2004 PLP 630 (SCMR)

ABDUL HAMEED DOGAR, J.

By this consolidated judgment, we propose to dispose of Civil Petitions Nos.1452, 1453 and 1454 of 2002 as they arise from a common judgment dated 6-6-2002 passed by the learned Federal Service Tribunal (hereinafter called as `the Tribunal') whereby appeals filed by respondents, namely, Abbas Ali Malano, Akhtar Ali Sheikh and Muhammad Usman Memon were allowed with all back-benefits.

2. In response to the Petitions Nos.1453 of 2002 and 1454 of 2002 being barred by 23 and 21 days, learned counsel for the petitioner stated that in fact the petitions are not barred by time but have been filed within time. According to him, only one copy of the judgment dated 6-6-2000 was sent to the petitioner by the Tribunal which was received on 26-6-2002 against which Civil Petition No.1452 of 2002 was filed, whereas the remaining two petitions were filed on receipt of the certified copies of the judgment which were supplied to the petitioner on 17-8-2002. The explanation seems to be reasonable as such Civil Miscellaneous Applications Nos.2482 and 2532 of 2002 are allowed and the delay in filing of petitions is condoned.

3. The facts, leading to the filing of the above mentioned petitions are that respondents, namely, Abbas Ali Malano, Akhtar Ali Sheikh and Muhammad Usman Memon applied for several posts in the year 1989 through Placement Bureau established by the Prime Minister's Secretariat for providing employment to deserving persons in various departments and the applications of the respondent were recommended and sent to the various departments including Water and Power Development Authority, the petitioner. On 14-5-1989, the respondents being highly qualified, were found suitable and were issued offer letters and were selected on ad hoc basis for a period of six months as Assistant Director (Admn.) by Director (Establishment) S&GAD, WAPDA, the petitioner. However, 'a condition was imposed that the appointment would be subject to their qualifying for prescribed competitive examination as and when held and in case of failure, their services would be terminated without any notice. The respondents passed the prescribed departmental examination held on 30-1-1990 and also qualified the interview, as such, as per conditions laid down in the letters of appointment, they stood qualified to be confirmed, instead their services were terminated with effect from 8-7-1990 vide letters dated 27-6-1990 issued by the Deputy Director (Establishment) on the plea that they had not been selected on merits. However, the said order was superseded by another order dated 14-7-1990 issued by Managing Director (Admn.) and respondents were not relieved but were sent for extensive specialized job training course for three months in order to evaluate their performance on weekly basis. But they were not taken on duties and with the change of Government in August, 1990, the policy of the Cabinet was changed and all recruitments made on the recommendations of the Placement Bureau were set aside and the services of all those officials appointed including the respondents were terminated en bloc on political grounds. It was additionally mentioned that the respondents had not qualified the examination and interview on merits also.

4. Feeling aggrieved from, the orders of termination, all such aggrieved officials filed Writ Petitions Nos.8508 of 1990 and 40 other petitions in the Lahore High Court, Lahore which were allowed and the termination orders of all of them were set aside on the ground that the same were passed in arbitrary manner without application of the simply on the direction of the Cabinet which had got no authority in the matter.

5. Government of Pakistan assailed the said order before this Court in petition for leave to appeal, in which leave was granted but later on the appeal was withdrawn, as such the order of Lahore High Court remained in field.

6. Following the judgment of the Lahore High Court, Lahore, as well as the observations of this Court in leave granting order, all those employees whose services were terminated in similar manner being appointee on the recommendations of the Placement Bureau were reinstated. Similarly, the respondents were also reinstated in service by the petitioner vide order dated 12-12-1993 and while reinstating them, the petitioner reiterated the same terms and conditions as prescribed in the original letter of appointment dated 14-5-1989 about their qualifying competitive examination scheduled to be held on 10-2-1994. However, the examination was postponed visualizing the ban on appointment of all sorts of services. In any case, it was on 6-8-1996, the petitioner granted no objection to the recruitment and in consequence' whereof advertised 18 posts of Assistant Director (Admn.) B-17 but neither conducted written test nor held oral examination. Thus the question of appointment of the respondents on the basis of terms and conditions mentioned in the order of initial appointment became past and closed chapter.

7. Again with the change of Government, the services of the respondents were terminated on 14-10-1998. This time a stance was taken that their selection had been made in violation of the rules laid down in the case of Abdul Jabbar Memon and others 1996 SCMR 1349 (known as Human Rights case). The respondents feeling aggrieved, preferred departmental appeals to the petitioner on 10-11 1998, which remained un responded, as such, they invoked the jurisdiction of Tribunal and filed their respective appeals. which were allowed by the impugned judgment hence these petitions for leave to appeal.

8. We have heard Mr. Muhammad Munir Paracha, learned Advocate Supreme Court for the petitioner, and have gone through the record and proceedings of the case in minute particulars.

9. Learned counsel for the petitioner contended that the services of the respondents were rightly terminated as they were appointed on ad hoc basis subject to their selection as a result of prescribed competitive examination and interview as and when held. According to him, an ad hoc employee had no vested right to claim against the post on which he was appointed and cannot claim any preference over other candidates selected on merits and regular basis. Their services were rightly terminated because they were appointed in the clear violation of the criteria laid down by this Court in a human rights case. Neither posts were advertised nor a fair competition between qualifying candidates seeking employment took place, thus the Tribunal failed to follow the settled principles and seriously erred in reinstating them with all back benefits. He, however, conceded that the prescribed competitive examination which was in fact scheduled to be held on 10-2-1994 after their reinstatement could not be conducted on account of ban imposed by the Government of Pakistan. He deified the assertion of respondents being discriminated with other employees appointed on the recommendations of the Placement Bureau.

10. It is a fact that the respondents were appointed on ad hoc basis on 14-5-1989 for a period of six months on the recommendations of Placement Bureau subject to their qualifying competitive-examination and interview as and when held. According to the record, it was on 15-1-1990, they appeared in examination with different roll numbers but could not qualify the interview as such, their services were terminated with effect from 8-7-1990 vide letter dated 27-6-1990. However, the same was not implemented but was superseded by another order and they were continued in service on the order of the petitioner and were sent for extensive specialized training course for three months in order to evaluate their performance.

11. Surprisingly with the change of the Government in August 1990, the respondents and other officers appointed through Placement Bureau were terminated from their respective services while treating them as political appointees. All such those officials invoked the Constitutional jurisdiction of the Lahore High Court, and challenges their dismissal in various writ petitions which were allowed vide judgment reported as Sheikh Mudassar Ahmad v. Government of Pakistan through Secretary, Establishment Division, Islamabad and others 1991 PLC (C.S.) 1047.

12. The aforesaid decision was challenged in service civil petitions for leave to appeal before this Court wherein leave to appeal was granted which is reported as the Regional Commissioner of Income-tax. Central Region, Lahore and others v. Zaffar Hussain and others PLD 1992 SC

869. However, the appeals arising out of the above petitions were not pressed by the Government of Pakistan and were withdrawn, leaving the judgment of Lahore High Court referred (supra) in the field alone.

13. Resultantly, the respondents were reinstated in service by the, petitioner vide order dated 12-12-1993 on the same terms and conditions -mentioned in their initial order of appointment dated 14-5-1989. It was, however, emphasized that they had to appear in the examination/test scheduled to be held on 10-2-1994 which admittedly was never held. On the contrary, respondents in order to get their services regularized, filed Appeals Nos. 153, 165 and 166(L) of 1993 before the Lahore High Court which were disposed of with the following observations:-- "Before parting with the case, we think it proper to advise the respondent-authority to initiate action to organize the examination, at the earliest, and finalize the question or appellants' selection and regularization lest the delay, so caused, mars their chances of employment elsewhere because of the age factor should they, we hope not, fail to make the grade here."

14. The petitioner did not keep silent but with the change of Government, again terminated the services of the respondents on 13/14-10-1998 terming them to have been appointed in violation of the rules laid down in a Human Rights case referred supra.

15. In our opinion the case of respondents does not fall within any of the categories laid down by this Court in Human Rights case as it is not the case of the petitioner that any of the respondents either lacked requisite qualifications or were appointed by incompetent authority. On the contrary, the petitioner never organized the examination and finalized the respondents' selection and their regularization till their final order or termination passed in 1998. It is also spelled out from the impugned judgment that the petitioner had been discriminated with other employees who were appointed in similar manner on ad hoc basis and were subsequently confirmed and regularized. Non-holding of examination interview by the petitioner amounts to waiver and respondents should have been notified as confirmed. Irrespective of above, the respondents have served for 11 years and have thus accrued vested right of being regularized. The aspect where, the authority was itself responsible for making irregular appointment on temporary basis, subsequently turned down and terminated their services on the ground that the same was made in violation of the rules has not been appreciated by this Court particularly when the appointees fulfilled the requisite qualifications. In this context, reference can be made to the cases of this Court reported as Secretary to Government of N.-W.F.P., Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350.

16. We find no reason to differ from the conclusion arrived at by the Tribunal and consequently are not inclined to grant leave in these cases. All the petitions are accordingly dismissed and leave to appeal refused. S.A.K./W-51/S Leave refused.