Full Judgment Text & Judicial Ruling

2005 P L C (C

2005 P L C (C.S.) 652 [Quetta High Court] Before Akhtar Zaman Malghani and Muhammad Nadir Khan, JJ MUHAMMAD WASAY TAREEN versus HON BLE CHIEF JUSTICE, HIGH COURT OF BALOCHISTAN through Registrar High Court Building Quetta and another Service Appeal No.1 of 2000, decided on 21st February, 2004.

Balochistan Subordinate Judiciary Service Tribunals Act (VI of 1989)--- ----S. 5---Balochistan Civil Servants Act (IX of 1974), S. 5---Ad-hoc appointment---Confirmation of---Appeal to Service Tribunal---Appellant was appointed as District and Sessions Judge on Ad-hoc basis against a vacant post for period of six months or till the time regular appointment was made by Balochistan Public Service Commission---Said period of six months remained extended but after two years of said original appointment, a notification was issued by Authority whereby period of ad-hoc appointment of appellant was not further extended as competent Authority did not find conduct and performance of the appellant satisfactory---No allegation of misconduct or any other charge, however, was levelled against appellant in the notification whereby further extension was not allowed---Said order could not be termed as removal or dismissal from service---Ad hoc appointment would not create any right incumbent to remain in service and order of termination or refusal to extend period further would be unexceptionable notwithstanding incorrectness of reasons therefor---Refusal for extension in ad hoc appointment, not being in consequence of any misconduct so as to call for inquiry, there was no necessity to serve on appellant show-cause notice or give him opportunity to say something against the proposed action---Appeal against said order was not competent as impugned notification could not be termed as order in respect of terms and conditions of his service---Even otherwise no appeal was competent against order of competent Authority determining fitness or otherwise of appellant to be appointed or hold particular post as provided by subsection (b)(1) of S. 5 of Balochistan Subordinate Judiciary Service Tribunal Act, 1989---Appeal filed by appellant was dismissed in circumstances.

PLD 1974 SC 291; PLD 2003 SC 420; 1995 PLC (C.S.) 765; 1993 PLC (C.S.) 243; 1997 SCMR 1552; 1984 SCMR 65; 1997 SCMR 1581; PLD 2001 SC 176; PLD 2001 SC 555; 2002 SCMR 82; PLD 2002 SC 101; 1996 SCMR 413; 1982 SCMR 408; PLD 1982 Lah. 42; 1977 PLC (CST) 80; 1975 PLC (CST) 40; 1997 SCMR 1514; PLD 1974 SC 393; 1990 SCMR 1510; PLD 2003 SC 420; PLD 1971 SC 677; 1994 PLC (C.S.) 1339 and 1995 PLC (C.S.) 938 ref. M. Aslam Chishti for Appellant. Raja M. Afsar for Respondents. Haji Ghulam Mustafa Mengal Addl. A.-G. Date of hearing: 17th February, 2004.

JUDGMENT AKHTAR ZAMAN MALGHANI, J.---This appeal is directed against the order of Competent authority issued vide Notification dated 10th August 1999, whereby; services of the appellant were not further extended. 2. Briefly stated, facts of the case are that in the year 1997 the High Court of Balochistan, Quetta issued an advertisement inviting applications for filling one of the vacant posts of District and Sessions Judge on ad hoc basis. The appellant along with nine other advocates filed applications, out of whom seven appeared for oral interview and the appellant was found suitable for the post as District and Sessions Judge. On the recommendation of the High Court, the Provincial Government through Notification dated 12th August, 1997 appointed the appellant as District and Sessions Judge on ad hoc basis for a period of six months or till the time the regular appointment was made by the Balochistan Public Service Commission, which ever was earlier. It appears from the record that during such period an amendment was made in rule-4 of the Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules 1980 on 18th September, 1997, whereby; the word Government was substituted with the word of High Court . The record further reveals that after expiry of six months, a notification was issued by the High Court of Balochistan extending the ad hoc appointment of the appellant as District and Sessions Judge for further period of six months with effect from 12th February, 1998. The said period was further extended vide notification dated 29th July, 1998 till 11th February, 1999. The record further reveals that the ad hoc appointment of the appellant was extended for a further period of six months with effect from 12th February, 1999 to 11th August, 1999. On 10th August, 1999 the impugned notification was issued whereby the period of ad hoc appointment of the appellant was not further extended. 3. The appellant after issuance of said notification filed a review petition before the Hon ble Chief Justice on 9th September, 1999 and after waiting for the prescribed period and receiving no information about the decision of his review petition, preferred the instant appeal. 4. We have heard the learned counsel for the appellant as well as Mr. Raja M. Afsar Advocate appearing for the respondents and learned Advocate General. The learned counsel for the appellant raised following contentions:-- (1) That on 12th August, 1997 the appellant was appointed as District and Sessions Judge on ad hoc basis by the Government of Balochistan vide notification dated 12th August, 1997 on the recommendation of Selection Committee, whereas; amendment in the relevant Rules was brought on 18th September, 1997 by substituting the word Government with High Court appearing in rule-4, therefore; the newly amended rule was not applicable to the case of the appellant, as Rules are always prospective in nature and not retrospective. (2) According to the Rules there was no distinction between ad hoc appointment and other appointments in respect of District and Sessions Judge, therefore; it would be deemed that the appellant was appointed on regular basis and his services could not be terminated on the ground that he was an ad hoc appointee. (3) The appellant was a civil servant within the meaning of section-2(b) of the Balochistan Civil Servants Act, 1974 and his case does not fall within any of the exclusion clauses as his appointment was made by Government of Balochistan and his status was of a civil servant, therefore; the objection taken by the respondents about competency of appeal was unfounded. Under Article 212 of the Constitution of Pakistan in service matters no Court including High Court has jurisdiction except the Tribunal setup for such purpose. In the instant case this Tribunal was setup to decide the service matters relating to the lower Sub-ordinate judiciary, as such; appeal filed by the appellant against the impugned notification was competent. (4) Powers were to be exercised by the High Court which was competent authority and not by the Hon ble Chief Justice, who had issued notification or the administrative committee on whose recommendation the impugned notification was issued. (5) The Hon ble Chief justice at the time of issuing notifications, was influenced by the recommendation of the administrative committee which decided not to extend the period of appointment on the ground that there were serious allegations against the appellant and notification is to be read with such recommendation. Same was stigma on the appellant and not a simple removal from the services. (6) The appellant remained posted as a District and Sessions Judge for about two years and under rule-8 the probation period was two years, therefore; his services could not have been terminated on the ground that the same were found unsatisfactory when the vacant posts were available and no person was appointed by the Public Service Commission. (7) That serious allegations were levelled against the appellant regarding misconduct, in consequence whereof he had been terminated from service, therefore; there should have been regular departmental inquiry for proving the allegations or otherwise. (8) On 28th January, 1999, eleven persons escaped after breaking Jail, whereupon; two cases were registered, one against the Jail Authorities and other against the escapees vide F.I.R. Nos.1 of 1999 and 2 of 1999 respectively in Police Station, Nushki. At the same time Federal Government also directed for conducting inquiry in the incident, whereupon, committee constituted for such purpose gave its findings, on the basis whereof reference was made to the Government of Balochistan with certain recommendation for taking against the officials, which also included a clause recommending for referring matter against the appellant to the High Court of Balochistan for necessary action. According to the learned counsel, on the basis of said reference the services of the appellant were suspended on 10th June, 1999 and a show-cause notice was issued to him. After receiving reply to the show-cause notice, the competent authority did not find the same satisfactory and appointed an authorized officer to conduct inquiry. A charge-sheet was also issued to the appellant during inquiry proceeding. Meeting of the administrative committee comprising of Hon ble Chief Justice and two other Hon ble Judges of the High Court was held on 7th August, 1999, wherein; it was decided not to extend the period of ad hoc appointment of the appellant after 12th August, 1999, in view of pendency of inquiry in respect of allegations contained in show-cause notice. He further contended that though afterwards the said charge-sheet issued to the appellant was withdrawn and the inquiry was dropped, yet his services were not extended on the basis of said allegations, as such; same was illegal and unjust, being passed without waiting for the result of the inquiry. (9) Before refusing to further extend the period of appointment of the appellant it was necessary to give an opportunity of hearing to the appellant, which is a fundamental right of every citizen. The appellant was condemned un-heard. (10) The appointment of the appellant could not be treated as ad hoc appointment as he has already completed two years, which is otherwise provided as probation period for the persons appointed through initial recruitments. According to the first appointment order, the appellant was appointed as District and Sessions Judge because a regular vacancy was available due to non-appointment through Public Service Commission, therefore; his services could not have been terminated till the filling of such vacancy by appointment of suitable person through Public Service Commission, as such; the termination of the services of the appellant was contrary to the terms and conditions of initial appointment order/notification. (11) In view of the allegations contained in recommendation of the administrative committee and notification, the impugned order amounts to removal or dismissal from service, which could not have been done without a proper inquiry as contained in E&D Rules 1992. 5. The learned counsel in support of his contention referred to the judgments reported in PLD 1974 SC 291 and 293, PLD 2003 SC 420, 1994 PLC (C.S) 1339, 1995 PLC (C.S) 765, and 938, 1993 PLC (C.S) 243, 1997 SCMR 1552, PLD 1971 SC 677, 1984 SCMR 65, 1997 SCMR 1581, PLD 2001 SC 176, PLD 2001 SC 555,2002 SCMR 82, PLD 2002 SC 101 and 1996 SCMR 413. 6. On the other hand, the learned counsel for the respondents contended that the appellant was appointed on ad hoc basis which is crystal clear from the initial appointment order and all subsequent notifications. He can not be termed as a regular employee or at par with those incumbents serving on probation. He further contended that an ad hoc appointee has not right in service and can not claim to be treated in accordance with the rules and regulations applicable to the regular appointees nor such term is synonymous with probation. According to learned counsel it is within the competency of the competent authority to terminate the services of an ad hoc appointee notwithstanding non-appointment of a regular candidate through prescribed procedure. The learned counsel relied on the judgment reported in 1982 SCMR 408, PLD 1982 Lah. 42, 1977 PLC (C.S.) 80, 1975 PLC (C.S.) 40 and 1997 SCMR 1514. 7. We have carefully considered the contentions put forth by the parties learned counsel in the light of record made available to us and the relevant provisions of law and rules. It may be seen that at the time of appointment of appellant on ad hoc basis, under rule 4 of the Balochistan Additional District and Sessions Judge and District and Sessions Judges Service Rules, 1980, the Government was the Appointing Authority as such the Notification in respect of the appointment of the petitioner was made by the Government. However, on 18-9-1997 an amendment was brought in the Rules 1980 whereby the word Government appearing in rule 4 was substituted by High Court . No doubt the Rules are always of prospective nature and it can not be made retrospective but it does not mean that the person appointed under the old rules would continue to be governed by the previous rules and amendment brought in the rules would not be applicable during the incumbency of his service unless a different intention is shown in the amended rules itself. The appellant was initially appointed vide Notification dated 12-8-1997 as District and Sessions Judge on ad hoc basis for a period of six months or till the regular appointment by the Balochistan Public Service Commission, which ever is earlier. Admittedly no person was appointed on regular basis by the Public Service Commission till 11-2-1998 i.e. the date of expiry of the terms of six months while there was nothing adverse against the appellant, therefore, the ad hoc appointment of the appellant was extended by the High Court vide Notification dated 4-2-1998 for a further period of six months. It is noteworthy that in the above said Notification, the condition `till the regular selection is made by the Public Service Commission , was not incorporated. Similarly the subsequent two notifications issued extending his terms of ad hoc appointment, also did not contain above said condition. According to last Notification issued on 6-2-1999, the period of ad hoc appointment of appellant was extended for a period of six months expiring on 11-8-1999. Thereafter the impugned notification was issued refusing to extend the ad hoc appointment further. Thus the appellant was never appointed on regular basis nor his services were ever regularized as such, the period spent by him in service can not be termed as probation period as contended by the learned counsel because rule 5 was amended vide Notification No.SOR(2)62/S&GAD-79 dated 21st July, 1982 and the Honourable Chief Justice was authorized to select the suitable candidate and recommend to the Government for appointment on ad hoc basis, after advertising the posts and inviting the applications. We find it expedient to reproduce the rule 5 substituted in place of old rules vide Notification dated 21st July, 1982. Method of recruitment. (1) Appointment to the posts of Additional District and Sessions Judges shall be made:-- (a) by initial recruitment against one third of the posts on the recommendation of the Commission with association of the Chief Justice. (b) by promotion against one third of the posts on the recommendation of the Chief Justice of the High Court from amongst the Senior Civil Judges and Judicial Magistrates at the ratio of 50:50. (c) by transfer against the remaining one third of the posts from the Officers belonging to Central and Provincial Governments on the recommendations of the Chief Justice: Provided that if no suitable officers are available for transfer, the appointment against the reserved quota as mentioned in clause (b) may be made by promotion on the recommendation of the Chief Justice of the High Court from amongst the Senior Civil Judges. (2) Appointment to the posts of District and Sessions Judges shall be made:-- (a) by promotion against 50% of the posts on the recommendation of the Chief Justice of High Court from amongst the Senior Additional District and Sessions Judges. (b) by transfer against 25% of the posts from the officers belonging to Central and Provincial Governments on the recommendation of the Chief Justice:- Provided that if no suitable officers are available for transfer the appointment against the reserved quota as mentioned in clause (b) may be made by promotion on the recommendation of the Chief Justice of the High Court, from amongst the Senior Additional District and Sessions Judges. (c) by initial recruitment against the remaining 25% of the posts on the recommendation of the Commission with association of the Chief Justice. (3) In case of ad hoc appointment, the Chief Justice shall advertise the posts and invite applications and after selecting suitable candidates, shall recommend to the Government the names of the candidates, to be appointed on ad hoc basis; . Similarly the appointment on probation has not been considered synonymous with ad hoc appointment which is a temporary and stop-gap arrangement pending recruitment in accordance with prescribed method. Such appointment remained ad hoc for all intends and purpose and could not be treated as regular appointment. In this regard we are fortified by the judgment of the Honourable Apex Court reported in 1997 SCMR 1514. Relevant observations are reproduced herein below: According to section 6 of the Civil Servants Act, an initial appointment to a service or post referred to in section 5, not being an ad hoc appointment, shall be on probation as may be prescribed. This shows that an ad hoc appointment cannot be on probation and an appointment on probation cannot be ad hoc . 8. The question whether an ad hoc appointee can claim absorption as matter of right as contended by the learned counsel came up for consideration in the judgment reported in 1977 PLC (C.S.) 80. It would be advantageous to reproduce the observations in this regard which read as follows: It is admitted that appellant was class II Officer on ad hoc basis and has no right whatsoever to claim right of absorption of seniority. Ad hoc appointment is defined by Civil Servants Act in its clause 2(1)(a). It 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. Thus the appellant has no claim whatsoever till he is regularly appointed to claim induction into service. Moreover, the question so put clearly is hit by the mischief of section 4(1) (b) of the Service Tribunals Act, 1973 which debars rights of appeal to the Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. Similarly view was also expressed in the judgment reported in 1975 PLC (C.S.) 40 wherein following observation has been made:-- Person promoted in officiating capacity against permanent post, held, not same as ad hoc appointee devoid of any right in appointment--Provisions of F.R. 9(22) and 9(28), held, not relevant to question whether officiating appointment carry same disqualification and right as ad hoc appointment. 9. There is no cavil with the proposition that if the services of any incumbent during period of probation or incumbency of temporary or ad hoc employment are terminated on the charge of misconduct that would amount to dismissal or removal being stigmatized and in such event services are not liable to be terminated until and unless show-cause notice is served upon the effectee and he has been afforded opportunity of hearing but if the services are terminated on account of un-satisfactory work, it can not be termed as dismissal or removal from service. In this regard we are fortified by the judgment of the Honourable Supreme Court reported in PLD 1974 SC 393. It would be advantageous and instructive to reproduce the relevant observations:-- In the light of the above discussion, it appears to me that a probationer is a person who is taken in service subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is a fit person to be retained in service. I agree with the view expressed in Muhammad Afzal Khan v. The Superintendent of Police, Montgomery and Riaz Ali Khan v. Pakistan, that a person who is on probation is subject to all checks to which a permanent servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. In my opinion if the service of a probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government but if the service of a probationers is terminated on the ground of misconduct that will amount to removal or dismissal. It will be a stigma in his favour. The above said view was reiterated in the judgment reported in 1990 SCMR 1510 wherein the services of Additional District and Sessions Judge were terminated during probation period and it was held as under:-- The law on the probationers right while in service has been dealt with extensively and authoritatively by this Court in the case of Muhammad Siddique Javed Chaudhry and others PLD 1974 SC 393. Judged by the law laid down in that case it is clear that the petitioner can make out no case for successfully challenging the order of termination of his service while on probation. The order has been passed by the competent authority against whom no grudge or malice is alleged. It contains no stigma and required no show cause procedure, as such. 10. In order to see as to whether the impugned notification where by the appellant was refused extension of period would amount of dismissal or removal from service containing element of stigma, it would be expedient to reproduce the same: The Hon ble Chief Justice, High Court of Balochistan, Quetta has been pleased to decide not to extend the period of ad hoc appointment (under suspension) of Mr. Muhammad Wassay Tareen after 11th August, 1999 as District and Sessions Judge on account of dissatisfactory conduct and performance of incumbent officer during ad hoc period of appointment . By Order (Sd.) Registrar. 11. The bare perusal of the above notification makes it clear that the appellant was not allowed extension as competent authority did not find his conduct and performance satisfactory. There is no allegation of misconduct or any other charge against the appellant in the said notification as such, same can not be termed removal or dismissal from service. 12. The learned counsel laid much stress on the minutes of meeting whereby the Administrative Committee of the High Court recommended for not extending the period. The perusal of same shows that though reference was made to the inquiry being conducting at that time, which was eventually dropped later on and the show-cause notice was discharged, yet the Administrative Committee has not based its recommendation exclusively on such allegations but had shown its dissatisfaction regarding conduct and performance of the appellant. The very words without prejudice to the result of the inquiry proceedings incorporated in the minutes are very significant and support our this conclusion. Moreover, the services of the petitioner were not terminated during the continuancy of the extended period of ad hoc appointment but it was a simplicitor refusal to extend his appointment for further period which was to be extended entirely on the satisfaction of the competent authority and the appellant could not claim such extension as matter of right on the basis of other relevant rules applicable to the regular employees or who have been appointed by initial recruitment through Public Service Commission. The Honourable Supreme Court of Pakistan in the judgment reported in 1982 SCMR 408 while dealing with rights of ad hoc appointee vis- -vis rules governing the services observed as under:-- We propose taking up the question of the nature and effect of ad hoc appointment first because it is common to the first three appellants and to some of the respondents. Their appointments as Assistant Engineers were expressed to be ad hoc, temporary, not conferring any right to seniority etc. The word ad hoc as the dictionary meaning of for a particular object . The object as appearing from the appointment of the appellants as well as that of some of the respondents was that their appointments were made and were to last only as long as regular appointments in accordance with the prescribed Rules were not made. The moment the regular appointments in accordance with the procedure prescribed were made, such appointments were to terminate. Ad hoc appointments truly so called being not…

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