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Petitioner: SHAMSUL HAQUE MAHAR VS Respondent: PROVINCE OF SINDH through Chief SecretaryHonorable Justice Shahid Anwar BajwaM.M. Aqil Awan,Mrs. Halima Khan
2013 P L C (C.S.) 1046
[Sindh High Court]
Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ
SHAMSUL HAQUE MAHAR and others
Versus
PROVINCE OF SINDH through Chief Secretary and others
Constitutional Petitions Nos.D-1615, D-1616 and D-1932 of 2011, decided on 2nd October, 2012.
(a) Sindh Civil Servants Act (XIV of 1973)---
----S. 11---Constitution of Pakistan, Art.199---Constitutional petition---Agricultural Department---Contract employees working for last seven years on basis of annual extension of their contract period, and there was no complaint regarding their conduct, competence and work---Petitioners' plea was that their appointment was on permanent basis, thus, were entitled to all consequential benefits of a regular appointment from date of their initial appointment or in alternative authority be directed to treat them as regular employees in their respective grades from date of their initial appointment---Validity---Appointment of petitioners in year 2005 was for a particular project, which despite continuing from year to year had not yet been concluded---Government was not in a position to state as to when such project would conclude---Word "permanent" in context of employment would not mean lasting till Day of Judgment, but would mean something likely to last for a very long period---Something having continued for seven years could not be said to be temporary anymore---Petitioners for all intents and purposes would be deemed to have been hired on a post of permanent nature---Appointment order of petitioners mentioned therein that Sindh Civil Servants Act, 1973 would be applicable to petitioners---Government could not contend that petitioners despite being governed by said Act were not entitled to all benefits allowed thereunder to civil servants---Petitioners had been recruited for a particular project, thus, Government on administrative ground could neither transfer any of them to another department nor transfer a person from another department to such project, except on deputation basis---Government on completion of such project could exercise its powers under S.11(2) of Sindh Civil Servants Act, 1973---Government was bound to consider petitioners' case for regularization in accordance with observations made in judgment reported as 2011 PLC (C.S.) 281--- Government might frame policy for appointment on contract basis for a limited period---Where Project or job continued beyond limited contract period, then person appointed would be entitled to regularization---High Court accepted constitutional petition and directed authority to regularize services of petitioners in terms of such observations.
Rukhsar Ali v. Government of N.-W.F.P. 2003 PLC (C.S.) 1453; Executive Engineer v. Abdul Aziz PLD 1996 SC 610; M.D. Tahir v. Federal Government PLD 2000 Lah. 251; Abdul Qayyum v. Government of Punjab 1975 SCMR 457; Inspector-General of Police Punjab v. Ali Abbas 1985 SCMR 946; Secretary, Ministry of Defence v. Muhammad Miskeen 1999 SCMR 1296; WAPDA v. Abbas Ali Malano 2004 PLC (C.S.) 1; Chairman Pakistan Railways v. Arif Hussain 2008 PLC (C.S.) 240; Province of Sindh and others v. Gul Muhammad and others Civil Petition No.433-K of 2010; Abid Iqbal Hafiz v. Secretary Public Prosecution Department PLD 2010 SC 841; Government of Balochistan v. Dr. Zahida Kakar 2009 PLC (C.S.) 206 and WAPDA v. Khanimullah 2000 SCMR 879 ref.
Ayaz Ahmed Memon v. Pakistan Railways 2011 PLC (C.S.) 281 rel.
(b) Civil service---
----"Permanent" in context of employment---Connotation -- Such word would not mean lasting till Day of Judgment, but would mean something likely to last for a very long period -- Something having continued for seven (7) years could not be said to be temporary anymore.
WAPDA v. Khanimullah 2000 SCMR 879 rel.
M.M. Aqil Awan for Petitioners (in Constitutional Petition No.D-1615 of 2011).
M.M. Aqil Awan (in Constitutional Petition No.D-1616 of 2011).
Muhammad Nawaz Sheikh (in Constitutional Petition No.D-1932 of 2012).
Mrs. Halima Khan. A.A.-G. for Respondents.
Date of Hearing: 5th September, 2012.
JUDGMENT
SHAHID ANWAR BAJWA J.--- With consent of learned counsel these Constitutional Petitions were finally heard at Katcha Peshi stage and are being decided accordingly by this common order.
2. Facts of Constitutional Petition No.D-1615 of 2011 are that an advertisement was placed by respondent No.3 for recruitment on contract basis. The posts involved were that of Sub-Engineers of BPS-11. The petitioners applied against the posts and were through various letters employed on contract basis in the year 2005. This Constitutional Petition has been filed and the following reliefs have been prayed:---
"(a) That petitioners are appointed on regular basis against the posts mentioned against their names and are entitled to all consequential benefits of a regular appointment from the date of their initial appointment.
IN ALTERNATE
(b) The respondents be directed to treat the petitioners as regular employees in their respective grades from the date of their appointment and to complete the codal formalities if any including favourable disposal of the summary pending before.
(c) That the respondents be restrained from terminating the services of petitioners treating them as contract employees during the pendency of this petition.
(d) Any other relief(s) this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may kindly be granted."
3. Learned counsel for the petitioners submitted that though the employment has been stated to be contract employment for a certain Project but extension has been granted and they are still continuing in employment and there has been no complaint regarding their competence, work and conduct over the last seven (7) years. Learned counsel submitted that no name of the Project or period of any Project is mentioned in any of the documents. Learned counsel submitted that all the conditions laid down in Rule 11 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 ("Rules, 1974") were followed and mere writing of the contract, therefore, does not make them contract employees moreso in the context that they have worked for seven (7) years and the Project has never been specified. Learned counsel submitted that a permanent post is defined in section 2(1)(f) of Sindh Civil Servants Act, 1973 ("Act, 1973") as a post sanctioned without limit of time. He submitted that the term, mentioned in the appointment letter, is term of a contract and not tenure of post. He stated that it is not stated in the appointment letter that this appointment was on temporary basis. Learned counsel submitted that phraseology does not determine nature of order.
4. Learned counsel submitted that section 5 of Act, 1973 provides for appointment and the appointment has to be made in the prescribed manner. Learned counsel submitted that the manner has been prescribed in Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. He submitted that contract of appointment is of a retired person and not of a young person having whole career in front of him.
5. Learned counsel submitted that regularization is not a word used in Sindh Civil Servants Act, 1973 or Rules made thereunder. All that is required is that a person is appointed in accordance with the procedure prescribed in the Rules. Learned counsel referred to the cases of RUKHSAR ALI v. GOVERNMENT OF N.-W.F.P. (2003 PLC (C.S.) 1453 and EXECUTIVE ENGINEER v. ABDUL AZIZ (PLD 1996 SC 610). Learned counsel submitted that every act of the Government must have sanction of law and he relied upon the cases of M.D. TAHIR v. FEDERAL GOVERNMENT (PLD 2000 Lahore 251). Learned counsel submitted that in order to appreciate substance and nature of appointment it has to be appreciated that it was a contract appointment and not contract post. Learned counsel relied upon the cases of ABDUL QAYYUM v. GOVERNMENT OF PUNJAB (1975 SCMR 457), INSPECTOR-GENERAL OF POLICE, PUNJAB v. ALI ABBAS (1985 SCMR 946), SECRETARY, MINISTRY OF DEFENCE v. MUHAMMAD MISKEEN (1999 SCMR 1296). AYAZ AHMED MEMON v. PAKISTAN RAILWAYS (2011 PLC (C.S.) 281), WAPDA v. ABBAS ALI MALANO (2004 PLC (C.S.) 1) and CHAIRMAN PAKISTAN RAILWAYS v. ARIF HUSSAIN (2008 PLC (C.S.) 240). Learned counsel also relied upon order of the Hon'ble Supreme Court passed on 31-1-2011 in Civil Petition No.433-K of 2010 (PROVINCE OF SINDH AND OTHERS v. GUL MUHAMMAD AND OTHERS).
6. In Constitutional Petition No.D-1616 of 2011 learned counsel submitted that it is the same advertisement and eleven (11) of the petitioners were appointed in BPS-16 and thirty (30) of the petitioners were appointed in BPS-17. Mr. Muhammad Nawaz Sheikh, learned counsel for petitioners in Constitutional Petition No.1932 of 2011 adopted arguments of Mr. M.M. Aqil Awan, advocate.
7. Ms. Halima Khan, learned A.A.-G., submitted that advertisement clearly stated that it is appointment on contract and even the appointment order mentioned specific Project as well as specific term. She submitted that the contract would stand terminated when the Project is completed. She submitted that the petitioners have accepted the contract and, therefore, they cannot go back. She relied upon the case of ABID IQBAL HAFIZ v. SECRETARY, PUBLIC PROSECUTION DEPARTMENT (PLD 2010 SC 841). Learned AAG submitted that a contract employee does not have a vested right and she relied upon the case of GOVERNMENT OF BALOCHISTAN v. DR. ZAHIDA KAKAR (2009 PLC (C.S.) 206). While concluding learned A.A.-G. conceded that the contract has been extended till 2013.
8. We have considered the submissions made by learned counsel and have also gone through the record.
9. Since all emphasis is placed on contract dated 26-5-2005, we quote below letter of contract issued by respondent No.3 to one of the petitioners:---
"ORDER
On the recommendation of the Selection Committee and with the approval of the Competent Authority. Mr. Shahzad Nazir son of Nazir Ahmed is hereby selected for training and subsequent appointment on contract basis for a period of 3 years or the Project Period whichever is earlier for the post Sub-Engineer (BS-11) under National Programme for Improvement of 29000 Watercourses in Sindh on the following Terms and Conditions:---
TERMS AND CONDITIONS
(1) You will be paid fixed emoluments of BPS-11.
(2) You will have to undergo 30 days training at Directorate of Sindh Institute for OFWM (T&R), Sakrand and shall produce Certificate of successful completion of training.
(3) Your appointment will be subject to production of Medical fitness Certificate to the Department within 15 days form the concerned Medical Superintendent/Civil Surgeon.
(4) You will be governed by the Sindh Civil Servants Rules, as amended from the time to time and the instructions in force relating to the service and the Sindh Civil Servants Act, 1973 and the Rules made thereunder.
(5) The contract shall be liable to terminate at any time before the expiry of project period on one month's notice from either side or on payment in lieu thereof if the post retrenched for any reason whatsoever.
OR
If it is found that you are guilty of misconduct, inefficiently, neglect duty, and if the Government is satisfied on Medical evidence that you are unfit or likely to be unfit for considerable period (the decision of the Government as what constitute such consideration period being conclusive) to continue to remain unfit by reason of ill health or physical disability to discharge your duties.
His services are placed at the disposal of District Coordination Officer Thatta, for further posting."
10. A perusal of the above order indicates the following salient features:---
(i) The appointment is made on the basis of selection by a Selecting Committee:
(ii) It is stated to be a contract employment for three years or the period of Project, whichever is earlier;
(iii) The Project is named i.e. National Programme for Improvement of 29000 Watercourses in Sindh;
(iv) The person is placed in a particular Basic Pay Scale;
(v) He is to be governed by the Sindh Civil Servants Act, 1973 and the Rules made thereunder;
(vi) Clause 5 gives power to terminate if the post is retrenched or if the employee is found guilty of misconduct.
11. Learned counsel for the petitioners relied upon M.D. TAHIR's case (supra) for his proposition that whatever Government does it must have sanction of law. In the reported case formation of Khidmat Committees was challenged on the ground that there was no law which authorized the Federal Government to constitute and set up a parallel system of administration through Khidmat Committees. Members of which were not elected representatives of people, but had been appointed by the then Government in power. It was observed by a Division Bench of Lahore High Court as under:---
" It is trite law that every executive action must be backed by some law. If any authority is needed reference may be made to Haji Ghulam Zamin and another v. A.B. Khokhar and others PLD 1965 Dacca 156 and Khalid Malik v. Federation of Pakistan PLD 1991 Kar. 1. Furthermore, Article 4 of the Constitution ordains that every person has a right to insist that he be dealt with in accordance with law and law alone."
12. Precisely the same is contention of the petitioners that they must be dealt with in accordance with law and not otherwise and contention of Mr. M.M. Aqil Awan was that there is no provision of contract employment available with the Government under law to hire a person on contract except in accordance with the provisions contained in Act, 1973 and the Rules made there-under. Under Act, 1973 a civil servant is defined as under:---
"(b) "civil servant" means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province but does not include:
(i) A person who is on deputation to the Province from the Federation or any other Province or authority; or
(ii) A person who is employed on contract, or on work charged basis, or who is paid from contingencies; or
(iii) A person who is "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923)."
13. It may also be noted that ad-hoc appointment is also defined in Act of 1973, which is reproduced as under:---
"(a) "ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending the recruitment in accordance with such method."
14. A perusal of the two indicates that a person who is on deputation or a person on contract, or on work-charged basis, or who is paid from contingencies is not a civil servant. Preamble of Act, 1973, suggests that it is a law for "appointment of a person to civil service of the Province or a civil post in connection with affairs of the Province shall be made in the prescribed manner by Government or by a person authorized by it in that behalf". Method of appointment is prescribed in section 5 and termination of service is provided in section 11 of Act, 1973. Employment after retirement is provided in section 14 of Act, 1973. The above sections are reproduced as under:---
"5. Appointments.--- Appointments to a civil service of the Province or a civil post in connection with the affairs of the Province shall be made in the prescribed manner by Government or by a person authorized by it in that behalf:
[provided that [two percentum of such appointments] [ ..] subject to availability, be made from amongst disabled persons as defined in the Displaced Persons (Employment and Rehabilitation) Ordinance, 1981."
11. Termination of service.--- 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 from one [service], cadre or post, his service shall not be so terminated so long as he holds a lien against his former post in such [service] or cadre, but he shall be reverted to his former [service] cadre or post as the case may be;
(ii) On the expiry of the initial or extended period of his employment; or
(iii) If the appointment is made ad hoc terminable on the appointment of a person on the recommendation of a selection authority on the appointment of such person.
(2) Where, on the abolition of a post or reduction in the number of posts in a cadre or [service], the services of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be the one who is the most junior in such cadre or [service ].
(3) Notwithstanding the provisions of subsection (1 ), but subject to the provisions of subsection (2), the services of a civil servant in temporary employment or appointed ad hoc shall be liable to termination on fourteen days notice or pay in lieu thereof.]"
"14. Employment after retirement.---( 1) Retired civil servant shall not ordinarily be re-employed under Government unless such re-employment is necessary in the public interest and is made with the prior approval of the authority next above the appointing authority:
(2) Subject to the provision of subsection (1) of section 3 of the Ex-Government Servants (Employment with Foreign Governments) (Prohibition) Act, 1966 (XII of 1966) a civil servant may, during leave preparatory to after retirement, or retirement from Government service seek any private employment:
Provided that, where employment is sought by a civil servant while on leave preparatory to retirement or within two years of the date of his retirement, he shall obtain the prior approval of prescribed authority."
15. Under Rules of 1974 it is provided that method of appointment, qualifications and other conditions applicable to a post shall be as laid down by the Department concerned in consultation with Services and General Administration Department. Three methods of appointment are prescribed in Rule 3 of Rules, 1974 i.e. by initial appointment or by promotion or by transfer. Rule 4 of Rules, 1974 provides for appointing authorities for different posts. Rule 6 of Rules of 1974 stipulates appointment by promotion and appointment by transfer. Rule 9-A of Rules, 1974 talks of absorption as a civil servant of one who has been rendered surplus in any office or department of the Sindh Government or any autonomous body. Rule 19 of Rules of 1974 lays down that appointing authority if it considers to fill a post falling within the purview of Sindh Public Service Commission urgently, it may, pending nomination of a candidate by the Commission, proceed to fill such post on ad hoc basis for a period not exceeding six months. Rule 20 of Rules of 1974 provides for short-term vacancies in posts falling within the purview of the Commission and vacancies occurring as a result of creation of temporary posts for a period not exceeding six months and these may be filled by the appointing authority otherwise than through the Commission on purely temporary basis after advertising the vacancy. Rule 11 of Rules of 1974 provides that initial appointment to posts in BPS-3 to 10 shall be made on the recommendation of Departmental Selection Committee after the vacancies in these BPSs have been advertised in newspapers. Under Rule 3 of the Sindh Public Service Commission (Functions) Rules, 1990 the Commission has exclusive mandate to make recommendations for initial recruitment for posts in BPS-11 to 22 except those specified in the Schedule and in case of Bodies or Corporations set-up by the Government for such posts in BPS-11 and above, which may be referred to the Commission by the Government.
16. Learned counsel for the petitioners relied upon the case of RUKHSAR ALI (supra). Facts of the case were that in response to an advertisement by Public Service Commission, petitioners applied, they were examined and then recommended for appointment by the Public Service Commission. When they received their appointment letters they were shocked to find that they were appointed on contract basis by the appointing authorities and such appointment on contract basis was challenged through writ petition. Defence of the Government was that the Cabinet had decided that all fresh recruitments will be on contract basis and not on regular basis. The question was framed by a Division Bench of Peshawar High Court in the following words:---
"11. The question that requires determination in these cases is as to whether the posts which were to be filled in on regular basis could be converted into that of contract basis with the decision of the Provincial Cabinet without amending/changing the existing law. Rules and Regulations, answer to this question is in negative for the reason."
17. The Division Bench noticed section 25 of the N.-W.F.P. Civil Servants Act, 1973, which section is in the following words:---
"25. Appointment of persons on contract, etc.--- The Governor or any person authorized by the Government in that behalf may, on such terms and conditions as he may specify in each case, appoint persons on contract basis, or on work-charged basis, or who are paid out of contingencies:
Provided that all such employees who were working in any such capacity immediately before the commencement of this Act shall continue to be so employed on the same terms and conditions on which they were appointed."
18. It may be pointed out that there is no corresponding provision in Act of 1973. The Bench also noted that Rule 4 of N.-W.F.P. Public Service Commission (Functions), Rules, 1983 which provided that Public Service Commission shall not have jurisdiction in respect of posts in Governor House, the posts to be filled on ad hoc basis for a period of six months or less and posts to be filled by re-employment of a retired officer provided that reemployment is made for a specified period not exceeding two years. It may again be pointed out that no corresponding provision exists in the Sindh Public Service Commission (Functions), Rules, 1990. On various grounds writ petition was allowed. The case is distinguishable because initial advertisement was regular appointment whereas in the present case it was for contract employment.
19. It may be advantageous to reiterate here that in Rule 4 of Sindh Public Service Commission (Functions) Rules, 1990, it is provided that the Commission shall not conduct tests for recruitment to posts which are to be filled on contract for a specified period. Therefore, even contract appointment should go through Sindh Public Service Commission.
20. Learned counsel for the petitioners next relied upon ABDUL AZIZ's case (supra). This case is in respect of provisions contained in West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and is, therefore, distinguishable. Learned counsel next relied upon the case of ABDUL QAYYUM QURESHI (supra). In this case the petitioner was appointed as Chairman of Board of Intermediate and Secondary Education, Lahore. When his term of appointment was settled it was stated that tenure of his appointment shall be four (4) years. When the tenure was about to come to an end, he requested for extension, which was not allowed and he challenged it in the High Court. His contention was that his previous, officiating appointment cannot be taken into consideration for the purpose of computation towards tenure of his appointment. The petition was dismissed by the High Court. The Hon'ble Supreme Court dismissed the petition by observing that one has to look at the substance and not at the mere form or terminology used.
21. Learned counsel next relied upon ALI ABBAS'S case (supra). In this case petitioner was recruited against temporary post when permanent post was available on the date of appointment. The Hon'ble Supreme Court observed that when permanent post was available petitioner should have been confirmed against that post. In the case of MUHAMMAD MISKEEN (supra) the respondent after his retirement from the Army as Lance Naik was appointed as Naib Qasid in the year 1981 and his service was terminated in 1996. His contention was that he was regular employee and his services could not be dispensed with simply by treating him as being on contract basis. Federal Service Tribunal concluded that the petitioner was selected by properly constituted Selection Committee and the appointment order did not make any reference to appointment on contract basis. The Hon'ble Supreme Court did not interfere with the order of the Federal Service Tribunal. In AYAZ AHMED MEMON's case (supra), which was decided by a Division Bench, of which one of us namely Shahid Anwar Bajwa, J. was a member. petitioner was employed on contract for a period of three years but said contract was continued from year to year for seven (7) years. Petitioner…
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