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Petitioner: Rana TARIQ SHAUKAT VS Respondent: GOVERNMENT OF PUNJABHonorable Justice RIAZ KAYANI (CHAIRMAN)Hafiz Tariq Nasim
2003 P L C (C
2003 P L C (C.S.) 400
[Punjab Service Tribunal]
Before Riaz Kayani, Chairman, Ch. Muhammad Sarwar, Member‑I and Sardar Alam, Member‑II
Rana TARIQ SHAUKAT and 634 others
Versus
GOVERNMENT OF PUNJAB through Secretary Education, Civil Secretariat, Lahore and 2 others
Appeal No. 1517 of 2001, decided on 3rd May, 2002.
(a) Punjab Civil Servants Act (VIII of 1974)‑‑‑
‑‑‑‑S.4‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Rr.3, 4 & 22‑‑‑Constitution of Pakistan (1973), Art.18‑‑ Appointment‑‑‑Requirement‑‑‑Appointment to a public office should be through a transparent process by advertising the posts in newspapers of wide circulation enabling all and sundry possessing requisite qualifications to try their luck by submitting applications as required, and an independent Selection Committee comprising of Subject Specialist was to be convened to pick‑up candidates strictly on merits‑‑‑After undergoing the rigours of test and interviews, selected candidates had to prove their fitness on medical grounds and it was only then that induction in service could be termed to be clean and honourable in accordance with Art. 18 of Constitution of Pakistan (1973).
Chairman, Minimum Wages Board, Peshawar and another v. Fiaz Khan Khattak 1999 SCMR 1004; Jehangir Mirza, Senior Superintendent of Police, Lahore and others v. Government of Pakistan PLD 1990 SC 1013; Muhammad Raza Mehdi v. The Vice‑Chancellor/Chairman, Syndicate N.E.D. University of Engineering and Technology, Karachi and others 1998 PLC (C.S.) 1260; Secretary to Government of the Punjab, Agriculture Department, Lahore and 4 others v. Sheikh Naveed Kamal, Assistant Research Officer 2001 SCMR 1661; Ishtiaq Hassan v. Secretary, Agriculture Department, Government of the Punjab, Lahore, and another PLJ 1996 Tribunal Cases Service 32; Asad Ullah Munir Tarar v. Chief Engineer, Irrigation Development Zone, Lahore, 1995 PLC (C.S.) 938; Muhammad Ayub v. Secretary to Government of the Punjab, Agriculture Department. Lahore 1995 PLC (C.S.) 428; Imran Ahmad v. Secretary to Government of the Punjab, Agriculture, Lahore 1995 PLC (C.S.) 611; Chief Secretary. Government of the Punjab, Lahore and another v. Abdul Majid 2001 SCMR 1971; Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408 and Muhammad Ashraf v. Government of the Punjab PLJ 1998 Tribunal Cases (Service) 77 ref.
(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑-
‑‑‑‑S.10‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.22‑‑‑Ad hoc appointee ‑‑‑Appointment and termination of ad hoc appointee had no vested right to continue in service, till arrival of a selectee as S.10(3) of Punjab Civil Servants Act, 1974, was of overriding nature and could be used to terminate service of ad hoc appointee either on one month's 'pay or on 30 days' notice‑‑‑Ad hoc appointees could not renege on conditions on which they accepted their ad hoc appointments.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.25‑‑‑Class discrimination‑‑‑Class discrimination without reasonable classification‑‑‑Validity‑‑‑In order to plead ground of discrimination, it must be shown that cases selected for comparison were outcome of legal orders‑‑ Mere fact that two persons had obtained certain advantage otherwise not admissible, could not constitute adequate ground for claiming similar advantage on basis of discrimination.
Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad 1998 SCMR 882 and Pakistan International Airlines through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC 890 ref.
(d) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑
‑‑‑‑R. 22‑‑‑Regularization of ad‑hoc appointee‑‑‑Regularization of ad‑hoc appointee could only, be resorted to under provisions of R, 22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which required forwarding of a requisition by Appointing Authority to Selection Authority who fell back on their own mechanism of appointment.
(e) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑
‑‑‑‑R.23‑‑‑Powers of Chief Minister to relax rules‑‑‑Extent‑‑‑Chief Minister though was empowered to relax Rules but only in an individual case of hardship by giving special reasons.
Engineer Naraindas and another v. Federation of Pakistan and another 2002 SCMR 82 and Government of Sindh v. Saleem Raza 2001 SCMR 701 ref.
(f) Civil service‑‑‑
‑‑‑‑ Natural justice, principle of‑‑‑Applicability‑‑‑Opportunity of hearing or rule of audi alteram partem was only applicable where rights of an individual were affected in matters relating to person, property, service or reputation‑‑ Rule could have been successfully invoked if Authorities had resorted to provisions of Efficiency and Discipline Rules for proceeding against civil servants on ground of misconduct or inefficiency.
Amjad Ali and others v. The Board of Intermediate and Secondary Education and others 2001 SCMR 125 and Muhammad Ashraf v. Government of the Punjab PLJ 1998 Tribunal Cases, (Service) 77 ‑ref.
(g) Punjab Service Tribunals Act (IX of 1974)‑‑‑
‑‑‑‑S.4‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑‑Civil servant either should agitate his grievance before Service Tribunal after waiting for 90 days from the date when departmental appeal was filed to enable the Appellate Authority in Department to pass necessary order and if such order was not passed then appeal could be filed within next 30 days and civil servant could file appeal at his own risk whenever departmental appeal was decided within next 30 days of passing of the order.
Syed Firdose Ali v. Secretary, Establishment Division, Islamabad 1997 SCMR 1160 ref.
Hafiz Tariq Nasim for Appellants.
Khadim Hussain Sindhu, District Attorney, Muhammad Yousaf, Addl. Secretary (Adorn.), Higher Education, Muhammad Rafiq Shad, S.O. (S‑II), School Education Department, Abdi Khan, Superintendent, Office o DPI (Colleges), Punjab, Lahore, Muhammad Iqbal, DEO (Coleges), Sargodha, Abdul Razzaq, Dy. Director Legal, Punjab Public Service Comnussion, Lahore, Bashir Ahmad, Law Officer, Office of EDO Education, Muzaffargarh. Ehsan Ahmad Bhatti, Law Officer, Office of EDO Education,. Sargodha, Javaid Iqbal, DEO (Colleges), Bahawalnagar and Muhammad Aslant, Assistant Director Education' Rawalpindi, Departmental Representative.
Date of hearing: 13th April, 2002.
JUDGMENT
RIAZ KAYANI (CHAIRMAN):‑‑We intend to dispose of 114 appeals out of which 102 appeals have been brought by the ad hoc Lecturers wheres 12 appeals have been filed by the Subject Specialists also ad hoc appointees, through this single judgment since common questions of facts and of law are involved. Details pertaining to the number of appeals assigned, names of the appellants and the counsel representing them are mentioned in Appendix A attached to this judgment.
2. All the appellants were appointed on ad hoc basis, of course by a Selection Board comprising of‑Chairman and Members who were Subject Specialists and a definite criterion was adopted for awarding marks for qualifications as well as for interview. The tenure of ad hoc appointees, was extended from time to time till 5th August, 2000, when the impugned order terminating their appointments was passed by Special Secretary Higher Education, Government of the Punjab, Lahore. For facility of reference, the order which is short in tenor is reproduced as under:‑‑
"Director of Public Instructions (Colleges) and the Directors of Education are already in the know of the fact that the terms of appointment of the ad hoc lecturers has expired on 30‑6‑2000 meaning thereby that they are no more on the strength of the Education Department.
In view of the above, arrangements may be made in such a way that the teaching process is not disturbed in the colleges when they reopen after the summer vacation. Directors may make adjustments within their Divisions for this purpose, if need be. "
After service of this general order upon the appellants, they lost no time in resorting to a two pronged remedy, first by making departmental representation to the Governor of Punjab highlighting, that having served the department for more than a decade, in some cases, without there being any complaint of any kind from any quarter, they cannot be thrown out in an unceremonious manner without providing them an opportunity of hearing. Other remedy recoursed to was invoking the Constitutional jurisdiction of the Lahore High Court through a number of writ petitions. A Full Bench constituted by the Hon'ble Chief Justice, consolidated the writ petitions and through a single judgment pronounced in Writ Petition No.16955/2000, dismissed the various pleas raised by the appellants/writ petitioners on 17‑10‑2000. It may be relevant at this juncture to mention that the main stay of the dismissal order was the bar of Article 212 of
the Constitution to give relief to the writ petitioners simultaneously, directing them to knock the door of the Punjab Service Tribunal to seek redress of their grievance. Not being satisfied, appellants filed a number of petitions for Special Leave to Appeal before the Hon'ble Supreme Court of Pakistan. Once again before the apex Court, the petitions were consolidated and through a single judgment, after hearing the parties, the same were dismissed on 20th June, 2001, upholding the views expressed by the Lahore High Court that the proper forum to agitate the grievance was the Service Tribunal.
3. Hafiz Tariq Nasim, learned counsel for the appellants in a number of appeals opened the arguments after other learned counsel representing various appellants agreed to the arrangement that the arguments shall be addressed by Hafiz Tariq Nasim and they would only add to his arguments on an issue which was in addition to the points canvassed by the learned Advocate mentioned.
4. Learned counsel at the very outset contended that vide notification issued by the Chief Secretary, Government of the Punjab, dated 28th January, 1996, unequivocally in unambiguous terms declared his intention that the Government of the Punjab was pleased to direct that all employees appointed on ad hoc basis in the Punjab should be regularized against the available vacancies. The order now impeached dated the 5th of August, 2000, severely undermined the impact of the referred notification of 28th January, 1996. This clash between the impugned order that the said notification, equipped him with the arguments that the respondents cannot approbate and reprobate as such, as course of action deprecated by the Supreme Court in a number of judgments. A few of them relied upon was the case of Chairman, Minimum Wages Board, Peshawar and another v. Fiaz Khan Khattak reported in 1999 SCMR 1004 which elaborated the rule that the authorities could not approbate and reprobate in the same breath about the same matter and having regularized the services of civil servant could not take the plea that he was ad hoc, temporary employee, whose service could be terminated. Reliance was also placed on the case of Jehangir Mirza, Senior Superintendent of Police, Lahore and others v. Government of Pakistan in PLD 1990 SC 1013 and Muhammad Raza Mehdi v. The Vice Chancellor/Chairman Syndicate N.E.D. University of Engineering and Technology, Karachi, and others reported in 1998 PLC (CS) 1260.
5. Arguments though forceful apparently got demolished by the production of clarification issued by the Government of the Punjab, Services and General Administration Department‑Cabinet Wing, dated 15th February, 1996, which reads as under:‑‑
"SUBJECT: ADHOC APPOINTMENTS.
Sir,
I am directed to refer to the subject cited above and to state that Notification No.CAB‑1/2‑8/82, and another notification of even number dated 28‑1‑1996 having the same contents conveying the directions to regularize all the employees appointed on ad hoc basis in the Punjab have been brought to the notice of the Government of the Punjab.
2. I am to clarify that the Cabinet Wing, SGA&I Department, Government of the Punjab has not issued any such directions. The contents of the aforesaid notification are without lawful authority and are forged and as such should not be complied with.
3. Needless to say that any action taken in pursuance of the aforesaid forged notifications is without lawful authority. Orders issued under them, if any, should be withdrawn forthwith.
4. The Superintendent, Government Printing Press is requested not to print/publish the aforementioned notifications."
6. Learned counsel for the appellants did not repudiate the Circular dated 15th February, 1996, rather kept mum once it was read before him. We shall not advert to this issue any further as the so‑called notification dated the 28th January, 1996, is to be considered as non‑existent.
7. Second argument canvassed by the learned counsel for the appellants was the main stay of his whole case, as such, requires close exegesis and attention. It was stated by him that the ad hoc employees had to continue in service till regular selectee was available after his appointment by the competent authority and that eventuality having not arisen impugned order is bad in law and requires to be set aside. Elaborating the arguments, learned counsel referred to section 10 of the Punjab Civil Servants Act, 1974. In order to appreciate the contents of the provisions of law quoted, it is reproduced as under:‑‑
"10. Termination of service.‑‑‑(1) The service of a civil servant may be terminated without notice‑
(i) during the initial or extended period of his probation:
Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred and promoted on probation from one 49 (service) cadre or post to another 50 (service) cadre or post his Service, shall not be terminated so long as he holds a lien against his former post, 52 (service), or as the case may be, cadre or post;
(ii) if the appointment is made on ad hoc basis liable to termination on the appointment of a person on the recommendation of the ,election authority, on the appointment of such person.
(2) In the event of a post being abolished or number of posts in a cadre or 53 (Service) being reduced the services of the most junior person in such cadre or 54 (service) shall be terminated.
(3) Notwithstanding the provisions of subsection (1) but subject to the provisions of subsection (2), the service of a civil servant in temporary employment or appointment on ad hoc basis shall be liable to termination on thirty days' notice or pay in lieu thereof."
Stress of the learned counsel was on section 10(1)(ii) to state that appointment on ad hoc basis can only be terminated on the appointment of a person on the recommendations of the selection authority and in this regard quoted the following precedent cases in support of his proposition:‑‑
(a) Secretary to Government of the Punjab, Agriculture Department, Lahore and 4 others v. Sheikh Naveed Kamal, Assistant Research Officer 2001 SCMR 1661.
(b) Ishtiaq Hussain v. Secretary Agriculture Department, Government of the Punjab, Lahore, and another PLJ 1996 Tribunal Cases Service 32.
(c) Asad Ullah Munir Tarar v. Chief Engineer, Irrigation Development Zone, Lahore 1995 PLC (C.S.) 938.
(d) Muhammad Ayub v. Secretary to Government of the Punjab, Agriculture Department, Lahore 1995 PLC (C.S.) 428; and finally
(e) Imran Ahmad v. Secretary to Government of the Punjab, Agriculture, Lahore 1995 PLC (C. S.) 611.
The ratio decidendi of all these cases was that the appointment of an ad hoc employee can be terminated without notice on the arrival of the selectee/recommendee of the selection authority. Taking his arguments to its logical conclusion, learned counsel submitted that neither any requisition was sent by the Government under rule 22 of the Punjab Civil Servants Appointment and Condition of Service) Rules, 1974, to the selection authority nor any selectee/recommendee was selected to fill in the posts held by the appellants. Therefore, through an omni bus order dated 5th August, 2000, heads of the appellants could not be placed on the chopping block until The procedure discernable in section 10(1)(ii) (ibid) was followed in letter the spirit. Conversely, learned District Attorney pleaded with vehemence that the ad hoc appointee had no vested right to stay in service for an unlimited period. He drew our attention to a requisition made by the Education Department to the Punjab Public Service Commission for about 1500 posts of Lecturer in various disciplines through a consolidated advertisement No.8/1998 and 1/2001, informing us that within a few week to selectees would be inducted in service. However, on a query we were told that the ad hoc appointees asked to pack‑up and go home vide the impugned order numbered more than 4000.
8. The point being of utmost importance, we have given our earnest consideration. Although the terms and conditions of appointment of ad hoc employees present a rosy picture giving an open license to the Education Authority to terminate their services at any time without assigning any reason, not vesting them with any right till their selection by the Punjab public Service Commission yet in the present case for all intents and purposes termination was not made by invoking any condition of their appointment letters but strictly in accordance with section 10(3) (ibid). It is true that the impugned order may not have been captioned to be under the said provision of law but what we have to, see is the tenor and spirit of the termination order. Adverting to the impugned order once again, the respondent, Secretary Education, addressing the Director Public Instructions Colleges), Punjab, Lahore, and all the Directors of Education (Colleges) in the Province of Punjab reminded that the term of appointment of ad hoc Lecturers expired on 30th June, 2000, meaning thereby that they were no wore on the strength of the Education Department and exhorting them to snake alternate arrangements on the re‑opening of the educational institutions after the summer recess comes to an end in such a manner that teaching process is not disturbed. Now subsection (3) of section (10) (ibid) clears over rides subsection (1) and subsection (2) of the main section by the insertion of the words "notwithstanding the provision of subsection (1) service of employees on ad hoc basis shall be liable to termination on 30 days notice or pay in lieu thereof."
9. In a more recent judgment of the apex Court in the case of Chief Secretary, Government of the Punjab, Lahore and another v. Abdul Majid reported in 2001 SCMR 1971 while interpreting the provision of section 10 the Punjab Civil Servants Act, 1974, their Lordships held as under:‑
7 A Perusal of section 10(1)(ii) of the Punjab Civil Servants Act indicates that the appointment made on ad hoc basis is liable to be terminated on the appointment of a person on the recommendation of the Selection Authority. However, if this provision is read alongwith subsection (3) we feel no difficulty to conclude that the services of the ad hoc appointee can be terminated even before the appointment of a person on regular basis against the recommendations of the Selection Authority, however, subject to notice of 30 days or pay in lieu thereof. It may be noted that as far as ad hoc appointee is concerned he enjoys no vested right in the service till the time no selection on regular basis on the post against which he is working is made by the Selection Authority. Because an ad hoc appointee at the time of induction in service accepts the condition that his services can be terminated at any moment even before the expiry of the period for which an appointment has been made. "
It would be worth while to glean through the terms and conditions of their appointment manifested in their appointment letters at the tine of induction in service on ad hoc basis:‑‑ .
(i) In a purely temporary capacity for a period not exceeding one year and shall automatically be terminated on the expiry of the said period of one year unless extended by prior order/on the arrival of Selecttee of the Punjab Public Service Commission whichever is earlier or upto the date on which permanent incumbent of the post resume duty.
(ii) Notwithstanding the condition (i) above the appointment, is subject to the revocation at the discretion of the Government.
(iii) Liable to termination at any time, even within the period specified in (i) without assigning any reason from either side.
(iv) You will have to compete before the Punjab Public Service Commission with other candidates in accordance with the Rules, as and when the post is advertised by the Commission, if you do not compete before the Commission no extension would be granted in ad hoc appointment.
After having accepted the above conditions, it is too late in the day for the appellants to take a somersault that they are entitled to remain in service till regular selection of candidates to be posted against the posts now held by them are made. In the celebrated judgment mentioned, their Lordships referred to the case of Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another reported in 1985 SCMR 1408 wherein it was held as under:----
5. The rules prescribed for recruitment provided not only qualifying marks in individual subjects but also in the aggregate. By not obtaining qualifying marks in the aggregate the petitioners failed to obtain entry according to the prescribed method. The prescribed rule was neither relaxed nor changed, either expressly or by implication. Instead their appointment was taken and expressed to be otherwise than in accordance with the prescribed rule i.e. ad hoc, on terms reproduced. The termination of their service was in accordance with the law applicable to ad hoc appointments and in accordance with terms and conditions on which they were appointed. They can take as many chances as they like, subject of course to their eligibility, but their insistence that their ad hoc appointment should be continued meanwhile is untenable. We find no merit in this petition and leave to appeal is refused."
We were told during the course of arguments by the departmental representative that nearly all the appellants appeared before the Punjab Public Service Commission in examination conducted for regularization of their ad hoc appointments, some of them availed two/three chances, but failed to qualify. This stance was re‑iterated in the comments submitted by Secretary Higher Education before this Tribunal. Another significant judgment dealing with ad hoc appointments is that of Muhammad Ashraf v. Government of the Punjab, reported in PLJ 1998 Tribunal Cases (Service) 77 by a Full Bench of the Punjab Service Tribunal, Lahore, wherein it was held that appellant having accepted ad hoc appointment on clear understanding that he has not acquired any vested legal right to hold appointment on a regular basis, could not agitate that his services cannot be done away with till selection of a regular incumbent as the wording of section 10(3) of the Punjab Civil Servants Act, 1974 over rides the provision of subsection (1) which envisages the arrival of a selectee.
10. It is now well‑settled law that any appointment to a pubic office should be through a transparent process by advertising the posts in newspapers of wide circulation enabling all and sundry possessing the requisite qualification to try their luck by submitting applications as required. Thereafter, an independent Selection Committee comprising of F Subject Specialists is convened to pick‑up candidates strictly on merits. After undergoing through the rigours of test and interviews, the selected candidates thereafter have to prove their fitness on medical grounds and it is only then, that the induction in service can be termed to be clean and honourable, in accordance with the fundamental right 18. In the illuminating judgment of Abdul Jabbar Manion and others relating to Human Rights cases reported in 1996 SCMR 1349 the Hon'ble Supreme Court while enquiring , into various complaints of violation of Fundamental/Human Rights found that Federal Government, Provincial Governments, Statutory Bodies and Public Authorities had been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising vacancies and at times by converting ad hoc appointments into regular appointments, held that such practice was prima facie violative of Fundamental Rights (Article 18) guaranteeing to every citizen freedom of profession. Supreme Court after notice to all concerned and after full hearing in the matter ordered that violation of such Fundamental Rights should be discontinued forthwith, so much so, authorities…
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