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(From the judgment dated 9‑1‑1983 of the Federal Service Tribunal, passed in Appeal No. 8(L) of 1982).

(a) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)‑

‑‑ Preamble, Ss. 2, 3, 4, 5, 6 & 11‑Object and Scheme of Ordinance discussed‑Purpose and import of sections examined.

(b) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XI V of 1981)‑‑

‑‑ Ss. 3 & 6‑Appointment under Population Planning Division made upon employees' express acceptance of terms and conditions‑Appoint ment made on temporary basis "subject to such changes as may become necessary and are affected as a result of new structure and organisa tion which Government may sanction for Population Planning Programme"‑Government was to decide about structure and organisa tion for such programme‑No commitment given in letter of appointment that employee would become, by acceptance of letter itself, a civil servant‑Fact that procedure relating to Government servants was made applicable to such employee by an office memorandum or that the employee was made subject to Rules and Regulations applicable to temporary Government employees by another letter, held, would not per se make such employee to be a civil servant‑Govern ment was competent to provide for structure and organisation as was stipulated in letter and appointment of employee would be subject to such changes as may become necessary or may result from same Employee, therefore, would be governed by Population Welfare Planning Programme (Appointment and Termination of Service) Ordnance, 1981‑[Civil service].

(c) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)‑

Ss.2(f)(g)&10‑"Employee"‑Definition‑Term"PopulationProgramme"‑Meaning‑Exemployees who had been paid from fund of Council or Board and had been appointed in Population Programme with effect from 30‑4‑1977, held, clearly came within definition of term "employee" under S. 2(f )‑Section 10, will, therefore, have effect notwithstanding anything contained in any other law for the time being in force.‑[Words and phrases].

(d) Population Welfare Planning Programme (Appointment and Termination‑ of Service) Ordinance (XIV of 1981)‑

‑‑ Ss. 3 & 4‑Civil Servants Act (LXXXI of 1973), S, 2(b)‑Express procedure prescribed in S. 4 that case to be referred to Public Service Commission under Ss. 3 & 4 before a formal appointment‑After having been sp referred and appointed, that employee acquires status of a civil servant within meaning of S. 2(b), Civil Servants Act, 1y73 Provision of Ordinance in respect of reference to Public Service Commission, even if directory in nature, it was for Government to decide whether to consult Commission or not‑Employee cannot urge as a matter of right that such provision be ignored and such consulta tion be dispensed with‑Where question of suitability of an employee for his employment was to be adjudged, consultation with Commis sion, held, was all the more desirable and Supreme Court or Service Tribunal could not direct Government not to consult Commission.

(e)Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)‑

‑‑ Ss. 4, 5 & 11‑Rules under S. 11, providing age limit or educational qualifications containing nothing in contravention, of Ordinance Neither competency nor validity of such Rules, therefore, could be assailed.

(f) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)‑

‑‑‑ S. 11‑Rules framed under S. 11, providing that while non‑technical employees will be subjected to written examination and interview, the technical ones would be subjected to interview‑Such distinction, held, could not be said to amount to discrimination.‑[Civil service].

(g) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)‑

‑‑-Ss. 3 & 11‑Appointments‑Vacancy‑Applicability of provisions of Ordinance and Rules made there under, held, could not be questioned on account of reduction in number of posts.

(h) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)

‑‑ Ss. 3 & 6‑Ex‑employees who refused to themselves to suitability test by Commission, held, could not claim as a matter of right their appointment under S. 3 and as such rendered themselves liable to have their services terminated.

(i) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)‑--

‑‑ S. 6‑Commission not finding employee to be suitable for post‑Case of such employee covered by S. 6 and Tribunal was fully justified in rejecting his appeal.

(j) Population Welfare Planning Programme (Appointment land Termination of Service) Ordinance (XIV of 1981)‑

‑‑ Ss. 3, 4 & 6‑Employee under disciplinary enquiry at relevant time Case of employee, in circumstances, could be referred to Commission.

(k) Constitution of Pakistan (1973)

‑‑Art. 212‑Petition for leave to appeal‑Offer made by Government during proceedings‑Petitions of employees accepting such offer convert ed into appeals and disposed of in terms of said offer.

Civil Appeal No. 140 of 1984

Munir A. Sheikh, Deputy Attorney‑General instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Wasim Sajjad, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Respondent No. 1.

Civil Appeal No, 306 of 1983

Wasim Sajjad, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) in this and many other Petitions) for Petitioner.

Fazal Elahi Siddiqui, Advocate Supreme Court instructed by Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners (in Civil Petition Nos. 645‑R and 651‑R of 1983).

Munir A. Sheikh, Deputy Attorney‑General for Respondents.

Dates of hearing : 25th, 26th, 28th and 29th February, 1984,

M. S. H. QURAISHI, J,‑

These 753 petitions, that is, 368 filed by the Federation of Pakistan and 385 by the ex‑employees of the Population Planning Programme, are directed against the judgment of the Federal Service Tribunal, dated 9‑1‑1983, whereby the appeals filed by the said ex‑employees were partly accepted, the order of termination of their service under section 6 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981, was set aside as being illegal, and although no order was passed for their re‑instatement, it was directed that the case of the ex‑employees should be referred to the Federal Public Service Commission for their selection without applying to them for such selection the rules prescribing educational qualification and age limit, which rules were held to be ultra vires. It was further directed that in case of their selection and appointment, they shall have to refund the terminal benefits if any received and they shall be entitled to the pay and allowances from the date of termination onwards subject to deduction of any earning which they might have made during the period they were out of service.

2. The background of the case is that the Government of Pakistan had embarked upon a programme called the "Family Planning Programme". By resolution dated 30‑6‑1965, the Government of Pakistan constituted Pakistan Family Planning Council with immediate effect for (i) the overall implementation of the Family Planning Scheme, (ti) assessment and evalua tion of the Family Planning activities in the Provinces, (iii) research and (iv) advice to Central Government on Family Planning. The Council was authorized to employ, on such terms and conditions, officers and employees as it considered necessary. A fund was also constituted known as the "Pakistan Family Planning Council Fund" to be utilised by the Council to meet the charges in connection with its functions under the resolution, including payment of salary and other remuneration to its officers, employees, experts and consultants. The Fund consisted of (i) grants made by the Central Government including foreign assistance, (ii) grants made by local bodies, (iii) donations from the general public, (iv) sale proceeds of movable and immovable property and receipts for the services rendered, and (v) other sums receivable by the Council. By a separate notification, dated 17‑6‑1965, the Governor of West Pakistan constituted for that province a Family Planning Board which was to be responsible for the implementation of the Family Planning Scheme in the Province and to perform all administrative functions connected therewith.

3. In pursuance of these decisions, the ex‑employees and others were employed to work in the Programme. Upon the dissolution of the West Pakistan Province in 1970, the employees came under their respective new provinces. On 12‑3‑1973, the Programme was re‑named as "Population Planning Programme". On 30‑12‑1976, the Government of Pakistan by an office memorandum conveyed its decision to (i) "federalise" the Population Planning Programme in Pakistan and its direct administration by the Federal Government and (ii) "governmentalise" the services of the Population Planning personnel. According to the memorandum, the administrative control of the Population Planning Programme including it personnel stood transferred "from the respective Provincial Governments to the Population Planning Division" with immediate effect and the procedure relating to Government servants was made applicable to these employees as well. By letter dated 11‑3‑1977 the employees of the Programme were made subject to "all procedure, rules, regulations etc. applicable to Government servants with effect from 30th December, 1976". As a necessary consequence of these decisions, the Provincial Boards were abolished (the Punjab Board was abolished on 2‑4‑1977) and the Pakistan Population Planning Council on 0‑4‑1977. Although the decision to federalise the Programme and governmentalise the services of its personnel had been taken on 30‑12‑1976 and the Provincial Boards and the Pakistan Population Planning Council stood abolished on 2‑4‑1977 and 30‑4‑1977, respectively, no formal appointment of the employees was made until 2‑7‑1977, on which date the Government of Pakistan, Ministry of Health and Population Planning (Population Planning Division), issued a letter appointing the said employees "under" the Population Planning Division with effect from 30‑4‑1977. The appointment was (1) on a temporary basis subject to the rules and regulations applicable to temporary employees, (2) "subject to such changes as may become necessary and are effected as a result of the new structure and organization which the Government may sanction for the Population Planning Programme" and (3) subject to the acceptance by the employees. The employees accepted the offer and were appointed in terms of the said letter, dated 2‑7‑1977. On 24‑9‑1978 the Government by a resolution, which was in super session of the earlier resolution, dated 30‑4‑1977 and in modification of the resolution of 30‑6‑1965, revived the Council with effect from 1‑5‑1977 and until further orders and prescribed its composition and terms of reference etc. However, there was no specific mention of the employees or their control. According to the learned Deputy Attorney‑General, and nothing to the contrary has been shown, the employees continued to be paid throughout from the Council's Fund.

4. As already mentioned, the appointment of the employees in pursuance of letter dated 2‑7‑1977 had been subject to such changes as may become necessary and as a result of the new structure and organization which the Government may sanction. Accordingly, the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981) (here in after called the Ordinance) was promulgated on 11‑5‑1981 with immediate effect in order "to provide for the re‑structure and re‑organization of, and appointment of persons in, the Population Programme . . . . ." The employee was defined to mean "an employee of the Council or a Board appointed on temporary or ad hoc basis in the Population Programme on or, after the 30th April, 1977, and paid from the Pakistan Family Planning Council Fund or the Provincial Population Planning Board Fund". By section 3 of the Ordinance, an employee could be appointed to a post in the Programme under the Population Division on the recommendation of the Commission or as the case may be the departmental Selec tion Committee and an employee so appointed would be deemed to be a civil servant within the meaning of the Civil Servants Act (LXX of 1973). Section 4 dealt with the procedure for reference of the case of the employees to the Federal Public Service Commission and submission of report by the Commission to the appointing authority in regard to his fitness to hold the post to which he had been appointed or any other post in an equivalent Grade. By section 5, the eligibility for appointment to the posts under the Programme was restricted only to the employees and persons on deputation with the Council or a Board, provided they possessed "such qualification and experience as may be prescribed", and it was only when suitable employees and such persons were not available that the vacant posts were to be filled in accordance with the procedure laid down for the purpose in the Civil Servants Act. If an employee could not be selected for appointment under section 3 or be appointed for want of a vacancy, his service could be terminated under section 6 of the Ordinance as amended by Ordinance XXI of 1981.

5. Section 11 of the Ordinance empowered the Federal Government to make rules for carrying out the purpose of the Ordinance. Rules were accordingly framed and notified in July 1981 for appointment to Grades‑16 and 17, prescribing age, experience and educational qualifications. For Grade‑16, the age prescribed was 22 to 32 and experience of not less than five years in Grade 11 and above or ten years in Grade‑7 and above. For Grade‑17, the age was 25 to 35 and the experience of not less than three years in the relevant field. For the technical posts specified in the Rules, the Commission was to conduct only interview while for the non‑technical posts both written test and interview were to he held. By letter dated 7‑7‑1981, the maximum age was made relaxable by ten years "up to the age of 55 years" in case of an employee having two years completed service at his credit.

6. The employees were to appear before the Commission on 22‑7‑1981' Some appeared and upon being found suitable were appointed in terms of the Ordinance. But the ex‑employees who are before us refused to appear before the Commission with the result that their services were terminated under section 6 of the Ordinance by order dated 8‑9‑1981. It was against this order of termination of service that the ex‑employees had gone in appeal before the Tribunal.

7. The Federation contested the appeals and questioned the jurisdiction of the Tribunal on the ground that the ex‑employees were not civil servants. Its case was that the ex‑employees had been employees of the Pakistan Population Planning Council and unless regularly appointed under the Ordinance, they could not claim to be civil servants for the purposes of the Civil Servants Act, 1973. The Tribunal rejected the contention and came to the view that after the decision to federalise the Programme and governmentalise the services, the employees bad been offered appointment by letter dated 2‑7‑1977 under the Federal Government ; that by their acceptance of the appointment they became civil servants and that the reconstitution of the Council could not change their such status. According to the Tribunal, the Government had by its Press Note, dated 2‑7‑1977 accepted the surplus employees of the Programme as Government servants and had even appointed on 4‑7‑1979 "Authority" and "Authorised Officers" under the Government Servants (Efficiency and Discipline) Rules, 1973. In this connection, the Tribunal also referred to the Government's stand taken in one of the employees (Ghularn Sarwar Khan's) writ petition that he being a civil servant, the High Court had no jurisdiction because of the bar of Article 212 of the Constitution. The Tribunal did not find any substance in the ex employees' objection to the provision for holding of examination and interview for some of the employees and interview only for some others, because in its view there must be some standard for judging the suitability of the persons and if in the opinion of the Government the suitability could be judged by interview only, then a rule could be framed to that effect. It, however, accepted the ex‑employees' contention that the Rules framed under the Ordinance prescribing age limit and educational qualification, in so far as they had the effect of disqualifying them for the selection to be made by the Commission, were ultra vires and held that as section 4 of the Ordinance envisaged the reference of each employee to the Commission, the prescribing of age limit and educational qualification amounted to their screening by the Government itself which was not in accord with the spirit of the Ordinance and as such the ex‑employees were justified in not appearing before the Commission. On this view of the matter, the Tribunal struck down the order of the termination of their service. It, however, did not order their re‑instatement but directed that their case be referred to the Commission although under the Ordinance the case of an "employee" only could be referred to it.

8. In the course of the hearing of these petitions, the learned Deputy Attorney‑General submitted that, as the employees under the Programme had not been recruited in the manner of civil servants. it had been considered necessary, as a matter of policy, to subject them to a proper selection before conferring on them the status of civil servant, for which purpose the Ordinance had been promulgated. However, the Government had been to accommodate as large a number of the employees as possible by providing for relaxation of age and by making their selection as simple as reasonably could be. In this connection, he further submitted that even at this stage, the Government would be prepared to refer the cast‑ of the ex‑employees to the Commission, and after consulting the Government, and without conceding that they were civil servants, he made the following offer in this regard

"(1) Those persons whose cases are before the Supreme Court, except those who appeared before the F. P. S. C. but failed to qualify, shall be referred to F. P. S. C., without limitation of age if they fulfill the qualifications regarding education and experience as provided under the rules, after re‑instating prospectively only those who have appealed before Supreme Court against the order of the Federal Service Tribunal and sought their re‑instatement.

(2) Whatever service records are available shall be sent to the F. P. S. C.

(3) No exemptions from written test were allowed by the Population Welfare Division outside the rules to those persons whose cases were referred to F. P. S. C. all such cases were covered by the rules on the subject. This principle shall apply in future also.

(4) Those who, in consequence of this arrangement, are appointed on the recommendations of F. P. S. C. under section 3 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981, shall refund terminal benefits, if already drawn.

(5) Those who are not appointed under the provisions of the Ordinance of 1981, shall not be entitled to any terminal benefits, if already drawn by them.

(6) Any appointments made in consequence of this arrangement on the recommendation of the F. P. S. C. shall not affect the rights of persons already appointed by the competent authority on the recommendation of F. P. S. C except with regard to seniority, which shall be determined as provided under section 8 of Ordinance of 1981.

(7) The appointments made as a consequence of this arrangement on the recommendations of the F. P. S. C. will be limited to existing vacancies available in the Population Welfare Programme in accordance with section 6 of Ordinance of 1981.

(8) Those persons who could not appear in the F. P. S. C. examination/ interviews held in 1981 on medical grounds and duly intimated their inability to do so to the Population Welfare Division or the F. P. S. C. before the examination/interviews held in 1981, their cases shall also be referred to F. P. S. C.

(9) In case of persons who are finally appointed under this arrangement, the period between the date of their termination of services to their re‑instatement shall be treated as extraordinary leave without pay and will be counted for pension, as admissible under the rules."

9. A number of the petitioners/ex‑employees accepted the offer. Muhammad Saqib Khan, respondent in Federation's C. P. S. L. A. No. 247‑R of 1983, submitted that although he had not filed a petition for leave in this Court, as he had felt satisfied with the order of the Tribunal, but since he is respondent in the Federation's C. P. S. L. A. No. 247‑R of 1983, he has applied that his case be considered alongwith those who have accepted the offer of the Government. To this there is no objection by the Federation. Similar is the case of Muhammad Rafiq Shahid, respondent in Federation's C. P. S. L. A. 200‑R of 1983.

10. We are, therefore, inclined to dispose of the relevant petitions in terms of the offer and its acceptance.

11. In regard to the other ex‑employees who did not accept the offer and who are thus contesting the Federation's petitions and pressing their own, the learned Deputy Attorney‑General reiterated the Federation's stand that they were not civil servants under the Civil Servants Act (XXXI of 1973) unless appointed in terms of the Ordinance. In this connection, he referred to the provision of subsection (2) of section 3 of the Ordinance which says that "the employees appointed under subsection (1) shall be deemed to be civil servants within the meaning of the Civil Servants Act, 1973" and urged that the status of civil servant could be claimed by the ex‑employees only after they have been appointed in accordance with the provi sions of the Ordinance and the Rules made there under. He added that the ex‑employees had at no stage been appointed against civil posts, that their appointment, even if under the Government, would not make them civil servants and that they had been paid from the Government exchequer (Federal Consolidated Fund) but from the Fund of the Council or the Board. On this premise he maintained that their appeals before the Tribunal were not competent and the Tribunal had no jurisdiction. He submitted that the ex‑employees owed their relevant appointment to the letter, dated 2‑7‑1977 and that the terms of that letter, which they had accepted, made it clear that their appointment was on a temporary basis and subject to "such changes as may become necessary and are effected as a result of the new structure and organization which the Government may sanction for the Population Planning Programme". He further submitted that the Ordinance was promulgated for this purpose which is clear from its preamble, that is, "to provide for the re‑structure and re‑organization of, and appointment of persons in, the Population Programme and for matters connected therewith or ancillary thereto." He pointed out that notwithstanding the decision to federalise the Programme and governmentalise the service of its personnel, they had continued to be paid from the Fund of the Council. He, therefore, urged that the ex‑employees came within the definition of "employee contained in section 2 (f ) of the Ordinance as they bad been appointed on temporary or ad hoc basis in the Population Programme on or after 30‑4‑1977 and had been paid from the Pakistan Planning Council Fund or the Provincial Population Planning Board Fund. In this connection he submitted that by the resolution, dated 24‑9‑1978 the Council was not only revived but the resolution of 30‑6‑1965 whereby the Council and its Fund had been originally constituted, continued to remain in force subject only to the modifications made by the resolution of 24‑9‑1978. He stressed that notwithstanding the decision to federalise the Programme, the personnel continued to remain employees of the Council. He further submitted that the conditions for eligibility had been prescribed by the rules in pursuance of the provisions of section 5 of the Ordinance and in any case were not onerous but were intended to facilitate their absorption in as large a number as possible. He explained that everyone of the employees being a graduate, they had no problem with regard to educational qualifications, nor had they any problem in regard to experience which they all possess and that their only difficulty could be of age, but here, too, the upper age limit had been relaxed by ten years. In this connection he brought to our notice that 58 employees who had appeared before the Commission for Grade‑17 had all been selected and since absorbed. Lastly, he submitted that even if the Tribunal could hear the appeal so it certainly had no jurisdiction to strike down as ultra vires the Rules which reflect a policy decision and which are in accord with the provisions of the Ordinance.

12. On the other hand, Mr. Wasim Sajjad, Advocate, who appeared for most of the contesting petitioners/ex‑employees, submitted that the decision to federalise the Population Planning Programme and to governmentalise the service of its personnel had been the outcome of the acceptance by the Government of the persistent demand of the said personnel for the regularization of their service on a permanent basis, that the office memorandum dated 30‑12‑1976 reflecting that decision had the effect of conferring on the personnel of the Programme the status of Federal Government servants and thus they had become entitled to the protection under Article 270 of the Constitution and the Civil Servants Act and the Rules made there under. Following from this, he submitted that the Ordinance and the Rules framed there under, could apply to such employees of the Council and the Boards as were not covered by the office memorandum, dated 30‑112‑1976 and not to those who had become Federal Government servants by virtue of that office memorandum. In this connection he pointed out that the initial recruitment of his clients bad not been made in a haphazard or indiscriminate manner but in conformity with prescribed standards of qualification and suitability and after due process of selection and training. He added that in the wake of the decision to governmentalise their service, the Government Servants (Efficiency and Discipline) Rules, had been made applicable to them and Authorities and Authorised Officers bad been appointed as is done for Government servants. In this connection he referred to the decision of this Court in the case of Amir Bahadur Khan (C. P. S. L. A. No. 12‑R of 1982) to support that the Government Servants (Efficiency and Discipline) Rules are applicable only to civil servants. He also invited our attention to the Press Note issued in July, 1977 (at page 49 of C. P. S. L. A. No. 306/1983) in which it had been stated, inter alia, that "to meet this demand and with a view to get the best out of these employees, the Government decided to govermentalise their services from the 30th April 1977 (A. N.) and necessary orders have been issued appointing/employees of the Programme to Government service under the Population Planning Division". By the letter of appointment, dated 2‑7‑1977 the employees, according to him, had become Government servants though on a temporary basis but without limit of time and as such they could not be discharged from service without a show‑cause notice as held in Abdul Majid Sheikh v. Mushaffee Ahmed (P L D 1965 S C 208). He, therefore, urged that having conferred the status of Government servant on his clients, the Government had no locus poenitentiae to subject them to a process of selection for their appointment under the Government. He further urged that his clients being temporary, and not ad hoc, Government servants, their case could not be referred to the Commission for selection for appointment to the posts already held by them. Even otherwise, a reference to the Commission, according to him, was not mandatory 'and their appointment without reference to the Commission was not illegal. For this, he relied on M. S. Qureshi v. West Pakistan Govern ment (P L D 1966 Lab. 825), in which it had been held that the constitutional provision requiring consultation with the Commission being only directory and not mandatory, non‑compliance of the provision would not render an appointment otherwise validly made, ineffective, and Habibur Rahman v. West Pakistan Public Service Commission (P L D 1973 S C 144), in which it had been held that recommendation of the Commission being advisory in nature was not binding on the resident or the Governor. Learned counsel also referred to the discrimination made in the matter of the method of selection inasmuch as some were to be selected by interview only while others by written examination in addition to inter view. He also pointed out that although the employees were to be examined by the Commission in regard to their fitness for the post held by them or for a post in an equivalent grade, the Government had made drastic reduction in the number of posts which will necessarily render the selection restricted to the few posts now actually available which would be violative of the spirit of the Ordinance. The protest lodged by the ex‑employees, according to him, was, therefore, not unjustified, and merely because of their protest, their services ought not to have been terminated. The grievance against the Tribunal, whose order had otherwise gone in their favour was on account of its failure to re‑instate them, which according to learned counsel, was essential before their cases could be referred to the Commission because under section 44 of the Ordinance, only the case of an "employee" could be so referred and unless they were re‑instated, they could not be termed "employee".

13. Mr. Fazal Elahi Siddiqi, Advocate, who appeared for the petitioners in Civil Petitions Nos. 654‑R of 1983, adopted generally the arguments advanc ed by Mr. Sajjad and added that the Ordinance was applicable only to the employees paid from the Pakistan Family Planning Council Fund, that the Fund constituted under paragraph 4 of the resolution dated 30‑6‑1965 was not revived by the subsequent resolution of 24‑9‑1978 which was totally silent about it as also in regard to the power of the Council to employ personnel. He, therefore, urged that with the decision to federalise the programme and to abolish the Council, the employees of the Council and the Boards had ceased to be such employees and had become Government servants. In this connection he submitted that the salary of the employees were being paid by the A. G. P. R., though it was promptly explained by the learned Deputy Attorney‑General that the payment was in fact being made from the Fund which had been placed under the control of the A. G. P. R.

14. Syed Ghulam Raza, petitioner in C. P. S. L. A. No. 646 of 1983, who himself argued his case, urged that as his appointment was of a date prior to 30‑4‑1977, the Ordinance was not applicable to him. He, however, admitted that his subsequent appointment was upon his acceptance of the offer contained in the letter, dated 2‑7‑1977. He was not ready to take a stand as to his legal position on the eve of the issuance of that letter. He urged that the Ordinance had been brought into being to deal only with bogus and irregular appointments made and not with the employees like him who had been at the time of their initial appointment, subjected to a proper selection. He, however, was unable to show that he had taken this point, so limiting the scope of the Ordinance, before the Tribunal nor did he furnish a copy of the memorandum of his appeal before the Tribunal to show that he had even raised the point therein. Even otherwise, it undoubtedly is a question of fact.

15. The admitted position is that the ex‑employees had been working under the Population Planning Programme and were being paid from the Fund of the Council or the Provincial Boards until 30‑12‑1976 when the Government decided to federalise the Programme and to governmentalise the services of its personnel the decision was, however, in the nature of a policy and had yet to be implemented by issue of formal letters of appoint ment. In the meantime, all that was done by the letter of 30‑t 2‑1976 was to transfer the administrative control of the Population Planning Programme including its personnel to the Population Planning Division. No formal letter of appointment was issued until 2‑7‑1977 and although in the meantime the Council and the Boards were abolished, the employees continued to be paid from the Fund. On 2‑7‑1977, the employees were offered appointment under the Population Planning Division retrospectively from 30‑4‑1977. This offer was subject to their acceptance of the terms and conditions set forth in the letter of offer with the stipulation that if they failed to communicate their acceptance within seven days, they would be presumed not to accept the offer. It is no body's case that the ex‑employees before us did not accept the offer. Their appointment, therefore, under the Population Planning Division was upon their express acceptance of the terms and conditions mentioned in that letter. The appointment so made was on a temporary basis and that is important "subject to such changes as may become necessary and are effected as a result of the new structure and organization which the Government may sanction for the Population Planning Programme". What would be the structure and organization for the Population Planning Programme was for the Government to decide. There was no commitment in the letter of, appointment, dated 2‑7‑1977 that the employees would become, by the acceptance of the letter itself, civil servants. The fact that the procedure relating to Government servants was made applicable to the employees by the office memorandum, dated 30‑12‑1976, or that the employees were made subject to rules and regulations applicable to temporary Government employees by the letter dated 2‑7‑1977, would not per se make them civil servants. The Government, therefore, was competent to provide for such structure and organization as was stipulated in the letter and the appointment of the employees would be subject to such changes as may become necessary or may result from the same. The preamble of the Ordinance clearly shows that it had been framed to provide the structure and organization stipulated in the letter of appointment. It is, therefore, not open to the employees to argue that while they had accepted the letter of appointment dated 2‑7‑1977, they would not be governed by the Ordinance. Their contention in that regard is, therefore, totally untenable and is rejected.

16. The Ordinance applies to an "employee" defined under section 2 (f) and means "an employee of the Council or a Board appointed on temporary or ad hoc basis in the Population Programme on or after the 30th April. 1977 and paid from the Pakistan Family Planning Council Fund or the Provincial Population Planning Board Fund". The term "Population Programme" means, as clarified in section 2(g), "the Population Planning Programme referred to in the former population Planning Division . . . ." The ex‑employees before us who had been paid from the Fund of the Council or the Board and had been appointed in the Population Programme with effect from 30‑4‑1977 clearly came within the definition of the term "employee." under section 2(f ). That being so, the Ordinance by virtue of its section 10 shall have effect notwithstanding anything contained in any other law for the time being in force.

17. The cases of the employees were to be referred to the Commission under sections 3 and 4 before formally appointing them under the Ordinance and only after they bad been so appointed that they would acquire the status of civil servant within the meaning of Civil Servants Act, 1973. The argument advanced on behalf of the ex‑employees that they had already become civil servants and their case was not referable to the Commission, has, therefore, no weight. The question whether to consult the Commission or not, even if the provision in this regard were only directory in nature, is for the Government to decide and it is not for the employee to urge as a matter of right that the provision be ignored and such consultation be dispensed with. In the instant cases, however, the Ordinance does expressly provide for a reference to the Commission and empowers the appointing authority to appoint an employee in Grade‑16 or above "on the recommendation of the Commission" in accordance with section 4. Where the question of suitability of an employee for his employment is to be adjudged, consultation with the Commission is all the more desirable and it will be futile to expect the Service Tribunal or this Court to direct the Government not to consult the Commission.

18. The rules prescribing qualifications and experience for the appoint ment of the Population Programme employees in Grades 16 and 17 were made in pursuance of the provision of section 5 and in exercise of the powers conferred on the Federal Government by section 11 of the Ordinance. The Tribunal's view that the rules providing age limit or educational qualifications were ultra vices the provision of the Ordinance is based on the reason that section 4 thereof does not incorporate any such condition and envisages the reference of each employee to the Commission. Under section 4, the appointing authority may refer the case of any employee" to the Commission but section 5 makes only those employees eligible for appointment who possess such qualifications and experience "as may be prescribed". Section 11 empowers the Federal Government to make rules "for carrying out the purposes of this Ordinance". The Government, therefore, under its rule making power, could and was in fact required to prescribe by rule, the qualifications and experience for determining the eligibility of the employees for their selection by the Commission. Apparently these provisions of the Ordinance had escaped the Tribunal's notice. Nothing contained in the Rules having been shown to be in contravention of the relevant provisions of the Ordinance, neither the competency nor the validity of the Rules could be assailed. The Tribunal was thus in error in holding that the relevant rules were ultra vires the provision of the Ordinance.

19. The rules themselves provide that while the non‑technical employees will be subjected to written examination and interview, the technical ones would be subjected only to interview. Such a distinction cannot be said to amount to discrimination. As regards the number of posts available for appointment after the selection by the Commission, that is a question of public policy. In any case, the applicability of the Ordinance and the rules made there under, cannot be questioned on account of reduction in the number of posts.

20. Now under section 6 of the Ordinance, the service of an employee who is not selected for appointment under section 3, or cannot be appointed for want of a vacancy, is liable to termination. The ex‑employees who refused to themselves to the suitability test by the Commission could not claim as a matter of right their appointment under section 3 and as such had rendered themselves liable to have their services terminated.

21. The services of Dr. Fakhar‑un‑Nisa Javaid, petitioner in Civil Petition No. 773 of 1983, had been terminated because the Commission, before whom she appeared for selection in Grade‑18, did not find her suitable As her case was covered by section 6, the Tribunal was fully justified in rejecting her appeal.

22. Humayun Akhtar, petitioner in C. P. S. L. A. No. 740/1983 and respondent in Federation's C. Ps. S. L. A. Nos. 300‑R/1983 and 64‑R/1984, had been under suspension from 19‑9‑19‑9 in a disciplinary proceeding against him. While still under suspension, his case had been referred to the Commis sion under the Ordinance but not approved, and in the result his services were terminated with effect from 17‑9‑1981. His Appeal No. 5(R)/11982, before the Tribunal, was partly accepted on 23‑2‑1982 in the same terms as described in paragraph 7 above. C. P. S. L. A. No. 740/1983 filed by him and No. 300‑R/1983 by the Federation are directed against the Tribunal's order passed in that appeal. He, however, filed another Appeal No. 91(R)/1983 before the Tribunal raising the question of the effect of his automatic re‑instatement in 1979 and challenging the legality of the suspension, which appeal was accepted by the Tribunal vide order, dated 20‑12‑1983 and in the result the suspension was held to be void, his re‑instatement into service with effect from 19‑9‑1979 was ordered and it was further held that his case was not covered by the Ordinance and as such the Tribunal's decision in the earlier Appeal No. 5(R)/1982 directing that his case be referred to the Commission was to that extent superseded. Federation's C. P. S. L. A. No. 64‑R/1984 is directed against this latter order. Humayun Akhtar contends that as he had been under a disciplinary enquiry at the relevant time, his case ought not, to have been referred to the Commission until the completion of that enquiry. He, however, is unable to cite any rule to support him in this regard. We thus find no merit in his case.

23. In the light of the above discussion, we convert the petitions of the ex‑employees who have accepted the offer made by the learned Deputy Attorney‑General and the connected petitions of the Federation, as shown in Schedule C into appeals arid dispose of the same in terms of the offer. The petitions of the contesting ex‑employees and the connected petitions of the Federation are also converted into appeals and while the appeals of the ex‑employees are dismissed, those of the Federation are accepted and in consequence the impugned order of the Tribunal is set aside.

24. Niaz Muhammad Sheikh, respondent in Civil Petition No. 537‑R of 1983 states that he has since already been appointed and as such the petition of the Federation has become infructuous. This not being contested the petition is disposed of as having become infructuous.

M. Z. M. Order accordingly.

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