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Petitioner: MUHAMMAD SARFARAZ VS Respondent: GOVERNMENT OF PUNJAB THROUGH SECRETARY, EDUCATION DEPARTMENT, CIVIL SECRETARIAT,
2001 P L C (C
2001 P L C (C.S.) 1224
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq and Javed Iqbal, JJ
MUHAMMAD SARFARAZ and 174 others
Versus
GOVERNMENT OF PUNJAB through Secretary, Education Department, Civil Secretariat, Lahore and others
Civil Petitions for Leave to Appeal Nos.1084-L to 1165-L, 1173-L to 1179-L, 1188-L to 1196-L, 1244-L to 1246-L, 1255-L to 1258-L, 1260-L to 1264-L, 1271-L to 1274-L, 1320-L to 1330-L, 1346-L to 1374-L, 1384-L to 1389-L, 1423-L, 1426-L, 1432-L to 1434-L, 1474-L, 1565, 1570, 1620, 1690-L, 1710-L, 1792-L, 1855-L, 1856-L and 1857-L of 2001, decided on 20th June, .2001.
(On appeal from the judgment dated 26-2-2001 of the Lahore High Court, Lahore passed in Writ Petitions Nos.16955, 9516, 17380, 18043, 17253, 19467, 3924, 17378, 17405, 20581, 17374, 17423, 9410, 2058, 9275, 17056, 17423, 18920, 19024, 9495, 13766, 17761, 168q53, 17658, 17992, 4229, 9348, 17577, 9622. 9362, 17128, 18973, 3943, 17412, 18139, 9272, 18233, 12828, 17431, 9240, 9350, 13768, 9269. 16851, 17379, 9249, 13797, 13402, 9338, 17255, 16849, 17373, 17500, 9087, 7854, 20325, 17447, 17187, 18919, 16375, 17991, 17258, 17254, 17159, 20905, 13767 of 2000, 5961 of 1999, 17578, 9242, 13769, 17017, 9040, 12838, 9241. 3942, 9472, 16850, 17129, 9544, 9471, 9284, 17414, 9547, 9037, 16971, 3903, 9010, 18348, 4013, 9274, 3902, 18436, 16850, 17654, 16852, 9276, 9360, 9586, 17992, 17017, 17053; 17373, 1995, 2044, 2152, 16447, 3958, 17582, 4013, 1308, 2099, 2014, 2130, 2022, 17374, 20325, 9549, 9273, 9275, 20905, 5961, 11401, 2000, 2058, 20183, 12829, 9547, 9405, 18918, 9409, 12872, 9011; 17130, 9370, 17127, 17126, 17256, 9360, 17253, 20006, 9271, 5961, 18796, 17359, 12873, 17579, 17578, 3924,9562,9277,20183,17575 4013,18287,17414,3326,16955,17405, 20922, 4013, 19893, 17592, 5961, 3921 of BWP, 17412, 20668, 2099, 2058, 16955, 3938 of 2000, 8044, 4204 of 2001, 18910, 18911 and 18913 of 2000, respectively).
(a) Punjab Civil Servants Act (VIII of 1974)------
----S. 2(1)(a)----- Ad hoc appointment---Status---Such appointments belong to the family of 'officiating', 'temporary' and 'until further orders'.
Federation of Pakistan v. Rais Khan 1993 SCMR 609 ref.
(b) Punjab Civil Servants Act (VIII of 1974)-----
----Ss. 2(1)(a) & 10---Punjab Service Tribunals Act (IX of 1974), S.2(ba)---- Ad hoc employee whether a civil servant---Such employee is a civil servant as he holds a civil post in connection with the affairs of a Province, is clot included in the persons excluded from the definition of civil servant and is governed by Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, having not been excluded from its operation, as well as S.10 of Punjab Civil Servants Act, 1974, having been described as a civil servant qua termination of service---Ad hoc employees are, therefore, civil servants within the contemplation of Punjab Service Tribunals Act, 1974.
(c) Punjab Civil Servants Act (VIII of 1974)------
----S.2(1)(a)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitutitia of Pakistan (1973), Arts.185(3), 199 & 212---Ad hoc employees.. Termination of service---Remedy---Invoking of Constitutional jurisdiction of High Court under Art. 199 of Constitution---Service of the petitioners ware terminated as they were ad hoc appointees---Order of termination w,, assailed before High Court by Constitutional petition and the same was dismissed in view of bar contained in Art.212 of the Constitution and they were advised by High Court to approach the Service Tribunal for redress of their grievance---Validity---In all cases related to terms and conditions of service remedy available to an aggrieved civil servant was by filing an appeal before Service Tribunal and not by. invoking Constitutional jurisdiction of High Court---Petitioners were civil servants at the time of termination of their service and their grievance was traceable to the terms and conditions of their service, therefore, they were obliged to seek redress of their grievance from Service Tribunal ---Supreme Court declined to interfere with the order passed by High Court---Leave to appeal was refused.
I.A. Sharwani and others v. Government of Pakistan through Secretary, - Finance Division, Islamabad and others 1991 SCMR 1041. Muhammad Shahbaz Cheema N~. Province of Punjab and others 1981 SCMR 469; WAPDA and 2 others v Muhammad Hussain Gul 1993 SCMR 2331; Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408 and Syed Mazhar Hussain Bukhari v . Secretary, Government of Punjab, Local Government and Rural Development, Lahore 1998 SCMR 1948 rel.
1999 SCMR 2786; 1991 SCMR 1041; 1999 SCMR 819; Federation of Pakistan and others v. Rais Khan 1993 SCMR 609; Shaheen Akhtar v. Government of Punjab and others 1998 PLC (C.S.) 70; Ghulam Sarwar Province of Punjab 1982 SCMR 46 and Muhammad Afzal Sohail and 11others v. Government of Punjab and others 1983 SCMR 859 ref.
A.K. Dogar, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1084 to 1165-L, 1173 to 1179-L, 1330-L, 1374-L, 1385-L, 1986-L, 1388-L, 1690-L and 1710-L of 2001).
Arif Chaudhry, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1188 to 1196-L, 1244 to 1246-L, 1261 to 1264-L, 1432 to 1434-L and 1474-L of 2001).
S.M. Zafar, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1255 to 1258-L, 1271 to 1274-L, 1320 to 1329-L, 1373-L, 1384-L, 1423-L, 1426-L and 1792-L of 2001).
Syed Najamul Hassan Kazmi, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners (in C. Ps. Nos. 1346 to 1372-L and 1389-L of 2001).
Mahmudul Islam, Advocate-on-Record for Petitioner (absent) (in C.P. 1260 of 2001).
C.M. Lateef, Advocate-on-Record for Petitioner (in C.P. No. 1387 L of 2001).
Petitioner in person (in C. P. No. 1620 of 2001).
Ch. Mehdi Khan Mchtab, Advocate-on-Record for .Petitioners (absent) (in C.Ps. Nos. 1855 to 1857-L of 2001).
Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. 1565 and 1570 of 2001).
Tariq Mehmood Khokhar, Additional Advocate-General, Punjab for Respondents (on Notice in all Petitions).
Dates of hearing: 11th and 12th June, 2001.
ORDER
QAZI MUHAMMAD FAROOQ, J.---The abovementioned petitions for leave to appeal are being disposed of by this common judgment on account of similarity of questions of law and fact involved therein.
2. The petitions are directed against the judgment dated 26-2-2001 of a learned Full Bench .of the Lahore High Court, Lahore whereby the writ petitions filed by the petitioners to challenge the order, dated 5-8-2000 in regard to termination of their services were dismissed with the observations that, if so advised, they may approach the Service Tribunal for redressal of their grievance and in case they choose to do so the Service Tribunal shall consider the question of limitation sympathetically.
3. Briefly stated the relevant facts are that through an advertisement published in the newspapers on 13-11-1995 applications were invited by the Government of the Punjab to fill up certain vacancies of Lecturers in the Education Department on ad hoc basis for a period of one year. The petitioners applied for the advertised posts and in due course were interviewed and selected by the Divisional Selection Board and offered the posts of Lecturers on ad hoc basis in BPS-17. The terms and conditions of appointments were highlighted and clearly specified in the letter offering the appointment. The petitioners accepted the offer and were duly appointed as ad hoc Lecturers in BPS-17 in their respective subjects on different dates in the month of February, 1996 and posted in different colleges. One of the terms and conditions of service was that they will serve in a purely temporary capacity- for a period not exceeding one year and shall automatically be terminated on the expiry of stipulated period unless extended by prior order or on the arrival of selectees of the Punjab Public Service Commission whichever is earlier or up to the date on which permanent incumbents of the posts resume duty. The period was extended by the Government of Punjab from time to time and ultimately the services of the petitioners were terminated/dispensed with ,vide order, dated 5-8-2000 issued by the Special Secretary Higher Education Punjab. It will be pertinent to mention that a few petitioners whose services were terminated alongwith the remaining petitioners were appointed as ad hoc Lecturers prior to 13-11-1995
4. Most of the petitioners are represented by Mr. A.K. Dogar, learned Senior Advocate Supreme Court, who raised the following contentions with great vehemence to assail the impugned judgment:--
(i) The petitioners being ad hoc employees cannot invoke jurisdiction of the Service Tribunal. An ad hoc employee is neither a servant nor 'holder of a civil post', or in the 'service of the province' within the meanings of sections 2 and 4 of the Punjab Service Tribunals Act, 1974 and section 2(b) of the Civil Servants Act, 1974 for more than one reason. His employment is not made in accordance with the prescribed method of recruitment and he becomes a civil servant after his employment is regularized. He has no terms and conditions of services as his service in fact starts after regularization. His employment can be terminated on one month's notice or one month's pay in lieu thereof and his service is neither counted towards seniority nor he is entitled to promotion.
(ii) The expression 'terms and conditions' mentioned in Article 212 of the Constitution is relatable to regular employees only who have been appointed in accordance with the method prescribed for such employment.
(iii) Section 4 of the Punjab Service Tribunals Act is ultra vires the provisions of Article 212 of the Constitution as the latter does not contemplate the establishment of a Court of appellate jurisdiction but that of original jurisdiction. A Court of exclusive jurisdiction is always a Court of original jurisdiction. The Constitution has also not envisaged filing of a representation and expiry of 90 days before filing of an appeal. The establishment of the Service Tribunal is mentioned in the Chapter of the Constitution which pertains to Judiciary, therefore, it is necessary that its Chairman and all the members are judicial officers.
(iv) The status of a civil servant is acquired by a person only after he is inducted into a post in the service of Pakistan as held in 1999 SCMR 2786.
(v) The Service Tribunal has no jurisdiction in the matter as the petitioners have not sought enforcement of any terms and conditions of service. The Service Tribunal has jurisdiction in a matter which is founded only on the terms and conditions of service as observed in 1991 SCMR 1041 and only that appeal is maintainable before the Service Tribunal wherein the question involved relates to the enforcement of the terms and conditions of service as observed in 1999 SCMR 819.
(vi) The petitioners were appointed on ad hoc basis after advertisement of posts and interview conducted by a Divisional Selection Board having two subject specialists on its panel and were selected on merits. The Divisional Selection Board was akin to the Punjab Public Service Commission. The period of their appointment was extended in spite of availability of recommendees of the Punjab Public Service Commission. The petitioners had thus acquired the status of permanent employees but they were not treated in accordance with law and discriminatory treatment was meted out to them in that from 1972 onwards services of many ad hoc lecturers were regularized by the Government without making a reference to the Punjab Public Service Commission but they were not regularized. Besides, their services were terminated without a show cause notice. The writ petitions filed by the petitioners were maintainable and competent and the High Court ought to have assumed jurisdiction and resolved the controversy as the matter involved violation of Articles 4 and 25 of the Constitution and the principle of natural justice. Reliance was placed on Federation of Pakistan and others v. Rais Khan (1993 SCMR 609).
(vii) The cases of the petitioners are governed by Rule 16 of the Appointment and Conditions of Service Rules, 1974 and Rule 22 is not attracted.
5. Mr. S.M. Zafar Senior, Advocate Supreme Court, learned counsel for the petitioners in C. P. No. 1225-L of 2001 while adopting the arguments addressed by Mr. A.K. Dogar contended that the order was mala fide and the question raised by the petitioners pertained to determination of the nature of their appointment, which was altered by subsequent events, and not enforcement of terms and conditions of their service, therefore, the matter fell within the exclusive jurisdiction of the High Court. He further contended that termination of services of the petitioners on the ground that they were no more qualified for the posts of Lecturers is relatable to the qualification and fitness of the petitioners to hold the posts and not to the terms and conditions of their service, therefore, the jurisdiction of the Service Tribunal is ousted. It was also contended that the petitioners were selected by a competent forum set up by the Government and had worked for a considerable long time, therefore, the High Court ought to have assumed jurisdiction to determine whether the right and interest created through the decisive steps taken by the Government after their appointment were taken away in accordance with law or not. It was lastly contended that a case for decision of the writ petitions on merits by the High Court was made out on equitable grounds as well because the petitioners, who have been left high and dry, had raised the question of regularization of their services in the light of several precedents and directive dated 1-6-1992 of then Prime Minister that all ad hoc lecturers employed in the Federal Government and Garrison Educational Institutions who have completed two years of service are to be treated as confirmed and not to be removed from service.
6. Syed Najamul Hasan Kazmi, Advocate Supreme Court, learned counsel for the petitioners in C. Ps. Nos. 1346 to 1372-L of 2001, adopted the arguments addressed by Mr. A.K. Dogar and Mr. S.M. Zafar and also expressed his anxiety about the remarks with regard to performance of the petitioners before the Public Service Commission, recorded by one of the learned members of the Full Bench, which according to him had virtually decided an important issue involved in the case and also put the petitioner under the vestige of a stigma.
Mr. Tariq Mehmood Khokhar, learned Additional Advocate -General, Punjab supported the impugned judgment by reiterating the reasons recorded therein. The main thrust of his contentions was that jurisdiction of the High Court was ousted as the petitioners were civil servants and the questions for determination pertained to terms and conditions of their service. It was also contended that the petitioners had failed to clear test and interviews conducted by the Punjab Public Service Commission in spite of availing a number of chances and in the face of the terms and conditions of their service they had no right to claim that they had become permanent by efflux of time. Reliance was placed on Shaheen Akhtar v. Government of Punjab and others (1998 PLC (C.S.) 70), Ghulam Sarwar v. Province of Punjab (1982 SCMR 46), I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) and Muhammad Afzal Sohail and 11 others v. Government of Punjab and others (1983 SCMR 859).
8. We do not feel persuaded to agree with the contentions raised by the learned counsel for the petitioners and find substance in the submissions made by the learned Additional Advocate-General that the matter falls within the exclusive jurisdiction of the Service Tribunal and the impugned judgment is unexceptionable. The reasons are not far to seek. Jurisdiction of Courts other than the Service Tribunal is expressly barred under Article 212 of the Constitution and the Service Laws in respect of matter relating to the terms and conditions of persons who are or have been civil servants. The petitioners were appointed as lecturers on ad hoc basis, therefore, the first point for determination is whether they are civil servants
9. As defined by Article 260 of the Constitution the expression "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly. According to clause (a) of subsection (1) of section 2 of the Punjab Civil Servants Act, 1974 the expression "ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending recruitment in accordance with such method. Ad hoc appointments belong to the family of "officiating", "temporary" and "until further orders" appointments as held in Federation of Pakistan v. Rais Khan (1993 SCMR 609). The expression "Civil servant" has been defined in clause (b) of subsection (1) of section 2 of the Punjab Civil Servants Act, 1974 as well as clause (b) of section 2 of the Punjab Service Tribunals Act, 1974. The definition contained in the Punjab Civil Servants Act, 1974 reads as under:--
means a person who is a member of a civil service but does not include--
(i) a person- who is on deputation to the Province from the Federation or any other Province or authority;
(ii) a person who is employed on contract, or on work-charge basis, or who is paid from contingencies; or
(iii) a person who is a worker or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."
The definition given in the Punjab Service Tribunals Act, 1974 is worded thus-
"'Civil Servant' means a person who is or who has been member of a civil service of the Province, or who holds or has held 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 Province from the Federation or any other Province or authority;
(ii) a person who is or has been employed on contract, or on work- charge basis, or who is or has been paid from contingencies; or
(iii) a person who :is o- has been a ' worker' or 'workman' as defined in the Factories Act, .1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."
10. As would appear from the definition of "civil servant" contained in the Punjab Civil Servants Act, 1974 as also the Punjab Service Tribunals Act, 1974 a person who holds a civil post in connection with the affairs of the Province and is not-included in the persons cateogorized under sub clauses (i), (ii) and (iii) is a civil servant. An ad hoc" employee is a civil servant as he holds a civil post in connection with the affairs of a Province, is not included in the person excluded from the definition of civil servant and is governed by the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, having not been excluded from its operation, as well as section 10 of the Punjab Civil Servants Act, 1974, having been described as a civil servant qua termination of service. The petitioners are, therefore, civil servants within the contemplation of the Punjab Service Tribunals Act, 1974.
11. The second point to be determined is whether the dispute involved in these petitions relates to the terms and conditions. of service of the petitioners. The petitioners were inducted into service on ad hoc basis for a period of one year in accordance with the procedure for making an ad hoc appointment contained in Rule 22 of -the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which reads as under:--
"22(1). When a post is required to be filled, the appointing authority shall forward a. requisition to the Selection Authority immediately after decision is taken to fill the post.
(2) After forwarding a requisition to the Selection Authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding one year pending nomination of a candidate by the Selection Authority.
Provided: (1) The vacancy is advertised properly in the newspapers;
(2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post;
(3) the selection is made on the basis of merit determined by objective criteria;
(4) the appointment order certifies that a requisition has been sent to the Selection Authority; and
(5) the appointment is made subject to revocation at any time by the competent authority:
Provided further that: ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade.
(3) Governor may for special reasons, relax any of these conditions in any individual case."
12. The existence of the terms and conditions of service of the petitioners has not been disputed and rightly so because the same are incorporated in the letters whereby appointment on ad hoc basis was offered to the petitioners and are worded thus:--
"Subject: OFFER OF APPOINTMENT FOR THE POST OF LECTURER 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. PA-DS(E)1-1-1996, dated 4-2-1996, you are hereby offered a post of Lecturer on ad hoc basis in BPS-17 (Rs.3380-290-7360) 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 (1) above the appointment is subject to the revocation at the discretion of the Government.
(iii) Liable to termination at anytime, even within the period specified in (i) without assigning any reason from either 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 and Superintendents 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 credentials by the concerned authorities.
In case you are willing to accept the offer on the above terms and conditions you should report yourself for duty within 10 days of the issue of this appointment letter to the Principal, Government Degree/Inter College failing which the offer shall be deemed as cancelled without any further notice.
13. The learned counsel for the petitioners have made an attempt to enlarge the scope of the dispute and bypass the Service Tribunal by challenging vires of section 4 of the Punjab Service Tribunals, Act, 1974, introducing fundamental rights and elements of discrimination, regularization and fitness for promotion etc. but the dispute essentially relates to the terms and conditions of service of the petitioners. In all cases relating to terms and conditions of service remedy available to an aggrieved civil servant is by filing an appeal before the Service Tribunal and not by invoking writ jurisdiction of the…
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