Full Judgment Text & Judicial Ruling

2003 P L C (C

2003 P L C (C.S.) 69

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ

Dr. NAVEEDA TUFAIL and 72 others

Versus

GOVERNMENT OF PUNJAB and others

Civil Petitions Nos. 1093 to 1117, 1135 to 1141, 1169 to 1183, 1190 to 1214 and 1229 of 2002, decided on 25th September, 2002.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 3-5‑2002 passed in Appeals Nos. 1533, 889, 901. 1045, 1082 of 2001, 1385 to 1388, 1390 of 2000, 1634, 1546, 1831, 1578, 1579, 1588, 1607, 1608, 1609, 1618, 1634, 1698, 1815, 1831, 2259 of 2001, 881 to 883, 1546, 1547, 1811, 1897 of 2001, 878, 879, 880, 884, 888, 890, 892, 893, 895, 915, 1043, 1044, 1046, 1625, 1644 of 2001, 1546, 1539, 887, 894, 898, 899 of 2001, 1391 of 2000, 1410, 1414, 1415, 1504, 1517, 1549, 1550, 1552, 1553, 1554, 1555, 1675, 897, 914, 917, 1565, 1583, 1625 and 1612 of 2001 respectively).

(a) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑S.2(i)(a)‑‑‑Ad hoc appointment‑‑‑Effect‑‑‑Making recruitment on ad hoc basis with or without advertisement of the posts in normal circumstances amounts to curtailment of the legitimate right of appointment of deserving persons on regular basis and is against the policy of law.

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.2(1)(a)‑‑‑Ad hoc appointment‑‑‑Object, purpose, scope and duration‑‑ Concept of ad hoc appointment against the post in public" sector is a stop‑gap arrangement which is not a permanent characteristic of civil service‑‑‑Not proper in public sector to occupy the posts required to be tilled through the method prescribed by law, by making ad hoc appointments and allow the incumbents to continue in the same position beyond the terms of their employment without taking any step for filling posts on regular basis‑‑‑Ad hoc employee has no right to hold the post beyond the period for which he was appointed and it is also not right for the Government to continue ad hoc appointment for number of years without undertaking the exercise of selection on regular basis in the prescribed manner‑‑‑Appointment of a duly qualified person on ad hoc basis made otherwise in accordance with prescribed method of recruitment is made only in exceptional circumstances‑‑‑Stop‑gap arrangement as a temporary measure for a specified time does not by itself confer any right. on the incumbent for regular appointment car to hold the same for indefinite period‑‑‑If the incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, such incumbent would carry the right to be considered for permanent appointment through the process of selection‑‑‑Continuation of ad hoc appointment for considerable length of time would create an impression in the mind. of employee that he was being really considered to be retained on regular basis‑‑‑Ad hoc appointment by its very nature is transitory which is made for a particular period and creates no right in favour of incumbent with lapse of time‑‑‑Appointing authority may in its discretion, if necessary, snake ad hoc appointments but it is not open for the authority to disregard the rules relating to the filling of vacancies on regular basis in the prescribed manner Practice of making appointments on ad hoc basis for continuous period without taking steps for fulfilling the vacancies s through the process of selection 'in the prescribed manner amounts to misusing the authority‑‑ Appointment on ad hoc basis except in exceptional circumstances was deprecated by the Supreme Court with observation that such appointment should not be allowed to continue beyond the period for which it was initially made.

(c) Civil Servants Act (LXXI of 1973)‑‑‑--

‑‑‑‑S. 5‑‑‑Appointment in public sector‑‑‑Duties of public authorities‑‑ Scope‑‑Such appointment is a trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service.

(d) Constitution of Pakistan (1973)‑‑‑--

‑‑‑‑Part.II & Chap. 1 [Arts.7 to 261‑‑‑Employmc ant‑‑‑Fundamental rights‑‑ Applicability‑ ‑‑Scope‑‑‑Employment for a common person is source of livelihood and right of livelihood is an undeniable right to a person‑‑‑If work is sole source of livelihood of a person. then right to work is not less than a fundamental right which has to he given protection accordingly.

(e) Punjab Civil Servants Act (VIII of 1974)‑‑‑--

‑‑‑‑Ss. 2(r)(a) & 10‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Ad hoc appointment, regularization of‑‑‑Principle of equality‑‑‑Applicability‑‑ Petitioners were appointed as lecturers by Provincial Government on ad hoc basis‑‑‑Despite having been appointed for many years, the Provincial Government declined to regularize the posts of petitioners, whereas the similar appointees by Federal Government had already been regularized‑‑ Petitioners contended that non‑regularizing of the posts was against the principles of equality as contained in Art.25 of the Constitution‑‑‑Validity‑‑Petitioners being employees of Provincial Government could not claim regularization as of right in the light of policy of Federal Government but the principle of equality as embodied in Art.25 of the Constitution would demand that the petitioners while facing similar circumstances should be treated in the similar manner‑‑‑Principle of equality would impliedly be attracted in favour of the petitioners as they being ad hoc lecturers in the Provincial Government would stand at par with that of the ad hoc employees of Federal Government and it would be fair, just and proper to consider the cases of petitioners for regularization‑‑‑Ad hoc appointments having created a legitimate expectancy in the minds of petitioners for their retention on regular basis, Supreme Court directed the Provincial Government, while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government, to initiate the process of regularization of petitioners through Provincial Public Service Commission‑‑‑Supreme Court further directed that in case any of the petitioners was not found suitable by the Public Service commission, he would not be retained in service‑‑ Petition for leave to appeal was converted into appeal and was allowed.

Amjad Ali and others v. Board of Intermediate and Secondary Education and others 2001 SCMR 125; Dehli Transport Corporation v. D.T.C. Mazdoor Congross AIR 1991 SC 101; Abdul Jabbar Memon v. P.I.A. Human Rights case No.104 of 1992; Abdul Majid Sheikh v. Mushafee Ahmed PLD 1965 SC 208; Federation of Pakistan v. Rais Khan 1993 SCMR 609; Jaffar Ali Yousafzai v. Islamic Republic of Pakistan PLD 1970 Quetta 115; WAPDA v. Muhammad Hussain Gul 1993 SCMR 2337; Secretary Education Civil Secretariat, Lahore v. Nasir Iqbal C.P. No.768‑L of 1197; Gohar Masood v. Secretary Health Department 2001 SCMR 1128; Director Social Welfare N.‑W.F.P Peshawar v. Saadullah Khan 1996 SCMR 1350; Ghulam Sarwar v. Province of Punjab 1982 SCMR 46; Muhammad Shahbaz Cheema v. Province of Punjab 1981 SCMR 469; Muhammad Azam Ali v. Government of the Punjab through Chief Secretary 1985 SCMR 1408; Nasarullah Khan v. The Registrar Peshawar High Court, Peshawar PLD 1993 SC 195; Federation of Pakistan v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Ashraf v. Government of Punjab PLJ 1998 Tr.C. Services 77; PLD 1984 FSC 34; Pakistan v. Public at Large PLD 1987 SC 304; Abdul Jabbar Menton and others 1996 SCMR 1349; Province of Punjab v. Azhar Abbas 2002 SCMR_ 1; Chief Secretary, Government of Punjab v. Abdul Majeed 2001 SCMR 1971 and Government of the Punjab v. Ghulam Rasool Zahid 1985 SCMR 1614 ref.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Petition for leave to appeal‑‑‑Raising of new plea‑‑‑Question of general public importance‑‑‑Authorities contended that the plea not raised by the petitioners before Service Tribunal could not be agitated before Supreme Court‑‑ Validity‑‑‑Questions of general public importance being involved in the petition, the technical objection was not allowed by Supreme Court to be raised.

Ch. Akhtar Ali, Advocate Supreme Court/Advocate‑on‑Record for Petitioners (in C. Ps. Nos. 1190 and 1191 of 2002).

Muhammad Akram Sheikh, Senior Advocate Supreme Court with M.A. Ziadi, Advocate‑on‑Record for Petitioners (in all other Cases).

Maqbool Ellahi Malik, Advocate General, Punjab, with Tariq Mahmood Khokhar, Additional Advocate‑General Punjab for Respondents (in all cases).

Date of hearing: 9th July, 2002.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.‑‑‑By this common judgment, we propose to dispose of Civil Petitions Nos. 1093 of 2002 and 72 similar petitions, involving same question of law and facts preferred under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 seeking leave to appeal against a consolidated judgment, dated 13‑5‑2002 passed by the Punjab Service Tribunal through which 114 service appeals were disposed of.

2. The Education Department, Government of Punjab, for information of general public, advertised the posts of lecturers on 11‑11‑1995 and 13‑11‑1995 and constituted a Divisional Selection Board comprising of a Chairman and four members including the Subject Specialist for selection of the suitable candidates. The petitioners applied for these posts and Selection Board having assessed the eligibility of the petitioners as per criteria fixed for the posts interviewed them and after determining their suitability, recommended them for appointments. The petitioners were accordingly appointed as ad hoc lecturers vide order dated 21‑12‑1995 in the following terms:‑‑

"SUBJECT: OFFER OF APPOINTMENT FOR THE POST OF LECTURERS ON AD HOC BASIS

Consequent upon your selection by the Interview Board/Committee and final approval by the Government of the Punjab, Education Department Lahore vide Letter No.P.A/DSI‑1/96 Dt.4‑2‑1996, you are hereby offered a post of lecturer on ad hoc basis in BPS‑17 (Rs.3880‑290‑7360) collegiate branch (Men and Women Section) on the terms and conditions indicated below:

(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 selectee of the Punjab Public Service Commission whichever is earlier or up to 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 (i) without assigning any reason from other side.

(iv) You will have to compete before the 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.

(v) The ad hoc appointment will not confer any right of regular appointment to the same post nor the service will be counted towards seniority.

(vi) You have to join at your own expense.

(vii) Subject to the production of medical certificate of fitness from the Standing Medical Board concerned before joining.

(viii) You will be governed by such rules and orders relating to leave travelling allowances, medical attendance, pay etc. as may be issued by Government for the category of Government servants to which you will belong.

(ix) Subject to the production of sanction for the relaxation of upper age limit by the competent Authority before the joining of duty in case of being overage.

(x) Subject. to the verification of your character antecedents by the D.I.‑G. Police Special Branch, Lahore/Superintendent of Police concerned.

(xi) You will not agitate or approach the higher authorities for regularization of your ad hoc appointment.

(xii) You will not make any request directly or indirectly for your transfer from your place of posting for a period of at least one year.

(xiii) Subject to production/verification of original academic credential by the concerned authorities.

In case you are willing to accept the offer on the above terms and reconditions, you should report yourself for duty within 10 days of issue of this appointment letter to the Principal Government Degree/Inter College for . failing which the offer shall be deemed as cancelled without any further notice.

(Sd.)

DIRECTOR OF EDUCATION (COLLEGES)

..

3. The ad hoc employment of petitioners continued without any break till their termination vide order dated 5‑8‑2000. The petitioners at the first instance challenged the order of their termination by way of filing the separate Constitutional petitions but the same were dismissed due to the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. The order of dismissal of the Constitutional petitions passed by the High Court was maintained by this Court in Civil Petitions for Special Leave to Appeal filed by the petitioners under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, with the observation that the petitioners would fall within the definition of civil servants and in consequence thereto, they filed an appeal before the Punjab Service Tribunal. The Tribunal dismissed their appeals through the impugned judgment and in the light of law laid down by this Court in Amjad Ali and others v. Board of Intermediate and Secondary Education and others 20 1 SCMR 125) held that the petitioners having been appointed on ad hoc basis, would have no right to challenge their termination as they could be terminated at any time even before the expiry of the period for which their appointments were made. The Tribunal further held that the petitioners were not entitled to any show‑cause notice and were also not discriminated.

4. Learned counsel for the petitioners, in support of these petitions, has raised the following contentions:‑

(a) That the employment in the Government Department is a public employment and it being a source of livelihood is attached to the right of life which is not a bounty of the authorities and cannot be allowed to hang in their hands. The learned counsel while placing reliance on Dehli Transport Corporation v. D.T.C. Mazdoor Congross (AIR 1991 SC 101) contended that the employment is a source of income, therefore, the right to work is a fundamental right in terms of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 which cannot be taken away at the will of the Governmental authorities.

(b) That the continuous retention of the petitioners in service on ad hoc basis for a considerable period would bring them at par to the regular employees and their termination from service without notice would not be proper and legal and that their employment for such a long period without break would create legitimate expectancy of confirmation/permanent appointment as the policy of continuity despite having no statutory backing would be recognized in law.

(c) That in similar circumstances, the Federal Government as well as the Governments of Provinces except Punjab have framed policies through enactments for regularization of their employees who were appointed on ad hoc basis during the period mentioned therein, through the Public Service Commission but the Government of Punjab, without framing any such policy, discriminated the petitioners by terminating them without providing an opportunity of regularization. The learned counsel submitted that none of the petitioners, rendered service on ad hoc basis less than six years and some of them were being kept on ad hoc basis for more than one decade. While highlighting the case of Dr. Tahira, he submitted that she (Dr. Tahira) was awarded Pride of Performance for the books written by her which were included in Intermediate and Secondary Education studies. The learned counsel without disputing the status of the petitioners, submitted that an ad hoc employee cannot claim regular appointment as of right but the rule of equal treatment as a public policy would demand their regularization to save them from unemployment as the service is their sole source of livelihood.

Learned counsel added that as per his instructions, the posts fell vacant due to the termination of the petitioners were being filled on contract basis through the process of selection by the Public Service Commission which is against the law laid down by this Court in Human Rights Case No.104 of 1992 titled Abdul Jabbar Memon v. PIA and lastly argued that the question of law of public importance relating to the fundamental rights of a person or class of persons can be raised at any time and at any stage.

5. The learned Advocate‑General, Punjab, in the light of law laid down by this Court on the subject, contended that the Government of Punjab had trained no policy to retain the petitioners on regular basis or absorbed them through the process of confirmation and that the ad hoc employment of the petitioner seized on their termination, therefore, they would have no right to demand regularization. The learned Advocate‑General without giving any justification for the policy of the Government of Punjab of continuous retention of the petitioner on ad hoc basis for such a long time and not fulfilling the posts through the process of selection by the Public Service Commission, stated that presently about 1200 selectees of the Public Service Commission were waiting for the appointments. The learned Advocate General with reference to the certain paragraphs of the judgment of the Tribunal, submitted that the grounds being urged in support of these petitions were not taken before the Tribunal, therefore, the petitioners cannot be allowed to take any such ground before this Court.

6. This Court in the light of law laid down in Abdul Majid Sheikh v. Mushafee Ahmed ('PLD 1965 SC 208), Federation of Pakistan v Rais Khan (1993 SCMR 609), Jaffar Ali Yousufzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115), WAPDA v. Muhammad Hussain Gul (1993 SCMR 2337), Secretary Education Civil Secretariat, Lahore v. Nasir Iqbal (C.P.No.768‑L of 1197), Gohar Masood v. Secretary Health Department (2001 SCMR 1128), and Director Social Welfare N.‑W.F.P. Peshawar v. Saadullah Khan (1996 SCMR 1350), Ghulam Sarwar v. Province of Punjab (1982 SCMR 46), Muhammad Shahbaz Cheema v. Province of Punjab (1981 SCMR 469), Muhammad Azam Ali v. Government of the Punjab through Chief, Secretary (1985 SCMR 1408), Nasrullah Khan v. The Registrar Peshawar High Court, Peshawar (PLD 1993 SC 195), Federation of Pakistan v. Hashim Shah Qureshi (1987 SCMR 156), Muhammad Ashraf v. Government of Punjab (PLJ 1998 Tr.C. (Services) 77) PLD 1984 FSC 34, Pakistan v. Public at Large (PLD 1987 SC 304) and In re: Abdul Jabbar Memon and others (1996 SCMR 1349) reviewed the matter relating to the appointments made on ad hoc basis and the rights of the incumbents in detail in Province of Punjab v. Azhar Abbas (2002 SCMR 1) and while discussing section 10 of the Punjab Civil Servants Act, 1974 in Azhar Abbas case, (supra), observed as under:‑

"7. A plain reading of section 10 would show that subsection (1) thereof deals only with the cases in which services of a civil servant could be terminated without notice. According to clause (i) of subsection (1) services of civil servant could be terminated without notice during the initial or extended period of his probation. Clause (ii) provides that incase an ad hoc appointment is made subject to the condition that he would be liable to termination on the appointment of a person on the recommendation of the Selection Authority, his service could be terminated without notice only on the appointment of a regularly selected incumbent to the post. The wording of section 10(i)(ii) is clear enough to indicate that approval of regular selectee, is to be awaited only if as such a stipulation exists in the appointment letter which means that in the absence of such stipulation, it was not necessary to wait for the regular appointment. It is evident that in case of an appointment made on ad hoc basis with a specific condition that it was liable to termination on appointment of a regularly selected person, the overriding provision contained in subsection (I) regarding termination of service without notice, would come into play on the appointment of such person. It simply means that on the appointment of a regular incumbent to the post, no notice is required before terminating the services of an ad hoc employee. We do not find any force in the contention of the learned counsel for the appellant that clause (ii) o: subsection (1) of section 10 creates a complete bar to the termination of the services bf an ad .hoc appointee till the appointment of a regular selectee. Clause (ii) is subject to the provision of subsection (1) of section 10 which deals with the 'termination of service without notice'. Clause (ii) thus specifies only the stage when the provision regarding 'termination of services without notice' would apply to the category of ad hoc appointment mentioned therein.".

The direction issued in the above said case was as under:‑‑

"that all the private respondents‑ad hoc employees shall continue to perform their functions on the existing terms and conditions for a period of six months from today or till arrival of the regular employees who shall be recruited strictly on merits after following the prescribed procedure laid down in the relevant rules and in accordance with law, whichever is earlier. It is clarified that no further extension in service on any ground whatsoever shall be granted to the respondents. They shall stand automatically relieved of their posts on or before the above eventuality taking place. Unless, subject to their eligibility, they are recruited afresh on merit by the competent Authority after following the prescribed procedure in that behalf. "

7. In the case of Amjid Ali v. Board of Intermediate and Secondary Education (2001 SCMR 125) this Court held that no exception can be taker on the termination of the employees who were appointed on ad hoc basis on expiry of their term of appointment. In Chief Secretary, Government of Punjab v. Abdul Majeed (2001 SCMR 1971) in the light of observations made in Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another (1985 SCMR 1408) and Government of the Punjab v. Ghulam Rasool Zahid (1985 SCMR 1614) it was observed as under:‑

"8. After having accepted the above conditions including that on the expiry of period of one year his service was liable to be terminated automatically, thus no plea can be taken by him that he is entitled to remain in service till regular selection of a candidate against this post. It may be noted that though the tenure of service of the respondent was extended but by issuing a fresh appointment letter containing the same conditions including that his service is liable to be terminated at any time without notice and without assigning any reason. Therefore, in view of such situation respondent had no case at all to remaining service till the time selection of a candidate is not made against the post by the Selection Authority. This Court in the case of Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408 has 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 be 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 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. "

Similarly in the case of Government of the Punjab v. Ghulam Rasool Zahid 1985 SCMR 1614 it has been held as under:‑‑

"4. In response to notice sent by this Court, Mr. M. Saeed Beg has appeared for the respondent. On examination of the record with the help of counsel present, we find that the initial order of appointment dated 26‑I1‑1976 clearly stated that the appointment was on ad hoc basis. The subsequent order dated 28‑8‑1977', which was in partial modification…

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