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Petitioner: PROVINCE OF PUNJAB and others VS Respondent: AZHAR ABBAS and others
Court Name: Supreme Court of Pakistan Judge(s): Irshad Hasan Khan, Muhammad Arif, Qazi Muhammad Farooq Title: PROVINCE OF PUNJAB and others vs AZHAR ABBAS and others Case No.:Civil Petitions Nos.1026-L to 1056-L, 1208-L to 1243-L, 1265-L 1268-L, 1305-L to
1319-L and 1442-L of 2001, Date of Judgment:2001-07-11 Reported As: 2001 SCMR 1712 Result: Leave granted Judgment ORDER ' IRSHAD HASAN KHAN, CJ.---The petitioners/Government of Punjab, etc. Have filed Civil Petitions Nos.1026-L to 1056-L of 2001, 1208-L to 1243-L of 2001, 1265-L of 2001, 1268-L of 2001 and Civil Petitions Nos. 1305-L to 1319-L of 2001 arising out of consolidated judgment passed by the Punjab Service Tribunal, Lahore (hereinafter called the Tribunal), on 30-11-2000, whereby the appeals of the respondents herein were accepted seeking leave to appeal there against. Civil Petition No,1442-L of 2001 filed by Muhammad Sharif Butt also seeks leave to appeal against impugned judgment. We propose to dispose of the above petitions through this common order. 2. Brief facts are that the respondents in the above petitions were appointed in different departments of Government of Punjab on ad hoc basis. These ad hoc appointments, on expiry of initial periods, mostly of six months, were continued and their periods of such appointments were extended from time to time till their termination from services by various termination orders issued by their respective departments. 3. After exhausting departmental remedies, the respondent approached the Tribunal for redress of their grievances by filing separate appeals before it. It would be advantageous to reproduce, as specimen, one of the termination letters, issued by the Chief Engineer, Irrigation Sargodha Zone, Sargodha dated 12th August, 1993, available at page 24 of the Paper Book in C.P. No, 1032-L of 2001, relevant portion whereof reads thus:-- ORDER ' "No, 17436/Admn:II/103/74.--In pursuance of order dated 19-1-1993 of Honourable Supreme Court of Pakistan and advice of Government of Punjab Service General Administration and Information
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Department, Lahore, contained in their letter No,SOR111-2-90-90 (Latifullah), dated 27-7-1993, received through Secretary to Government of Punjab, Irrigation and Power Department, Lahore, letter No,Estt-III/15-37/93, dated 11-8-1993, the services of following Sub-Engineers working on ad hoc basis are hereby discontinued with immediate effect.".. 4. The case of the respondents before the Tribunal was that they had served their respective departments for a considerable period and in some cases more than five years; that their appointments were made in public interest and that in law their services could be dispensed with only when regularly selected incumbents were made available in the prescribed manner. Reference was made to sections 2(1)(a), 5(1) and 10(1)(ii) of the Punjab Civil Servants Act, 1974 (hereinafter called the Act), which provisions are reproduced hereunder in seriatim for facility of reference:-- "2. Definitions.--(1)(a) '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." "5. Probation.--(1) An initial appointment to a service or post referred to in section 4, not being an ad hoc appointment, shall be on such probation and for such period of probation as may be prescribed." "10. Termination of service.--(1)(ii) if the appointment is made on ad hoc basis liable to termination, on the appointment of a person on the recommendation of the Selection Authority on the appointment of such person." ' Insofar as section 5(1) ibid is concerned, the Tribunal, in paragraph 8 of the impugned judgment observed as under:- ' "Initial appointment is visualized to be quite distinct from ad hoc appointment as per section 5 of the Punjab Civil Servants Act, 1974 inasmuch as the latter has been excluded from the purview of the incidence of probation. The clause relating to termination of a regularly recruited employee during the probation period, initial or extended, would have no application to the termination of an ad hoc appointee. If both are placed at par, the exclusionary clause in section 5 of the Act (ibid) will become redundant and redundancy, they say, cannot be imputed to the Legislature." 5. The petitioner/Departments, relying on Rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 (hereinafter called the Rules, contended before the Tribunal that ad hoc appointment, in terms of the above Rules, cannot exceed beyond a period of one year without relaxation of Rules and that such appointment did not confer any right on the employee to continue indefinite as it could be terminated at any time on thirty day's notice or pay in lieu thereof in terms of section 10(3) of the Act. 6. From the pleadings of the parties, the question which arose for determination was whether an ad hoc appointment, can be terminated without first selecting a person on regular basis in a prescribed manner. 7. After hearing the learned counsel for the parties, the Tribunal by majority of 2 to 1, came to the following conclusion:- ".14. In the light of above discussion and observations the appellants are held entitled to hold and continue their positions as they were holding at the time of passing the impugned orders till such time the regular selectees are made available through prescribed method and in accordance with law by the respective Departments. The impugned orders are declared to have been passed without lawful authority and the same are set aside as such. All the appeals as enumerated in Annexure-A stand accepted in the above terms leaving the parties to bear their own costs." 8. The minority view was expressed in the following terms:- ' "For the following reasons, I respectfully differ with the findings expressed in the judgment: --
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(i) It was vehemently argued by the District Attorney that in all the appeals, the procedure laid down for the appointment on ad hoc basis was , not followed. Rule 22 of the Punjab Civil Services (Appointment and Conditions of Service) Rules, 1974, specifically laid down the procedure. Sub-rule (2) of the said rule is reproduced below for facility of reference.-- "22.--(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 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." ' "It was argued that these appointments were procured by exerting political influence through the Chief Minister, Ministers, M.N.As. And M.P.As, etc., such appointments have been depricated by the Hon'ble Supreme Court in the famous Human Rights, case reported in 1996 SCMR 1349. It was also pointed out that the latest judgment in line was delivered by the Full Bench of the Tribunal in Appeal No, 615 of 1994, wherein it was held that the ad hoc appointments are liable to termination on 30 days' notice or pay in lieu thereof as provided under section 10(iii) of the Punjab Civil Servants Act, 1974. This judgment still holds the field." ' "Even otherwise, the ad hoc appointments by its very nature are temporary and restricted to a specified period of time. In the impugned cases, the appointments were allowed to continue for an indefinite period, which infringes and violates the spirit of Rule 22(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974." ' "I very much appreciate the Qur'anic Injunctions referred to in para.13 of the judgment. To my mind public service is a trust and the public functionaries are under obligation to discharge .Their duties in the most efficient, transparent and diligent manners as laid down in the Human Rights' case, judgment referred to above. The vacancies should be published in the locality, applications should be invited from the eligible candidates and a merit list prepared and the post offered to the most eligible candidates. This would actually fulfil the Injunctions of the Qur'an rather than persons who got appointment without any merit and on other considerations." 9. Mr. Maqbool Elahi Malik, learned Advocate-General, Punjab appearing on behalf of the Petitioners/Departments vehemently contended that the Tribunal had failed to appreciate that the Chief Minister had made appointments to achieve political motives and the Departments had to implement the order of the Chief Minister owing to undue political pressure, although the order was passed by the Chief Minister without observing prescribed procedure. He contended that the. Tribunal did not appreciate that A the Government is under no legal obligation to extend the period of service of an ad hoc appointee, who is liable to be terminated if the Government does not grant extension in service under the relevant Rules. He next contended that the Government was within its right to terminate the services of the respondents employed on ad hoc basis under section 10(3) of the Act. He finally contended that availability of regular selectees is not a condition precedent for termination of ad hoc employees under section 10(3) of the Act which is self-contained code notwithstanding the provisions of section 10(1) and (2) ibid. Malik Noor Muhammad learned Advocate Supreme Court appearing on behalf of respondents/caveators in Civil Petitions Nos. 1027, 1028, 1030, 1040, 1048 and 1056-L of 2001 supported the impugned judgment.
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10. It would be appropriate at this stage to make a brief survey of the law laid down by. The superior Courts in regard to appointments made on ad hoc basis. In Federation of Pakistan v. Rais Khan (1993 SCMR 609 at 617-G), this Court observed as follows:-- ' "We have consciously made reference about this matter as it is common knowledge that in spite of institution of ad hoc appointments unfortunately being deeply entrenched in our service structure and the period of ad hoc service in most cases running into several years like the case of the respondent (8 years' ad hoc service in BPS-17), ad hoc appointees are considered to have hardly any rights as opposed to regular appointees though both types of employees may be entrusted with identical responsibilities and discharging similar duties. Ad hoc appointments belong to the family of "officiating", "temporary" and "until further orders" appointments....". ' In Abdul Majid Sheikh v. Mustafa Ahmed (PLD 1965 SC 208 at 221), it was held: "....To repeat the Government could not as au ordinary and permanent arrangement fill permanent posts by employees subject to a condition of termination of employment by notice. The Government could fill the post in this manner if the Government was unable to get a person with proper qualifications and was filling the post as an interim measure till it secured a person with proper qualifications, and conceivably in some other special circumstances, for some time, but it cannot adopt it as a rule that the post will be filled in this manner. When I ask myself the question as to why the Government is filling a permanent post in this manner I find no answer except that the Government wants to retain a power of arbitrary termination of service so as to defeat the Constitutional guarantee. No condition of service that is intended to defeat a Constitutional guarantee can be permitted to be operative." ' In Jaffar Ali Yousafzai v. Islamic Republic of Pakistan (PLD 1970 Quetta 115 at 133), it was observed:- - "29. We have also posed a question to ourselves as was done by Kaikaus, J, in the case of Abdul Majid Sheikh, as to why the Government/competent authorities are filling some permanent posts in this manner. We have not found any answer except the one, to borrow the phrase used by his Lordship that 'the Government wants to retain a power of arbitrary termination of service as to defeat the Constitutional guarantee'. The authorities, it appears, whenever want to retain a power of removal, reduction in rank etc., although not otherwise empowered to do so under a law or a rule having the force of law, attach or continue to apply some conditions which are not, or do not remain, strictly valid and Constitutional, as we have found in the present case. We, in respectful agreement and obedience to the dictum of their Lordships of the Supreme Court, cannot therefore, permit the Government and/or other authorities to retain extra-Constitutional power of arbitrary termination of service so as to defeat the Constitutional guarantees available to civil servants, by doing what is not permissible by law, and will not give effect to such conditions....". . ' In WAPDA v. Muhammad Hussain GuI (1993 SCMR 2337), it, was observed: "(a)....Civil servant not only passed written examination prescribed for the post but his appointment was also approved by the Selection Board -- There being no condition attached to the ad hoc appointment of civil servant except that on his passing the test and having been selected by the Selection Board, he was entitled to regular appointment in terms of his appointment letter --- Civil servant's termination from service was thus, not valid and he was entitled to be reinstated in service." ' In C.P. No, 768-L of 1997 (Secretary Education, Civil Secretariat, Lahore v. Nasira Iqbal, decided on 19-11-1998), this Court observed:-- ' "Be that as it may, learned counsel for the petitioners frankly conceded that the regular posts of Subject-Specialists against which the present respondents are working since 1987, are yet to be filled in by the Punjab Public Service Commission. If that is so, the Tribunal was right in allowing them to continue in public interest so that the work of the Government may not suffer inasmuch as
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they had admittedly been working as such for the last seven years without any complaint. The result is that the respondents shall continue in their present posts till the induction of regular appointees and the petitioners shall be at liberty to pass appropriate orders in accordance with law as soon as the regular incumbents are appointed...." ' In Gohar Masood v. Secretary, Health Department (2001 SCMR 1128), it was observed:-- "6. Be that as it may and without expressing any opinion as to the merits of the case, which necessitates inquiry in each and every case individually and not in a rolled up manner before passing the termination orders, it appears appropriate that in each case the Competent Authority should issue a show-cause notice stating therein, with particularity, the grounds for proposed termination within three weeks from the date of receipt of a copy of this order. On receipt of show- cause notices, each appellant shall' furnish reply with liberty to raise all pleas available to him under the law. The competent authority, on receipt of replies, shall finally dispose of all these cases individually on merits and in accordance with law within three weeks thereafter through a speaking order, copy of which shall he sent to all concerned. In the event of a favourable decision, all qualified persons shall be entitled to reinstatement with full back benefits In cases of those not found . Eligible or qualified to be retained in service they would be entitled to pursue their remedies before the appropriate Service Tribunal after complying with the requirement of department appeal/representation there against." ' In the above cases, however, the provisions of section 10 and, in particular, subsection (3) thereof, which provides: "Notwithstanding the provisions of subsection (1) but subject to the provisions of subsection (3), the services of a civil servant in temporary employment or appointed on ad hoc basis shall be liable to termination on thirty days notice or pay in lieu thereof" were not dealt with The above decisions therefore are, prima facie, not relevant for the purposes of interpretation of section 10(3) of the Act 11. In Ghulam Sarwar v. Province of Punjab (1982 SCMR 46), it was observed:- ' "In making appointment of the petitioner, the normal rules of recruitment had not been followed. The appointment had been made on compassionate grounds, It was expressed to be ad hoc. Simply by lapse of time such an appointment could not become regular. It is true that the petitioner was not given a month's notice as was required to be given while terminating the services of an ad hoc appointee. This requirement of the law, however, is not without an alternative. In he absence of such a notice, the petitioner's claim extends to a month's pay. He has to seek it from the appropriate authority. He cannot on that score avoid the termination of his ad hoc appointment,' ' In Muhammad Shahbaz. Cheema v Province of Punjab (1981 SCMR 469), this Court held: ' The term ad hoc appointment has been defined in clause (a) of subsection (1) of section 2 of the Punjab Civil Servants Act, 1974 as meaning appointment of a 'duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method. According to section 10 of the same Act, the services of a civil servant may be terminated without notice during the initial or extended period of his probation; and if the appointment is made on ad hoc basis liable to termination, then on the appointment of a person on the recommendation of the Selection Authority. Subsection (3) of section 10 further contemplates that notwithstanding the provisions of subsection (1), but subject to the provisions of subsection (2), with which we are not concerned in the present case, the service of a civil servant in temporary employment or appointed on ad hoc basis shall be liable to termination on 30 days' notice or pay in lieu thereof." ' "It appears that it was in accordance with these provisions that in the appointment orders given to the petitioners, it was clearly stipulated, in clauses (4) and (5) of the offer of appointment, that their services were liable to be terminated without notice and without assigning any cause. Both the
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petitioners accepted their ad hoc appointments on the clear understanding that they were not acquiring any vested legal right to hold the appointments on a regular basis. In fact, from the very definition of the term, as reproduced by us in the preceding paragraph, it is clear that an ad hoc appointthent is not made in accordance with the prescribed method of recruitment, and is liable to be terminated if a regular recruited candidate becomes available. In this background, it is clear that the grievance of the petitioners that an advertisement had been put out by the Department for fresh recruitment on a regular basis, even when the petitioners were still continuing in service is entirely misconceived. Their ad hoc appointment was only a stopgap arrangement, and the Department was under a legal obligation to make regular recruitment during the continuance of the petitioners on an ad hoc basis." ' In Muhammad Azam Ali v. Government of the Punjab through Chief Secretary (1985 SCMR 1408), at page 1+09. Placitum 'A' of the report, it has been held:-- "5. 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." ' In Nasrullah Khan v. The Registrar, Peshawar High Court, Peshawar (PLD 1993 SC 195), this Court held:-- ' ...There is no provision in the Civil Servants Act, 1973 regarding automatic confirmation of the temporary employees, as the Authority concerned has to certify the successful completion of probation period before, specific order regarding confirmation of the employee is passed to convert the nature of the employment from temporary to regular one. There being no such order, the appellant continued to be a temporary employee and his services were liable to termination on 14 days' notice or pay in lieu thereof under section 11, subsection (3) of the N.-W.F.P. Civil Servants Act, 1973." ' In Federation of Pakistan v. Hashim Shah Qureshi (1987 SCMR 156), wherein at Placitums B et seq & C, it was held: ' "....No rule or term and condition of appointment cited for claiming that continuation for eight years or more in service ipso facto converted temporary appointment into permanent appointment---Post against which appointment was made being itself temporary, employee, held, could not be made permanent nor could his posting on a permanent post make his appointment permanent---No concept of automatic confirmation exists and same in discretion of employer exercisable on availability of permanent post and after completion of probationary period---Power of employing persons and terminating their employment given in public interest, held, had to be exercised in public interest, without arbitrariness or malice---Appointment of employee being expressed to be temporary, he could not become a permanent employee notwithstanding completion of probationary period--Termination of his service being in accordance with conditions of his employment, not violative of S.11(3), Civil Servants Act, 1973 or Temporary Employment Rules, 1965, employee, held, could not seek redress against same." 12. The learned Advocate-General placed reliance on Muhammad Ashraf v. Government of Punjab (PLJ 1998 Tr.C. (Services) 77), wherein Tribunal took the following view on the scope of section 10 read with section 2(1)(a) of the Act: "4. Learned counsel for the appellant firstly contended that according to the definition of the term 'ad hoc appointment' given in section 2(a) of the Punjab Civil Servants Act, 1974, the service of an
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ad hoc employee could not be terminated without getting a regularly selected incumbent to replace them. Section 2(a) of Punjab Civil Servants Act, 1974 reads as under:-- ' "Ad hoc appointment means appointment of duly qualified persons otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method." ' "This definition only provides that a duly qualified person could be appointed to a post on ad hoc basis before recruitment to the post is made in accordance with the prescribed method of recruitment. Section 2(a) (ibid) does not prescribe the method or the circumstances under which the services of an ad hoc employee could be terminated. The relevant provision which deals with the subject of termination of the service of an ad hoc appointee, is contained in section 10 of Punjab Civil Servants Act, 1974. Learned counsel for the appellants asserted that according to clause (ii) of subsection (1) of section 10, the appointments made on ad hoc basis could be terminated only on appointment of a person on the recommendation of the Selection Authority. In support of this contention learned counsel for the appellants cited the following cases:- (i) 1995 PLC (C.S.) 765 (Punjab Service Tribunal. Lahore), Syed Sajid Hussain Zaidi v. Secretary, Government of the Punjab Agriculture Department, Lahore. (ii) 1995 PLC (C.S.) 611 (Punjab Service Tribunal, Lahore), Muhammad Imran v. Secretary, Government of the Punjab, Agriculture Department, Lahore. (iii) 1995 PLC (C.S.) 433 (Punjab Service Tribunal, Lahore), Hussain Ahmad v. Secretary Government of the Punjab, Agriculture Department, Lahore. (iv) 1995 PLC (C.S.) 377 (Punjab Service Tribunal, Lahore) Azhar Munir v. Secretary, Government of the Punjab, Agriculture Department, Lahore. (v) 1981 SCMR page 469 (Muhammad Shahbaz Cheema v. Province of Punjab etc.). ' No doubt it was held in the cases at Serial Nos. (i) to (iv) mentioned above that an ad hoc appointment would remain in effect till…
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