2002 PLP (C (PLC(CS))

S.2(1)(a)

Ad hoc appointment

Ad hoc appointment was subject to the incident of "pending recruitment in accordance with such method" as provided in S.2(1)(a) of Punjab Civil Servants Act, 1974

Ad hoc appointee had to go one day or the other, but on the arrival of a regular selectee

One could not assume that an ad hoc tenure could be limited to any period, a year or so, or to the condition of putting an end to it without notice at the sweet -will of the employer.

S.5

Initial appointment

Nature of--Initial appointment and ad hoc appointment

Distinction

Initial appointment was quite distinct from ad hoc appointment

Ad hoc appointment had been excluded from the purview of the incidence of probation

Provision relating to termination of a regular recruited employee during the probation period, initial or extended would have no application to the termination' of an ad hoc appointee

If both were placed at par, the exclusionary clause. in S.5 of Punjab Civil Servants Act, 1974 would become redundant and redundancy could not be imputed to the Legislature.

S. 10(3)--Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.22

Termination of ad hoc appointment

Liability to termination of an ad hoc appointment on the arrival of a regular selectee, had a typical conception

Section 10(3) of Punjab Civil Servants Act, 1974 was a machinery provision and enabled the employer to send an ad hoc appointee home- either with one month's notice or with one month's pay which was only a beneficiary arrangement for the employee, but would not take away the incident of arrival of a regular selectee

Said liability was not required to be mentioned in the appointment letter, because the definition of the expression "ad hoc appointment ' by itself had explained the same

Terms of ad hoc appointment could not be terminated until the arrival of regular incumbent

Contention that an. ad hoc tenure could not go beyond e year as per R.22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 would not be helpful because it travelled beyond the definition of the term and also the constituents of S.10 of Punjab Civil Servants Act, 1974

If ad hoc: appointment was terminated without notice or on the lapse of a year without having a regular selectee at hand, the post would have to be kept either vacant to the detriment of public interest or it would have to be re-filled again by ad hoc arrangement

Post got vacated from an ad hoc appointee should be filled in once for all by receiving a regular selectee

Ad hoc appointment could not be assimilated with an appointment on probation and services of an ad hoc employee could not be terminated without valid justification if the post continued.

Rr. 4 & 5

Termination of service

Punjab Civil Servants (Efficiency acid Discipline) Rules, 1975 or of 1999, did not speak of punishment by termination

Termination could be for some reason, but would carry no stigma or invocation of disciplinary rules

In case of stigmatized ouster even contractees would be entitled to a show-cause notice and a proper inquiry.

Judicial and executive power is a trust and was not absolute in any person/Authority, howhighsoever, it may be--Such power was always guided by the principles of good conscience, fairplay and justice.

Ss. 2(1)(a) & 10(3)

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.22

Termination of ad hoc appointment

Civil servants who` were appointed on ad hoc basis served for a considerable period (in some cases for more than five years)

Services of said civil servants were terminated on ground that under R.22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 ad hoc appointment was only for one year arid could not be extended without relaxation of Rules and that said appointment could not confer any rights on civil servants to continue indefinitely

Validity

Ad hoc appointment could not be terminated without valid justification if the post continues and could not be terminated until the arrival of a regular incumbent to till ad hoc post

Civil servants were entitled to hold and continue their positions as they were holding at the time of passing the termination order till such time the regular selectees were made available through prescribed method and in accordance with law

Order terminating services of civil servants, were set aside being without lawful authority. JUDGMENT ABDUL HAFEEZ CHEEMA (CHAIRMAN).

This order rill dispose of all the 130 appeals mentioned in Annexure-A which raise identical questions of law and of fact.

2. The facts which led the appellants to invoke the jurisdiction of this Tribunal briefly are that they were appointed as civil servants in different Departments of the Government of the Punjab on ad hoc basis for a given period. After the expiry of initial periods, mostly six months, the ad hoc appointments continued to be extended from time to time and were ultimately terminated by various orders of different Departments. In some cases, he appellants were relieved of their duties. After exhausting departmental remedies, the appellants tiled service appeals before this Tribunal and obtained stay orders.

3. The case of the appellants is that they have served their Departments, for a considerable period (in some cases for more than five years); that their appointments were made in public interest and that in law their services could have been terminated only if regularly selected incumbents were made available in the prescribed manner. A reference has been made to section 2(1)(a), section 5(1) and section 10(1)(ii) of the Punjab Civil Servants Act, 1974. Reliance was placed on a number of reported and unreported judgments including 1995 PLC (CS) 765, 1995 PLC (CS) 611, 1995 PLC (C.S.) 433, 1995 PLC (C.S.) 377 and 1981 SCMR 469.

4. On the other hand, the respondents in their comments relying upon rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, have taken up the stance that ad hoc appointment is only for one year and could not be extended without relaxation of Rules; that such an appointment could not confer any right on the employee to continue indefinitely and that the same could be terminated at any time on thirty days notice or pay in lieu thereof in terms of section 10(3) of the Punjab Civil Servants Act, 1974. Reference was made to the judgment rendered in Appeal No.615 of 1990 (reported, as PLJ 1998 Tr.C. (Service) 77)) and it was urged that this Full Bench judgment would take precedence over the earlier judgments delivered either by a Single Bench or a Division Bench on the question under consideration. The learned D.A. supported the view point canvassed by the respondents in their comments.

5. The question falling for consideration in these appeals before us is: Whether in the given circumstances, the respondents were justified in terminating the services of the appellants until a regular appointment is made through duly constituted Commission/Board/Committee as envisaged under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974?

6. Arguments have been heard and record has also been examined. "ad hoc appointment means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method." It is to be appreciated that an ad hoc appointment is undeniably subject to the incident of "pending recruitment in accordance with such method". An ad hoc appointee has to .go one day or the other but on the arrival of a regular selectee. One could not, therefore, assume that an ad hoc tenure can be limited to any period, say a year or so, or to the condition of putting an and to it without notice at the sweet-will of the employer. In any such events, the phrase "pending recruitment in accordance with such method would become totally irrelevant and indeed : redundant. Any such interpretation would obviously be useless.

8. Initial appointment is visualized to be quite distinct from ad hoc 'appointment as per section 5 of the Punjab Civil Servants Act, 1974 inasmuch as the latter has been excluded from the purview of the incidence: of probation. The clause relating to termination of a regularly recruited employee during the probation period, initial, or extended, would have no application to the termination of an ad hoc appointee. If both are placed at par, the exclusionary clause in section 5 of the Act' (ibid) will become redundant and redundancy, they say, cannot be imputed to the legislature.

9. The liability to termination of an ad hoc appointment on the arrival of a regular selectee has a typical concept. Section 10(3) of the Punjab Civil Servants Act, 1974, is a machinery provision and enables the employer to send an ad hoc appointee home either with one month's notice or with one month's pay. It is only a beneficial arrangement for the employee but does not take away the incidence of arrival of a regular selectee. The said liability is not required to be mentioned in the appointment letter. This is so because the definition of the, expression "ad hoc appointment" by itself explains it. The. corollary, therefore, would be that such tenure could not be terminated until the, arrival of a -regular incumbent.

10. The argument that an ad hoc tenure could not go beyond a year as per rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, seems to be unhelpful because it travels beyond the definition of the term and also the constituents of section 10 of the Act (ibid). Secondly, if such appointment is terminated without notice or on the lapse of a year without having a regular selectee at hand, the post will have to be kept either vacant to the detriment of public interest, or it will have to be re-filled perhaps again by ad hoc arrangement and if such ad hoc appointment is again terminated without the arrival of a regular selectee at one's sweet-will and is to be filled again in the same circuitous manner, it will prostitute the whole system involving mal-administration and what not Successive terminations and then refilling the vacancies again and again on ad hoc basis would not be something enviable. The post got vacated from an ad hoc appointee should be filled in once for all by receiving a regular selectee. Anywise, ad hoc appointment could not be assimilated with an appointment on probation. To put them at par would be perversity of section 5 of the Act and also the definition as reproduced in para. 7 above.

11. It must be kept in mind that the Punjab Civil Servants (E&D) Rules, 1975 or of 1999, do not speak of punishment by termination. It seems that termination may be for some reasons but would carry no stigma or invocation of disciplinary rules. It may be noted that in the other three Provinces, Ad hoc Civil Servants (Regularization of Services) Acts were passed keeping in view the fact that ban was imposed by the Government for a considerable long time and that, therefore, locus standi to the ad hoc appointees or even the contractees on the question of age-limit etc., ought to be restored. It was ruled in 1998 PSC 337 that in case of stigmatized ouster, even contractees would be entitled to a show-cause notice and a "proper inquiry". "Be that as it may, learned counsel for the petitioners frankly conceded that the regular posts of subject-Specialist against which the present respondents are working since 1987, are yet to be filled in by the Punjab Public Service Commission. If that is so, the Tribunal was right, in allowing them to continue in public interest so that the work of the Government may not suffer inasmuch as they had admittedly been working as such for the last seven years without any complaint. The result is that the respondents shall continue in their present posts till the induction of regular appointees and the petitioners shall be .at liberty to pass appropriate orders in accordance with law as soon as the regular incumbents are appointed pursuant to the recommendations of the Punjab Public Service Commission." In Bashir Ahmed's case reported as 1985 SCMR 990, where the learned Senior Civil Judge, Gujranwala, had appointed a Naib-Nazir by way of promotion without consulting in any manner the Departmental Promotion Committee, it was ruled that absence of Departmental Promotion Committee would not affect the power of the appointing authority creating voidness in the appointment made but it would only affect the nature of the appointment made. It was held that the said appointment could be regarded as ad hoc and that the same would continue till a regular appointment is made. The judgment of the Honourable Supreme Court in C.P.S.L.A. No.768-L of 1997 is dated 19-I1-1998 and being later and direct on the point under consideration before us, would clinch the issue on all fours. A direct verdict having, come from the Honourable Supreme Court, as aforementioned, the Full Bench judgment of this Tribunal dated 8-11-1997 (PLJ 1998 Tr.C (Service) 77)) will go in eclipse. (Allah doth command you to render back your trust to whom they are due; and when ye judge between man and man, that ye judge with justice; Verily how excellent is the teaching which. He giveth you!)" IV: 58

14. In the light of above discussions and observations the appellants are held entitled to hold and continue their positions as they were holding at the time of passing the impugned orders till such time the regular selectees are made available through prescribed method and in accordance with law by the respective Departments. The impugned orders are declared to have been passed without lawful authority and the same are set aside as such. All the appeals as enumerated in annexure-A stand accepted in the above terms leaving the parties to bear their own costs. (Sd.) Justice (Retd.) Abdul Hafeez Cheema, Chairman MUHAMMAD LATIF QURESHI (MEMBER-II).--I. agree. (Sd). Muhammad Lateef Qureshi, Member II "22(2). 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. (1) The vacancy is advertised properly in the newspapers; (2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post; (3) the selection is made on the basis of merit determined by objective criteria; (4) the appointment order certifies that a requisition has been sent to the Selection Authority: Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade." It was argued that these appointments were procured be exorting political influence through the Chief Minister, Ministers, MNAs and MPAs etc. such appointments have been depricated by the Hon'ble Supreme Court in the famous Human Rights' case reported in 1996 SCMR 1349. It was also pointed out that the latest judgment in line was delivered by the Full Bench of the Tribunal in Appeal No. 615 of 1994, wherein it was held that the ad hoc appointments are liable to termination on 30 days' notice or pay in lieu thereof as provided under section 10(iii) of the Punjab Civil Servants Act, 1974. This judgment still holds the field. Even otherwise, the ad hoc appointments by its very nature are temporary and restricted to a specified period of time. In the impugned cases, the appointments were allowed to continue for an indefinite period, which infringes and violates the spirit of Rule 22(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. I very much appreciate the Qur'anic Injunctions referred to in para. 13 of the judgment. To my mind public service is a trust and the public functionaries are under obligation to discharge their duties in the most efficient, transparent and diligent manners as laid down in the Human Rights' case judgment referred to above. The vacancies should be published m the locality, applications should be invited from the eligible candidates and a merit list prepared and the post offered to the most eligible candidates. This would actually fulfil the Injunctions of the Qur'an rather than -persons who got appointment without any merit and on other considerations. H.B.T./40/P(Sr. Trib.) Appeal accepted.