2021 PLP (C (PLC(CS))

AYESHA A. MALIK J.

Through this ICA, the Appellants have impugned order dated 17.02.2020 passed by the learned Single Judge in Writ Petition No. 248849/2018 which was dismissed while turning down their prayer for regularization.

2. The case of the Appellants is that they were appointed as Medical Officers (BS-17) on ad hoc basis pursuant to advertisements published in various different newspapers for the said post. The Appellants participated in the recruitment process, passed the interview but did not qualify in terms of the merit against the number of available seats. The Appellants then applied for regularization on the basis of the judgment of the august Supreme Court of Pakistan reported as Naveeda Tufail v. Government of Punjab (2003 SCMR 219) (hereinafter referred as Naveeda Tufail Case) which was denied through the impugned order dated 17.02.2020. Hence this Appeal.

3. Learned counsel for the Appellants argued that the impugned order dated 17.02.2020 failed to appreciate the point of discrimination between the Appellants and others who have been regularized and the dicta laid down in the Naveeda Tufail Case. Learned counsel for the Appellants has also relied upon judgment dated 23.01.2018 passed by a Division Bench of this Court in 2018 PLC (C.S.) 712, Dr. Zaheer Iqbal and others v. Province of Punjab through Chief Secretary and others which he argues is similar on facts and states that the Appellants are entitled to the same benefit.

4. On the other hand, learned Law Officer argued that the Appellants are not entitled for regularization as they are ad hoc employees. She placed reliance on the case Abu Bakar Farooq and others v. Muhammad Ali Rajpar and others (2019 SCMR 830) wherein it was held that ad hoc employees are appointed as a stop gap arrangement till permanent recruitment in accordance with the prescribed method of appointment and as such do not earn any benefit of regular appointments as that would frustrate the entire concept of being appointed on ad hoc basis. Learned Law Officer further submits that even with reference to the Naveeda Tufail Case, the facts of this case are distinguishable as there is no recruitment process underway and if and when the process is initiated, at the time, the department can consider the Appellants' case in terms of the dicta in the Naveeda Tufail Case. She has also referred to judgment dated 17.09.2020 passed by this Court in W.P. No.16185/2019 titled Dr. Adnan Rasool and others v. Government of Punjab through Chief Secretary, Lahore and others and states that accordingly no illegality is made out in the impugned order.

5. We have heard the arguments and considered the record. Admittedly, the Appellants were appointed on ad hoc basis as Medical Officers (BS-17). The Appellants also appeared before the Punjab Public Service Commission, Lahore ("PPSC") in the year 2018-19 and admittedly were lower in merit, hence they were not appointed. On the basis of their appearance before the PPSC, the Appellants now seek regularization without recourse to the PPSC on the touchstone of the Naveeda Tufail Case. Learned counsel for the Appellants relies upon judgment dated 23.01.2018 passed by a Division Bench of this Court in 2018 PLC (C.S.) 712 titled Dr. Zaheer Iqbal and others v. Province of Punjab through Chief Secretary and others, however we note that this judgment is distinguishable on the facts as in that case, the recruitment process was underway and this Court directed the Respondents to follow the directions given in Naveeda Tufail Case whereby they had to separately consider the case of the appellants for the purposes of recruitment. So far as the case of the present Appellants is concerned, learned Law Officer has stated that the process of recruitment has not been initiated and at the moment, the department is not moving any requisition for considering the case of the Appellants for regularization. Initially, 3924 posts were advertised and the Appellants were not recommended by the PPSC being very low in merit. Hence she states that the Respondents are not required to regularize the Appellants who did not make the merit. It is important to note that in terms of the Naveeda Tufail Case, for the purposes of regularization, the cases of ad hoc employees seeking regularization have to be sent separately to the PPSC and cannot be tagged with the direct recruitment. However, in terms of the judgment cited as 2019 SCMR 830 (supra), the august Supreme Court of Pakistan has held that ad hoc appointments are for a particular purpose and ad hoc appointees do not have the protection of any rules or law, hence they cannot be given the benefit of regularization as availed by contract employees. In terms of the decisions made in the Naveeda Tufail Case as well as judgment cited as 2019 SCMR 830 (supra), ad hoc employees can be considered for regularization if the relevant department requisitions for their regularization and if the department is desirous of converting the ad hoc appointments into regular appointments. Therefore, ad hoc appointees cannot seek regularization as of right rather they are dependent on the requirements of the department and on following the process undertaken by the appointing authority. In both cases, it is clear that there is no right to be regularized for ad hoc employees, as their appointment is for a particular purpose and not against a sanctioned post. Furthermore, we note that the Naveeda Tufail Case has not directed that the department is compelled to issue a requisition for ad hoc employees. The facts of that case simply required that the cases of those candidates who had worked with the department on ad hoc basis not be tagged with the direct recruitment candidates, for the process of regularization.

6. Learned counsel for the Appellants has stressed that this Court should direct the Respondents to send its requisition for regularization of the Appellants as they have been working with the Respondents for a considerable period of time and they have already undergone the process of recruitment before the PPSC and qualified the same. We have heard the learned counsel for the Appellants at length, however, we are not in agreement with the contentions raised. It is noted that the Naveeda Tufail Case has not declared that all ad hoc employees have to be considered for regularization so long as they undergo the process of recruitment before the PPSC. Naveeda Tufail Case states that ad hoc employees have no right to hold the posts beyond the period for which they were appointed, hence it is a stop gap arrangement and if they are to be considered for regularization, they must go through the process of selection by the PPSC. In the Naveeda Tufail Case, the august Supreme Court of Pakistan gave a concession to the petitioners before the court by requiring that their cases not be tagged with the direct recruitment category and they be treated separately for the purposes of recruitment/regularization by giving them additional marks and relaxation of age so as to facilitate their regularization. The said judgment does not require that all the ad hoc employees be treated in a similar manner rather the august Supreme Court of Pakistan based on a concession offered by Government of Punjab required that cases of the ad hoc appointees be considered separately. However, in terms of 2019 SCMR 830 (supra), the august Supreme Court of Pakistan has decided that ad hoc employees are appointed on stop gap arrangement and they cannot be given any benefit or relaxation in the rules simply because they have been working on ad hoc basis for a considerable period of time. On the basis of this judgment, the august Supreme Court of Pakistan has made it clear that if at all, ad hoc employees are to be considered for regularization, it will be done in accordance with the rules and for the purposes of appointments in BS-17 as per the process set out by the relevant department and the PPSC. Therefore, the Appellants' contention that they are not required to go before the PPSC is misguided because although they participated in the recruitment process in the year 2017, they did not come on merit. Hence they were not selected or appointed against the sanctioned seats. The appearance of the Appellants before the PPSC in the year 2019 does not absolve them from the requirement of undergoing the process for selection by the PPSC. If at all the Respondents are going to consider the Appellants for regularization, even based on the principles laid down in the Naveeda Tufail Case, they have to be selected by the PPSC for appointment on merit.

7. Under the circumstances, we find no illegality in the impugned order dated 17.02.2020, hence the instant Appeal is dismissed. The impugned order dated 17.02.2020 passed by the learned Single Judge in Writ Petition No. 248849/2018 is maintained. MH/J-5/L Intra Court Appeal dismissed.