1981 PLP (C (PLC(CS))

Dates of hearing: 18th, 19th, 20th, 21st, 25th, 26th, 27th, March; 2nd, 3rd, 8th, 10th, 24th April; 6th, 15th, 16th, 20th, 21st, 22nd, 23rd, 27th and 29th May, 1979. I. MAHMUD, J.‑‑Constitutional Petitions Nos. D‑1122, 1247 and 1328 of 1978 raise common questions of law and fact and were heard together. They will be decided by this judgment.

2. In C. P. No. D‑1122/78, the petitioner Shakeel Faiyaz was appointed as Instructor (Islamiat) on 21st March, 1968 on ad hoc basis merely as a stopgap arrangement for a period of 6 months or until the appointment of a candidate selected by the West Pakistan Public Service‑ Commission, whichever was earlier. As no such candidate was selected by the Commission the appointment of the petitioner was regularised under Sind Government Notification dated 18th December, 1973 with effect from 1st April, 1968, "in relaxation of the provisions of ‑the relevant Service Rules, conditions of appointment and/or the decision to refer these cases to the Provincial Education Council". Thereafter on the basis of the regularisation, the petitioner was confirmed with effect from 1st July, 1974 in the pest of instructor (Islamiat) in Government Commercial Training Institute, Malir, Karachi as notified in the Sind Government Gazette, dated 7th April, 1977. Upon the promulgation of Martial Law Order 55, called the "Ad hoc Appointments Regularization Order" dated 7th March, 1978 the petitioner's name was included in the list "ad hoc appointees" and he was directed to appear for interview before the Sind Public Service Commission, Hyderabad on 10th July, 1978. The petitioner, accordingly appeared before the said Commission and, before the results of the interview could be announced, he filed the present petition for quashing the proceedings initiated by the said Commission for the review of his appointment.

3. The facts in C. P. No. D‑1247/78 are that the petitioner, Mohammad Shabbir, who was already serving as temporary Junior Instructor in Government Commercial Training Institute, Hyderabad since the year 1966, was appointed as Instructor in the Government Institute of Commercial Education, Karachi on 22nd July, 1970 on purely, temporary basis as stopgap arrangement for a period of 6 months or until the appointment of a candidate selected for the post of Instructor by the Sind Public Service Commission, Hyderabad, whichever was earlier. As no candidate was selected by the Commission, the appointment of the petitioner was regularised under Notification dated 18th December, 1973 with effect from 10th August, 1970 "in relaxation of the provisions of the relevant service Rules, conditions of appointment and/or the decision to refer the cases to the Provincial Education Council". After the promulgation of Martial Law Order 55, the petitioner's name was included in the list of "ad hoc appointees" and he was directed to appear for interview before the Sind Public Service Com mission, Hyderabad on 11th July, 1978. Before the results of the interview were announced, he filed the present petition for quashing the proceedings initiated by the said Commission for the review of his appointment.

4. In C. P. No. D‑132811978, the petitioner, Syed Tanvir Ahmed Rizvi was appointed on 27th August, 1964 as Instructor (English language) at Government Commercial Training Institute, Sukkur on purely temporary basis as a stopgap arrangement for a period of six months or until appoint ment of a candidate selected by the West Pakistan Public Service Commission, whichever was earlier under stopgap arrangement which was extended for a further period of six months behind 27th February, 1965 as "his services were badly needed for conducting the classes of the said Institute". No candidate having been selected by the Commission for the post, the ad hoc appointment of the petitioner was regularised on 18th December, 1973 with effect from 27th August, 1964, under Sind Government Notification "in relaxa tion of the provisions of the relevant Service Rules, conditions of appointment and/or the decision to refer the cases to the Provincial Education Council". On the basis of the regularisation, the petitioner was confirmed in the post which he then held as Principal, on 2nd November, 1974. On the promulga tion of Martial Law Order 55, he was directed to appear before the Sind Public Service Commission, Hyderabad for interview on 30th September, 1978. He failed to appear for the interview and requested that the direction to appear for the interview, may be re‑examined in the light of his representa tion that he was regular employee, in permanent service for the last over five years. He has filed this petition praying for quashment of the proceedings initiated by the Commission for review of his appointment.

5. The main submission of Mr. Zaheeruddin Khan, learned counsel for the petitioner was that the cases of the petitioners did not fall within the definition of "ad‑hoc appointments" contained in para. 2(a)(i) or Martial Law Order 55 for the reason that their initial temporary appoint ment were duly regularised and they were confirmed in permanent appoint ment by the appointing authority in accordance with the Service Rules. The relevant Service Rules were the West Pakistan Education Service (Class 11 Collegiate Branch) (Men's Section) Rules, 1962 dated 7th January 1963. Under rule 5 appointments to the service shall be made by the Govern ment. Although rule 6(1) provided that recruitment to the service shall' be made by initial recruitment "in consultation" with Commission. Rule 13 conferred power on the Government to relax any of the rules in individual cases if Government was satisfied that a strict applications of the rule would cause undue hardship to the individual concerned. By the notification dated 18th December, 1973 and published in the Sind Government Gazette dated 17th January, 1974 the provisions of the relevant Service Rules (as also the conditions of appointment and/or the decision to refer the cases to the Provincial Education Council)" were relaxed and the ad‑hoc appointments of each of the three petitioners were regularised and later, they were permanently appointed and confirmed in substantive vacancies. Therefore, there is no force in the contention of the respondents that the regularisation of the petitioners' appointments were irregular or in violation of rule 6(1) of the Rules. It is also not the case of the respondent; that the relaxation of the Service Rules could only have been made after consultation with the Commission of that the relaxation involved a question on which consultation with the Commission was mandatory, as is provided in the proviso to rule

18. We, therefore, accept the submission of Mr. Zaheeruddin Khan that the initiation of proceedings for review of the appointments for the three petitioners under Martial Law Order 551 was invalid and without lawful authority.

6. It is not necessary to discuss the next submission of Mr. Zaheeruddin Khan that even otherwise, the Commission was not properly constituted as the Chairman, Mr. Justice (Retd.) Kadir Nawaz Awan had ceased to be Chairman on the relevant date under section 4(4) of the Sind Public Service Commission Ordinance, 1978 as he bad reached the age beyond 68 years. We have rejected the contention in C. P. No. D‑804/78, 813/78, D‑814/78 in view of section 3(3) of the said Ordinance which continued his appointment in the absence of direction of the date by the Governor on which he would cease to hold the office.

7. For the foregoing reasons, we would allow these petitions. Parties to bear the their costs. Petitions accepted.