' IQBAL HAMEED-UR-RAHMAN, J.--- By this single judgment, I would like to decide the following writ petitions having similar question of law and facts:---
(1) Writ Petition No,19365 of 2009 (2) Writ Petition No,988 of 2010.
2. The' petitioners have filed the instant writ petition with the following prayer:--- "It is, therefore, most respectfully prayed that writ petition in hand may kindly be accepted and the summary dated 13-3-3009 and the subsequent notification to be declared as illegal, unlawful and without jurisdiction.
' It is also prayed that selection of AEEs on regular basis BS-17 should be through respondent d may kindly be ordered to meet the ends.Of justice.
' It is further prayed that selection through Departmental Selection Committee on contract basis may kindly be declared illegal, unlawful, without jurisdiction and suspended/ stayed till the final decision of the writ petition in hand."
3. The brief facts as stated by the petitioners are that the petitioners were promoted to the rank of Sub-Divisional Officers in the Irrigation and Power Department respectively sin the year 2006 and 2009 against the vacant posts and in the orders of the petitioners, it is clearly mentioned that "on current charge basis for a period of one year or till the availability of a regular incumbent, whichever is earlier, under Rule 10(B) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. " Respondent No,2 advertised proclamation in the Daily Nawa-e-Waqt dated 20-6-2009 for the recruitment of AEE's/SDO's in the light of summary and notification and in pursuance of the proclamation respondent No,2 issued interview call letters for 3-10-2009 to 7-10- 2009. Respondent No,2 requested respondent No,5 for recruitment of Sub-Engineers through Public Service Commission and there is also press clipping of the newspaper in which respondent No,1 has directed to clear the summary of AEE's/SDO's to the other respondents. Respondent No,2 has moved summary to the Chief Minister and respondent No,1 for recruitment of AEE's/SDO's (BS-17) in Irrigation and Power Department on contract basis and the reasons have been given in the summary firstly, there is a shortfall of working strength of about 50% of AEE's/SDO's which is obviously hampering the operational efficiency and performance of the Department. Secondly, the Sub-Engineers promoted on officiating basis as SDO's are lacking capacity of designing of projects and its proper execution as compared to the R.Sc. Engineers and the selection of AEE's/SDO's should be through Departmental Selection Committee.
4. Learned counsel for the petitioners submits that the contract policy has been discouraged in the matters of doctors and then doctors have been regularized by the Chief Minister of Punjab. He .Further submits that the petitioners' case falls within the domain of 20% quota promotion as well as 15% improvement of educational qualification. He further submits that the Secretary Irrigation respondent No,2 with mala fide intention adopted a process and the whole of the case was built on wrong presumptions that the Sub-Divisional Officers are lacking capacity of designing and they are not qualified as compared to B.Sc. Engineers and secondly, that there is shortage of Sub- Engineers, thus, the department should be allowed to recruit the Sub-Divisional Officers on contract basis and process of the Punjab Public Service Con-mission was also dispensed with.
5. It is further argued that so far as the present promotees are concerned, 23% are B.Sc. Engineers and they are also holding the license of the Engineering Council; 28% are B.Tech. Qualified engineers, 29% Sub-Engineers have qualified in the Departmental examination to be promoted. So far as the Sub-Engineers are concerned, 88 Sub-Engineers have been recruited through the Punjab Public Service Commission on contract basis. It is further argued that whole of this process is being adopted with mala fide intention to accommodate some political collaborators as there is a letter of Ch. Shafique Ahmad Gujjar M.P.A. It is further submitted that the basic rationale is that there should be transparency. In this regard, he placed reliance on Dr. Naveeda Tufail and 72 others v.
Government of Punjab and others 2003 SCMR 291 wherein it has been held that "such appointment is a trust in the hands of the public authority and it is their legal and moral duty to discharge their functions as trustees with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service." He further argued that in order to hoodwink the process of transparency, the respondents wanted to appoint 80 Sub-Divisional Officers in the Irrigation Department. It is further argued that so far as the appointment of the petitioners on the current charge basis is concerned, the petitioners were appointed on current charge basis under Rule 10(B) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the condition precedent for appointment under the current charge basis is that the senior most civil servant, who in the opinion of the appointing authority is eligible and suitable for promotion under the relevant rules on current charges basis when the authority has come to the conclusion that the petitioners are suitable and eligible for the promotion as Sub-Divisional Officers and appointed them, subsequently they cannot be turned round and this conduct of the respondents is not approved by the Honourable Supreme Court of Pakistan in the above referred case wherein it was observed that where the authority is responsible for making such appointments but subsequently took a turn and terminate their services in violation of the rule; that the apex Court did not appreciate such conduct. It is also submitted that the petitioners fulfil the required educational qualifications and they have got 35% quota in the promotion of the vacant seats and that the Regulation Wing of the Government of the Punjab has objected upon this process of appointment on contract basis.
6. It is further submitted that the respondents have not determined the clear vacant posts and are appointing 80 persons as Sub-Divisional Officers on contract basis whereas the merit is that if the respondents fill in the vacant posts then the petitioners are entitled for 35% quota of the clear vacant seats. He further submits that in order to deprive the petitioners from the 35% quota, this method is being adopted.
7. Learned counsel also argued that so far as the Sub-Divisional Officers are concerned, 88 Sub- Engineers have been appointed vide Notification dated 23-4-2009 by the Irrigation Department on contract basis through Public Service Commission but 80 Sub-Divisional Officers are not being recruited/appointed and selected through the Public Service Commission with mala fide intention- and this recruitment transpires mala fides of the respondents/Irrigation Department and the same is discriminatory and summary dated 13-3-2009 has been approved on the basis of wrong assumptions of facts and law;
8. He further submits that the other aspect of the matter is that under Article 3 of the Constitution, the State is bound to eliminate exploitation while the present petitioners are victims of the exploitation and only Constitutional Court can come to the rescue of the petitioners under Article 3 cf the Constitution. Further submits that the petitioners were appointed under Rule 10(b) till the availability of a regular incumbent whereas in the present case the Department has not determined the clear vacant post and no regular incumbent is being appointed in accordance with law and unless and until the regular incumbent is appointed, the petitioners cannot be dislodged.
9. It is further submitted that in the Public Prosecutors' case the Honourable Supreme Court of Pakistan has directed to appoint the regular incumbents through Public Service Commission and their removal cannot be made unless regular incumbents are appointed.
10. Learned counsel also argued that another aspect of the case is that the respondents have not placed on record any document that any donor fund is still unutilized and the petitioners are responsible for unutilizing the said funds or due to any negligence, carelessness or inefficiency of the petitioners. He further submits that the policy decisions are not made in vacuum but whole of the exercise by respondent No,2 is based on surmises and conjectures and has no legs to stand upon. He further submitted adverting to page 26 where the posts have been advertised by the Government of the Punjab that the persons will be recruited under the contract policy. He also argued that according to Clause-VI (ii) of the Contract Policy, appointments on contract basis is to be made through the appropriate Selection Committees as notified by the Government and the said policy states that the Contract Appointments Regulations Committee will be formulated. The department shall send comprehensive guidelines for adopting the procedure. According to Rule 4 of the Punjab Public Service Commission (Functions) Rules, 1978, on the recommendations of the Committee the summary shall be sent to the Chief Minister. Further submits that this case was not sent to the Committee nor it is the recommendations of the Committee for the appointment of the Sub-Divisional Officers and without the recommendations of the Committee the case cannot be submitted to the Chief Minister.
11. He further submits that without the guidelines of the Appointment and Regulations Committee, no contract employee can be recruited; that the proposed and the present proceedings for recruiting 80 Sub-Divisional Officers on contract basis, in violation of the approval of the concerned committee is unwarranted and unjustified. Further submits that not only the Committee but also the Chief Minister should assign reasoning as envisaged by section 24-A of the General Clauses Act. No such summary or approval is available, no reasoning or justification is given; therefore, the appointment process of the Sub-Divisional Officers is without lawful authority being violative of the mandatory requirements of the contract policy.
12. Further submits that even when the summary is approved by the Chief Minister, he should assign reasoning to the approval. Neither despotic powers have been conferred nor can be exercised by the Chief Minister without assigning reasons and such exercise of jurisdiction is assailable in Constitutional jurisdiction. Reliance is placed on Amanullah Khan's case PLD 1990 SC 1092. The discretion was not exercised in accordance with the settled principle as laid down by the Honourable Supreme Court of Pakistan in the above referred case and concept of law has been frustrated by the Chief Minister and the same is amenable under the writ jurisdiction of this Court.
13. Further submitted that the contract policy is there, the same cannot be frustrated. In this connection, he placed reliance on PLD 2007 Lah. 61 and 1992 PLC 962. The powers of relaxation of rules vested in the Governor, Chief Minister is only to correct serious cases.
' This power is exercised in genuine cases:---
(i) for the removal of hardship;
(ii) for the public purpose;
(iii) and if discretion has been exercised in the public interest or for the removal of inequity then reasons must be incorporated.
' Mere approval of summary is not warranted by law and discretion has been exercised in an arbitrary manner whereby the petitioners will be affectees. In another case, doctors were appointed on contract basis and then those doctors have been confirmed. Now 80 persons will be recruited on contract basis and ultimately they will be absolved and the present petitioners' future will be jeopardized, they will not be in a position to get their right of promotion and 35% quota will be frustrated by this appointment, the same is being repeated in the present case; thus, the fundamental rights of the present petitioners are being transgressed and they are not being dealt with in accordance with law and neither the procedure is transparent.
14. Mr. Mehmood A. Qazi, Advocate for petitioners Nos.4 to 9 submits that in the instant case, respondent No,2/ Irrigation and Power Department has advertised 80 posts of SDOs in the Irrigation & Power Department for selection/ appointment on contract basis through the process of Departmental Selection Committee instead of through the process of Punjab Public Service Commission, and for this purpose respondent No, 2 has got approved impugned summary dated 13-3--2009 and consequent notification from the Chief Minister, Punjab, on the basis of wrong/ factually incorrect information before the Chief Minister, Punjab as contained in para No,6 of the impugned summary, which is available at page 13 of the titled writ petition, which is re-produced as under; "To meet immediate requirement, the department has promoted Sub-Engineers on officiating basis/ appointed on current charge basis as SDOs, but Sub-Engineers promoted as SDOs are lacking capacity of designing of projects and its proper execution as compared to the B.Sc.
Engineering. Besides, this strategy of stop gap arrangement has created shortage at the level of Sub-Engineers and so it is not mitigating the problem."
' Whereas, the impugned summary and notification as well as the impugned action of respondent No,2 of making appointment against 80 posts of SDOs on contract basis through Departmental Selection Committee, is illegal, arbitrary, mala fide, discriminatory and against law and facts of the case, hence, an appropriate writ is liable to be issued by this Court declaring the impugned summary and notification as illegal, mala fide and discriminatory, and as a consequence the impugned action of respondent No,2 for making appointments to the posts of SDOs on contract basis through Departmental Selection Committee is also liable to be declared as illegal, mala fide and discriminatory. It is further submitted that respondent No,2 has got sanctioned the impugned summary dated 13-3--2009 from the Chief Minister, Punjab on the basis of misrepresentation and concealment of real facts i.e, the fact that against 80 advertised posts of SDOs, 23 Sub-Engineers were working on current charge basis/ acting charge basis holding the degrees of B.Sc. In Civil Engineering including the petitioners Nos.4 to 9. It is further submitted that admittedly against the 80 posts of SDOs, which have been advertised by respondent No,2 for appointment on contract basis through Departmental Selection Committee, on the basis of impugned Summary/ Notification, the petitioners as well as other Sub-Engineers have already been working since 2006/2009 on current charge basis/ acting charge basis, till the arrival of regular incumbents of said posts, in the following ratio; i. Sub-Engineers working as SDOs = 23 posts having degrees of B.Sc. In Civil Engineering from recognized Universities ii. Sub-Engineers working as SDOs on = 28 posts current/ acting charge basis having degrees of B.Tech (Honours) iii. Sub-Engineers having passed = 29 posts departmental exam. For promotion against 20% promotion quota of SDOs Total 80 posts ' It is submitted that it is the case of the respondent-Department that these 80 posts are available against 65% initial recruitment quota but incumbents of these 80 posts are not available temporarily because those SDOs are working as Executive Engineers (BS-18) on acting charge/ current charge basis and some of them have been working against ex-cadre posts/ working in other departments on deputation, and as such, those 80 SDOs have lien against these posts, as such, these posts are available for a temporary period, i.e, till the arrival of regular incumbents of said posts. It is argued that since the above said 80 posts have already been filled by appointment on current charge basis/ acting charge basis till the arrival of the regular incumbents, in view of specific provisions of Rule 10 (b) and Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, as such, there was no justification for respondent No,2 for advertising the said posts for recruiting on contract basis till the arrival of the regular incumbents. It is further submitted that in the instant matter, 88 posts of Sub-Engineers in the Irrigation and Power Department have also been filled on contract basis through selection from the Punjab Public Service Commission by respondent No,2, as required by para 3 (VI) (ii) of the Contract Appointment Policy of Government of the Punjab circulated vide letter dated 29-12-2004, which fact is established from letter No,SO (E-II) 1-4/2005 (P.I) dated 23-4-2009, issued by the Irrigation and Power Department but with ulterior motives, respondent No,2 also concealed this fact from the Chief Minister.
15. Further submits that if at all the respondent-Department really required some posts of SDOs to be filled from amongst persons having the qualifications of B.Sc. In Civil Engineering only, even then, in the impugned summary, the respondent-Department must have given the names and particulars of the alleged projects as well as exact number of posts of SDOs (with the qualification of B.Sc. In Civil Engineering) allegedly required for said projects, but unfortunately, neither the respondent-Department has given any particulars pertaining to the alleged projects nor has given the details and exact number of posts of SDOs, which allegedly required to be filled by selection/ posting of persons having the qualification of B.Sc. In Civil Engineering only.
16. It is also submitted that the impugned summary approved by the Chief Minister, Punjab without contract appointment Regulation Committee, as required under para No,3 of letter dated 29-12- 2004, however, comments of S&GAD and finance departments were sought for impugned summary, but both the Departments vehemently opposed said summary, which comments were ignored without any legal/factual justification due to ulterior motives; therefore, the impugned summary and notification as well as consequent impugned action of respondent No,2 to make selection against these 80 posts of SDOs on contract basis through Departmental Selection Committee is liable to be declared as illegal and without lawful authority. Reliance is placed on law laid down by this Honourable Court in 2007 PLC (C.S.) 811 and 2009 SCMR 605 wherein, it has been held that; "All public powers must be exercised reasonably and honestly for the purpose for which same are conferred."
' Therefore, since respondent No,2 is not exercising his powers reasonable and equitably, hence an, appropriate writ is liable to be issued by this Court, in the instant matter. It is further submitted that it is pertinent to mention here that copies of degrees of B.Sc. In Civil Engineering of petitioners Nos.4 to 9 are available at pages 9 to 14 of Civil Miscellaneous No,8 of 2010, and copies of Certificate of Registration by Pakistan Engineering Council of the petitioners Nos.5, 8 and 9 are already available at page 16 to 18 of Civil Miscellaneous No,8 of 2010. The learned counsel placed on record copies of the Certificates of Registration by Pakistan Engineering Council of petitioners No,6 and 7, copy of Challan No,184712 dated 14-12-2009, issued by Pakistan Engineering Council in respect of deposit of requisite fee for issuance of Certificate of Registration with the Pakistan Engineering Council in respect of petitioner No,4 (Farooq Ahmad).
17. He further submits that assuming for a moment not conceding that all these 80 posts of SDOs are to be filled on temporary basis from amongst persons holding qualification of B.Sc. In Civil Engineering, in such an eventuality, since 23 Sub-Engineers having the qualifications of degrees of B.Sc. In Civil Engineering from recognized Universities, are already serving the respondent- Department, including petitioners No,4 to 9, then why the respondent-Department has concealed this fact from the Chief Minister, Punjab in para 6 of the impugned summary and why the department wants to fill these 23 posts out of above said 80 posts on contract basis through Departmental Selection Committee when the petitioners and their colleagues have been appointed against the said posts till the arrival of regular incumbents, and they are working without any complaint in respect of their work and conduct whatsoever from the higher departmental authorities. It is further submitted that simple answer to the above said question is that the respondent-Department wants to adjust/accommodate some favourites and blue eyed persons of the departmental authorities as well as the favourites and blue eyed persons of the MPAs of the Ruling Party of the Province, hence, an appropriate writ is liable to be issued by this Honourable Court, in the interest of justice.
18. He further submits that assuming for a moment without conceding, if at all the respondent- Department is fair in its intention to fill all these 80 posts of SDOs from amongst persons having the qualification of B.Sc. In Civil Engineering only, then in such an eventuality all the above said posts should be filled through selection by the Punjab Public Service Commission even on contract basis, as it is required under the specific provisions of para No,3(vi)(ii) of the Contract Appointment Policy of the Government of the Punjab, which has been notified vide letter dated 29-12-2004, which is reproduced as under:--- "Under the provisions of Rule 4 of the Punjab Public Service Commission (Functions) Rules, 1978, contract appointments are excluded from the purview of the PPSC. However the Departments should preferably adopt the channel of PPSC even for contractual appointment against posts, which otherwise fall within the purview of the PPSC under Sub Head V above, by seeking relaxation of Rule 4 ibid from the Chief Minister."
' He further submits that the posts of Sub-Engineers in the Irrigation and Power Department are also to be filled on the recommendations of Punjab Public Service Commission as is reflected from para No,3(v)(ii)(b) of the above said letter dated 29-12-2004. He further submits that unfortunately, in the instant matter, on one hand, the respondent-Department is making recruitment against the posts of Sub-Engineers on contract basis through Punjab Public Service Commission, but on the other hand, due to ulterior motives, mala fide intentions and discrimination, the posts of SDOs are going to be filled on contract basis through Departmental Selection Committee instead of through Punjab Public Service Commission, hence the impugned summary dated 13-3-2009/Notification as well as the impugned action of respondent No,2 of making recruitment against the posts of SDOs on contract basis through Departmental Selection Committee instead of Punjab Public Service Commission is liable to be declared, as illegal, mala fide and discriminatory, being violative of specific provisions of Articles 3, 25 and 27 of the Constitution of Pakistan, 1973. Reliance is placed on law laid down in 2006 SCMR 1163 wherein, the honourable Supreme Court of Pakistan upheld the judgment dated 12-5-2000, passed by the Full Bench of the honourable Peshawar High Court, wherein the policy of the Provincial Government of N.-W.F.P. For selection and recruitment of PTC Teachers was declared as illegal and discriminatory being violative of Article 25 of the Constitution of Pakistan, 1973. In the instant matter, no final adverse order has been passed by any departmental authority against the petitioners in respect of terms and conditions of service of the petitioners, whereas through the above titled writ petition, the petitioners have challenged the impugned summary/ notification as well as challenged the impugned action of respondent No,2 selecting SDOs through Departmental Selection Committee, on contract basis. Hence, this Court has the jurisdiction to entertain and decide the titled writ petition, because such matter cannot be agitated before the Punjab Service Tribunal, Lahore, in view of specific provisions of Section 4 (1) (a) of the Punjab Service Tribunals Act, 1974. He placed his reliance on law laid down by the Honourable Supreme Court of Pakistan in Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831 and Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630.
19. Further submits that it is pertinent to mention here that it is well-settled law that even if a post is filled on ad hoc basis, which is liable to be terminated on availability of a regular incumbent, termination of such like ad hoc appointee before the arrival of the regular incumbent is illegal and the ad hoc appointee is entitled to perform his duties till the arrival of the regular incumbent.
Reliance is placed on law laid down in 1995 PLC (C.S.) 377 and 1995 PLC (C.S.) 765. He further submits that since petitioners Nos.4 to 9 along with 17 others have been performing their duties as SDOs on current charge basis, having the qualifications of B.Sc. In Civil Engineering from the recognized Universities till the arrival of the regular incumbents of the said posts, as such there is not a single valid reason or justification with respondent No,2 to make appointments against these posts on contract for a temporary period, till the arrival of regular incumbents, hence, the impugned action of the respondent-Department is liable to be declared as illegal, arbitrary, mala fide and violative of specific provisions of Article 3 of the Constitution of Pakistan, 1973.
20. Mr. Faisal Najeeb Chaudhry, Advocate for respondents No,9 to 11 submits that the summary dated 13-3-2009 has been challenged by the petitioners, which has been implemented and the interviews have been made. He further submits that the petitioners are twisting their relaxation. In para 1 of the writ petition, it is mentioned that the petitioners were promoted to the rank of S.D.O. In the Irrigation and Power Department respectively in 2006 and 2009 against the vacant posts and in the orders of the petitioners, it is clearly mentioned that "on current charge basis for a period of one year or till the availability of a regular incumbent, whichever is earlier." Therefore, actually the petitioners were promoted on current charge basis and they are seeking regularization. He further submits that no concealments have been made in the summary. He referred to para 3 of the Notification dated 6-7-d wherein it is mentioned that the arrangement is purely temporary and does not confer any right of promotion to the rank of Sub-Divisional Officer/equivalent posts of BS- 17 on regular basis or towards seniority and the notification for appointment was agreed by the petitioners. It is further submitted that the Chief Secretary call for the meeting to consider the summary and it was settled in the meeting and thereafter, the summary was moved for approval of the competent authority to allow the department for recruitment of 80 SDOs/Assistant Executive Engineers on contract basis for a period of three years in relaxation of rules; therefore, there is no concealment and the same was properly approved by the Chief Minister, thereafter, it was published in the newspaper and the committee has interviewed the candidates. He referred to section 1(vi) of the Contract Policy, which says that "all appointments should be made in the contract mode unless specifically allowed otherwise by the Chief Minister, on the recommendations of the Contract Appointments Regulations Committee". He further submits that according to Section 4 of the Punjab Civil Servants Act, 1974 appointments to a civil service of the province or to a civil post in connection with the affairs of the province shall be made in the prescribed manner. He further submits that the recruitment of the respondents is being made through a committee constituted according to the rules and regulations. Reliance is placed on Iftikhar Ullah v. The Secretary Irrigation and Power Department, Government of Punjab, Lahore and others 2002 PLC (C.S.) 720, Zahid Akhtar's case PLD 1995 SC 530, L.H. Shaikh v. General Manager, Karachi Telecommunication Region and others 1974 SCMR 82 and Syed Mazhar Hussain Bukhari Vs. Secretary, Government of Punjab Local Government and Rural Development, Department, Lahore and others 1998 SMCR 1948. He further submits that the matter pertains to the terms and conditions of the service of the petitioners, therefore, they should move to the Service Tribunal; as such, the writ petition is not maintainable.
21. Mr. Abdul Naeem Qureshi, Advocate for 'respondents Nos.2 and 3 submits that the summary was moved and that was approved by the Chief Minister with reasoning and order dated 8-6-2009 is being hampered merely due to great shortage of SDOs in the department; what necessitated 337 is sanctioned strength of AEE/SDOs (318 regular and 19 posts of SNE) and that 65% quota of the total strength of SDOs would be appointed by initial recruitment, whereas rest of 35% posts are reserved for promotion from amongst Sub-Engineers, thus, share of direct recruitment quota comes to 219 posts. He further submits that initial recruitment quota has two separate quotas of 20% (67 posts against 15% quota and 51 posts and these two quotas are meant for Sub-Engineers quota and that presently 92 SDOs are working in the Department against 15% quota only. He further submits that SDOs are promoted to the post of XEN through the D.P.C. On officiating basis and 69 posts of SDO are working as XEN and they are appointed on current charge basis. He also argues that there is great shortage of SDOs in the Department, therefore, this summary has been moved after adopting proper procedure.
22. He further submits that the basic qualification is Diploma and if they have acquired B.Sc. Degree or B-Tech., they accepted the job of Sub-Engineers and they should wait according to their quota for their promotion and they should not enter into the quota otherwise provided to them and according to the learned counsel for the respondents, 17 posts are still vacant against 20% quota, to be filled in on quota basis. He further submits that the petitioners will not be deprived of their rights; the respondents shall look into the interests of the petitioners and will not enter into their quota. He further submits that the SDOs are working on different projects sponsored by the World Bank and Japan Bank and these projects are being run by the Irrigation Department and all these projects are working successfully and the respondents want to appoint these 80 SDOs and all the members of the committee are above-board. He further submits that twice summary was moved and at one stage the Chief Minister asked the Finance Secretary and the Irrigation Secretary to ponder upon it and after having deliberation and concentration a second summary was approved and that is transparent. He also argued that the petitioners are working on current charge basis and against 15% quota there are only 51 posts whereas 56 persons are working against the said quota; as such, 5 persons are in excess; that the summary has been moved according to the rules and regulations.
23. The learned Addl. Advocate General submits that in the garb of this writ petition, the petitioners are seeking regularization; that the present writ petition is barred under Article 212(1)(a) of the Constitution because the subject-matter of the instant writ petition relates to the terms and conditions. Of service. He further submits that the petitioners are Sub-Engineers and were appointed on current charge basis under Rule 10(b) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974; therefore, the petitioners cannot claim promotion against the quota of initial recruitment. He further submits that the Departmental Selection Committee has been constituted as approved by the Chief Minister, Punjab for the recruitment of the AEEs/SDOs in a fair and transparent manner.
24. Arguments heard, material made available perused.
25. Admittedly, in the instant case no final order has been passed against the petitioners by the Departmental Authority in respect of terms and conditions of the service of the petitioners and the petitioners have challenged the summary dated 13-3-2009 and subsequently notification and the action of respondent No,2 for the selection of AEE's/SDO's through the Departmental Selection Committee on contract basis; therefore, this Court has the jurisdiction to entertain the instant writ petition; as such, under section 4(1)(a) of the Punjab Service Tribunals Act, 1974, no appeal lies to the Service Tribunal against the said act or action and notification; therefore, the instant writ petition does not fall under the ambit of Article 212 of the Constitution. Reliance is placed on Khan M. Mutiu Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others 2006 PLC (C.S.) 564. In the case of Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630, it has been held that "It is only a final order, original or appellate, against which an appeal lies to the Service Tribunal. " Even if the impugned act or action of the respondents has been protected by a constitutional provisions by ouster clause, the superior ,courts still have the jurisdiction to interfere with three categories of the cases, namely, without jurisdiction, coram non judice and mala fide. In the instant case the petitioners are not seeking regularization through the instant writ petition rather they are challenging the appointment of 80 SDOs through the process of Departmental Selection Committee. Respondent No,2 has advertised 80 posts of Sub-Divisional Officers in the Irrigation Department on contract basis through the process of Departmental Selection Committee rather through the process of Punjab Public Service Commission, as such, summary dated 13-3-2009 and consequent notification was got approved by respondent No,2 from the Chief Minister, Punjab stating as under:- "To meet immediate requirement, the department has promoted Sub-Engineers on officiating basis/ appointed on current charge basis as SDOs, but Sub-Engineers promoted as SDOs are lacking capacity of designing of projects and its proper execution as compared to the B.Sc.
Engineering. Besides, this strategy of stop gap arrangement has created shortage at the level of Sub-Engineers and so it is not mitigating the problem."
' Respondent No,2 has mentioned the wrong information in the said summary as 23 Sub-Engineers are working on current charge basis holding the degrees of B.Sc. In Civil Engineering and against the 80 posts of SDOs the petitioners and Sub-Engineers are already working on current charge basis since the year 2006/2009 till the arrival of their incumbents of said posts in the following ratio:
1. Sub-Engineers working as SDOs having = 23 posts degrees of B.Sc. In Civil Engineering from recognized Universities
2. Sub-Engineers working as SDOs on = 28 posts current/acting charge basis having degrees of B.Tech. (Honours)
3. Sub-Engineers having passed departmental = 29 posts exam for promotion against 20% promotion quota of SDOs Total 80 posts ' According to respondent No,2, 80 posts are available against 65% initial recruitment quota but incumbents of these 80 posts are not available temporarily because the said Sub-Divisional Officers are working as Executive Engineers on current charge basis and some of them are working against ex-cadre posts in other departments on deputation; therefore, those 80 SDOs have lien against these posts, as such, these posts are available for a temporary period only. 23% are B.Sc.
Engineers and holding the license of the Engineering Council; 28% are B-Tech qualified Engineers; 29% Sub-Engineers have qualified in the Departmental Examination to be promoted. So far as the Sub-Engineers are concerned, 88 Sub-Engineers have been recruited through the Public Service Commission on contract basis; therefore, it seems that the whole of this process is being done by respondent No,2 with mala fide intention to accommodate their favorites' as there is a letter of Ch. Shafique Ahmad Gujjar M.P.A. In the case of Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291, it has been held that such appointment is a trust in the hands of the public authority and it is their legal and moral duty to discharge their functions as trustees with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service.
Since 80 posts of B S.D.Os have already been filled by the Department by appointment on current charge basis till the arrival of the regular incumbents in view of specific provisions of Rule 10(b) and Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974; therefore, there was no justification for respondent No,2/Department for advertising the said posts for recruiting on contract basis till the arrival of the regular incumbents. The record further reveals that 88 posts of. Sub-Engineers in the Irrigation and Power Department have also been filled on contract basis through selection from the Punjab Public Service Commission by respondent No,2, as required by para 3 (VI) (ii) of the Contract Appointment Policy of Government of the Punjab circulated vide letter dated 29-12-2004, which fact is established from letter No,SO (E-II) 1- 4/2005(P-I) dated 23-4-2009, issued by the Irrigation and Power 'Department but with mala fide, respondent No,2 has concealed this fact from the Chief Minister. In the case of Mrs. Abida Parveen Channar v.. High Court of Sindh at Karachi 2009 SCMR 605, it has been held that "all the public powers must be exercised reasonably and honestly for the purpose for which the same are conferred".
26. If respondent No,2 department is fair in its intention to fill all these 80 posts of SDOs from amongst persons having the qualification of B.Sc. In Civil Engineering only, then in such an eventuality, the above said posts be filled through selection by the Punjab Public Service Commission even on contract basis, as is required under the specific provisions of Para No,3(vi)(ii) of the Contract Appointment Policy of the Government of the Punjab, which has been notified vide letter dated 29-12-2004, which is reproduced as under:--- "Under the provisions of Rule 4 of the Punjab Public Service Commission (Functions) Rules, 1978, contract appointments are excluded from the purview of the PPSC. However the Departments should preferably adopt the channel of PPSC even for contractual appointment against posts, which otherwise fall within the purview of the PPSC under Sub Head V above, by seeking relaxation of Rule 4 ibid from the Chief Minister."
' The posts of Sub-Engineers in the Irrigation and Power Department should be filled on the recommendations of the Punjab Public Service Commission in view of para No,3(V)(ii)(b) of letter dated 29-12-2004. In the case in hand, the respondents have appointed Sub-Engineers on contract basis through Punjab Public Service Commission whereas the posts of SDOs are going to be filled on contract basis through the Departmental Selection Committee, the same is in violation of the specific provisions of Articles 3, 25 and 27 of the Constitution of the Islamic Republic of Pakistan, 1973; therefore, mala fide and discrimination of the respondent/ department is apparent. In the case of Hussain Badshah and another v. Akhtar Zaman and others 2006 SCMR 1163, the honourable Supreme Court of Pakistan upheld the judgment dated 12-5-2000 passed by the Full Bench of the Peshawar High Court wherein the policy of the Provincial Government N.-W.F.P. For selection and recruitment of PTC teachers was declared as illegal and discriminatory being violative of Article 25 of the Constitution.
27. It is well-settled law that even if a post is filled on ad hoc basis, which is liable to be terminated on availability of a regular incumbent; therefore, termination of such like ad hoc appointee before the arrival of the regular incumbent is illegal and the ad hoc appointee is entitled to perform his duties till the arrival of the regular incumbent. Reliance is placed on law laid down in Syed Sajid Hussain Zaidi v. The Secretary, Government of the Punjab, Agricultural Department, Lahore 1995 PLC (C.S.) 765. In the case of Azher Munir v. The Secretary, Government of the Punjab, Agricultural Department, Lahore 1995 PLC (C.S.) 377, it has been held that the "Authority, in case of acute necessity, was competent to take qualified candidates on ad hoc basis pending recruitment through prescribed method. Such ad hoc appointments were subject to condition that it would remain in effect till the time a regular selected incumbent was taken for appointment against the post. No such regular incumbent was so far taken in prescribed manner and until that contingency took place, civil servant had a right to continue. "
28. As the petitioners Nos.4 to 9 and 17 others are performing their duties as Sub-Divisional Officers on current charge basis, having the qualification of B.Sc. In Civil Engineering from recognized universities till the arrival of their regular incumbents of the said posts; therefore, there is no justification for respondent No,2 to make appointments against these posts on contract for' a temporary period; therefore, the action of respondent No,2 is declared as illegal, arbitrary, mala fide and violative of the specific provisions Article 3 of the Constitution of the Islamic Republic of Pakistan, 1973. The concept of ad hoc appointment against the 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 the posts required to be filled 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 filling posts on regular basis. Reliance is placed on the case of 2003 SCMR 291. Respondent No,2 has not determined the clear vacant posts and the department is appointing 80 persons as Sub-Divisional Officers on contract basis whereas merit is that if the respondents fill in the vacant posts then the petitioners are entitled for 35% quota of the clear vacant seats and in order to deprive the petitioners from the 35% quota, this method is being adopted by the Department with mala fide intention.
29. In view of the above perspective, this writ petition is accepted, the impugned summary dated 13-3-2009 and the notification subsequent thereto are declared illegal, discriminatory and without jurisdiction and the selection against the posts of SDOs on contract basis through the Departmental Selection Committee, is declared as illegal and with mala fide intention The respondent/Irrigation Department is directed to make appointments of the SDOs through the Public Service Commission. The Irrigation and Power Department is also restrained from making selection against 23 posts of SDOs in the Department through Departmental Selection Committee on contract basis as against which posts petitioners Nos.4 to 9 and other Sub-Engineers are already working on current charge basis till the arrival of the regular incumbents having the requisite qualification of B.Sc. In Civil Engineering from the recognized universities. Parties are left to bear their own costs.