appellant filed a Letters Patent Appeal before the High Court, and subsequently this appeal before us on 25‑9‑1974.

4. In Appeal No. 868/489 of 1974, Mirza Mussarrat Beg appellant was working as Principal, Millat Inter‑College, Multan at the time of the nationalization of private educational institutions. Having been born on 20‑7‑1970 (sic) he was allowed a 10 years term by his private employer which term was due to terminate in 1980. On 4‑9‑1972 the Director of Education, Lahore Region, communicated the decision of the Government to the Principals of the Nationalized Colleges of the Lahore Region that the teaching as well as non‑teaching staff of the nationalized colleges who had attained the age of superannuation, i.e., 58 years on or before the 31st of August, 1972, would not be retained in Government Service. The present appellant has moved this Tribunal by this appeal dated 20‑12‑1974, when he became 58 years of age. He claimed contractual right in his favour to continue in service upto 30‑6‑1980.

5. Ch. All Ahmad, appellant in Appeal No. 162/74 was at the time of the Nationalization of the Private Educational Institutions, working as Headmaster, Modern A. V. Middle School, Peoples Colony, Lyallpur under Anjuman Islah‑e-Taleem, Lyallpur. The appellant was born on 1‑9‑1911. His private employer on 7‑10‑1968 allowed him to remain in service for a period of 10 years expiring on 7‑10‑1968 on 5‑10‑1972 a letter was issued according to which the appellant became an employee of the Government on the condition that his appoint ment was on ad hoc and purely temporary basis and was subject to the condition that the cases of teachers who had attained the age of 58 years, would be considered later but they could continue in service at their own risk pending approval of the Government. It was also stipulated that such teachers would not be entitled to claim any emoluments in case their retention was not approved by the Government. On 1‑11‑1972 by another letter issued by the District Inspector of Schools, Lyallpur, it was directed that the teachers who had attained the age of 58 years on 30‑9‑1972 should be relieved of their duties immediately. The appellant accordingly handed over the charge of his post on the 6th November, 1972. He however, continued representing against his retirement and he also Impugned the action vide Writ Petition No. 486‑S of 1974 before the Lahore High Court. The appellant has stated in this appeal that he has filed this appeal by way of abundant precaution and that no formal abatement order has been passed by the High Court so far.

6. In Appeal No. 470(211 of 1974 the appellant, Syed Yaqoob Ali Shah, at the time of nationalization of the Private Educational Institutions under M. L. R. 118, was working as Head Clerk in Islamia College for Women, Lahore Cantt. He had already completed 58 years of age before Nationaliza tion. However, on 25‑4‑1969 Anjuman Islamia Lahore Cantt. granted him extension upto the age of 60 years which he was due to attain on 24‑5‑1974. After Nationalization the appellant was also appointed by the Deputy Director Colleges vide his order dated 16‑9‑1972 on purely temporary basis until further orders, subject to constitutional provisions regarding age of superannuation, citizenship and such rules as may be framed in regard to the service conditions of the said staff by the Government. However, on 18‑9‑1972 the Principal of the College retired him from service in pursuance of the letter of the Director of Education, Lahore Region No. 43405/MC, dated 4‑9‑1972, according to which persons who had attained the age of 58 years at the time of nationalization were to be retired. The appellant filed this appeal on 12‑10‑1974 to challenge the aforesaid orders of the Government.

7. In Appeal No. 44/420 of 1975, the appellant Habib Rahim Bakhsh, was employed as Senior Clerk in Gorden College, Rawalpindi. According to the terms and conditions of his employment under the private Management, he was entitled to continue up to the age of 60 years which expired on 30‑6‑77 but he was served with a notice on 2‑1‑75 according to which he was to retire on 16‑1‑1975 after attaining the age of 58 years. The appellant has filed this appeal on 9‑1‑1975 to forestall his retirement on the ground that he was entitled to continue up to the age of 60 years. The appellant has not produced any order of his appointment but it is assumed that it was on terms similar to those in the case of Syed Yaqoob Ali Shah.

All these seven appeals raise the common issue as to whether the appel lants, who were employed on contract in privately‑managed Educational Institutions, at the time of their nationalization (effective from 1‑9‑1972) under M L R 118 dated 1‑4‑1972 and (except Mirza Mussarat Beg and Habib Rahim Bakhsh appellants) and already attained the age of 58 years, could be treated as civil servants within the meaning of section 2(b) of the Punjab Administrative/Services Tribunal Act of 1974 which reads as under: ‑

"Section 2(b).‑‑‑Civil Servant' means a person who is or who has been a member of civil service of the Province or has held a' civil post in connection with the affairs of the province but does not include‑

(i) a person who is or has been on deputation to the Province from the Federation or any other Province or authority ;

(ii) A person who is or has been employed on contract of on work‑charged basis, or who is or has been paid from contingencies ; or

(iii) a person who is or has been a 'worker' or workman as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."

Admittedly the appellants were retained in service by their respective employers on contract basis for the specified period extending in most of the cases beyond the superannuation ceiling as prescribed under the Interim Constitution of Pakistan 1972 and Civil Servants Act, 1974, Both these provisions are reproduced below for facility of reference: ‑

Article 221, Sub‑Article (4).‑"Under the Federal Legislature by Act other wise provides a person whose terms and conditions of service are governed by Article 210 or Article 219 or Article 243 (not being a member of the Armed Forces of Pakistan) or paragraph (b) of Article 224 shall, notwithstanding anything contained in this Cons titution or in the terms and conditions of his service, retire from service‑

(a)

(b) in any other case, on the completion of the fifty‑eighth years of his age.

Explanation.

"Section 12.‑A civil servant shall retire from service‑

(ii)

(iii) Where no direction is given under clause (1) or as the case may be under clause (ii) on the completion of the fifty‑eighth year of his age.. "

It is observed that after nationalization some of the appellants were issued appointment orders inter alia on the following terms and conditions: ‑

"These appointments are on purely temporary basis and until further orders subject to the Constitutional provisions regarding superannuation, citizenship and such rules as may be framed with regard to the service conditions of the said staff by the Government."

Since the appellants (except Mirza Mussarat Beg and Habib Rahim Bakhsh) had already attained the age of superannuation fixed above, therefore though appointed as above they were not absorbed in Government service and were relieved of their duties. Three appellants viz. Kh. Muhammad Aslam, Prof. Hamid Ullah Siddiqui and Ch. Ali Ahmad approached the Lahore High Court in writ jurisdiction but their petitions were dismissed on the ground that they were not entitled to constitutional guarantees by virtue of their terms and conditions of appointment referred to above as was provided in Article 222 (2) of the Interim Constitution of 1972 which was to the following effect.

"Article 222.‑(1) Subject to this Constitution and law, the President in relation to the affairs of the Federation, and the Governor of a province in relation to the affairs of a province, may authorize the temporary employment of persons in the service of Pakistan and may make rules for regulating such temporary employment.

(2) The preceding Articles of this Chapter (other than Article 217) do not apply to or in relation to the temporary employment of persons in the service of Pakistan."

It was also held by the Lahore High Court that the bar contained in clause (b) of Sub‑Article (3) of Article 201 of the Interim Constitution would hold good against the appellants. The aforesaid Article 201. Sub‑Article (3) was as below: ‑

"(3) An order shall not be made under clause (2)‑

(a)

(b) on application made by or in relation to any person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service specified in this Constitution."

The High Court was of the view that since the terms and conditions of the appellants, unlike other Government servants, were not specified in the Cons titution, therefore they were not entitled to maintain the Writ Petition to enforce their terms and conditions of service. Since the termination of the services of the appellants was held to be in accordance with their terms and conditions of appointment it was, therefore, observed that it was not open to any challenge on the grounds of mala fide and the present appellants could not make any grievance on that score. However it was also observed that the appellants were civil servants. Consequently the writ petition was dismissed. The aforesaid appellants filed Letters Patent Appeals before the same High Court. During the pendency of Letters Patent Appeals, the present Tribunal was established and Kh. Muhammad Aslam's appeal was declared to have abated on 20‑9‑1974. So far as the other two appellants viz. Prof. Hamidullah Siddiqui and Ch. Ali Ahmad were concerned, no abatement order was produced before us. Ch. Ali Ahmad later stated that the L. P. A. was still pending. Finally the present appeals were filed before this Tribunal.

Mr. Khalil‑ur‑Rehman Khan, the learned counsel for appellant Kh. Muhammad Aslam in Appeal No. 178/171 of 1974 traced the history of the legislation on the subject. To start with he stated that M. L. R. No. 118 was promulgated on 1‑4‑1972. He referred to paras. 9 and 10 of the same, which read as under:

"M. 4 R. 118. Paragraph 9: Any contract made by the owner or manager of any privately managed college or privately‑managed school which is vested in the Central Government or a Provincial Government, under or by virtue of this Regulation shall, in so far such contract relates to the Management of such college or school be deemed to have been made by the Central Government or, as the case may be, the Provincial Government.

M. L. R. 118, Paragraph 10.‑All rights, properties, assets, liabilities, debts and obligations of the owners or manager of privately managed college or privately managed school which is vested in the Central Govern ment or a Provincial Government under or by virtue of this Regulation shall, in so far as they relate to the Management of such college or school be the rights, properties, assets, liabilities, debts and obligations of the Central Government, or, as the case may be the Provincial Government."

Next came the Interim Constitution of Pakistan as enforced on 21‑4‑1972. Vide Article 280 of the same, the M. L. R. 118 became the Act of the appropriate Legislature but no amendment could be effected in the same except by a bill introduced with the prior approval of the President of Pakistan. Paras. 9 and 10 of the M. L. R. were amended retrospectively vide Punjab Ordinance No. XVI with the approval of the President. Para. 9 was altogether deleted and in para. 10 the words liabilities' were omitted from the date the M. L. R. 118 was enforced. He also pointed out that the Ordinance No. XVI lapsed without becoming an Act of the appropriate Legislature as the same never came up for approval before the Provincial Legislature. It further appeared that the effect of the Ordinance was con tinued by promulgating the Punjab Ordinance (Temporary Enactments) of 1973 which after having been passed by the Provincial Legislature was published on 28‑2‑1973 as Punjab Act No. VI of 1973 However this Act lacked the prior approval of the President as contemplated under proviso to Article 280(3). This being a temporary measure, ultimately Act No. X of 1973 viz. M L R 118 Punjab (Amendment) Act of 1973 was enforced on 21‑5‑1973 which had the prior approval of the President of Pakistan. In this state of law he argued that the employment of the appellant, though it was initially sanctioned for 10 years vide resolution dated 10‑11‑1969 of Anjuman e‑Hamayat‑e‑Islam, Lahore, yet after the nationalization of the Islamia College, Lahore under M. L. R. 118 it became statutory and was not con tractual. It was argued that under M. L. R. 118 as it originally stood, the appellant acquired a vested right to continue in service for the full term as allowed by Anjuman‑e‑Hamayat Islam which would expire in 1980. Reliance was placed on paragraph 10 of M. L. R. 118 ibid. which created a correspond ing liability against the Government to retain him in service. According to the learned counsel, after the enforcement of M. L. R. 118 Kh. Muhammad Aslam, appellant, became a statutory employee as the contract of employment between the appellant and the Anjuman Himayat‑e‑Islam, by operation of paragraph 9 of the aforesaid M. L. R., was deemed to have been made by the Government concerned, and was merged into the Statute viz. M. L. R. 118. He carried the argument further by contending that the subsequent amendment in paragraphs 9 and 10 of the M. L R. 118 vide Ordinance XVI of 1972 viz. M. L. R. 118 (Punjab Amendment) Ordinance as promulgated on 31‑8‑1972 by the Governor of Punjab deleting the word liabilities' from paragraph 10 and deleting paragraph 9 in entirety from M. L. R. 118, was operative for a limited period only as the same was not placed before the Legislature and it expired before becoming an Act. He also assailed the efforts of the Provincial Legislature to continue the effect of the same vide Act VI of 1972. It was contended that Act VI of 1973 was invalid for want of the prior approval of the President as envisaged under proviso to Article 280 (3) of the Interim Constitution of 1972 which continued the laws in force including Martial Law Regulation No. 118. The proviso and Article 280(3) aforesaid, read as follows: ‑

Article 280 (3):

"Provided that no bill to amend or to repeal any of the Martial Law Regulations or the Martial Law Orders specified as aforesaid shall be introduced or moved without the previous sanction of the President."

Relying upon the above he argued that since the amending Act VI of 1973 was void due to incompetence of the Provincial Legislature to pass such law in violation of proviso to Article 280(3) of Interim Constitution, 1972, therefore the same continued to be void unless re‑enacted. In re: The Province of East Pakistan viz. v. Muhammad Mehdi Ali Khan (P L D 1959 S C (Pak.) 387) the following observations from page 413 were relied upon:

"There is thus a fundamental difference between a Law that is made by an incompetent Legislature and a law made by a competent Legislature and a law made by a competent fundamental right, the former being void on general principles the latter being void only to the extent of the repugnancy, in the sense that it cannot be applied to a particular case. The former remains void unless re‑enacted by a competent Legislature, the latter requires no re‑enactment . . . ."

The observations below from page 380 of P L D 1971 Lab. 371 were also relied upon:

"Such a view would be in accordance with the principle laid down by their Lordships of the Supreme Court in Province of East Pakistan v. Muhammad Mehdi Ali Khan to the effect that a Legislation which is void ab initio owing to want of competence in the Legislature at the relevant time cannot be validated by a subsequent conferment of the necessary jurisdiction."

Thus according to the appellant no legal sanction was available for the amendment in the Martial Law Regulation No. 118, after the expiry of the Punjab Ordinance No. XVI of 1978. Consequently the contention of the appellant was that it was ineffective and that it failed to affect the vested rights acquired by the appellant thereunder. The following observations from the Supreme Court authority reported in P L D 1971 S C 252 as appearing at page 303 was relied upon: ‑

"Like the existing substantive rights including benefits of advantages that have accrued under Statutes and title to property of office, the right of the action or the cause of action which has already accrued cannot be destroyed or impaired by a new law unless that law, by its express provision or by necessary intendment, is retrospective in operation."

With regard to Punjab Act No. X of 1973 as promulgated on 21‑5‑1973 which purported to validate the deletion of para. 9 and the amendment of para. 10 of the M. L. R. 118, he contended that it was only on 21‑5‑1973 that an amendment was validly made in the provisions of M. L. R. 118 and since the orders of termination had been passed much before 21‑5‑1973 therefore the same were contrary to the provisions of M. L. R. aforesaid. The learned counsel summed up his contention and argued that the contracts of service were sanctified by law and were governed by the statute such as M. L. R. 118 and the Courts were bound to enforce the same. P L D 1958 Lab. 169 and P L D 1962 S C 142 were pressed into service to support the plea. The following observations of Lahore High Court which pertained to the employees of Thai Development Authority as appearing at page 180 of the above judgment, were relied upon: ‑

"Ordinarily the relationship between an employer and an employee is governed by the law relating to master and servant; but where the relationship has been regulated by a statute or statutory rule the latter must govern it, and the law Courts are bound to grant redress where the rights of either party have been adversely affected in contravention of their provisions."

He also raised an alternative argument based upon Article 222(2) of the Interim Constitution of Pakistan of 1972. According to the learned counsel the appellant in any case could be treated as temporary employee within the meaning of Article 222(2) of the Interim Constitution and to his case the age limit of 58 years as prescribed under Article 221(4) (b) or section 12 of the Punjab Civil Servants Act, 1974 was not applicable. The learned counsel appearing for the other appellants adapted the arguments advanced by the counsel for Kh. Muhammad Aslam and also argued that the construction extending the jurisdiction be favoured.

In reply, Mr. A. G. Hamayun, the learned counsel for the respondent argued that under M. L. R. 118 only property and assets of the Provincial Educational Institutions had been taken over and the services of the appellants had not been taken over under this Regulation. According to the Govern ment Pleader the appointment had to be made in the case of such incumbents by separate orders. As such their terms and conditions of appointment were specified in the said orders or their contract of service with their private employers. Thus the contention of the Government Pleader was that the appellants never became the liability of the Government under any of the provisions of M. L. R. 118. He further argued that, except two, the appel lants had already crossed the age of superannuation fixed for the Government servants i.e. 58 years and they were not eligible to be appointed in any civil service nor did they become civil servants at any stage. He further contended that the Government did not consider them fit for appointment on the basis of age and that this determination was not amenable to the jurisdiction of this Tribunal by virtue of proviso (b) to section 4 of Punjab Service Tribunals Act, 1974 which debarred an appeal to this Tribunal against the determination made by the Department as to the fitness of a person to hold any post. He also argued that Act X of 1973 was retrospective in its application and it vali dated all the actions taken by the Government and thus the arguments advanced in this respect by the appellants were not of any material consequence. With these submissions he urged that the appeals be dismissed with costs;

After hearing both the parties we are of the view that the contentions of the appellants must fail. In the first instance it is difficult to hold that the appellants became civil servants at any stage. Their employment with they private employer was admittedly of a contractual nature and their claim to avail the tenure sanctioned by the Private Managements of the Colleges and Schools nationalized under M. L. R. 118, was evidently based upon such contracts. The provisions of law in M. L. R. 118 sanctifying the contracts were deleted with retrospective effect. The Punjab Act X of 1973 the validity of which was conceded before us, contained categorical provision to make it retrospective from the time the Ordinance No. XVI of 1972 expired. In this behalf the provision as contained in section 1(3) is a complete answer to this objection of the appellants, and it runs as under: ‑

"It shall come into force at once and shall be deemed to have taken effect on and from the date the M. L. R. 118 (Punjab Amendment) Ordinance of 1.972 (Punjab Ordinance XVI of 1972) ceased to operate in accordance with the provisions of sub‑clause (ii) (a) of Article 135 of the Islamic Republic of Pakistan.

Even if the Punjab Act VI of 1972 were to be omitted altogether, the Punjab Act X of 1,973 read with Punjab Ordinance XVI of 1972 completely covered the entire space. No authority has been produced to show that the Legislature could not enact Punjab Act No. X of 1973 with retrospective effect. Thus Para. 9 of M. L. R. 118 had been validly deleted vide Punjab Ordinance No. XVI of 1972 read with Act No. X of 1973. Even otherwise it is highly doubtful that paragraph 9 of M. L. R. 118 as it stood at all referred to contracts of the kind in dispute. The expression liability' as occurring in paragraph 10 of M. L. R. 118 which could possible cover the case of the appellants was also omitted with retrospective effect. So far the argument of the appellants based on Article 222(2) was concerned, it was also of little avail to them as the same simply laid down that the President/Governor could authorise the temporary employment of persons in the service of Pakistan/ Province, and make rules regulating such temporary employment. These provisions are pari materia with the provisions of Articles 179 and 174 of the 1962 Constitution of Pakistan, which correspond to Article 217 of the Interim Constitution under which the Governor framed the temporary employment rule viz. the West Pakistan Government Temporary Employment Rules, 1968. In the said rules "temporary employee" vide rule 2(4) was defined to mean a person who is in temporary employment. Rule 2(3) further defined temporary employment as "employment by Government of a person in civil capacity otherwise than: ‑

(a) ..

(b) ..

(c) ..

(d) ..

(e) On contract.

(f) As a workman as defined in the Industrial Disputes Ordinance, 1959.

(g) On deputation from the 'Central Government.

These rules were continued in force as existing law by virtue of provision contained in Art. 290(1) read with Article 280(8) of the Interim Constitution of 1972 and Article 260(1) read with Article 260(7) of the permanent Consti tution of Pakistan of 1973. Thus the Contractual employees were no covered by the rules framed by the Government of West Pakistan to regulate temporary employment. Incidentally section 2(b) of the Punjab Administrative Service Tribunals Act, 1974 which defined Civil Servant also excluded precisely the same class of the employees as prescribed under sub‑rules 2(3) (e), (f ) any (g) aforesaid from the scope of the definition of Civil Servants. As such, the persons who are contract employees are neither temporary employees under 1968 Rules above nor are civil servants under the Punjab Service Tribunals Act. Thus the argument based upon the provision of Article 222(2) of Interim Constitution was not available to contest the Contractual character of the employment of the appellants. The contention that the appellants be deemed to be temporary employees in terms of Article 222(2) is obviously untenable and as such the provisions of Sub‑Article (2) of the said Article did not improve the appellants. Consequently there is no statutory provision available to convert the employment of the appellant from contractual to statutory. Even these appellants who were below 58 years on 1‑9‑1972 were equally contractual employees. We are therefore not inclined to accept the plea of the appellants that they became statutory employees after the nation alization. The definition of civil servant as contained in section 2 (b) proviso (ii) of the Punjab Services/Administrative Tribunal Act, 1974 explicitly excluded the contractual employees from the pale of the definition of Civil Servants. As regards the finding of the High Court as to the status of the appellants as civil servants we find that the same is merely based upon the contention of the appellants otherwise the relevant clauses, in the definition of 'civil servant' does not appear to have been taken into consideration. We feel certain that if the same had been brought to the notice of their Lordships the finding would have been different. We may also observe that the case of Ch. Ali Ahmad is still sub judice. Similarly Prof. Hamidullah Siddiqui's L. P. A. is also stated to be pending before the High Court. We accordingly held that the appellants being contractual employees never became civil servants as defined by the Punjab Civil Servants Act, 1974. As such the arguments that appellants acquired vested rights under the contract call for no adjudication from us as we have no jurisdiction in the matter. In the circumstance the reliance placed upon P L D 1971 S C 252 by the appel lants was of no help to the facts of this case. In any case the aforesaid authority itself recognized the power of Legislature to abolish vested rights and the Punjab Ordinance No. XVI of 1972 and Punjab Act No. X of 1973 and the requisite effect. We also find that the High Court had not accepted their contention that the termination of their services was not in accordance with the terms of their appointment. Their appointment was on purely temporary basis and further subject to approval by the Public Service Com mission and the provisions regarding age, superannuation etc. and such rules as might be framed in regard to their service condition by the Government. Nothing was produced before us to dislodge the above finding of the High Court. As such the termination of their services was in accordance with the terms of their employment. 1n case of Prof. A. D. Arshad no order of extension beyond 30‑8‑1972 was available. As such we hardly find any ground for his continuation in service. His case that since others were granted extension by Private employers, he might as well have been similarly accommodated, is too scant a justification to uphold his plea. As such there is nothing to show any infraction of law by the departmental authority while terminating the services of the appellants. In the circumstances the rule laid down in P L D 1962 S C 142 and P L D 1958 Lah. 118 had nowhere been infringed. The appellants could have little grievance about the order of termination on this score.

We also notice that the appeal filed by Ch. Ali Ahmad was just a pre cautionary measure and Prof. Hamidullah Siddiqui's appeal appeared to be still sub judice as no abatement order had been produced despite repeated demands by us. In case of Prof. A. D. Arshad the appeal under section 8 of the Punjab Service Tribunals Act, 1974 is also barred by time. Messrs Habib Rahim Bakhsh and Mussarat Beg have impugned by these appeals the orders yet to be passed. Thus there is no final order and the appeals are not tenable under section 4 of the Act. In our view the Act did not contemplate any pre‑emptive appeals. The appeals are also barred under proviso (a) to section 4 which insists upon a departmental representation or review as a condition precedent to maintain an appeal under section 4. The appeal preferred by Syed Yaqoob Ali Shah was also open to identical objections. This appeal also appeared to be barred by time.

We accordingly conclude that the appellants were employees on contract basis and that they did not acquire the status of civil servants at any stage and were thus not entitled to maintain these appeals before us and inter alia for reasons the same are dismissed with no orders as to costs, Before parting with this judgment we may observe that in view of our conclusion ‑above we do not feel called upon to express any opinion upon the other pleas urged by the learned Government Pleader.

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