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Petitioner: Dr. NAVEEDA TUFAIL and 72 others VS Respondent: GOVERNMENT OF PUNJAB and others
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Muhammad Nawaz Abbasi, Tanvir Ahmed Khan Title: Dr. NAVEEDA TUFAIL and 72 others vs GOVERNMENT OF PUNJAB and others Case No.:Civil Petitions Nos.1093 to 1117, 1135 to 1141, 1169 to 1183, 1190 to 1214 and 1229 of
JUDGMENT
Reported As: 2003 SCMR 291 Result: Appeal allowed Judgment 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
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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 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 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 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 (2001 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.
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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 framed 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 filling 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
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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 in case 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 (1) 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) of subsection (1) of section 10 creates a complete bar to the termination of the services of 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 taken 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
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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:- ' 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 26-11-1976 clearly stated that the appointment was on ad hoc basis. The subsequent order dated 28-8-1977, which was in partial modification of the said order, clarified that the appointment of the respondent was to be treated as temporary against a leave vacancy till the same exists. The termination, that is, the temporary appointment was against a leave vacancy. The respondent had accepted the offer made in the first order and had acquiesced in the second order, copy of which had been duly endorsed to him. There is no material to support his stand that his appointment had been against a substantive vacancy or on probation. The Tribunal has apparently not given due consideration to the terms of his appointment and has fallen into error in arriving at the conclusion that he had been regularly appointed and after serving in 2 years probation period, stood automatically confirmed in the said service". 8. Learned counsel for the petitioners while conceding the legal position regarding the tights of ad hoc employees to claim retention as regular employees, contended that in the light of rule of legitimate expectancy, the petitioners can claim regularization subject to their eligibility to hold the posts. The stress of the learned counsel was that the petitioners were appointed on ad hoc basis following the prescribed procedure and method of selection by the Selection Committee as the posts were properly advertised for information of public in general and selection of the petitioners was made on merits in the light of prescribed criteria without political or any other consideration. The respondents in their written reply submitted before Punjab Service Tribunal have admitted that the applications for posts against which the petitioners were appointed as ad hoc lecturers were invited for appointment of lecturers through advertisement in the newspapers and the criteria for judging the suitability of the candidates required for appointment of lecturers in the Government institutions was fixed and their selection was made by the Selection Board constituted by the Education Department on merits. The respondents also admitted in the comments that during the
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years 1972, 1976 and 1989 the employees appointed on ad hoc basis were regularized and the policy relating to regularization and confirmation of ad hoc employees announced by the Federal Government in 1997 was not followed by the Government of Punjab and that in any case the petitioners were not more ad hoc employees of Education Department to be considered for regularization. It was, however, stated in the comments that the Education Department in the Government of Punjab had given special concession in respect of additional marks, extra chance, relaxation of age and entitlement for interview on obtaining 33 per cent marks in the written test to the ad hoc employees for the purpose of their selection by the Punjab Public Service Commission. The learned Advocate-General has contended with vehemence that notwithstanding the length of service of the petitioners they being ad hoc employees would have no right for regularization/confirmation or permanent rentention in service in departure to the procedure provided under the law for the recruitment of such posts. The learned Advocate-General added that the appointment of the petitioners on ad hoc basis was conditional and neither they were given any understanding of regularization nor any such policy was framed for their regularization. 9. The making of recruitments on ad hoc basis with or without advertisement of the posts in the normal circumstances, amounts to curtail the legitimate right of appointment of deserving persons on regular basis and is against the policy of law. The concept of ad hoc appointments against the posts in public sector is a stopgap arrangement which is not the permanent character of the civil service. It is not proper in the public sector to occupy the posts required to be filled 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 the filling the posts on regular basis. It was observed by this Court in Abdul Jabbar Memon and others (1996 SCMR 1349) that there can be no justification to take keep the posts notionally vacant by making ad hoc appointments and keep the ad hoc employees hanging in the same situation for number of years with the understanding of their adjustment on permanent basis and ultimately they are informed that they are no more required. This method of appointments in the public sector by the functionaries is misuse of the authority of law as in the normal circumstances, recruitment against the posts in the Government Department, the statutory bodies and organizations should be filled within reasonable time by following the procedure provided under the law for fulfilling such posts on the basis of open merit through Public Service Commission. There can be no exception to the policy of law that the ad hoc appointments should be made only in exceptional circumstances in exigencies of service and should not be allowed to prolong beyond the period for which the appointment was made and keeping a person continuously as an ad hoc employee by extending his period of service, would definitely create a legitimate expectancy in his mind for regularization. The practice of occupying the posts through ad hoc appointments for a considerable period on one hand defeats the policy of law and on the other hand; with lapse of time the ad hoc employees as well as the persons seeking appointments on merits, are excluded from the process by loosing the required criteria for selection. In Human Rights Case No,104 of 1992, this Court on 26- 12-1992 issued the following direction:-- ' "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. ' Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith.
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' Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement." 10. There is no cavil to the proposition that an 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 appointments for number of years without undertaking the exercise of selection on regular basis in the prescribed manner. The ad hoc appointment is appointment of a duly qualified person made otherwise in accordance with prescribed method of recruitment and is made only in exceptional circumstances. This stopgap arrangement as a temporary measure for a particular period of time does not by itself confer any right on the incumbent for regular appointment or to hold it for indefinite period but at the same time if it is found that incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, he would carry the right to be considered for permanent appointment through the process of selection as the continuation of ad hoc appointment for considerable length of time would create an impression in the mind of the employee that he was being really considered to be retained on regular basis. The 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 and the appointing authority may in his discretion if necessary, make 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. We may observe that practice of making appointments on ad hoc basis for continuous period without taking steps for fulfilling the vacancies through the process of selection in the prescribed manner amounts to misuse the…
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