2001 SCMR 1661 (PLP)

MIAN MUHAMMAD AJMAL, J.‑‑‑This appeal, by leave of the Court, calls in question the validity of the judgment of the Punjab Service Tribunal, Lahore Camp at Rawalpindi (hereinafter to be called the Tribunal) dated 10‑4‑1995, whereby appeal of the respondent against his termination from service, was allowed and he was reinstated with back benefits.

2. Brief facts are that vide letter dated 21‑10‑1989, the respondent was appointed as Assistant Research Officer (B‑17) in Agriculture Department, Government of the Punjab, on ad hoc basis for a period of one year from the date of his joining the service or till the arrival of the selectee of the Punjab Public Service Commission; whichever was earlier. The period of his ad hoc appointment was initially extended for three months from 21‑11‑1991 or till the arrival of a regular selectee by the Punjab Service Commission whichever was earlier vide order dated 23‑10‑1991, which was further extended for six months on 6‑2‑1992 and such extensions were given to him from time to time. Vide Letter No.SO(A‑I)1‑16/99‑II dated 29‑11‑1993 his services were terminated. Feeling aggrieved, he filed Appeal No. 1231 of 1993 before the Tribunal, alleging herein that under section 10 of the Punjab Civil Servants Act, 1974 (hereinafter to the called the Act) his services could only be terminated on the arrival of regular selectee by the Public Service Commission. He further alleged that neither any notice was issued to him prior to his termination from service nor he was allowed pay in lieu thereof nor any reason for the termination as mentioned in the order. The appellant's‑department took the plea that his services were terminated in accordance with the policy decision. The learned Tribunal vide its judgment dated 10‑4‑1995 allowed the appeal of the respondent, concluding paragraphs wherefrom are reproduced hereinbelow:‑‑ "By now a long trail of cases has been decided holding that an ad hoc appointment could not be terminated except on appointment of a regularly selected incumbent. The department did not show if they had appointed any such regularly selected incumbent against the post held by the appellant. The policy decision, or for that matter the Supreme Court judgment to which the appellant was not a party, had not much relevance as the aforesaid statutory provision was discussed in neither. Attention was drawn in particular to the decision of this Tribunal dated 2‑10‑1994 reported in 1995 PLC 3'77 claiming that the appeal decided therein also arose out of the same so‑called policy decision. The learned D.A. did not controvert this assertion nor did he show if the said judgment was upset by the Supreme Court in appeal. Thus we do not find any reason to distinguish the appellant's case from the one cited above or many others of the type. The rule of consistency demands that the appellant's case, based upon almost identical facts, should also meet the same fate. Consequently, the appeal is allowed. The impugned order is set aside and the appellant is reinstated with back benefits. However, it is made clear that he will hold on the post till it is filled by a regularly selected incumbent." Feeling aggrieved, Secretary to Government of Punjab, Agriculture Department and others, the appellants filed Petition for Leave to Appeal No.887‑L of 1995, wherein leave was granted to consider:‑‑ "In support of this petition it is contended that admittedly the appointment of the respondent was of ad hoc nature. Under section 10(3), the Punjab Civil Servants Act, the competent authority could terminate his services on thirty days' notice or pay in lieu thereof. This is exactly what has been done in this case. The judgment of the learned Tribunal impinges upon the statutory right of the Government and it is for the reason unsustainable. The contention raised in support of this petition needs examination. Leave. to appeal is accordingly granted."

3. Learned Additional Advocate‑General appearing on behalf of the appellants contended that the services of the respondent were terminated as per terms and conditions of his appointment letter read with section 10 of the Act. He submitted that respondent's services were terminable at any time without notice and without assigning any reason as prescribed in para. (iv) of the appointment letter. He further submitted that the appointment of the respondent was made under political pressure so it was against Rule 22 of the Punjab Civil Servants (Appointment' and Conditions of Service) Rules, 1974 (hereinafter to be called the Rules) and could be terminated at any time.

4. The respondent, in person, in support of the impugned judgment, argued that no notice or pay in lieu thereof as required under section 10(3) of the Act was given to him, therefore, termination order was bad in law. He stated that after the acceptance of his appeal by the Tribunal he was reinstated and is holding the post. He further stated that the post has not been advertised so far for selection of an officer by the Public Service Commission. He mostly pressed into service the impugned judgment contending that since no nominee by the Public Service Commission has been recommended for the post, therefore, he can hold the post till the arrival of such selectee/recommendee.

5. We have heard the learned Additional Advocate‑General for the appellants and the respondent in person Admittedly, respondent was appointed without observing the procedure laid down in Rule 22 of the Rules and till now he is holding the post in violation of Sub‑Rule (2) of Rule 22 of the Rules which provides that after forwarding a requisition to the Selection Authority, the appointing authority may, if it considers necessary in the public interest, 'fill the post on ad hoc basis for a period not exceeding one year pending nomination of a candidate by the Selection Authority. It has not been denied by the appellant's side that the appointing authority has taken 8 any step to forward a requisition to the Selection Authority to fill the post on regular basis, whereas under the said rule requisition was to be sent prior to the appointment of any person on merit on ad hoc basis after advertisement of the post, as such, the appellants are themselves responsible for violating the Rules. However, such an appointment being violative of the Rules, cannot be attached any sanctity. Although the respondent was appointed for a period of one year which was automatically terminable on the expiry of the said period or till the arrival of the selectee of the Public Service Commission but it is regretfully noted that no requisition to the Selection Authority has been sent in three years whereas Rule 22(1) of the Rules H required immediate requisition to the Selection Authority to fill the post on regular basis.

6. As far the contention that respondent's services were liable to termination at any time without notice and without assigning any reasons thereto as provided in the terms and conditions of his service (para. (iv) of the appointment letter), duly accepted by him at the time of his appointment therefore, he cannot now allege that his services could not be terminated without notice. It would be relevant to refer to section 10 of the Act, which provides the procedure for the termination of service of a civil servant. It is reproduced in extenso:‑‑ "

10. Termination of service.‑‑(1) The service of a civil servant may be terminated without notice. (i) during the initial or extended period of his probation: Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred and promoted on probation from one (service) cadre or post to another (service) cadre or post his service shall not be terminated so long as he holds a lien against his former post (service) or cadre, and he shall be reverted to his former (service), or as the case may be, cadre or post; (ii) if the appointment is made on ad hoc basis liable to termination on the appointment of a person on the recommendation of the selection authority, on the appointment of such person. (2) In the event of a post being abolished or number of posts in a cadre or (service) being reduced the services of the most junior person in such cadre or (service) shall be terminated. (3) Notwithstanding the provisions of subsection (1) but subject to the provisions of subsection (2), the service of a civil servant to temporary employment or appointed on ad hoc basis shall be ‑liable to termination on thirty days' notice or pay in lieu thereof." According to subsection (1) a civil servant can be terminated without notice during the initial or extended period of his probation and in case of ad hoc appointee, on appointment of a person recommended by the Selection Authority. In the instant case, the respondent's services could be terminated without notice on the arrival of the selectee/recommendee of the Selection C Authority but no requisition was made to the Selection Authority in' three years to fill the post on regular basis. Under subsection (3) of section 10 of the Act the temporary or ad hoc employee can be terminated on thirty days' notice or pay in lieu thereof but this provision of law was not followed in the present case and instead the respondent was terminated from service in view I of para. (iv) of the terms and conditions of his service as laid down in his appointment letter which is not in accordance with law and the rules.

7. In this view of the matter, we are not inclined to interfere with the judgment of the Tribunal as such, this appeal is dismissed with the observation that the appointing authority shall immediately forward a requisition to the Selection Authority to nominate a selectee for the post in accordance with law. The respondent, if eligible, shall have a right to compete with others. No order as to costs. M.B.A./S‑123/S Order accordingly.