4/24/25, 9:07 AM 2019 P L C (C

2019 P L C (C.S.) 1391

[Islamabad High Court]
Before Miangul Hassan Aurangzeb, J
Dr. ALI BAT KHAN
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division and
others
W.P. No.4203 of 2017, heard on 28th March, 2019.
Civil Servants Act (LXXI of 1973)---
----S.14(1)---Contract appointment---Extension of---Appointment against the post
of Advisor/Consultant on Development Budget (Operation)---Scope---Contention
of petitioner was that contract appointment of respondent was against law---
Validity---No law existed to the effect that a contract appointment made against a
project post could be extended from time to time for as long as the project had
completed---Extension in contract appointment should be for a "reasonable" period-
--Nine years extension could not be termed as "reasonable"---Respondent could
compete for appointment against post in question as and when it was re-advertised-
--Respondent had been appointed after participating in a competitive process
pursuant to an advertisement published by the authorities---Respondent was not re-
employed against the same post which he had held prior to retirement---No
embargo existed that a retired civil servant could not compete for appointment on
contract basis against a post in a project controlled by the Government---
Appointment of respondent could not be termed as re-employment after
superannuation---Extension of respondent was declared unlawful---Department was
directed to re-advertised the project post of Advisor/Consultant on Development
Budget (Operation) for which respondent would be at liberty to apply and
participate in the competitive process---Constitutional petition was allowed, in
circumstances.
Azra Jamali v. Federation of Pakistan through Secretary, Ministry of Commerce
2017 PLC (C.S.) 533; Tariq Aziz-ud-Din's case 2010 SCMR 1301; Amin Jan v.
Director-General, T&T PLD 1985 Lah. 81 and Sardar Muhammad v. Federation of
Pakistan PLD 2013 Lah. 343 ref.
Mazhar Iqbal for Petitioner.
Shumayl Aziz, Learned Assistant Attorney General with Mahmood Khan Lakho
Section Officer Establishment Division and Niaz Ali Khan Section Officer Ministry
of Planning, Development and Reform for Respondents.
Respondent No.2 in person.
Date of hearing: 28th March, 2019.
JUDGMENT

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MIANGUL HASSAN AURANGZEB, J.---Through the instant writ petition,

the petitioner, Dr. Ali Bat Khan, impugns the appointment of respondent No.2
(Muhammad Asif Sheikh) as Advisor/Consultant on Development Budget
(Operation) in the project titled "Institutional Strengthening and Efficiency
Enhancement of Planning Commission" in the Ministry of Planning, Development
and Reform, Government of Pakistan.
2. Learned counsel for the petitioner submitted that the maximum age for re-
employment of retired civil servants in the public sector is 65 years; that
respondent No.2 retired from Government service on 08.03.2008, and is presently
more than 70 years of age; that the Auditor General of Pakistan had also observed
that respondent No.2's employment after attaining the age of 65 years was
unlawful; that respondent No.2's re-employment immediately after his retirement
was without lawful authority; that the advertisement for recruitment against the
post of Advisor/Consultant shows that the appointment was to be made on contract
basis for a period of one year, but respondent No.2 was appointed for two years,
and thereafter he has unlawfully been granted several extensions; and that beyond
07.03.2011, the extension in respondent No.2's contract period had not been
approved by the Prime Minister.
3. Furthermore, it was submitted that respondent No.2 has worked on three
different projects; that initially, respondent No.2 had been employed in a project
called "Institutional Strengthening and Efficiency Enhancement of Planning
Commission"; that respondent No.2 was also given the additional charge of Project
Director; that a full time Project Director has not been appointed due to the
additional charge being enjoyed by respondent No.2; that the petitioner has been
the cause of the project cost being raised from Rupees 39.9 million to 350 million
over the last ten years; and that the salary and other benefits being enjoyed by
respondent No.2 are unlawful since they have not been approved by the competent
authority. Learned counsel for the petitioner prayed for the writ petition to be
allowed in terms of the relief sought therein.
4. Respondent No.2 appeared in person and submitted that he was not "re-
employed" after retirement, but was given contractual employment after
participating in a competitive process; that the law does not prescribe an age limit
for contractual employment in the public sector; that respondent No.2's
employment was in accordance with the Establishment Division's Office
Memorandum ("O.M.") dated 28.01.2008, which sets out the procedure for
contractual appointments against project posts; that respondent No.2's contract
appointment had been extended on yearly basis in accordance with the applicable
rules and in particular the above-mentioned O.M.; that the said O.M. provides a
waiver from framing of recruitment rules for Project Directors; that the Secretary of
the Division concerned is authorized to approve the appointment when the salary
package is equivalent to MP-III and also grant extensions under the Establishment
Division's O.M. dated 17.08.2010; that the circular dated 09.10.2007 does not apply
to appointments against project posts; that respondent No.2 had resigned, but had
not been relieved due to the shortage of experienced personnel; and that a
permanent/independent Project Director can only be appointed where the cost of

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the project is over Rs.3 billion. Respondent No.2 prayed for the writ petition to be
dismissed.
5. The learned Assistant Attorney-General referred to the O.M. dated 28.01.2008
and submitted that respondent No.2's appointment could have been extended on
year-to-year basis on the recommendation of the Evaluation Committee constituted
pursuant to the Finance Division's O.M. dated 11.04.2007. He further submitted
that respondent No.2 has not been re-employed after retirement, but rather was
appointed on contract basis against a project post after a competitive process; that
the tenure of respondent No.2's contract appointment was extended from time to
time by the competent authority in exercise of the powers under the Establishment
Division's O.M. dated 28.01.2008; and that the documents on the basis of which
extensions in respondent No.2's employment contract were granted show that his
performance had been up to the mark. Learned Assistant Attorney-General prayed
for the writ petition to be dismissed.
6. I have heard the contentions of the learned counsel for the petitioner as well
as the learned Assistant Attorney-General, and perused the record with their able
assistance. The contentions of respondent No.2 have also been noted.
7. The record shows that on 08.03.2008, respondent No.2 retired from
Government service on attaining the age of superannuation. Prior to his retirement,
respondent No.2 was serving as Joint Chief Economist (BS-21) in the Ministry of
Planning and Development Division, Government of Pakistan.
8. Through advertisement dated 21.09.2007, the Public Investment Program
Section of the Planning Commission, Planning and Development Division
("Planning Commission"), invited applications for appointment against a temporary
post of Consultant/Advisor in the project called "Institutional Strengthening and
Efficiency Enhancement of Planning Commission" on contract basis for a period of
one year, which was extendable. Out of the six applicants, who submitted their
applications in response to the said advertisement, three candidates, including
respondent No.2, were found to be eligible and were called for an interview. One of
the three candidates did not appear in the interview and out of the remaining two,
respondent No.2 scored the highest marks. The Selection Board, in its meeting
dated 17.12.2007, decided to offer contract appointment to respondent No.2 against
the said post for an initial period of two years (extendable). The said appointment
was to carry emoluments of MP-III scale.
9. The Planning Commission's letter dated 30.01.2008 contained the terms and
conditions on which employment against the said post was offered to respondent
No.2. In the said letter, it was clearly mentioned that the period of contract was
initially to be for a period of two years (extendable). Respondent No.2 accepted the
said offer. Consequently, vide Planning Commission's office order dated
08.03.2008, respondent No.2 was appointed as Advisor/Consultant on Development
Budget (Operation) in the said project. His salary package was clearly stated to be
that of Government pay scale MP-III. It must be borne in mind that respondent
No.2 had not competed for appointment as Project Director and had not been so
appointed, but nevertheless after his appointment as Advisor/Consultant on

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Development Budget (Operation), he was given the additional charge of Project

Director.
10. On 28.01.2008, the Establishment Division had issued an O.M. with the
caption, "Waiver of framing of recruitment rules for projects posts in
Ministries/Divisions". The said O.M. embodied the decisions taken with the
approval of the Prime Minister for timely appointment of project staff and
implementation of development projects. Respondent No.2 as well as the learned
Assistant Attorney-General attempted to defend respondent No.2's initial contract
appointment for two years on the basis of the said O.M., paragraph (vii) whereof
provided inter alia that "[i]nitially, contract appointment to project posts shall be
made for two years ".
11. The decision to offer employment on contract basis for an initial period of
two years to respondent No.2 was made by the Selection Board in its meeting dated
17.12.2007, i.e. prior to the issuance of the said O.M. dated 28.01.2008. The
Selection Board could obviously not have predicted the future and decided to offer
a two-year contractual employment to respondent No.2 in anticipation of the
issuance of said O.M. Respondent No.2's initial appointment for a period of two
years was in stark deviation of the advertisement dated 21.09.2007 which clearly
provided for the appointment to be initially for a period of one year. The issuance
of the said O.M. subsequent to the Selection Board's decision to offer a two-year
contractual employment to respondent No.2 could not cure the said defect in
respondent No.2's appointment as Advisor/Consultant on Development Budget
(Operation).
12. Even if it is assumed that the said O.M. dated 28.01.2008 providing for the
initial contract appointment to project post to be made for two years pre-dated the
decision of the Selection Board to offer a two-year contract appointment to
respondent No.2, it is my view that respondent No.2 could not have been appointed
for two years given the fact that the advertisement dated 21.09.2007 clearly
mentioned that the appointment for the post of Advisor/Consultant would be for
one year, which was extendable. It must be borne in mind that if the advertisement
dated 21.09.2007 had provided for a two-year employment contract for the post of
Advisor/Consultant, the competitive arena may well have been altogether different
in that more candidates would have applied for the said post. This leads me to form
a view that right from the inception undue favour was extended to respondent No.2.
13. As regards the innumerable extensions granted to respondent No.2, the
learned Assistant Attorney-General tried to justify such extensions by submitting
that they were permissible under the said O.M. dated 28.01.2008. Indeed, another
decision embodied in the said O.M. was that an extension in contract appointment
to posts carrying emoluments equivalent to MP-III and above shall be made on
year-to-year basis on the recommendations of the Evaluation Committee
constituted under the Finance Division's O.M. dated 11.04.2007. The learned
Assistant Attorney-General was asked to bring on record the recommendations of
the Evaluation Committee by virtue of which extensions were granted to
respondent No.2. Through C.M. No.5042 / 2018, respondent No.4 brought on
record documents which do not include the recommendations of the Evaluation
Committee to extend respondent No.2's employment contract beyond 07.03.2011.

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14. The Planning Commission's office order dated 02.03.2010 shows that
respondent No.2's contract period was extended for one year with effect from
08.03.2010 to 07.03.2011. Prior to the issuance of the said office order, the
Secretary, Planning and Development Division, requested the Finance Secretary
and the Establishment Secretary to accord their concurrence for an extension in
respondent No.2's contract period. The Finance Secretary, on 20.01.2010, "strongly
recommended" such an extension. The Establishment Secretary also supported the
said recommendation, but in his note dated 03.02.2010, it was observed that the
Planning and Development Division "may groom up the replacements" of
respondent No.2. On 15.02.2010, the Prime Minister approved the said
recommendation. After respondent No.2's initial appointment for a period of two
years, he was granted yearly extensions in the term of his employment contract on
nine occasions. The details of these nine extensions are given herein below:-
Sr. No Orders/Notifications of Period of Approving Authority
Planning Commission Division. Extension
01. No.4(25)PIP/PC/IS&EE/ 2006 08.03.2010 to Prime Minister on
dated 02.03.2010. 07.03.2011 recommendation of
Evaluation
Committee.
02. No.4(25)PIP/PC/IS&EE/ 2006 08.03.2011 to Secretary, Planning
dated 15.12.2010. 07.03.2012 and Development
Division.
03. No.4(25)PIP/PC/IS&EE/ 2006 Up to Secretary, Planning
dated 16.12.2011. 07.03.2013 and Development
Division.
04. No.4(25)PIP/PC/IS&EE/ 2006 08.03.2013 to Secretary, Planning
dated 22.03.2013. 07.03.2014 and Development
Division.
05. No.5(165)Admn.-VII/PD / 08.03.2014 to Secretary, M/O
2014 dated 31.10.2014. 31.07.2015 Planning,
Development and
Reform.
06. No.5(129)Admn-VII/PD / 2015 01.08.2015 to Secretary, M/O
dated 06.08.2015. 31.07.2016 Planning,
Development and
Reform.
07. No.5(129)Admn-VII/PD / 2015 01.08.2016 to Minister, Planning,
dated 04.08.2016. 31.07.2017 Development and
Reform.
08. No.5(129)Admn-VII/PD / 2015 01.08.2017 to Secretary, M/O
dated 31.07.2017. 31.07.2018 Planning,
Development and
Reform.
09. No.15(2)Imp-II/PD/2018 dated 01.08.2018 to Secretary, M/O
02.08.2018. 31.07.2019 Planning,
Development and
Reform.

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15. The Finance Division's O.M. dated 11.04.2007 shows that the Prime Minister
had approved the constitution of the Committee for performance evaluation of
contract employees appointed in Management Positions Scales ("MP Scales"). The
composition of the said Committee was as follows:-
"(i) Finance Secretary (Chairman)
(ii) Establishment Secretary (Member)
(iii) Secretary of the respective Ministry/Division (Member)"
16. The said Committee was required to look into the performance of the
existing incumbents and evaluate their performance in the light of the targets
assigned to them at the time of their contract appointment and recommend as to
whether or not their contract should be continued. The same principle was also
required to be applicable to new entrants in MP Scales, who were also required to
be evaluated by the said Committee annually and in case their performance was not
found to be satisfactory, their contracts were to be terminated. While evaluating the
performance, the following points were required to be kept in view:-
"(a) the job has been designed keeping in view the objectives and goals of the
Organization;
(b) a clear job description has been made;
(c) the position has been advertised according to clear job specifications;
(d) clear targets have been assigned to the incumbent at the time of contract
appointment;
(e) the performance of the incumbent will be evaluated on the basis of the
aforesaid job description and job specifications;
(f) whether the targets assigned to the incumbent have been achieved in the light
of job description and job specification in quantifiable terms."
17. It must be re-emphasized that the decisions embodied in the Establishment
Division's O.M. dated 28.01.2008 and the Finance Division's O.M. dated
11.04.2007 were made with the approval of the Prime Minister, and therefore, as a
natural corollary, amendments in the said decisions could not be made or their
effect nullified without the approval of the Prime Minister. Be that as it may, the
Secretary, Planning and Development Division, in his letter dated 28.07.2010,
recommended that the Secretary of a Division, being the appointing authority of
positions in development projects, should also be competent to accord extensions in
their contract periods. The Secretary, Planning and Development Division, wanted
the decision to extend the contract periods of persons appointed against posts in
development projects to be that of the Secretary rather than the Evaluation
Committee. On 04.08.2010, the Finance Secretary recorded that he would have no
objection if such extensions were considered and granted by the appointing
authority. The matter was, thereafter, sent for the concurrence of the Establishment
Division, which on 17.08.2010, churned out an O.M. referring to the Planning and
Development Division's above- mentioned letter dated 28.07.2010 and conveying
its concurrence to the proposal that extensions in employment contracts of persons

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appointed against posts in development projects should be considered and granted

by the appointing authority. There is nothing on the record to suggest that the said
O.M. dated 17.08.2010 was issued after obtaining the approval of the Prime
Minister.
18. The concurrence given by the Establishment Secretary and the Finance
Secretary to the proposal made by the Secretary, Planning and Development
Division, in his letter dated 28.07.2010, culminated in the issuance of the
Establishment Division's O.M. dated 17.08.2010 by virtue of which the decision to
grant an extension in the term of a contract appointment of a person appointed
against a project post was to be taken by the appointing authority (i.e. the Secretary,
Planning and Development Division), and not by the Evaluation Committee. The
decision of the Establishment Secretary and the Finance Secretary to agree with the
proposal made by the Secretary, Planning and Development Division, in his letter
dated 28.07.2010, that the extension in the contract periods should be considered
and granted by the appointing authority, i.e. the Secretary, Planning and
Development Division, in fact amounts to abdication of the authority specifically
conferred in terms of paragraph (vii) of the Establishment Division's O.M. dated
28.01.2008 read with the Finance Division's O.M. dated 11.04.2007. Since by
virtue of the Finance Division's O.M. dated 11.04.2007, the Establishment
Secretary and the Finance Secretary were also a part of the Evaluation Committee,
the issuance of the Establishment Division's said O.M. dated 17.08.2010 rendered
the Evaluation Committee virtually dysfunctional since the decision to extend the
terms of such contracts no longer remained the responsibility of the Evaluation
Committee. Since the Establishment Division's O.M. dated 17.08.2010 had the
effect of changing the decisions embodied in the Establishment Division's O.M.
dated 28.01.2008 and the Finance Division's O.M. dated 11.04.2007, and since the
approval of the Prime Minister was not obtained before the issuance of the said
O.M. dated 17.08.2010, the same, in my view, was of no legal effect or
consequence.
19. Rules of Business, 1973 have been made by the Federal Government in
exercise of the powers conferred by Articles 90 and 99 of the Constitution. Rule
15(a) of Part C of the Rules of Business, 1973 provides that cases involving
important policy or departure from important policy shall not be issued without the
approval of the Prime Minister. It is explained in the Note to the said Rule 15(a)
that departure from policy includes departure from a previous decision of the
Cabinet or the Prime Minister. In the case of Azra Jamali v. Federation of Pakistan
through Secretary, Ministry of Commerce (2017 PLC (C.S.) 533), I had the
occasion to hold as follows:-
"Now, Rule 15(a) of Part C of the Rules of Business, 1973, mandates that the
making of an important policy or a departure from an important policy
cannot take place unless and until approval in this regard is obtained from
the Prime Minister. Hence, decisions pertaining to the making of an
important policy or a departure therefrom stand on a higher pedestal from
the ordinary business transacted by the government under the Rules of
Business, 1973."

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20. The decisions embodied in the Establishment Division's O.M. dated

28.01.2008, and the Finance Division's O.M. dated 11.04.2007, were important
policy decisions made with the approval of the Prime Minister in accordance with
the mandate of Rule 15(a) of the Rules of Business, 1973. A departure from the said
policy decisions could not be made without the approval of the Prime Minister. In
the case of Tariq Aziz-ud-Din (2010 SCMR 1301), the Hon'ble Supreme Court has
emphasized that due weight was required to be given to Rules of Business, 1973,
which had a Constitutional sanction. In the case of Amin Jan v. Director-General,
T&T (PLD 1985 Lahore 81), it has been held that Rules of Business are based on
public policy and designed to safeguard State interests effectively. To act in
consonance with these Rules is a clear duty cast on all the Divisions and Ministries
of the Federal Government. In the case of Sardar Muhammad v. Federation of
Pakistan (PLD 2013 Lahore 343), it has been held as follows:-
"43. Adherence to the rule of law, in general, and to the Rules of Business, in
particular, in conducting its business determines the quality of governance
of the government in power. Rules of Business flow out of the Constitution,
and are the sinews of a workable government. Besides providing a
departmental organogram of a workable democracy, these Rules are a fine
weave of democratic principles including: participatory engagement, written
and reasoned dialogue, divergence of opinion, open and transparent
deliberations, etc. These Rules of Business besides providing a procedural
manual for the Federal Government to conduct its business also act as
constraints on governmental power."
(Emphasis added)
21. It is an admitted position that save the extension in respondent No.2's
contractual employment from 08.03.2010 to 07.03.2011, all other extensions in his
contractual employment were granted with the approval of the Secretary, Planning
and Development Division, and not the Evaluation Committee constituted under the
Finance Division's O.M. dated 11.04.2007. Therefore, it is held that the extensions
in the term of respondent No.2's employment contract without the approval of the
Evaluation Committee constituted under the Finance Division's O.M. dated
11.04.2007 were unlawful.
22. There is no denying the fact that the term "project posts" has not been used
in the Civil Servants Act, 1973, and the Rules made thereunder. The Establishment
Division's O.M. dated 27.07.2002 provided inter alia that where projects are
executed by a Government department, i.e. Division/Attached Department or a
Subordinate Office, project posts shall fall in the category of "civil posts in
connection with affairs of the Federation" and shall fall within the purview of the
Federal Public Service Commission ("F.P.S.C.") in terms of Section 7 of the
Federal Public Service Commission Ordinance, 1977, and the recruitment rules for
such posts would require the approval of F.P.S.C. The said O.M. also provided that
where the project was being executed by an autonomous body, the project posts
would be outside the purview of F.P.S.C. It is crucial to bear in mind that the said
O.M. dated 27.07.2002 was expressly withdrawn by the Establishment Division's
O.M. dated 28.01.2008. It is an admitted position that respondent No.2 was not

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employed through F.P.S.C. since the said O.M. dated 27.07.2002 was withdrawn by
the O.M. dated 28.01.2008.
23. The learned Assistant Attorney-General submitted that the repeated
extensions were granted to respondent No.2 on the basis of his annual performance
evaluation reports. Respondent No.2's performance evaluation reports that have
been brought on the record do not contain anything adverse against him, but at the
same time, these performance evaluation reports also do not establish his
indispensability. The remarks column of some of respondent No.2's performance
evaluation reports are blank, whereas others state that he is a "great support and fit
to work", and "he is an experienced and hard working officer who works as a
complete professional. Achieves targets set for him and maintains confidentiality".
Such remarks, I am afraid, are no justification for granting as many as nine
extensions in his employment contract.
24. Although the advertisement dated 21.09.2007 had provided that the term of
the contractual appointment against the post of Advisor/Consultant was extendable,
but by no stretch of imagination, could this be read as meaning nine extensions
stretching over period of nine years. As mentioned above, the Establishment
Secretary, while recommending respondent No.2's first extension, observed that the
Planning and Development Division may groom up respondent No.2's replacement.
This observation was simply ignored by the Planning Commission. There is nothing
on the record to suggest that any effort was made by the Planning Commission to
groom any officer to replace respondent No.2.
25. There is no law which provides that a contract appointment made against a
project post will be extended from time to time for as long as the project takes to
complete. Since the advertisement dated 21.09.2007 had simply provided that the
term of the contract appointment was extendable, this must be read to mean an
extension for a reasonable period. Nine yearly extensions can certainly not be
termed as reasonable. The essential question that crops up in the mind is that was
there no other person in the country, other than respondent No.2, competent to
serve as a Consultant/Advisor against the project post in question? There would be
nothing preventing respondent No.2 from competing for appointment against the
said post as an when it is re-advertised.
26. Emphasis was laid by the learned counsel for the petitioner on an objection
raised by the Audit and Inspection Officer of the Ministry of Planning,
Development and Reform to the extensions in respondent No.2's employment
contract beyond the period when he attained the age of sixty-five years, i.e. on
07.03.2013. This objection was based on the Cabinet Division's Circular
No.6/12/2007/RA-1, dated 09.10.2007, which conveys the approval of the Prime
Minister that the provisions relating to the terms of office and age limit of
Chairmen and Members prescribed in various legislations relating to Regulatory
Authorities, Autonomous Bodies, Corporations and Commissions etc. be
standardized as follows:-
"Chairman: The Chairman/Chief Executive shall, unless he resigns from office
earlier, hold office for a period of 3-years and shall be eligible for re-
appointment for such term or position may be clarified otherwise to audit.

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Terms as the Federal Government may determine, provided that the

Chairman shall cease to hold office on attaining the age of sixty five years
or position may be clarified otherwise to audit. Expiry of the tenure
whichever is earlier.
Member: A member shall, other than an ex-officio member, unless he resigns
from office earlier, hold office for a period of three years and shall be
eligible for re-appointment for such term or position may be clarified
otherwise to audit. Terms as the Federal Government may determine,
provided that the member shall cease hold office on attaining the age of
sixty five years or expiry of term, whichever is earlier."
27. The above-mentioned circular dated 09.10.2007 merely conveys the Prime
Minister's approval for amending the laws/statutes so as to provide for the
Chairmen and Members of Regulatory Authorities, Autonomous Bodies,
Corporations and Commissions, etc. to cease to hold an office on attaining the age
of sixty-five years. Respondent No.2's appointment, which has been impugned in
the instant petition, is not as a Chairman or Member of any Regulatory Authority,
etc. or of a body created by statute. The post of Advisor/Consultant on
Development Budget (Operation) is not a post created by any statute/legislation.
Therefore, the said circular dated 09.10.2007 would be inapplicable to the said
post. The said circular is not a directive ordaining that persons appointed against
project posts on contract basis after a competitive process shall cease to hold office
upon attaining the age of sixty-five years. There is no decision of the Federal
Government brought on record to show that appointments made in public sector
organizations or against project posts under the administrative and supervisory
control of the Federal Government cannot continue beyond the incumbent attaining
the age of sixty-five years. Therefore, it is my view that the audit objection referred
to herein above has no legal foundation.
28. Section 14(1) of the Civil Servants Act, 1973, provides inter alia that a
retired civil servant shall not be re-employed under the Federal Government unless
such re-employment is necessary in the public interest and is made with the
approval of the authority next above the appointing authority. Establishment
Secretary's D.O. letter No.7/3/89-OMG-II, dated 28.01.1989, set out in Esta Code
at Serial No.20 titled "Re-employment after superannuation" provides inter alia that
re-employment beyond superannuation should be an exception and not the rule, and
it may be recommended only in cases where Government considers that experience
gained by the retiring person is of vital importance and can be gainfully utilized,
particularly the fields where suitable qualified and experienced persons are not
available. The said letter dated 28.01.1989 also sets out the criteria for re-
employment after superannuation.
29. Indeed, respondent No.2 was appointed as Advisor/Consultant on
Development Budget (Operation) after his superannuation, but was so appointed
after participating in a competitive process pursuant to an advertisement published
by the Planning Commission. Respondent No.2 was not re-employed against the
same post which he had held prior to retirement. Neither Section 14(1) of the Civil
Servants Act, 1973 nor does the above-mentioned letter dated 28.01.1989 place any

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embargo on a retired civil servant to compete for appointment on contract basis

against a post in a project funded and controlled by the Government or any public
sector organization. Since respondent No.2 had emerged as the most responsive
candidate in the competitive process for appointment as Advisor/Consultant on
Development Budget (Operation), his appointment cannot be termed as "Re-
employment after superannuation".
30. By reason of the aforementioned, the instant writ petition is allowed to the
extent that extensions in respondent No.2's employment contract granted in a
manner other than the process envisaged in paragraph (vii) of the Establishment
Division's O.M. dated 28.01.2008 read with the Finance Division's O.M. dated
11.04.2007 are declared unlawful. Since respondent No.2 has been rendering
services until the announcement of this judgment, his salaries and benefits etc.,
shall not be recovered from him. The Planning Commission may re-advertise the
project post of Advisor/Consultant on Development Budget (Operation) for which
respondent No.2 shall be at liberty to apply and participate in the competitive
process. There shall be no order as to costs.
ZC/62/Isl. Petition allowed.

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