2003 PLP (C (PLC(CS))

The direction issued in the above said case was as under:‑‑ "that all the private respondents‑ad hoc employees shall continue to perform their functions on the existing terms and conditions for a period of six months from today or till arrival of the regular employees who shall be recruited strictly on merits after following the prescribed procedure laid down in the relevant rules and in accordance with law, whichever is earlier. It is clarified that no further extension in service on any ground whatsoever shall be granted to the respondents. They shall stand automatically relieved of their posts on or before the above eventuality taking place. Unless, subject to their eligibility, they are recruited afresh on merit by the competent Authority after following the prescribed procedure in that behalf. "

7. In the case of Amjid Ali v. Board of Intermediate and Secondary Education (2001 SCMR 125) this Court held that no exception can be taker on the termination of the employees who were appointed on ad hoc basis on expiry of their term of appointment. In Chief Secretary, Government of Punjab v. Abdul Majeed (2001 SCMR 1971) in the light of observations made in Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another (1985 SCMR 1408) and Government of the Punjab v. Ghulam Rasool Zahid (1985 SCMR 1614) it was observed as under:‑ "

8. After having accepted the above conditions including that on the expiry of period of one year his service was liable to be terminated automatically, thus no plea can be taken by him that he is entitled to remain in service till regular selection of a candidate against this post. It may be noted that though the tenure of service of the respondent was extended but by issuing a fresh appointment letter containing the same conditions including that his service is liable to be terminated at any time without notice and without assigning any reason. Therefore, in view of such situation respondent had no case at all to remaining service till the time selection of a candidate is not made against the post by the Selection Authority. This Court in the case of Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408 has held as under:‑ '5. the rules prescribed for recruitment provided not only qualifying marks in individual subjects but also in the aggregate. By not obtaining qualifying marks in the aggregate the petitioners failed to obtain entry according to be prescribed method. The prescribed rule was neither relaxed nor changed, either expressly or by implication. Instead their appointment was taken and expressed to be otherwise than in accordance with the prescribed rule i.e. ad hoc, on terms reproduced. The termination of their service was in accordance with terms and conditions on which they were appointed. They can take as many chances as they like, subject of course to their eligibility, but their insistence that their ad hoc appointment should be continued meanwhile is untenable. We find no merit in this petition and leave to appeal is refused. " Similarly in the case of Government of the Punjab v. Ghulam Rasool Zahid 1985 SCMR 1614 it has been held as under:‑‑ "

4. In response to notice sent by this Court, Mr. M. Saeed Beg has appeared for the respondent. On examination of the record with the help of counsel present, we find that the initial order of appointment dated 26‑I1‑1976 clearly stated that the appointment was on ad hoc basis. The subsequent order dated 28‑8‑1977', which was in partial modification of the said order, clarified that the appointment of the respondent was to be treated as temporary against a leave vacancy till the same exists., The termination, that is, the temporary appointment was against a leave vacancy. The respondent had accepted the offer made in the first order and had acquiesced in the second order, copy of which had been duly endorsed to him. There is no material to support his stand that his appointment had been against a substantive vacancy or on probation. The Tribunal has apparently not given due consideration to the terms of his appointment and has fallen into error in arriving at the conclusion that he had been regularly appointed and after serving in 2 years probation period, stood automatically confirmed in the said service".

8. Learned counsel for the petitioners while conceding the legal position regarding the rights of ad hoc employees to claim retention as regular employees, contended that in the light of rule of legitimate expectancy, the petitioners can claim regularization subject to their eligibility to hold the posts. The stress of the learned counsel was that the petitioners were appointed on ad hoc basis following the prescribed procedure and method of selection by the Selection Committee as the posts were properly advertised for information of public in general and selection of the petitioners was made on merits in the light of prescribed criteria without political or any other consideration. The respondents in their written reply submitted before Punjab Service Tribunal have admitted that the applications for posts against which the petitioners were appointed as ad hoc lecturers were invited for appointment of lecturers through advertisement in the newspapers and the criteria for judging the suitability of the candidates required for appointment of lecturers in the Government institutions was fixed and their selection was made by the Selection Board constituted by the Education Department on merits. The respondents also admitted in the comments that during the years 1972, 1976 and 1989 the employees appointed on ad hoc basis were regularized and the policy relating to regularization and confirmation of ad hoc employees announced by the Federal Government in 1997 was not followed by the Government of Punjab and that in any case the petitioners were not more ad hoc employees of Education Department to be considered for regularization. It was, however, stated in the comments that the Education Department in the Government of Punjab had given special concession in respect of additional marks, extra chance, relaxation of age and entitlement for interview on obtaining 33 per cent marks in the written test to the ad hoc employees for the purpose of their selection by the Punjab Public Service Commission. The learned Advocate General has contended with' vehemence that notwithstanding the length of service of the petitioners they being ad hoc employees would have no right for regularization/confirmation or permanent rentention in service in departure to the procedure provided under the‑law for the recruitment of such posts. The learned Advocate‑General added that the appointment of the petitioners on ad hoc basis was conditional and neither they were given any understanding of regularization nor any such policy was framed for their regularization.

9. The making of recruitments on ad hoc basis with or without advertisement of the posts in the normal circumstances, amounts to curtail the legitimate right of appointment of deserving persons on regular basis and is against the policy of law. The concept of ad hoc appointments against the posts in public sector is a stopgap arrangement which is not the permanent character of the civil service. It is not proper in the public sector to occupy the posts required to be tilled through the method prescribed by law by making ad hoc appointments and allow the incumbents to continue. in the same position beyond the terms of their employment without taking any step for the tilling the posts on regular basis. It was observed by this Court in Abdul Jabbar Memon and others (1996 SCMR 1349) that there can be no justification to take keep the posts notionally vacant by making ad hoc appointments and keep the ad hoc employees hanging in the same situation for number, of years with the understanding of their adjustment on permanent basis and ultimately they are informed that they ate no more required. This method of appointments in the public sector by the functionaries is misuse of the authority of law as in the normal circumstances, recruitment against the posts in the Government Department, the statutory bodies and organizations should be filled within reasonable time by following the procedure provided under the law for fulfilling such posts on the basis of open merit through Public Service Commission. There can be no exception to the policy of law that, the ad hoc appointments should be made only in exceptional circumstances in exigencies of service and should not be allowed to prolong beyond the period for which the appointment was made and keeping a person continuously as an ad hoc employee by extending his period of service, would definitely create a legitimate expectancy in his mind for regularization. The practice of occupying the posts through ad hoc appointments for a considerable period on one hand defeats the policy of law and on the other hand: with lapse of time the ad hoc employees as well as the persons seeking appointments on merits, are excluded from the process by loosing ‑the required criteria for selection. In Human Rights Case No. 104 of 1992, this Court on 26‑12‑1992 issued the following direction:‑‑ "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental' Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement."

10. There is no cavil to the proposition that an ad hoc employee has no right to hold the post beyond the period for which he was appointed and it is also not right for the Government to continue ad hoc appointments for number of years without undertaking the exercise of selection on regular basis in the prescribed manner, The ad. hoc appointment is appointment of a duly qualified person made otherwise in accordance with prescribed method of recruitment and is made only in exceptional circumstances. This stopgap arrangement as a temporary measure for a particular period of time does not by itself confer any right on the incumbent for regular appointment or to hold it for indefinite period but at the same time if it is found that incumbent is qualified to hold the post despite his appointment being in the nature of precarious tenure, he would carry the right to be considered for permanent appointment through the process of selection as the continuation of ad hoc appointment for considerable length of time would create an impression in the mind of the employee that he was being really considered to be retained on regular basis. The ad hoc appointment by its very nature is transitory which is made for a particular period and creates no right in favour of incumbent with lapse of time and the appointing authority may in his discretion if necessary, make ad hoc appointments but it is not open for the authority to disregard the rules relating to the filling of vacancies on regular basis in the prescribed manner. We may observe that practice of making appointments on ad hoc basis for continuous period without taking steps for fulfilling the vacancies through the process of selection in the prescribed manner amounts to misuse the authority and this Court at more than one occasions observed that the appointments on ad hoc basis. should be discouraged and except in exceptional circumstances, it should not be allowed to continue beyond the period for which the appointment was initially made. The appointments in the public sector is a trust in the hands of public authorities and it is their legal and moral duty to discharge their function as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such posts, is excluded from the process of selection and is deprived of his right of appointment in service. In the Martial Law Regime of late General Zia‑ul‑Haq, the Federal Government while keeping in view the hardship of ad hoc employees framed a policy under Martial Law Instruction No.21 for regularization of ad hoc appointees in the following manner:‑‑ "

1. In the past some time a large number of ad hoc appointments in Revenue, Police, Education and other departments were made in the Province of Punjab. These ad hoc appointments fall in the following categories:‑‑ (a) Appointments against which proper selection by the Public Service Commission has since been made and the persons thus selected are awaiting appointment. Ad hoc appointees are being held against these vacancies. (b) Vacancies had been advertised but the results have not yet been finalized by the Public Service Commission. Ad hoc appointees are being held against these posts. (c) Ad hoc appointees whose cases either have been referred to Public Service Commission or not but no advertisement had been made so far. (2) Martial Law Administrator, Punjab, Zone A has decided that the following procedure will be adopted with immediate effect to regulate these appointments:‑‑ (a) Persons selected by Public Service Commission against ad hoc vacancies will be given appointment letters and affected services of ad hoc appointees terminated. (b) Cases advertised by Public Service Commission and other formalities also completed by' them will be finalized by 31st August, 1977, and action taken as in (a) above. (c) Cases of all other persons appointed directly or promoted on‑ad hoc, basis at present in service will be reviewed immediately by the appropriate selection authority competent to make recommendations for regular appointment according to the rules. On such reviews those who are found ineligible or unsuitable, their services will be terminated. Those found eligible and suitable will be converted to regular basis. This action shall be completed by 31st August, 1977, by all departments in the Province of Punjab. (3) Martial Law Administrator, Punjab, Zone A further directs that all appointments, whether by initial recruitment or by promotion, made otherwise than in accordance with the prescribed method of recruitment/promotions, shall be deemed to have been made on ad hoc basis notwithstanding that they have been made in the purported exercise of power of relaxation of rules and their cases will also be regulated according to policy given in para. 2 above. (4) Completion report of cases falling under paras. 2 and 3 above will be forwarded to HQ MLA Zone 'A' by 5th September, 1977, by ‑respective departments." The Federal Government again in 1997 had set up the following scheme for regularization of ad hoc employees to save them from unemployment:‑‑ "Government of Pakistan Cabinet Secretariat Establishment Division No.2/3/94 CP‑5 Islamabad, the 21st October; 1997. To, The Secretary, Federal Public Service Commission, Islamabad. Subject: Regularization of ad hoc Appointments made between October, 1981 to December, 1990. Sir, I am directed to say that the issue of regularization of ad hoc appointments made between October, 1981 to December, 1990 have remained under active consideration of the Government from time to time. The Prime Minister was pleased to appoint a Special Committee under the Chairmanship of Secretary Law, Justice and Parliamentary Affairs to make its recommendations in the matter. The Committee after an in depth discussion of the issue in the light of Supreme Court's judgment in Case No. 104 of 1992 recommended the following course of action as the most appropriate manner in which the Honourable Court's judgment could be implemented:‑‑ (i) Cases of ad hoc appointees who were fully qualified and recruited after properly following the prescribed procedure includin g invitation of applications through advertisement and observance of Provincial quotas ‑‑‑ it was agreed that such cases may be referred to the FPSC for confirmation. (ii) Cases where the prescribed procedures in terms of qualifications, observance of Provincial quotas and invitation of applications through advertisement etc. were not observed while making the recruitment ‑‑ such appointees will appear alongwith fresh candidates before the FPSC for selection. To enable such ad hoc appointees to appear before the FPSC as they may have crossed the prescribed maximum age limit for a particular post, it was agreed that appropriate age relaxation may be allowed through an amendment in the relevant S.R.O. (2) The above recommendations of the Committee were approved by the Prime Minister and were conveyed to FPSC with copy to all Ministeries/Divisions vide this Division's letter of even number dated 29‑6‑1994 for necessary action. (3) FPSC initiated the process of implementation of the above decision. However, while this action was in process, the following two additional options came under consideration for regularization of the services of ad hoc appointees. (a) through an act of Parliament or one time basis. (b) invoking section 23 of the Civil Servants Act, 1973. (4) Pending decision on above two options, action by the FPSC on the approved recommendations referred to in para. 1 above were held in abeyance and these options examined at length in consultation with Law and Justice Division and the case submitted to the competent Authority. After careful consideration, the competent Authority has now been pleased to approve the original recommendations of the Committee as contained in para 1 (i) and (ii) above with the addition that this decision shall also cover all the ad hoc appointments made upto December, 1995 (instead of December, 1990) (5) In view of the above, you are requested to please process the case of ad hoc appointees of the period (October 1981 to 1995) for regularization as under:‑‑ (a) Re‑activate the process of considering regularization of services of ad hoc appointments made between October, 1981 to December, 1990 on the basis of recommendations of the Committee contained in para. 1 above. Complete details, with relevant documents etc. are available with FPSC. (b) As was done earlier, FPSC may now devise a self‑contained pro forma for collection of the requisite information about ad hoc appointees of the period 1‑1‑1991 to 31‑12‑1995 and forward the same to this Division by 25‑10‑1997 for circulation to all Ministries/Divisions. (6) Action to provide relaxation in upper age limit to ad hoc appointees is being taken separately and will be notified to you shortly. (7) The Competent Authority has further been pleased to direct that this exercise should be completed without further loss of time. It, therefore, requires to be assigned top‑priority. (Sd.) (Syed Yasin Ahmed) Joint Secretary."

11. The concept of regularization of ad hoc employees is evident from: the above referred policies of the Federal Government and in the light of these precedents, the petitioners would be justified to ask for regularization. We have been informed that the petitioners have served on ad hoc basis for a number of years without break and some of them were in service as ad hoc employees since long. The employment for a common person is the source of 3ivelihood and right of livelihood is an undeniable right to a person. If the work is the sole source of livelihood of a person, the right to work shall not be less than a fundamental right which should be given protection accordingly. Therefore, the petitioners who have served the education department for such a long period, would deserve to be given fair chance of I regularization in the given situation. The learned Advocate‑General, Punjab without offering any explanation of keeping the petitioners in service on ad hoc basis for such a long period and not fulfilling the vacancies on regular basis, submitted that in absence of policy of regularization, Certain concessions, as mentioned in the. reply submitted on behalf Of the respondents before the Tribunal, were given to the petitioners to appear before the Public Service Commission for selection with direct recruits but except of few none has availed this opportunity. The learned counsel for the petitioners at this stage has submitted that if the cases of the petitioners are referred to the Public Service Commission for regularization in the light of policy of regularization of the Federal Government, they shall be satisfied.

12. We having examined the above scheme find that in the similar circumstances, the Federal Government while giving fair treatment to its employees appointed on ad hoc basis successively framed policies for regularization through the process of selection by the Public service Commission. It is stated that all Provincial Governments, except Government of Punjab following the Federal Government also adopted the policy of regularization and gave their employees the equal treatment. The petitioners, being ad hoc employees of Provincial Government, cannot claim regularization as of right in the light of policy of Federal Government nut the principle of equality as embodied in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, would demand that they while facing the similar circumstances, should be treated in the same manner. The principle of equality would impliedly be attracted in favour of the petitioners $s they being ad hoc lecturers in the Provincial Government, would stand at Pa' to that of the ad hoc employees of the Federal Government and therefore, it would be fair, just and proper to consider their cases for regularization. We having heard the learned counsel for the petitioners and Mr.Maqbool Ellahi Malik, learned Advocate‑General Punjab, assisted by Mr. Tariq Mahmood Khokhar, Additional Advocate‑General, are of the view that since substantial questions of public importance are involved in the present petitions, therefore, the technical objection that the questions not raised before the Tribunal, cannot be allowed to be raised before this Court, is not entertained. The authorities in the Education Department, Government of Punjab, while adopting the method of ad hoc appointments as a continuous policy, created a legitimate expectancy in the mind of petitioners for their retention on regular basis and therefore, we deem it proper to direct that the respondents while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government referred above, will initiate the process of regularization of the petitioners through Punjab Public Service Commission giving the concession as mentioned in the reply filed by the respondents in the Punjab Service Tribunal within a period of one month and meanwhile without prejudice to the right of the selectees of the Public Service Commission for appointment on regular basis, the posts which were being held by the petitioners shall not be filled. It is clarified that the cases of the petitioners shall be sent separately to the Public Service Commission and shall not be tagged with the direct recruits. In case any of the petitioners is not found suitable, by the Public Service Commission, he shall not be entitled to be retained in service.

13. We in the light of above discussion, convert these petitions into appeals and dispose of the same with no order as to costs. Q.M.H./M.A.K./N‑102/S Appeal allowed.