Ad hoc Appointment

Ad hoc employee has neither the right to hold the post beyond the period for which he is appointed nor the government has a right to continue with such ad hoc appointee for a long period of time.

Plea raised by authorities was that the matter had been delayed due to non-availability of service rules and matter was pending with Federal Public Service Commission to complete the process of selection of suitable candidate

Validity

Word used in respect of framing of rules in S.86 of Industrial Relations Act, 2012 was 'may' and not 'shall'

Making of rules was only to avoid confusion or ambiguity in carrying out the purport of Industrial Relations Act, 2012 more effectively

Such was a procedural or internal regulation as to how authorities would discharge their powers and by whom power was to be exercised

Whenever employees were appointed on ad hoc or temporary basis to meet an emergent situation, every effort was to be made to replace them by employees appointed on regular basis in accordance with relevant rules as expeditiously as possible

High Court directed that the authorities to complete process for appointment to the post of Registrar Trade Unions in terms of S.4 of Industrial Relations Act, 2012; that to halt process of direct recruitment to post in question until authorities would determine that there was no person in National Industrial Relations Commission eligible for promotion to post of Registrar Trade Unions in terms of eligibility criteria set out in notification dated 1-12-2016; that in case any person met eligibility criteria for promotion to the post, his case would be forwarded for consideration for promotion to the post; that if no person in National Industrial Relations Commission was found eligible for promotion to the post, process for direct recruitment should be resumed; that incumbent who was looking after post of Registrar Trade Unions on temporary basis would cease to perform duties on date when authorities recommend promotion of eligible person to post of Registrar Trade Unions; that if there was no person in National Industrial Relation Commission eligible for promotion to the post or person eligible for promotion was not recommended to be promoted by the authorities, incumbent who was tasked to look after post of Registrar Trade Unions on temporary basis / look after basis would cease to perform duties and no other officer would be appointed as Registrar Trade Unions on temporary, ad hoc, acting charge, additional charge, current charge or look after charge basis other than on regular basis in accordance with S.4 of Industrial Relations Act, 2012 read with method of appointment prescribed in notification dated 1-12-2016; and that till appointment of Registrar Trade Unions on regular basis, officer entrusted with responsibilities on temporary basis would exercise powers within parameters of Office Memorandum dated 20-5-2020 issued by Establishment Division

Constitutional petition was allowed accordingly.

An ad hoc or a contract employee cannot be absorbed in the borrowing department unless his services are regularized and he is made a permanent employee in his parent department.

Petitioner sought direction to the parent department to release his salary and other service benefits including promotion, seniority, posting and other service benefits admissible under the applicable rules

Borrowing department of petitioner in pursuance of orders passed by Supreme Court in 2013 SCMR 1752 and 2015 SCMR 456 had repatriated the petitioner to his parent department

Parent department had not permitted him to join his duties

Contention of parent department was that the petitioner was an ad hoc employee appointed for a period of six months and that at no material stage his services were regularized

Validity

Petitioner was appointed in the parent department on ad hoc basis

Very nature of petitioner's ad hoc appointment implied that it was made otherwise than in accordance with the prescribed method of recruitment

Petitioner's claim for salary against parent department was based on a misconception either that he was a permanent employee or that the ad hoc nature of his appointment stood extended beyond the initial period of six months

Parent department's refusal to take the petitioner back in service and not to give him salary did not suffer from any legal infirmity

Constitutional petition was dismissed, in circumstances.

Ad hoc employee did not carry any vested right to be regularized in service from the date of his induction.

Karachi Port Trust Officers Recruitment, Appointment, Seniority and Promotion Regulations, 2011 were statutory rules of service

Employees of Karachi Port Trust were not civil servants and they could not file service appeal before the Service Tribunal

Only remedy for the petitioner-employee was under Art.199 of the Constitution

Employee was appointed as Trainee Officer on ad hoc basis on 28-11-1989 and his services were regularized on 12-10-1995

Ad hoc appointment was made without adopting due process of law as a stopgap arrangement

Ad hoc employee did not carry any vested right to be regularized in service from the date of his induction

Period of ad hoc appointment could not be counted towards service

Seniority in grade was to be taken from the date of regular appointment to a post and it could not be conferred retrospectively

Ad hoc appointee would only be entitled to seniority from the date of his regularization and not from the date of initial appointment

No employee could claim fundamental or vested right with regard to promotion

An acting or looking after charge could neither be construed to be an appointment by promotion on regular basis for any purpose including seniority nor did it confer any vested right for regular promotion from the date of such an appointment

Appointment on current charge basis would be temporary in nature and a stopgap arrangement

Such appointment would remain operative for a short duration till regular appointment was made against the post

Petitioner was neither entitled for retrospective seniority nor promotion

Direct recruit could claim seniority only from the date of his regular appointment and not from the date when he joined the service

Eligibility for promotion would relate to the terms and conditions of service while fitness for promotion was a subjective evaluation made on the basis of objective criteria

Promotion would depend on eligibility, fitness and availability of vacancy

Competent authority could make appointment, determine seniority, eligibility, fitness and promotion and other ancillary matters with regard to terms and conditions of employees

Seniority in service cadre or post to which an official was promoted was to take effect from the date of regular promotion to that service, cadre or post and not from any ad hoc induction

Employee could not claim promotion from the date when he assumed acting charge or from the date when vacancy occurred

Constitutional petition was dismissed in circumstances.

Ad hoc employee in government service was also to be treated as civil servant.

Where a civil servant was declared surplus pursuant to any government decision, then he was to be accommodated to a post carrying equal pay scale

Where equal post was not available then he could be appointed to a lower post but the pay which he was drawing in the higher post shall remain protected

Such benefit could not be denied to an employee merely because previously he was holding a post on ad hoc basis.

Ad hoc employee in government service was also to be treated as civil servant.

Ad hoc appointment against a post reserved for departmental promotion would not create a right for regular job.

Competent authority could terminate ad-hoc service without serving any notice at any time.

Senior officers were available in the department Service Tribunal observed that ad hoc appointment policy should be discouraged and employees should be posted on permanent basis

Acting/additional charge must be given to the persons who were senior most

Authority had no discretion to make posting against seniority list

Discretion should be exercised judiciously based on merit

Discretion had not been exercised in accordance with law in the present case

Impugned notification had been issued in violation of rules and regulations

Department was directed by the Service Tribunal to post a senior officer against the post in question within a specified period

Government would be competent to post senior most officer as stopgap arrangement if suitable senior officer was not available for posting till availability of suitable officer

Respondent-employee was directed to cease to hold the position after expiry of stipulated period i.e. one month from the date of passing of present judgment

Appeal was disposed of in circumstances.

Petitioners, who were serving Risaldars in the Provincial Levies Force, impugned appointment of respondents to the said post which was made in relaxation of Rules and on an ad hoc basis on directives of the Provincial Chief Minister and Provincial Home Minister

Validity

Provincial Legislature had not granted the Provincial Government any power to "relax" any Rule

No provision existed in the Balochistan Civil Servants (Appointments, Promotion and Transfer) Rules, 2009 which enabled the Provincial Government to do anything in the purported "relaxation of rules"

If persons were appointed as levies officers on the personal whims of a Minister or on the basis of "safarish", the fundamental rights of those aspiring to such posts were transgressed, including their right to aspire to such posts (Article 18 of the Constitution), to be considered equal before the law (Article 25(1) of the Constitution) and the guarantee that they will not be discriminated against (Article 25(2))

Number of violations were committed in the present case, as firstly, the rules were relaxed, secondly, the appointments were made on ad hoc basis, thirdly they were made without placing advertisements by inviting all interested persons and fourthly, no test was conducted

Appointments therefore, violated provisions of the Constitution, the Balochistan Civil Servants Act, 1974 and the Balochistan Civil Servants (Appointments, Promotion and Transfer) Rules, 2009

High Court set aside the ad hoc appointments of the respondents declaring the same to be void ab inito and directed the respondents to refund all salaries and benefits received by them

Constitutional petitions were allowed, in circumstances.

Service in Azad Jammu and Kashmir was regulated by an Act of the Assembly, which had been promulgated on the strength of S.49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974

Section 4 of the Azad Jammu and Kashmir Civil Servants Act, 1976, had postulated that the appointment against a civil post in connection with the affairs of the Government, would be made in the prescribed manner by the Government or by a person authorized by it in that behalf in the prescribed manner

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, had prescribed the method and manner of appointment to the post in various grades

Rules 16 & 17 of said Rules had prescribed the manner for initial appointment to the posts in grade 16 and R.23 of said Rules postulated the manner of making ad hoc appointments

Even ad hoc appointment could not be made in an arbitrary manner

First condition for making an ad hoc appointment, was that same would be made in the public interest; second one was that before making such appointment, the Appointing Authority would forward requisition to the Selection Authority

Such appointment was subject to further condition listed in Sub-Rules (1) to (5) of R.23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977

Said conditions were mandatory and could not be ignored at the time of making ad hoc appointment

Ad hoc appointment would not confer any right to the persons so appointed in the matter of regular appointment for the same post, nor the service would be counted towards seniority in the grade.

Petitioner was appointed on ad hoc basis and appointment order mentioned that same was on ad hoc basis for six months and competent authority could terminate the ad hoc appointment without issuing any notice at any time

Said conditions were mentioned in all of the orders regarding the extension of the basic order of ad hoc appointment

Ad hoc appointment would create no right and such like Officer would not come in the ambit of a 'civil servant'

Petitioner had no locus standi to file a writ petition on the basis of his being an ad hoc appointee.

Ad hoc appointment can be 'made without advertisement in exceptional cases as a stop-gap arrangement and not, as a permanent recruitment.

Entry into service, particularly of grade 17, had to be made by the competent Authority on the basis of recommendations of the Public Service Commission, which under law were to be recorded after test and interview

Ad hoc appointment did not create any right for regular appointment and it was a stop-gap arrangement which had to continue till a regular appointment was made; ad hoc appointment as far as legal position was concerned, would not confer any right whatsoever, irrespective of the period of such an incumbency; such appointment could be made for a limited period when the post was available and same was advertised by the Public Service Commission

If ad hoc appointments were regularized even by the Legislative Assembly, that piece of Legislation would be ultra vires the Constitution; and had to be removed from the Statute Book

Executive Government while exercising its powers under S.22 of Azad Jammu and Kashmir Civil Servants Act, 1976, if would regularize the appointment of an ad hoc appointee or exempted the incumbent from appearing before the Public Service Commission, the notification or order so issued, was to be sent to sleep forever

No right, in circumstances could be conferred on ad hoc appointee for regular induction without recommendations of the Public Service Commission

Ad hoc appointments would not ,create any right for regular appointment and only door/entry gate open for permanent induction in the government service was through respective Public Service 'Commission and Selection Committee

Ad hoc appointment was an appointment of a duly qualified person made in respective method of recruitment

Ad hoc appointment or stop-gap arrangement was a temporary measure for a particular period of time which did not confer any right on the incumbent for regular appointment or to hold it for indefinite period

Ad hoc appointment, by its very nature was transitory and would create no right with lapse of time

Appointing Authority could not also disregard rules and allow the incumbents to continue with the service-Government or for that matter any competent Authority, must realize that appointment in the public sector was a trust in the hands of public Authorities and they were not only bound by law, but also morally obliged to discharge their functions and take steps to make transparent appointments out of the candidates on merit and without parochial approach or political affiliations.

Petitioners were appointed against the posts of inspectors in the year 2003 on ad hoc basis for a period of twelve months and their services contract remained extended from time to time up to year 2008, when their services were dispensed with

Validity

Ad hoc appointment was always made without adopting due process of law of selection and was virtually a stop-gap arrangement by the government

Said stop-gap arrangement was a deviation from the normal course of selection

Concerned officials were supposed to have referred the said posts for selection to the competent Authority who should have advertised the same immediately

Ad hoc employees did not carry any vested legal rights to be confirmed

Constitutional petition was barred by Art.212 of the Constitution as it related to the terms and conditions of service and regularization of the petitioners

Authorities however were directed that while selecting or filling the posts, they should also consider the cases of the petitioners sympathetically through selection by Public Service Commission; or Departmental Appointment Committee, as was permissible under law and the petitioners could also be considered in the process of selection.

If a post is filled on ad hoc basis, which is liable to be terminated on availability of regular incumbent, termination of such-like ad hoc appointee before arrival of regular incumbent is illegal and ad hoc appointee is entitled to perform his duties till the arrival of regular incumbent

Concept of ad hoc appointment against post in public sector is a stop-gap arrangement which is not a permanent characteristic of civil service

Not proper in public sector to occupy posts required to be filled through the method prescribed by law by making ad hoc appointments and allow incumbents to continue in the same position beyond the terms of their employment without taking any step for filling posts on regular basis.

Ad hoc appointment would not confer any right on any incumbent to continue endlessly.

Making recruitment on ad hoc basis with or without advertisement of the posts in normal circumstances amounts to curtailment of the legitimate right of appointment of deserving persons on regular basis and is against the policy of law.

Only safeguards provided in S.11(3) of the Civil Servants Act, 1973 was that services of such appointee would be liable to termination on fourteen days notice or pay in lieu thereof.

Reversion order of a civil servant, who had been appointed on ad hoc basis could be passed without issuing of any show-cause notice and no right accrued in favour of such civil servant under R. 10(b) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, read with S.11 of Punjab Civil Servants Act, 1974.

Civil servant initially appointed for six months on ad hoc basis though continued his service for about two years, but his services were never regularized by Public Service Commission

Post to which civil servant was appointed also was never taken out from purview of Public Service Commission under order of Chief Minister

Civil servant would remain ad hoc employee until and unless either he qualified Public Service Commission Examination or till his post was taken out from purview of Public Service Commission in accordance with R. 5 of Public Service Commission (Functions) Rules, 1974 by Chief Minister

Services of such civil servant could be terminated on fourteen days' notice or pay in lieu thereof as provided under S. 11(3) of Sindh Civil Servants Act, 1973.

Appointing Authority subsequently suggested the ad hoc appointments be regularized in relaxation of rules/procedure laid down in Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which proposal was approved by the Chief Minister of the Province

Nothing either in Sindh Civil Servants Act, 1973 or Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 empowered Chief Minister to approve appointment of civil servant (in B.3 to B.15) in relaxation of prescribed procedure i.e. without recommendation of Departmental Selection Committee

Appointing Authority had, thus, wrongly suggested and Chief Minister had wrongly approved ad hoc appointments of civil servants by relaxing prescribed rules/procedure

Competent Authority, therefore had rightly called civil servants to appear for regularization of their appointments before Departmental Selection Committee.

Civil servant was initially appointed as Laboratory Assistant in B-5 in a High Court School and then was appointed as Stenotypist B-12 purely on ad hoc basis terminable at any time on availability of qualified/regular selected person

Civil servant prayed for counting his previous service which he rendered in Education Department towards "pension, seniority" but his application was rejected on ground that his -services as Stenotypist had not been regularized yet

Validity

Civil servant was subjected twice to. Stenotypist test, but failed

Service of civil servant should have been dispensed with in event of his failure in two tests

Ad hoc service, unless regularised by "Competent Authority" would not confer any 'right either for regular absorption nor would be counted towards seniority except that it was counted towards length of service for the purpose of pension if ultimately regularised

Services of civil servants who were appointed on adhoc basis were terminated after three years from such appointment without giving any reason and without paying in lieu thereof despite no regular selected incumbents were appointed on posts held by civil servants

In cases of acute necessity qualified candidates could be recruited and such appointment would be subject to condition that it would remain in effect till the time a regularly selected incumbent was taken for appointment against such posts

No such regular incumbent having been taken in prescribed manner, until that contingency took place civil servants had right to continue in service

Service Tribunal accepted appeal filed in time by civil servants, set aside order of termination and ordered their reinstatement.

Civil servant was appointed on adhoc basis, but his service was terminated after three years without disclosing any reason for such termination

Neither any prior notice was issued to civil servant nor he was paid compensation in lieu thereof

Adhoc appointment of civil servant was subject to condition that it would remain in effect till the time a regularly selected incumbent was taken for appointment against post of civil servant

No such regular incumbent was appointed in prescribed manner and until that contingency took place civil servant had a right to continue in service

Appeal filed by civil servant in time against his termination was accepted and he was ordered to be re-instated with back benefits.

Services of civil servant who was appointed on ad hoc basis, were terminated without any reason and neither any notice nor pay in lieu thereof' was given to him, nor any regularly selected incumbent was appointed against post held by him

Authority can take qualified candidates pending recruitment through prescribed manner in cases of acute necessity but such appointment would be subject to condition that it would remain in effect till the time a regularly selected incumbent was taken for appointment against the post

If no such regular incumbent had been so recruited civil servant, being ad hoc appointee had a right to continue

No. 55-Ad hoc appointments-Regularisation of-Time limit-Applicable to scrutiny of cases and not to resulting action after scrutiny-Period of 90 days for scrutiny extended upto 30th September, 1978-Review finalised before 30th September, 1978-Reversion order in pursuance of recommendations of Selection Committee issued in 1983-Contention that application of M. L. O. 55 had till then expired-Contention repelled-Review having been finalised before 30th September, 1978 resultant reversion order, in circumstances, held, perfectly legal and valid.

R. 8-Ad hoc appointment-Promotion-Seniority-Petitioners ad hoc appointees contending that reservations of, posts for purposes of appointments/promotion of persons belonging to a particular service or cadre having been abolished by r. 8 ad hoc and purely temporary promotion of petitioners to a class of post (for direct recruits) to which petitioners (promotees) did not belong, deemed to have been rendered into promotion or regular basis and consequently petitioners entitled to be ranked senior to all those in fact appointed on regular basis-Held : Not necessary to give any final decision on question raised for reasons firstly that all persons who would have been affected if petitioner's plea were allowed being not impleaded as parties either before Tribunal or before Supreme Court no orders could be passed behind their back and secondly petitioners having accepted and continued to accept basis of their appointment conduct of petitioners led to appointments being made on regular basis for nearly seven years

Ad hoc appointment-Creates no right-Appointment made for 6 months on ad hoc basis pending regular selection and appointment through Public Service Commission -Appointment terminated in accordance with its terms and conditions subsequentlyRe-appointment claimed as a matter of right on basis of such ad hoc appointment and also on basis of re-appointment of some others allegedly junior to appellant-Ad hoc appointment, held, creates no right-Appeal, held further, had no substance-Punjab Service Tribunals Act (IX of 1974), S. 4.

Ad hoc appointment-Regularisation-Whether or not from date of ad hoe appointment-Within full competence of Government according to circumstances of each case.

No. 21 read with Punjab Civil Servants Act (VIII of 1974), Ss. 2(l)(a) & 10-Ad hoc appointment - Termination of service Powers of Government having been assumed by Martial Law Administrator in Province concerned such Administrator authorised to order scrutiny of ad hoc appointments-Contention as to orders of termination of services having stood vitiated by reason of inclusion of a Military Officer in Selection Committee, held, misconceived particularly when such orders passed by competent authority of department concerned.

S. 4-Ad hoc appointment-Reversion from promotion-Ad hoc appointees required to pass qualifying examination and on not so qualifying liable to be reverted

Petitioner, ad hoc appointee, not passing such examination despite two chances having been given to him and consequently reverted to his previous post-Petitioner though could be allowed to continue on his post in discretionary exercise of powers by Government for reason of his inability to take qualifying examination due to his illness yet such fact by itself furnishes no right to petitioner to retain his post on ad hoc basis on such grounds as others, in circumstances similar to petitioner's allowed by Government to continue-Matter one for authorities to consider but furnishing only a compassionate and not legal support to claim of petitioner-Constitution of Pakistan (1973), Art. 185(3). Civil services].

And West Pakistan Education Service (Class 11) Collegiate Branch (Men's Section) Rules, 1962, rr. 6(1) & 13-Ad hoc appointments

Ad hoc appointments once regularised by competent authority-Petitioners, held, no longer to be treated as ad hoc appointees within purview of M. L. O. 55.

Ad hoc Appointment Para: 2(a)(i) and West Pakistan Education Service [(Class It Collegiate Branch) (Men's Section)] Rules, 1962, rr. 5, 6(1) & 13

Ad hoc appointments-Initial temporary appointment duly regularised and persons confirmed in permanent appointment by appointing authority to accordance with Service Rules-Review of such appointments by Public Service Commission, held, without lawful authority.

Ad hoc appointment-Entails no right of continuance-Appointment made on ad hoc basis pending selection by Public Service Commission rejected by Public Service Commission-Reversion to original grade, held, not exceptionable and continuance could not be claimed.

Ad hoc appointment-Conversion of appointee not made on ad hoc basis-Conversion of regular appointment into ad hoc basis subsequently-Requires show-cause notice-Martial Law Instruction No. 21 does not exclude such requirement.

Ss. 2 (1) (a), 4 & 11 read with Azad Government of the State of Jammu & Kashmir Rules of Business, 1975, 20-Ad hoc appointment-Appointment, though of qualified person, but not in accordance with rules-Liable to termination; reversion without show-cause notice-Such liability inherent under law-Natural justice, principle of audi alteram partem-Specifically excluded under S. 11 and cannot be pressed into service-Promotion from grade 17 to grade 18 not made through prescribed Selection Board-Ad hoc promotee liable to reversion without notice.

S. 12-Ad hoc appointment-Civil servant promoted to higher grade on ad hoc basis against direct recruitment post-Held, could be reverted without show-cause notice-Petition for leave to appeal dismissed-Constitution of Pakistan (1973), Art: 212 (3).-[Civil services].