P L D 2011 Lahore 563 (PLP)

SYED MANSOOR ALI SHAH, J.

Brief facts are that the appellant was appointed on 24-9-2009 as Research Assistant (BS-11) on contract basis for a term of three years by the Punjab Forestry Research Institute ("Respondent Institute"). Vide impugned letter dated 14-11-2009 issued by the respondent-Institute, the services of the appellant were terminated with immediate effect_ against one month's salary in lieu of notice. Appellant assailed the termination letter through writ petition before this court which was dismissed by the learned Judge in chambers on 13-4-2010, on the ground that the appellant has been terminated strictly in terms, of clause 8 of her appointment i.e., after giving her salary of one month in lieu of notice without assigning any reason and secondly, the post held by the appellant was a temporary post, hence termination under clause 8 was justified.

2. The grievances of the appellant are that she was terminated in violation of the Contract Appointment Policy, 2004 ("Policy") dated 29-12-2004 and also deprived of her lawful regularization under Notification dated 14-10-2009 of the S&GAD, Government of the Punjab.

3. On the other hand, learned Law Officer along with departmental representative submits that the appellant was terminated as per clause 8 of the contract and the respondent Institute had the option to terminate the services of the appellant on one month's salary in lieu thereof without assigning any reason.

4. Arguments heard. Record perused.

5. Before addressing the question of termination and regularization of the appellant it is important to lay down the correct facts which have now been culled out of two sets of parawise comments filed by the respondent-Institute. As the earlier parawise comments did not answer our queries, the learned A.A.-G. was asked to submit fresh written response to our questions. The same were submitted on 10-6-2011 (after the hearing, before signing the judgment) which have been placed on the record.

1. Para 10 of the fresh parawise comments dated 10-6-2011

6. From the parawise comments it transpires that out of three permanent posts of Research Assistants (BS-11) two were styled as "temporary posts" (including the one held by the appellant) just because the officers holding the said posts, prior to the appellant, were promoted on acting charge basis as Assistant Research Officers (BS-16). On this basis, only one contractual appointee was regularized under notification dated 14-10-2010 and simultaneously (and also very surprisingly) the same day the services of the appellant and of the officer holding the other post of Research Assistant were terminated on the pretext that "no permanent post of Research Assistant was available with the Institute.'" It is pointed out here that the impugned termination letter does not give any reason. The comments further state that later on the two officers on acting charge basis were regularly promoted as Assistant Research Officer (BS-16) on 22-10-2010 and, therefore, now three posts of Research Assistants are lying vacant (as one of' the three Research Assistants after regularization - has left the respondent Institute on 24-3-2010).

7. Let us take up the issue of termination first. Termination letter dated 14-11-2009 states that it has been issued under the terms and conditions of the Policy. Reference to the said Policy dated 29-12-2004 is essential. Preamble of the said Policy states that "The Government has now generally shifted from regular mode of appointment to the contract mode, in view of the changing management practices and to achieve the goals of good governance in public sector departments/organizations". (Emphasis supplied)

8. Clause XVII of the said Policy states as under:

(i)???????? Contract appointment is liable to be terminated on one month's notice or one month's pay, in lieu thereof, on either side without assigning any reason. (ii)??????? Since the Government has shifted from regular mode of appointment to the contract mode in general, there is a need to ensure that sufficient safeguards are provided against arbitrary termination of contract employees and such employees are given a reasonable security with respect to the terms and conditions of their contract service. Appointing Authorities should, therefore, ensure that contract appointments are generally not terminated before the expiry of the term of contract, unless it is clearly determined that performance of a contract employee is unsatisfactory or he is guilty of inefficiency, misconduct or corruption. (Emphasis supplied)

9. The Policy underlines that there is a need to ensure that sufficient safeguards are provided against arbitrary termination of contract employees and to provide them reasonable security with respect to their terms and conditions of service. It has also been pointed out that Appointing Authorities should ensure that appointment contracts are not generally terminated before the expiry of the term of contract, unless it is clearly determined that performance of a contract employee is unsatisfactory or he is guilty of inefficiency, misconduct or corruption.

10. There appears to be a disconnect between sub-clause (i) and sub-clause (ii) of clause XVII of the Policy as far as the respondent-Institute is concerned. Bare reading of clause XVII of the Policy shows that sub-clause (ii) lays down the parameters for termination of an employee and sub-clause (i) provides the modes of termination. If the Policy is read as a whole with the avowed principle of achieving good governance and ensuring security of tenure to the contractual employees, sub-clause (ii) has to be given primacy over sub-clause (i). Otherwise the two clauses appear to be incongruent rendering clause (ii) to be redundant. For reasons of transparency, good governance, public policy and in order to harmonize the two provisions, sub-clause (i) of clause XVII must be read down. As a result, only when sub-clause (ii) is attracted, can sub-clause (i) be put in motion or if terms and conditions of the contract are violated and notice with reasons to this effect is communicated to the appellant.

11. In-the present case, admittedly, none of the conditions specified in sub-clause (ii) existed or any of the conditions of the Contract stood violated, therefore, termination of the appellant is in violation of the Policy. In fact clause 8 of the Contract is also misleading and is in violation of the Policy as it fails to refer to clause XVII (ii).

12. The matter does not end here. Termination clause in the contract as well as sub-clause (i) of the Policy mentions that termination can take place without assigning any reason (for clarity and brevity referred to as the "NO REASON CLAUSE"). This part of sub-clause (i) does not stand the test of due process (Article 4), fundamental rights (Articles 9, 14, 25), rule of law, reason, logic, ethics and good governance. While the modern world moves towards accountability and transparency, the "No Reason Clause" reminds us of unfettered, unmufflered and unchecked discretion. Such a clause has no place in a constitutional democracy, which rests on the supremacy of the rule of law. "No Reason Clause" can be a recipe for corruption, mismanagement, nepotism and jobbery. Foundations of good governance are based on reasons, accessibility, accountability, transparency, participation, consensus, inclusiveness, efficiency, ethics and responsiveness. The said clauses therefore ex facie lack the requirement of fairness and procedural due process thereby offending Article 4 of the Constitution. The said clause is also facially discriminatory besides being liable to be used in a discriminating manner thereby violating Article 25 of the Constitution. Reliance is placed on "Dr. Mobashir Hassan v. Federation of Pakistan and others" (PLD 2010 SC 1) and "Government of Balochistatt v. Azizullah Memon" (PLD 1993 SC 341).

13. The said clause is also opposed to public policy and violates section 23 of the Contract Act, 1872 as well as section 24-A of the General Clauses Act, 1897. Clause XVII (i) of the Policy to the extent of WITHOUT ASSIGNING ANY REASON is opposed to public policy, logic and good governance. The said portion of the sub-clause (i) is therefore struck down as unconstitutional and offensive to human dignity and reason. Reliance is placed on "Faisal Sultan v. E.D.O. (EDUCATION) and others" (2011 PLC (CS) 419).

14. Notification of Regularization dated 14-10-2009 states:-- "... the Chief Minister Punjab is pleased to order appointments on regular basis, in relaxation of the relevant service rules of the employees in BS-1 to 15, recruited on contract basis under the provisions of the Contract Appointment Policy issued by the S&GAD in 2004 against the posts presently held by them in various Government Departments..." The Notification further states: "The contract employees who do not intend to be appointed on regular basis should furnish their option to this effect in writing within 30 days from the date of the issuance of the appointment letters by the respective appointing authorities. They may continue with their present employment as per terms and conditions of their contract...."

15. Regularization is officer specific and has no effect on the nature of the post. If an officer does not opt for regularization the post still remains and the officer continues as a contractual employee. Therefore, non-regularization of an employee will not affect her contractual status or the post held by her. The reason given by the respondent-Institute, in their comments, for the termination of the appellant is not tenable and is opposed to Notification dated 14-10-2009.

16. Coming to the question of Regularization, nature of the post cannot be termed as temporary just because its last incumbent has been promoted on acting charge basis. The post remains permanent, however the promotee maintains a lien over the said post. It was due to the said lien that the appellant was not considered for regularization and not because the post was temporary. Without further ado, matters have luckily been resolved as the officers promoted on acting charge basis have been promoted on regular basis as Assistant Research Offices on 22-10.2010. Appellant can now therefore be considered for regularization in accordance with law.

17. For the above reasons the writ petition is allowed, order of the learned Judge in chambers dated 13-4-2010 is set aside and order of termination of the appellant dated 14-11-2009 is declared to be unlawful and in violation of Contract Appointment Policy, 2004 and Notification dated 14-10-2009. Respondent is directed to consider the case of the appellant for regularization in accordance with law. M.H./S-107/L ???????????????????????????????????????????????????????????????????????? Appeal allowed.