2012 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

This appeal is filed against the judgment given by the learned Single Judge in Chamber on 22-3-2011 dismissing the writ petition filed by the appellants, inter alia, seeking the retention of their services in the respondent department as ad hoc/temporary Deputy Prosecutors General ("DPG") and Additional Prosecutors General ("APG") pending the appointment in due course of eligible persons such posts.

2. The impugned judgment by the learned Single Judge is elaborate and careful in considering the legal points raised by the appellants before him. However, in appeal before us a limited point is raised by the appellants. It is to the effect that under section 8(3) of the Punjab Criminal Prosecution Service (Conditions, Functions and Powers) Act, 2006, ("Act") appointment to 50% posts of APG/DPG is liable to be made through promotion whereas the remaining 50% of such posts are liable to be filled by direct recruitment. The seats reserved for direct recruitment have already been filled on the recommendations of the PPSC after competitive selection. The remaining 50% seats of DPGs and APGs namely, 25 seats and 9 seats respectively that are reserved for being filled through promotion, are lying vacant. The appellants who are ad hoc/temporary APGs/DPGs claim the relief that they may be allowed to continue in their posts against the promotion vacancies until promotees are duly appointed.

3. The above argument is statedly based on considerations of practicality and convenience. According to a report filed by respondent No.2 and the statement given by the learned Addl.A.-G. on instructions, 4 DPPs have been summoned from the district judiciary to perform the functions of DPGs at different Benches of the High Court. It is contended for the appellants that the shortage of manpower of DPGs at the High Court could be met through retention of services of some or all of the appellants.

4. The learned counsel has next read from the order of the Honourable Supreme Court of Pakistan passed in Naeem Tariq Sanghera and others v. Chief Secretary, Government of Punjab, Lahore and others (2010 SCMR 1587) to emphasize that the terms of the consent arrangement approved by the Honourable Supreme Court caters for the appellants in its para 1(ii) as follows:

"Other than the petitioners, there are prosecutors working in Province who had been retained. They have also to undertake examination of Punjab Public Service Commission to meet the requirement of subsection (4) of section 8 of the above-referred Act. In respect thereof the exercise shall be completed within next two months commencing from 12-3-2010 to 12-5-2010 and the fresh candidates interested for recruitment shall also be eligible to apply along with them. Their cases shall also be dealt with by the Punjab Public Service Commission strictly in accordance with law as noted herein above."

5. Through the foregoing observation the learned counsel explains that as the appellants are not seeking employment on regular basis as provided under section 8(4) of the Act, therefore, they are not participating in the selection process of the PPSC. However, as retainees they are liable to continue in their posts until their substitutes are appointed in accordance with law.

6. The learned Addl.A.-G. has answered the said contention by referring the report filed by the Prosecution Department, respondent No.2 to the effect that the posts in question are to be filled by recommendees of the PPSC as held by the Honourable Supreme Court or by promoting eligible officers of the prosecution service. He has next relied on the settled principle of law that the Provincial Government is under a duty to fill all public posts transparently and strictly in accordance with law. Therefore, considerations of convenience and practicality cannot come into play unless the incumbents of public posts are duly qualified to hold the same on merit. In the present case, the appellants have not passed the selection process of the PPSC and are, therefore, not eligible for appointment as DPGs and APGs. More importantly, appointment to the claimed posts has to be made through promotion of regularly employed prosecutors; whereas the appellants cannot, for being temporary employees and as retainees in the same posts, qualify for promotion.

7. In fact, the said posts must presently remain vacant because the serving prosecutors lack the qualifying service for being considered for promotion to these posts. For that reason the need for further manpower of prosecutors in the High Court is presently being met by deputing DPPs from the district judiciary. However, this situation is likely to be rectified by an amendment in the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 ("Rules") framed under the Act to either increase ratio of initial recruitment of DPGs/APGs or to reduce the qualifying service of prosecutors for promotion to the posts of DPG and APG. He further contends that a court of law may direct the Provincial Government to perform its duty in accordance with law. However, in the absence of an underlying provision of law no duty is cast upon the Provincial Government to make appointments to public posts solely on the criteria of practicality and convenience.

8. On the second point based on para 1(ii) in Naeem Tariq Sanghera's case (supra), the learned Addl.A.-G. submits that the said observations are part of a consent order dated 8-1-2010 that is reproduced in paragraph 7 of the later Supreme Court judgment given in Abid Iqbal Hafiz and others v. Secretary Public Prosecution Department Government of the Punjab Lahore and others (PLD 2010 SC 841). In paragraph 19 of the later judgment the honourable Supreme Court with reference to its consent order dated 8-1-2010 has explained the status of retainees in the following words:-- "Thus, the learned High Court rightly held that the interviews did not conform to the rule of transparency and fairness. Be that as it may in line with our earlier order dated 8-1-2010, we are inclined to take the view that those who qualified in the interviews would be treated as temporary/contract appointees until the arrival of selectees of the Committee who in turn obviously would continue in contract service until the arrival of selectees of the Commission, but in no case the period of temporary/contract appointment shall exceed one year as held by the learned Single Judge of the Lahore High Court in Mushtaq Ahmed Mohal's case (supra). Those seeking regular appointment would be required to appear in the examination to be conducted by the Commission whether they were the persons whose contract was terminated or who had been retained after they qualified in the interviews held by the Committee." (emphasis supplied)

9. By relying on the foregoing observation learned Additional Advocate-General contends that the employment of the appellants was temporary and for a specified period on contract basis. Unless the appellants got their appointments regularized through the PPSC selection process, their temporary employment could not exceed one year in terms of the judgment of the learned Single Judge that has been upheld by the honourable Supreme Court.

10. We have heard the learned counsel for the parties. The appellants have not participated in the selection process for regular appointment as prosecutors. They are only interested in retaining their posts until promotees are selected from amongst the eligible regular employees to occupy their seats. This plea is not based on any claim of eligibility or entitlement to hold the said posts but merely on considerations of convenience and practicality. We note that for a number of reasons, the appellant's plea cannot form the foundation of a sustainable case. Firstly, it does not seek enforcement of any legal rights. Secondly, the plea conflicts with the maximum period of temporary employment visualized by the Honourable Supreme Court in para 19 of its judgment in Abid Iqbal Hafiz's case. The appellants have occupied their posts for longer than one year without recommendation by PPSC and otherwise in accord with the terms of their appointment orders. Thirdly, in making appointments to public office, government action must reflect transparency and fairness. In the present case the appellants' plea militates the said criteria because it projects that an ad hoc and temporary measure should override the requirements of the Act and the Rules for filling the prosecutors' posts in question. If there is no person presently eligible to occupy the said posts reserved for the promotion quota, it does not mean that ineligible persons should be made to retain the same. A Court of law cannot sanction such a course of action. Consequently, these appeals have no merit and are therefore dismissed with no order as to costs. S.A.K./A-192/L Appeals dismissed.