SYED HAMID ALI SHAH, J.--- This single judgment . Wilt dispose of Writ Petitions Nos.,143, 6365, 7216, 8529 and 10720 of 2004 as the matter in issue, in all these petitions is the same.
2. The synoptic resumption of the matter, in issue is that the petitioners, were appointed as different subject on the basis of selection, by the respondents' Divisional Selection Board, in the year 1993 and 1995, The petitioners served in different colleges, under the control of Education Department, without any break till their services were terminated vide order dated 05-8-2000,
3. The petitioners approached the Punjab Service Tribunal and assailed their termination through service appeals, which were dismissed. Thereafter the petitioners assailed the orders of Service Tribunal before the Hon'ble Supreme, where Civil Petitions for Leave to Appeal were converted into appeals and were disposed off through order dated 25-9-2004, with the following mandate:- We do not deem it proper to direct that the ,respondents while seeking guidance from the scheme for regularization of ad hoc employees of Federal Government referred above will initiate through process of regularization of the petition Pm -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."
The judgment was assailed by way of Review Petition by the Government before the Hon'ble Apex Court, which was dismissed on 9-1-2003 with a direction to the Government to company with the orders dated 25-9-2002 within one month.
4. The respondents then at a low pace, invited the applicants for interview-, Public Service Commission earmarked 100 marks by allocating 50. Marks for educational qualification and 50 marks for interview.
5. The petitioners were declared fail by the Public Service Commission. Hence this petition with the prayer:---
(a) that process adopted by the respondents in violation of judgments of Supreme Court dated 25-9-2002, which culminated in the non-regularization of the, petitioners be declared void and without lawful authority, and
(b) direction be issued to the respondents to implement the judgment dated 25-9-2002 and 09-1- 2003 in letter and spirit so as to consider the petitioners for regularization on reasonable objective criteria.
6. Mr. Muhammad Akram Sheikh, learned counsel for the submitted that the petitioners have not been provided a level field in the interview and that the judgments dated 25-9-2002 passed by the Hon'ble Supreme Court, has not been implemented in the true and intrinsic essence. Learned counsel has traversed the facts in their chronological order and has raised inter alias the following major law points:---
(i) That the respondents are bound to act in aid of the Supreme Court as envisaged in Articles 187,189, 190 of the Constitution.
(ii) That criteria of M.A. English as prescribed at the time of the original induction on ad hoc basis could not be changed to the detriment of the petitioner as the policy, rule/notification cannot operate retrospectively.
That the policy of incorporating 50 marks for interview to the petitioners, who had the experience of 5 to 7 years of teaching various under graduate classes, was riot only unreasonable but was also violative of the mandate of the judgment of the Hon'ble Supreme Court.
(iv) That the right to work/service is a source of livelihood of a person., which is a fundamental right of a person as enunciated by the Honble Apex Court in the case of Dr. Naveeda Tufail v.
Government of Punjab (2003 SCM R 291).
(v) That prescribing/allocating 50% marks for interview, not only offends direction of Hon'ble Supreme Court but amounts to unfairly prejudice the rights of employees and equip the employer to oust its employee and tilt the balance in favour of the later. Learned counsel support in this contention by referring to the case of Ajaz Hussain v. Khalid Mujib (AIR 1981 SC 487).
(vi) That the policy decision chalked out by the respondents is arbitrary, bias and unreasonable,
(vii) That a reasonable expectation to be regularized, stands frustrated through the process of a short interview of 10 to 15 minutes.
7. The learned Addl. Advocate General has controverted the above arguments and has submitted that the Public Service Commission acted strictly in accordance with the policy framed by the Government of Punjab that no bias ad malice has been proved on the record and that the petitioners failed in the interview on objective consideration. He has submitted that large number of candidates were selected and only those (petitioners herein) were left out, as they were not found suitable. He has submitted that a very liberal policy was adopted and more than 70% of the applicants were regularized. .
8. We have heard the learned counsel for the parties and perused the record.
9. The record rev .Ls a protracted litigation, which has elaborate been explained by the learned counsel for the petitioners in chronological order. Admittedly the case of the petitioners had been remanded by the Hon'ble Supreme Court for the purpose of regularization of subject to the requisite qualifications. The intrinsic mandate of the Hon'ble Supreme Court is fortified by the observations made in Dr. Naveeda Tufail's case (supra). Relevant para of the judgment reads as under:--- "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 livelihood 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 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 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.
10. The Hon'ble Supreme Court examined the case of the petitioners from the angle of legitimate expectancy as these petitioners kept on serving the Education Department of the respondent for a considerable long time with an impression in their mind that they will be considered to be retained on regular basis. In this background the Hon'ble Apex Court observed that the case of these petitioners shall not be tagged with the direct recruits and be sent separately.. f5r initiation/process of regularization of their jobs through Public Service Commission, keeping in view the concession, which the respondent-department extended in its reply before the Punjab Service Tribunal. The respondents were directed to follow the scheme of regularization of ad hoc employees of the Federal Government, thus the regularization or the petitioners; according to the ratio of the judgment of the Hon'ble Supreme Court, was to be processed/initiated following the said scheme of Federal Government and the concession extended by the respondents before the Punjab Service Tribunal in their reply. The scheme of regularization of ad hoc employees Of the Federal Government, finds its' mention in the judgment (Naveeda Tufail's case), where policy under Martial Law Instructions No. 21 for regularization of ad hoc appointees was reproduced alongwith letter No. 2/3/94 CP, dated 21-10-1997. Item (1) in the letter dated 21-10-1997, is relevant to the case in hand, which is reproduced hereunder:-- "(i) Cases of ad hoc appointees who were fully qualified and recruited after properly following the prescribed procedure including invitation of applications through advertisement and observance of Provincial quotas---it was agreed that such cases may be referred to the FPSC for confirmation."
According to the afore-mentioned scheme of regularization, the petitioner were not required to be tested on the standard laid down for the direct recruits, The case of the petitioners was required to be sent to the Punjab Public Service Commission for confirmation, in view of the above-quoted policy. The respondents instead of seeking guidance from the scheme of regularization of ad hoc employees of the Federal Government, adopted its own procedure and laid standard for selection, different from the direction of the Hon'ble Supreme Court and also the above referred policy/scheme. They adopted the method of selection by allocating 50 marks to the interview and 50 marks for the academic/educational qualification. Allocation of 50 marks for interview had neither been provided in the policy letter dated 21-10-1997 nor in Martial Law Instructions No. 21
(ibid) for regularization of ad hoc appointees. We have already discussed in the earlier part of this judgment that allocating 50 marks unfairly arm the Public Service Commission to exercise its unbridled powers, Thus, we have no hesitation to hold that the impugned scheme and policy adopted by the respondents for regularization of the ad hoc employees is not in consonance with the direction and mandate of the judgment of Hon'ble Supreme Court (in the case of Dr. Naveeda Tufail Supra). The petitioners are made victim of discretion, which is derogatory of the advancement of justice, fair-play and the direction of the Hon'ble Supreme Court.
11. Requirement of Masters in Second Division in English and further requirement of additional diploma in English for th appointment of Lecturer in English was not the requirement or eligibility criteria for the appointment, at .Lo time when the petitioners in W. Ps Nos. 6365 and 7216/004, were inducted into service though on ad hoc basis in 1993 and 1995. Any change in qualification, therefore, at the time regularization could not be made applicable to the determination the petitioners retrospectively.
12. For the foregoing, IN accept these petitions, direct the respondents to consider the case of the petitioners strictly in accord with the scheme of regularization of ad hoc employees of the. Federal Government, referred by the Hon'ble Supreme Court in Dr. Naveed Tufail's case (supra). The respondents shall complete this exercise within a period of one month and they will not make any appointment to fill these vacancies till the time the case for regularization of the petitioners is finalized. .