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Petitioner: AZHAR AHMAD KHAN VS Respondent: CHIEF SECRETARY GOVERNMENT OF THE PUNJAB, LAHOREHonorable Justice Iqbal Hameed-ur-RahmanSyed Muhammad Kaleem Ahmad Khurshid and Ch. Fiaz Ullah,Abdul Naeem Qureshi
2010 P L C (C
2010 P L C (C.S.) 374
[Lahore High Court]
Before Iqbal Hameed-ur-Rahman, J
AZHAR AHMAD KHAN and 8 others
Versus
CHIEF SECRETARY GOVERNMENT OF THE PUNJAB, LAHORE and 12 others
Writ Petitions Nos.19365 of 2009 and 988 of 2010, decided on 26th January, 2010.
(a) Punjab Service Tribunals Act (IX of 1974)---
----S. 4(1)(a)---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition--- Maintainability--- Petitioners assailed appointment of 80 Sub-Divisional Officers through process of Departmental Selection Committee---Plea raised by authorities was that in view of Art. 212 of the Constitution, the petition was barred---Validity---No final order was passed against petitioners by departmental authority in respect of terms and conditions of service of petitioners---Petitioners challenged summary for appointment and subsequently notification and action of authorities for selection in question on contract basis, therefore, High Court had jurisdiction to entertain petition under Art.199 of the Constitution---No appeal, under S.4 (1)(a) of Service Tribunals Act, 1974, could be filed before Service Tribunal against such act or action and notification, therefore, matter did not fall under the ambit of Art. 212 of the Constitution---Even if act or action of authorities was protected by Constitutional provisions by ouster clause, the superior courts still had jurisdiction to interfere with three categories* of cases, namely without jurisdiction; coram non judice; and mala fide---Petition was maintainable in circumstances.
Executive District Officer Schools and Literacy District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630; 1995 PLC (C.S.) 377; 1995 PLC (C.S.) 765 and Iftikhar Ullah v. The Secretary, Irrigation and Power Department, Government of Punjab, Lahore and others 2002 PLC (C.S.) 720 rel.
(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974--
----Rr. 10(b) & 13---Constitution of Pakistan (1973), Arts.3 & 199---Constitutional petition---Appointment on current charge basis---Recruitment on contract basis---Petitioners assailed appointment of 80 Sub-Divisional Officers through process of Departmental Selection Committee---Validity---Posts of Sub-Divisional Officers had already been filled by department by appointment on current charge basis till the arrival of regular incumbents in view of specific provisions of Rr. 10 (b) and 13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---No justification was available to the authorities for advertising posts in question for recruiting on contract basis till the arrival of regular incumbents---Petitioners were performing their duties as Sub-Divisional Officers on current charge basis, having qualification of B.Sc. in civil engineering from recognized universities till the arrival of their regular incumbents of posts in question, therefore, there was no justification for authorities to make appointments against the posts on contract for temporary period---Such action of authorities was declared as illegal, arbitrary, mala fide and violative of specific provisions of Art. 3 of the Constitution---High Court directed the authorities to make appointments of Sub-Divisional Officers through Public Service Commission---High Court also restrained the authorities from making selection against posts in question through Departmental Selection Committee on contract basis as against which posts some of the petitioners were already working on current charge basis till arrival of regular incumbents having requisite qualification of B.Sc. in civil engineering from recognized Universities---Petition was allowed accordingly. ? Amanullah Khan's case PLD 1990 SC 1092; PLD 2007 Lah. 61; 1992 PLC 962; 2007 PLC (C.S.) 811; 2009 SCMR 605; 2006 SCMR 1163; Pakistan International Airlines Corporation through Chairman and others PLD 2005 SC 831; Zahid Akhtar's case PLD 1995 SC 530; L.H. Shaikh v. General Manager, Karachi Telecommunication Region and others 1974 SCMR 82 and Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others 1998 SCMR 1948 ref.
(c) Civil service---
----Ad hoc appointment---Scope---If a post is filled on ad hoc basis, which is liable to be terminated on availability of regular incumbent, termination of such-like ad hoc appointee before arrival of regular incumbent is illegal and ad hoc appointee is entitled to perform his duties till the arrival of regular incumbent---Concept of ad hoc appointment against post in public sector is a stop-gap arrangement which is not a permanent characteristic of civil service---Not proper in public sector to occupy posts required to be filled through the method prescribed by law by making ad hoc appointments and allow incumbents to continue in the same position beyond the terms of their employment without taking any step for filling posts on regular basis.?
Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291; 1995 PLC (C.S.) 377 and 1995 PLC (C.S.) 765 rel.
Syed Muhammad Kaleem Ahmad Khurshid and Ch. Fiaz Ullah for Petitioners Nos.1 to 3.
Mahmood Ahmad Qazi for Petitioners Nos.4 to 9.
Abdul Naeem Qureshi for Respondents Nos.1 to 5.
Faisal Najeeb Chaudhry for Respondents Nos.6 to 9.
Muhammad Azeem Malik Addl. A.-G.
Date of hearing: 19th January, 2010.
JUDGMENT
IQBAL HAMEED-UR-RAHMAN, J.--- By this single judgment, I would like to decide the following writ petitions having similar question of law and facts:---
(1) Writ Petition No.19365 of 2009 (2) Writ Petition No.988 of 2010.
2. The petitioners have filed the instant writ petition with the following prayer:---
"It is, therefore, most respectfully prayed that writ petition in hand may kindly be accepted and the summary dated 13-3-3009 and the subsequent notification to be declared as illegal, unlawful and without jurisdiction.
It is also prayed that selection of. AEEs on regular basis BS-17should be through respondent No.5 may kindly be ordered to meet the ends of justice.
It is further prayed that selection through Departmental Selection Committee on contract basis may kindly be declared illegal, unlawful, without jurisdiction and suspended/ stayed till the final decision of the writ petition in hand."
3. The brief facts as stated by the petitioners are that the petitioners were promoted to the rank of Sub-Divisional Officers in the Irrigation and Power Department respectively in the year 2006 and 2009 against the vacant posts and in the orders of the petitioners, it is clearly mentioned that "on current charge basis for a period of one year or till the availability of a regular incumbent, whichever is earlier, under Rule 10(B) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. " Respondent No.2 advertised proclamation in the Daily Nawa-e-Waqt dated 20-6-2009 for the recruitment of. AEE's/SDO's in the light of summary and notification and in pursuance of the proclamation respondent No.2 issued interview call letters for 3-10-2009 to 7-10-2009. Respondent No.2 requested respondent No.5 for recruitment of Sub-Engineers through Public Service Commission and there is also press clipping of the newspaper in which respondent No.1 has directed to clear the summary of AEE's/SDO's to the other respondents. Respondent No.2 has moved summary to the Chief Minister and respondent No.1 for recruitment of AEE's/SDO's (BS-17) in Irrigation and Power Department on contract basis and the reasons have been given in the summary firstly, there is a shortfall of working strength of about 50% of AEE's/SDO's which is obviously hampering the operational efficiency and performance of the Department. Secondly, the Sub-Engineers promoted on officiating basis as SDO's are lacking capacity of designing of projects and its proper execution as compared to the B.Sc. Engineers and the selection of AEE's/SDO's should be through Departmental Selection Committee.
4. Learned counsel for the petitioners submits that the contract policy has been discouraged in the matters of doctors and then doctors have been regularized by the Chief Minister of Punjab. He further submits that the petitioners' case falls within the domain of 20% quota promotion as well as 15% improvement of educational qualification. He further submits that the Secretary Irrigation respondent No.2 with mala fide intention adopted a process and the whole of the case was built on wrong presumptions that the Sub-Divisional Officers are lacking capacity of designing and they are not qualified as compared to B.Sc. Engineers and secondly, that there is shortage of Sub-Engineers, thus, the department should be allowed to recruit the Sub-Divisional Officers on contract basis and process of the Punjab Public Service Commission was also dispensed with.
5. It is further argued that so far as the present promotees are concerned, 23% are B.Sc. Engineers and they are also holding the license of the Engineering Council; 28% are B.Tech. qualified engineers, 29% Sub-Engineers, have qualified in the Departmental examination to be promoted. So far as the Sub-Engineers are concerned, 88 Sub-Engineers have been recruited through the Punjab Public Service Commission on contract basis. It is further argued that whole of this process is being adopted with mala fide,intention to accommodate some political collaborators as there is a letter of Ch. Shafique Ahmad Gujjar M.P.A. It is further submitted that the basic rationale is that there should be transparency. In this regard, he placed reliance on Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 wherein it has been held that "such appointment is a trust in the hands of the public authority and it is their legal and moral duty to discharge their functions as trustees with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service." He further argued that in order to hoodwink the process of transparency, the respondents wanted to appoint 80 Sub-Divisional Officers in the Irrigation Department. It is further argued that so far as the appointment of the petitioners on the current charge basis is concerned, the petitioners were appointed on current charge basis under Rule 10(B) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the condition precedent for appointment under the current charge basis is that the senior most civil servant, who in the opinion of the appointing authority is eligible and suitable for promotion under the relevant rules on current charges basis when the authority has come to the conclusion that the petitioners are suitable and eligible for the promotion as Sub-Divisional Officers and appointed them, subsequently they cannot be turned round and this conduct of the respondents is not approved by the Honourable Supreme Court of Pakistan in the above referred case wherein it was observed that where the authority is responsible for making such appointments but subsequently took a turn and terminate their services in violation of the rule; that the apex Court did not appreciate such conduct. It is also submitted that the petitioners fulfil the required educational qualifications and they have got 35% quota in the promotion of the vacant seats and that the Regulation Wing of the Government of the Punjab has objected upon this process of appointment on contract basis.
6. It is further submitted that the respondents have not determined the clear vacant posts and are appointing 80 persons as Sub-Divisional Officers on contract basis whereas the merit is that if the respondents fill in the vacant posts then the petitioners are entitled for 35% quota of the clear vacant seats. He further submits that in order to deprive the petitioners from the 35% quota, this method is being adopted.
7. Learned counsel also argued that so far as the Sub-Divisional Officers are concerned, 88 Sub-Engineers have been appointed vide Notification dated 23-4-2009 by the Irrigation Department on contract basis through Public Service Commission but 80 Sub-Divisional Officers are not being recruited/appointed and selected through the Public Service Commission with rnala fide intention and this recruitment transpires mala fides of the respondents/Irrigation Department and the same is discriminatory and summary dated 13-3-2099 has been approved on the basis of wrong assumptions of facts and law;
8. He further submits that the other aspect of the matter is that under Article 3 of the Constitution, the State is bound to eliminate exploitation while the present petitioners are victims of the exploitation, and only Constitutional Court can come to the rescue of the petitioners under Article 3 of the Constitution. Further submits that the petitioners were appointed under Rule 10(b) till the availability of a regular incumbent whereas in the present case the Department has not determined the clear vacant post and no regular incumbent is being appointed in accordance with law and unless and until the regular incumbent is appointed, the petitioners cannot be dislodged.
9. It is further submitted that in the Public Prosecutors' case the Honourable Supreme Court of Pakistan has directed to appoint the regular incumbents through Public Service Commission and their removal cannot be made unless regular incumbents are appointed.
10. Learned counsel also argued that another aspect of the case is that the respondents have not placed on record any document that any donor fund is still unutilized and the petitioners are responsible for un?utilizing the said funds or due to any negligence, carelessness or inefficiency of the petitioners. He further submits that the policy decisions are not made in vacuum but whole of the exercise by respondent No.2 is based on surmises and conjectures and has no legs to stand upon. He further submitted adverting to page 26 where the posts have been advertised by the Government of the Punjab that the persons will be recruited under the contract policy. He also argued that according to Clause-VI (ii) of the Contract Policy, appointments on contract basis is to be made through the appropriate Selection Committees as notified by the Government and the said policy states that the Contract Appointments Regulations Committee will be formulated. The department shall send comprehensive guidelines for adopting the procedure. According to Rule 4 of the Punjab Public Service Commission (Functions) Rules, 1978, on the recommendations of the Committee the summary shall be sent to the Chief Minister. Further submits that this case was not sent to the Committee nor it is the recommendations of the Committee for the appointment of the Sub-Divisional Officers and without the recommendations of the Committee the case cannot be submitted to the Chief Minister.
11. He further submits that without the guidelines of the Appointment and Regulations Committee, no contract employee can be recruited; that the proposed and the present proceedings for recruiting 80 Sub-Divisional Officers on contract basis, in violation of the approval of the concerned committee is unwarranted and unjustified. Further submits that not only the Committee but also the Chief Minister should assign reasoning as envisaged by section 24-A of the General Clauses Act. No such summary or approval is available, no reasoning or justification is given; therefore, the appointment process of the Sub-Divisional Officers is without lawful authority being violative of the mandatory requirements of the contract policy.
12. Further submits that even when the summary is approved by the Chief Minister, he should assign reasoning to the approval. Neither despotic powers have been conferred nor can be exercised by the Chief Minister without assigning reasons and such exercise of jurisdiction is assailable in Constitutional jurisdiction. Reliance is placed on Amanullah Khan's case PLD 1990 SC 1092. The discretion was not exercised in accordance with the settled principle as laid down by the Honourable Supreme Court of Pakistan in the above referred case and concept of law has been frustrated by the Chief Minister and the same is amenable under the writ jurisdiction of this Court.
13. Further submitted that the contract policy is there, the same cannot be frustrated. In this connection, he placed reliance on PLD 2007 Lah. 61 and 1992 PLC 962. The powers of relaxation of rules vested in the Governor, Chief Minister is only to correct serious cases.
This power is exercised in genuine cases:-.
(i) for the removal of hardship;
(ii) for the public purpose;
(iii) and if discretion has been exercised in the public interest or for the removal of inequity then reasons must be incorporated.
Mere approval of summary is not warranted by law and discretion has been exercised in an arbitrary manner whereby the petitioners will be affectees. In another case, doctors were appointed on contract basis and then those doctors have been confirmed. Now 80 persons will be recruited on contract basis and ultimately they will be absolved and the present petitioners' future will be jeopardized, they will not be in a position to get their right of promotion and 35% quota will be frustrated by this appointment, the same is being repeated in the present case; thus, the fundamental rights of the present petitioners are being transgressed and they are not being dealt with in accordance with law and neither the procedure is transparent.
14. Mr. Mehmood A. Qazi, Advocate for petitioners Nos.4 to 9 submits that in the instant case, respondent No.2/ Irrigation and Power Department has advertised 80 posts of SDOs in the Irrigation & Power Department for selection/ appointment on contract basis through the process of Departmental Selection Committee instead of through the process of Punjab Public Service Commission, and for this purpose respondent No. 2 has got approved impugned summary dated 13-3--2009 and consequent notification from the Chief Minister, Punjab, on the basis of wrong/ factually incorrect information before the Chief Minister, Punjab as contained in para No.6 of the impugned summary, which is available at page 13 of the titled writ petition, which is re-produced as under;
"To meet immediate requirement, the department has promoted Sub-Engineers on officiating basis/ appointed on current charge basis as SDOs, but Sub-Engineers promoted as SDOs are lacking capacity of designing of projects and its proper execution as compared to the B.Sc. Engineering. Besides, this strategy of stop gap arrangement has created shortage at the level of Sub-Engineers and so it is not mitigating the problem."
Whereas, the impugned summary and notification as well as the impugned action of respondent No.2 of making appointment against 80 posts of SDOs on contract basis through Departmental Selection Committee, is illegal, arbitrary, mala fide, discriminatory and against law and facts of the case, hence, an appropriate writ is liable to be issued by this Court declaring the impugned summary and notification as illegal, mala fide and discriminatory, and as a consequence the impugned action of respondent No.2 for making appointments to the posts of SDOs on contract basis through Departmental Selection Committee is also liable to be declared as illegal, mala fide and discriminatory. It is further submitted that respondent No.2 has got sanctioned the impugned summary dated 13-3--2009 from the Chief Minister, .Punjab on the basis of misrepresentation and concealment of real facts i.e. the fact that against 80 advertised posts of SDOs, 23 Sub-Engineers were working on current charge basis/ acting charge basis holding the degrees of B.Sc. in Civil Engineering including the petitioners Nos.4 to 9. It is further submitted that admittedly against the 80 posts of SDOs, which have been advertised by respondent No.2 for appointment on contract basis through Departmental Selection Committee, on the basis of impugned Summary/ Notification, the petitioners as well as other Sub-Engineers have already been working since 2006/2009 on current charge basis/ acting charge basis, till the arrival of regular incumbents of said posts, in the following ratio;
i. Sub-Engineers working as SDOs having degrees of B.Sc. in Civil Engineering from recognized Universities
= 23 posts
ii. Sub-Engineers working as SDOs on current/ acting charge basis having degrees of B.Tech (Honours)
= 28 posts
iii. Sub-Engineers having passed departmental exam. for promotion against 20% promotion quota of SDOs
= 29 posts
Total
80 posts
It is submitted that it is the case of the respondent-Department that these 80 posts are available against 65% initial recruitment quota but incumbents of these 80 posts are not available temporarily because those SDOs are working as Executive Engineers (BS-18) on acting charge/ current charge basis and some of them have been working against ex-cadre posts/ working in other departments on deputation, and as such, those 80 SDOs have lien against these posts, as such, these posts are available for a temporary period, i.e. till the arrival of regular incumbents of said posts. It is argued that since the above said 80 posts have already been filled by appointment on current charge basis/ acting charge basis till the arrival of the regular incumbents, in view of specific provisions of Rule 10 (b) and Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, as such, there was no justification for respondent. No.2 for advertising the said posts for recruiting on contract basis till the arrival of the regular incumbents. It is further submitted that in the instant matter, 88 posts of Sub-Engineers in the Irrigation and Power Department have also been filled on contract basis through selection from the Punjab Public Service Commission by respondent No.2, as required by para 3 (VI) (ii) of the Contract Appointment Policy of Government of the Punjab circulated vide letter dated 29-12-2004, which fact is established from letter No.SO (E-II) 1-4/2005 (P.I) dated 23-4-2009, issued by the Irrigation and Power Department but with ulterior motives, respondent No.2 also concealed this fact from the Chief Minister.
15. Further submits that if at all the respondent-Department really required some posts of SDOs to be filled from amongst persons having the qualifications of B.Sc. in Civil Engineering only, even then, in the impugned summary, the respondent-Department must have given the names and particulars of the alleged projects as well as exact number of posts of SDOs (with the qualification of B.Sc. in Civil Engineering) allegedly required for said projects, but unfortunately, neither the respondent-Department has given any particulars pertaining to the alleged projects nor has given the details and exact number of posts of SDOs, which allegedly required to be filled by selection/ posting of persons having the qualification of B.Sc. in Civil Engineering only.
16. It is also submitted that the impugned summary approved by the Chief Minister, Punjab without contract appointment Regulation Committee, as required under para No.3 of letter dated 29-12-2004, however, comments of S&GAD and finance departments were sought for impugned summary, but both the Departments vehemently opposed said summary, which comments were ignored without any legal/factual justification due to ulterior motives; therefore, the impugned summary and notification as well as consequent impugned action of respondent No.2 to make selection against these 80 posts of. SDOs on contract basis through Departmental Selection Committee is liable to be declared as illegal and without lawful authority. Reliance is placed on law laid down by this Honourable Court in 2007 PLC (C.S.) 811 and 2009 SCMR 605 wherein, it has been held that;
"All public powers must be exercised reasonably and honestly for the purpose for which same are conferred."
Therefore, since respondent No.2 is not exercising his powers reasonable and equitably, hence an appropriate writ is liable to be issued by this Court, in the instant matter. It is further submitted .that it is pertinent to mention here that copies of degrees of B.Sc. in Civil Engineering of petitioners Nos.4 to 9 are available at pages 9 to 14 of Civil Miscellaneous No.8 of 2010, and copies of Certificate of Registration by Pakistan Engineering Council of the petitioners Nos.5, 8 and 9 are already available at page 16 to 18 of Civil Miscellaneous No.8 of 2010. The learned counsel placed on record copies of the Certificates of Registration by Pakistan Engineering Council of petitioners No.6 and 7, copy of Challan No.184712 dated 14-12-2009, issued by Pakistan Engineering Council in respect of…
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