MIAN SAQIB NISAR, J. --- In the system meant for the dispensation of justice qua field of criminal law, the prosecution department undoubtedly has a pivotal, significant and a crucial role to play; earlier, the said department was part of the police service/establishment and Prosecutor Sub- Inspectors (P.S.I.) used to appear before the Courts upto the sessions level in the police uniform, having no independence and impartiality; this was considered unbecoming to the office; thereafter, from amongst the lawyers the slots were filled by the government for various Courts on the contract basis, yet on account of innumerable vices about the procedure of selection, efficiency, integrity and independence, an acute need was felt that a permanent prosecution service be established which should conform to the status, function and role of the office in the said system. Thus, in order to ensure the prosecutorial independence for better organization in the field, the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act III of 2006) (hereinafter referred to as "the Act 2006") was enforced on 8.4.2006; the object and the purpose of the service is conspicuously spelt out from the preamble of the Act, 2006, which reads:- -- "Whereas it is expedient to establish an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutorial independence, for better coordination in the criminal justice system of the Province and matters incidental thereto."
2. It may be pertinent to mention here that including the Prosecutor General there are various slots/posts envisaged by the Act, 2006 and Section 8(3)(4) of the Act, 2006 provide:--- "8. Appointments.-- (1) ___________________ (2)
(3) All the appointments, except that of the Prosecutor General, to various posts in the Service, shall be made through initial recruitment in the manner as be prescribed: (underlined for the emphasis)
Provided that at least fifty percent appointments on the posts of Additional Prosecutor General and Deputy Prosecutor General shall be made through promotion.
(4) No direct recruitment shall be made on regular basis (underlined for the emphasis) to the posts of District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Prosecutor, Additional Prosecutor General and Deputy Prosecutor General except on the recommendation of the Punjab Public Service Commission: Section 2(j) of the Act, 2006 defines the word "prescribed" which means, prescribed by rules or regulations made under the Act.
3. In order to fill up certain posts, mentioned above , on temporary contractual basis, two public advertisements were got published by the Prosecution Department in the newspapers on 12.7.2006 and 15.8.2006, and under the head 'TERMS AND CONDITIONS', it was mentioned that "All the recruitments will be made according to the Recruitment Policy/Contract Appointment Policy, 2004.
Pursuant to the above, the petitioners (who are mostly the District Public Prosecutors, Deputy District Public Prosecutors and Assistant District Public Prosecutors) claim to have applied and appointed, CL .K. .
4. During the course of the above, on 26.7,2006, a Writ Petition No. 8456/2006 was filed by Mr. Mushtaq Ahmad Mohal, Advocate challenging the afore-said advertisement,; and the appointments being made pursuant thereto, mainly on the ground that the provisions of the Act, 2006 do not permit those on the basis of contract; the said writ petition came up for hearing before a learned Single Bench of this Court, one of us (Umar Ata Bandial, J.), who after seeking the comments from the Prosecution Department, considering the contentions/views of the petitioner of the case, the Prosecutor General, the Additional Prosecutor General and Mr. Ghulam Shabbir Thaheem, Advocate for the Punjab Public Service Commission ("PPSC"), passed the judgment dated 11.12.2006 whereby the writ petition was disposed of, the important/relevant paragraphs of the judgment are reproduced below:-- "6. The statutory mode of appointment through an institutionalized process provides merit based transparency. Any different process of recruitment and appointment to posts in the P.C.P.S., howsoever sound and fair, cannot be at par. Firstly, because it deviates from the statutory mandate and secondly, because it shall be ad hoc and therefore open to dispute.
7. The learned Prosecutor General has emphatically conveyed the intention of the respondent No. 1 to curtail the number and period of contractual appointments to the bare minimum and that ultimately all appointments in the P.C.P.S. Shall be made subject to P.P.S.C. Scrutiny or verification.
With respect to the matter of time lag, he informs that the respondent No. 1, shall send its requisition to the P.P.S.C. On or before 30.6.2007 for commencing Its recruitment process for posts In the P.C.P.S. Thereafter, it Is for the P.P.S,C, to complete its process which too is liable to take considerable time.
During the interregnum, therefore, he urges that the respondent No. 1 should be allowed to carry out contractual recruitment through a fair and transparent process. All stop dap appointments already made in the P.C.P.S. By the respondent No. 1 and further contractual appointments that are necessary for energizing the P.C.P.S. Shall be made subject to the scrutiny, examination and approval of the P.P.S.C. Thus ultimately no appointment made in P.C.P.S. Except that of Prosecutor General shall be beyond the purview P.P.S.C. Action.
(underlined for the emphasis)
8. It is stated that the respondent No. 1 shall conduct its recruitment process of contractual appointees through a panel of qualified selectors that shall include a retired Judge of the High Court or the Hon'ble Supreme Court. Merit and transparency in such selection process of contractual appointment shall be adhered strictly. Based on the foregoing safeguards, which are generally reflected in the additional facts submitted in writing by him, the learned Prosecutor General has argued that in every new organization transitional measures are necessary to put it in place. If the respondent No. 1 is not allowed to undertake contractual appointments, the P.C.P.S. Shall be prevented from performing its functions until the statutory and transitional process for recommendations by the P.P.S.C. Is completed. Such an event shall defeat the statutory object for the creation of the P.C.P.S.
9. The Court has given its anxious consideration to the steps being taken by the respondent No. 1 to mobilize the P.C.P.S. And the stages that must be covered for recruitment of Prosecutors on regular basis in the P.C.P.S. On recommendation by the P.P.S.C. There is weight In the submissions made by the learned Prosecutor General that contract appointments are necessary and should be made. In this behalf, the independence; and professional capability of the panel of selectors will also promote merit and fairness in the contractual appointments recommended by them.
10. It is however noted that the proposed mode of selection, nevertheless, contains defects that have legal consequences. The prolonged period of three years' contract appointment offered by the respondents is inconsistent with Statute and the respondent's purport to expedite selection of regard appointees by P.P.S.C. This period must therefore be curtailed by the respondent No. 1 to the bare minimum duration, namely, exceeding six months but not much more than one year.
(underlined for the emphasis) The contract period is of importance also because according to the letter dated' 8.12.2006 by the respondent No. 1 addressed to the learned Prosecutor General, the P.P.S.C. Has declined to review or confirm the temporary appointments made and projected to be made by the respondent No. 1 during the current period of transition. This refusal also applies to the impugned contractual appointments. Therefore, unless the contract appointees join the mainstream competition before the P.P.S.C. They shall form an exclusive class of prosecutors immune from. PPSC scrutiny for the duration of their respective contracts. (underlined for the emphasis) This is not a fair scenario to create nor is it compatible with the Act. Therefore, in a realistic legal context, the stand taken by the P.P.S.C. Also necessitates that a short contractual term of service is offered by the respondent No. 1.
11. Accordingly, subject to the foregoing limitation of duration of contractual appointment and the obligation that the respondent No. 1 shall forward within six months its requisition to the P.P.S.C. For induction, recruitment and appointment on regular basis of P.C.P.S. .Prosecutors, the impugned temporary contractual appointments proposed to he made by the respondent No. 1 are held to be lawful and valid. Petition disposed of in foregoing terms."
The above judgment was not challenged by any stakeholder, thus has attained the finality. Rather to strictly adhere thereto and to act upon it, the Secretary, Public Prosecution Department moved a summary dated 26.12.2006 to the Chief Minister of Punjab. It is mentioned therein that the Lahore High Court disposed of the Writ Petition No. 8456/2006 titled "Mushtaq Ahmad Mohal v.
Government of the Punjab, etc. Vide order dated 11.12.2006 with the following observations:-
(i) The recruitment on regular basis for the posts of Punjab Criminal Prosecution Service be referred to the Punjab Service Commission within 6 months.
(ii) The recruitment on contract basis be subjected to review/confirmation by a Selection Committee (underlined for the emphasis) which should include one retired Judge.
(iii) While holding the appointments so far made on temporary basis as valid (underlined for the emphasis), the Court has observed that these appointments alongwith other temporary appointments which may be made will all be subject to review/confirmation by the Committee referred to in (ii) above.
"The inclusion of a retired Judge of High Court or Supreme Court is a deviation from the Selection Committee already notified under Recruitment Policy, 2004. (Annexure-B) However, in pursuance of orders of Honourable High Court and para-10 of the Recruitment Policy which provides that in cases where department finds that the said committee is not relevant to their peculiar circumstances, they may get their own committees constituted after obtaining approval of the Chief Minister routing the matter through Regulation Wing, S&GAD (Annexure-C), the Department proposes the following Selection Committee to review/scrutinize the candidates appointed on temporary basis against posts included in Punjab Criminal Prosecution Service.
(1) Secretary, Public Prosecution. Chairman
(2) A retired Judge of High Court or Member Supreme Court of Pakistan.
(3) A retired Member of Civil Service Member
(4) Prosecutor General, Punjab Member The TERMS OF REFERENCE enunciated in the summary were:---
(i) The Selection Committee shall strictly follow the procedure laid down in the Recruitment Policy- 2004 as well as criteria approved for the posts.
(ii) It shall review all appointments on temporary basis made ,against posts in the Punjab Criminal Prosecution Service.
The summary was approved by the Chief Minister of punjab on 29.12.2006, thus the following panel of the process Committee was notified on 5.1.2007:---
(1) Shaigan Shareef Malik, Secretary, Public Prosecution. justice R. Raja Muhammad Sabir, Lahore High Court. (2) Mian Khuda Bakhsh, former member review/confirmation (of his appointment) by a selection committee, therefore, the petitioner could not be subjected to the test of the said interview, which according to him is absolutely illegal and unlawful and his termination could not be made on that account. (i.e. Due to failure of the petitioner in the interview); the petitioner thus has a vested *right to serve at his post till the time, as per the provisions of the Act III of 2006, some recommendee/selectee from the P.P.S.C. Arrives (appointed), and this has not so far happened. However, when specifically questioned, Mr. Mir has candidly conceded that the moment somebody is recommended by the P.P.S.C. To the post held by his clients, they shall automatically go home; the petitioners (alongwith 827 persons) were interviewed a year before the date of termination, but their result with mala fide intention was withheld and was declared on 29.5.2008, which does not bear the signatures of all the four members of the committee, rather of the three; the committee which conducted the interviews of the petitioners did not comprise of all the four members appointed by the Chief Minister of Punjab vide order dated 5.1.2007 but other persons such as the Additional Prosecutors General (who themselves were subjected to the process of interview as per the judgment of this Court dated 11.12.2006) took part as the members, they were thus the strangers, as neither under the law nor under the afore-mentioned order of the Chief Minister, any delegation of such participation was permissible to anyone; the committee as a whole or any of its members (such as the Secretary or the Prosecutor General) also were not authorized to allow any other person to participate in the selection process of the committee for the interview purposes; the selection committee was not properly constituted, thus the entire process of interview is a farce and coram non judice; for highlighting that on certain occasions, some strangers participated in the interviews of the Selection Committee, reference has been made to the letter dated 7.4.2007 by Mr. Mushtaq Ahmad Khan, Prosecutor General to the Secretary asking Mr. Naseer-ud Din Nayyar to sit in his place, another letter dated 13.7.2007 by Mr. Naseer-ud-Din Nayyar asking to Mr. Mazher Sher Awan to replace him; a office letter dated 29.8.2007 by Mazher Sher Awan and a letter dated 8.5.2008 from Ch. Mushtaq Ahmad Khan stating that it is not possible for him to participate and he must be represented by Mr. Alamgir; no criteria has been prescribed to adjudge the ability of the petitioners/candidates as to on what basis the marks should be allocated to a candidate in the interview; besides, the excessive marks have been allocated to the interview and less to the academic and this factor has been misused by the selection committee. In order to substantiate his plea that the nominee (agent) cannot further delegate the power, the learned counsel has placed reliance upon the judgments reported as J.L. Paul & Sons v. Director General, Excise and. Taxation, Punjab and another (2005 CLC 922), Ghulam Qadir v. Ahmad Shafi and another (PLD 1967 Lahore 68) and Phullan (deceased) through his Legal Heirs and others v. Muhammad Sarwar and 2 others (1992 CLC 1975); that the authority which has originally created a body alone can delegate the power of that forum (body), and not the body or any of its members, reliance is placed upon Karachi Cooperative Housing.
Societies Union Ltd. v. Government of Sindh and 6 others (1990 MLD 389). It is further argued that where a power has been given to someone to perform an act in a particular manner, it has to be carried out in that manner alone and not otherwise, support is drawn from Reference No. 1 of 1988 made by the President of Pakistan under Article 186 of the Constitution of the Islamic Republic of Pakistan (PLD 1989 SC 75); that the impugned order/action is actuated with malice and mala fide; the removal of the petitioner is otherwise than in due course of law and is politically motivated, it is due to the change of the political government in Punjab? That the appointees of the earlier government are being shown the door, in order to accommodate the persons Dear to the new regime, therefore, the impugned action which lacks honesty of purpose cannot sustain in law, reliance is placed upon Hazara (Hill Tract) Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678) and Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671); all the members should have signed the results so that it should transpire from the result sheets that they had applied their minds and have allocated respective marks to each candidate, but this is otherwise; that the exercise of interview (through the selection committee) and the result thereof, is a fraud upon the judgment of this Court dated 11.12.2006 passed in Writ Petition No. 8456/2006; the case of the petitioner should have been independently considered in the light and background of the said judgment, but it is not so established from the record, thus the impugned order/action lacking proper application of mind is untenable in the eyes of law; reliance is placed upon District Education Officer and others v. Hafiz Muhammad Ishaq Ahmad Noori and others (2005 SCMR 1337) and Mian Manzoor Ahmad Wattoo, P.S.P. v. The Province of Punjab, etc. (1997 CLJ 388) (at page 394); the prosecution department for the purposes of. Holding the exams through the P.P.S.C. Caused unnecessary delay, as it failed to make the requisite reference to P.P.S.C. In time arid the first advertisement for the examination by the P.P.S.C. Was made on 25.11.2007, this shows the lapse on the part of the Prosecution Department; that the termination of the petitioners is not simpliciter, but with a stigma that they have failed to pass through the interview, therefore, such removal without a show-cause notice for providing hearing to the petitioner is beyond the purview of law; reliance has been placed upon R.I Zaid Ahmad Kharal v.
Water and Power Development Authority through Chairman WAPDA and another (2008 PLC (CS)
1005), Aleem. Jaffar, Ex-Line Superintendent, WAPDA, Lahore v. WAPDA through its Chairman, Lahore and 2 others (1998 SCMR 1445), Surja Ram v. State of Rajasthan (1998 PSC 337) and Muhammad Siddiq Javaid Chaudhry v. The Government of West ' Pakistan (PLD 1974 SC 393); that the petitioners who had been appointed on the contract basis had the legitimate expectation of being regularized in the service and having . Not been so done, the above doctrine has been violated; support is drawn from Messrs Ikhlaq< Cloth House, Faisalabad v. Assistant Commissioner of Income Tax Circle-12, Faisalabad Zone A, Faisalabad and 3 others (2001 PTD 3121); that the impugned action of the respondents infringes the rule of locus poenitentiae, Pakistan through the Secretary, Ministry Of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407); that the removal of the petitioners is arbitrary and capricious as the rules of transparency, fairness and reasonableness have not been adhered to and applied in this case, Zohra and 5 others v. The Government of Sindh, Health Department through Sindh Secretariat, Karachi and another (PLD 1996 Karachi 1); that the impugned action violates the provisions of Section 25 of the Constitution of Islamic Republic of Pakistan, 1973 as the petitioners who are in the service at the district level such as District Public Prosecutors, Deputy District Public Prosecutors and Assistant District Public Prosecutors, their services have been subjected to interview and they have been declared failed and thus terminated, while the Additional Prosecutors (General and Deputy Prosecutors General, who are also to be appointed under Section 8(2) of the Act, 2006, their appointments have not been absolutely touched; this is not based upon reasonable classification and reasonable differentia, resultantly, the action should be struck down on the touchstone of the rule of discrimination, I.A.
Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Abdul Baqi and others v. Muhammad Akram and others (PLD 2003 SC 163), and Arshad .Mehmood and others v. Government of Punjab through Secretary Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193); that under the provisions of Article 139, every executive action has to be made in the name of the Governor, the appointment letter of the petitioner and the notification are in line thereto, but in the termination order dated 25.7.2008, the name of the Governor is conspicuously missing, which also violates Rule 1(1,2,3) of the Punjab Government Rules of Business, 1974; the case has practical aspects as well because in case the impugned orders (in the petitions) are upheld, the Prosecution Department at the district level shall face total collapse and impasse (as at present the petitioners are continuing their services on account of the interim relief granted by this Court), and a vacuum shall be created on account of which, the criminal justice system shall come to a complete halt and standstill; that some advertisements have been published by the present government for fresh recruitment in place of the petitioners, which is meant to only do away with the services of the petitioners and to employ people on political considerations; the objective criteria for the purpose of assessing the ability of the petitioners was their A.C.Rs., which should be sought from the Presiding Offioers with whom the petitioners have been working, rather than undertaking the sham process of the interviewing Committee; reliance about the worth of the A.C.Rs. Is placed upon Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another (2004 SCMR 85); on the basis of Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 PLC(CS)
69), it is argued that instead of removing the petitioners from the service, as they have put quite some time and gained experience, their services should have been regularized. Mr. Farooq Amjad Mir, the learned counsel for the petitioners, however replying to a question by the Court, states that if the selection committee as has been originally constituted (pursuant to the judgment dated 11,12.2006) had declared the petitioners as 'fail', they (his clients) would have no grouse, but according to him, the committee as a whole has gone ultra vires of its own procedure, In this behalf, reference has been made to the minutes of the Selection Committee meeting dated 31.3.2007. He has also argued that the result of the interview has been tampered with and fabricated; the record now produced by the respondents has no sanctity in the eyes of law.
6. Dr. A. Basit, the learned counsel for the petitioner in Writ Petition No. 9467/2009, states that the Act, 2006 though contemplates the regular appointment, but this is subject to the Recruitment and the Contract Appointment Policies, 2004; the regular appointment could only be made through the P.P.S.C., however, as the government on account of its experience has come to the conclusion that the employment on regular basis is not congenial (for multiple factors) and thus, as a .Matter of general policy, which is lucid from Rule VI of the Contract Policy, 2004, the appointments on contract basis are preferred. It is in the above context that instead of making appointments on regular basis, the government in the prosecution service resorted to the contract employment and the applications were invited for the (appointments) posts through two advertisements , which clearly refers to the Recruitment/Contract Appointment Policies, 2004. For the contract appointments however under the Policies, three essential requirements should be fulfilled; (1) The constitution of a committee for the determination and declaration as to which post should be filled on the basis of contract or regular basis, (2) The process of the selection must be supervised, conducted and accomplished by a selection committee, (3) The candidates must have the requisite qualifications. It is stated that in the present cases, conditions Nos. 1 and 2 have not been fulfilled, therefore, for all intents and purposes, the petitioners shall be deemed to be the ad hoc appointees (underlined for emphasis), thus they have neither been employed on contract, nor on the regular basis; he has unequivocally submitted that the petitioners are not even desirous of appointment on the regular basis, rather on contract, pursuant to the advertisements, therefore, first they should be appointed for 3 years in terms of the two policies of 2004, which term is extendable to 5 years and it is on the expiry of such period .(i.e. 8 years), the petitioners shall automatically cease to hold the office. To be meticulous, this submission of Dr. A. Basit in his own words, which was read over to him, is being reproduced as below:--- "The petitioners were never desirous of the regular appointment, they had never applied for their regular appointment, it is the department which had recruited them under the Recruitment/Contract Policy and thus the petitioners can only be removed after the period of three years which is extendable upto five years in maximum." "
It is stated that during that period, no regular appointments to the posts, which they (petitioners) shall hold, can at all be made in law; the learned counsel also argued that Rules XIV and XVII of the Contract Appointment Policy, 2004 should be read together, which provides the period of initial appointment as between 3 to 5 years, extendable for further such period, but not for an indefinite time; the Appointing Authority after appointing the petitioners on contract basis should first ensure that the appointments are not terminated before the expiry of the term of contract, unless the performance of a contract employee is unsatisfactory or he is guilty of inefficiency, misconduct or corruption etc., which according to him is not the situation in these cases; by making reference to the letter of appointment in case of his client dated 4.1.2007, it is stated that clause-3 of the letter reads "that the appointment will be subject to the review/confirmation by the Selection Committee constituted for that purpose, " and it is the Committee which has to be constituted either under the provisions of the Contract Appointment Policy, 2004 or (specifically) under the noted letter, but obviously not the one which has been constituted pursuant to the judgment of this Court; it is thus, reiterated that the status of the petitioners is that of an employee who is covered by Section 2(a) of the Civil Servants Act, 1973 and now he should be recruited on the contract basis. It is submitted that certain aspects of the- matter particularly about the lapses by the interviewing committee have emerged during the hearing of this case, therefore, the relief should be allowed (moulded accordingly to the petitioners considering such vices and that this Court has the inherent jurisdiction to mould the relief keeping in view the circumstances, which transpires while hearing a matter. He has relied upon Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) and Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105). He has also stated that in the Writ Petition No. 9467/2008, he has moved an application (C.M. No. 1816/2009) taking certain additional grounds, which are purely legal in nature and should be evaluated by this Court. It is argued that whatever lapses and lacunas are there in the appointment of the petitioners, the prosecution department should be directed to remove those and thereafter enter into a fresh contract with the petitioners under the requisite policies and then the petitioners must be permitted to complete their tenure thereunder. He in the alternative has suggested that the High Court should again constitute a committee to ascertain the eligibility of each of the (petitioners) candidates of the respective category. It may be pertinent to mention here that under the directions of the Honourable Supreme Court in the judgment dated 1.7.2009 passed in C.P.L.A.
No. 1052/2009, the matter has been reheard (on account of certain development, the Bench was reconstituted) and Dr. A. Basit in the rehearing process has stated that he has reconsidered his earlier stance, he now pleads that the appointments are not ad hoc; these also are neither the regular appointments under the Act, 2006 nor contractual in accordance with the rules framed there-under (the Act), rather are of tentative nature, pending the contractual employments under the Recruitment/Contract Appointment Policies, 2004; however, he reiterated that the terms and conditions of the employment shall not be regulated by the offer letter etc., but the two policies mentioned above. In this behalf, he has formulated the following points:---
(I) The Punjab Government is at fault in not adhering to the method of Selection prescribed in Recruitment Policy, for which petitioners should not be penalized.
(ii) The writ petitioners were appointed on a tentative basis. It is for this reason that the offer of appointment made to them provided that these (appointments) shall be subject to review/confirmation by a Selection Committee constituted for the purpose. However, the Selection Committee formed under the order of this Court is not the one envisaged by the Policies, therefore, no legal sanctity to its result can be attached.
(iii) The appointments (posts) held by the petitioners so far remain anomalous for the reasons that the exercise conducted by the Selection Committee established for the purpose of review/confirmation of these tentative appointments has proceeded in a non-transparent and irregular manner.
(iv) None of the writ petitioners had ever sought to be regularly recruited in the Punjab Prosecution Service setup under Act III of 2006. Thus, neither the Act nor the Rules framed thereunder apply to the appointments received by them.
(v) All the writ petitioners had sought contractual appointments, which had to be made in accordance with the Contract Policy as also the Recruitment Policy, which are still in force. Thus, it is the provisions of Contract Appointment Policy and the Recruitment Policy, which alone are to govern the issue of validity of the termination of the petitioners' Contract Appointments.
(vi) The Punjab Government had created 548 posts at various levels in the Punjab Criminal Prosecution Service. These posts were to be filled on contract basis. Thus, these posts have no connection with the posts to be filled on regular basis under the provisions of the Act Ill of 2006.
Reliance is placed, on Budget Estimates 2007-08, which has been adduced on the record of the above-noted cases through a miscellaneous application.
On the basis of the above, he prays that the proper decision in these cases should be as under:--- #TBS (I) #TBE Contract appointments be treated as other than those contemplated by Punjab Act III of 2006, which can only take place through Public Service Commission.
Method of selection prescribed by the Contract and Recruitment Policies be directed to be applied in the case of each petitioner for purpose of proper selection as , a contract employee.
(iii) Writ petitioners who are selected through this process be permitted to retain the office from 3 to 5 years as prescribed by the Policies.
(iv) Termination order dated 25.7.2008 be set aside inter alia, on the ground that it is vitiated by an error. Of law that Review/Confirmation process initiated in terms of Para 3 of their appointment letters is a substitute for application of the method of selection prescribed in the relevant applicable policies.
7. Mr. Tahir Mehmood Khokhar, Advocate has also attacked the impugned order on account of the participation of a stranger in the proceeding of the Selection Committee, according to him, the entire process has been rendered coram non judice and without lawful authority; he has placed reliance upon Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738) and Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P.- and another (PLD 1995 SC 66); it is stated that even if the petitioners have participated in the interview before a Committee which was not properly constituted, such shall not operate as estopple, waiver or acquiescence on their part as the above principles cannot be pressed into service, when there is a vital defect in the formation of the forum; where the mandatory condition for the exercise of jurisdiction is not fulfilled, the decision of the forum is without jurisdiction and accordingly the entire superstructure based upon such a decision shall be non-existent in the eyes of law; reliance is placed upon Yousaf A.I v.
Muhammad Aslam Zia and 2 others (PLD 1958 SC 104), Rashid Ahmad v. The State (PLD 1972 SC 271), Mansab A.I v. Amir and 3 others (PLD 1971 SC 124),' Major Syed Walayat Shah v. Muzaffar Khan and 2 others (PLD 1971 SC 184) and Nawab Syed Raunaq A.I, etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236); by referring to the maxim of "a communi observantia non est recedendum" it is stated that where a procedure has been provided to do a thing in a particular manner then it has to be done in that manner alone and not otherwise, Government of the Punjab, Food Department through Secretary, Food and another v. Messrs United Sugar Mills Ltd. And another (2008 SCMR 1148), Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307); that under Section 24-A of the General Clauses Act, 1890, the decision should be made with reasoning by the concerned authority and that too by application of independent mind, otherwise the decision shall stand vitiated; Wajid Saeed Khan v. Abdul Qadoos Khan Swati and others (2007 SCMR 1759) and Messrs Airport Support Services v. The Airport Manager, Quaid-e- Azam International Airport, Karachi and others (1998 SCMR 2268). He has further argued that the provisions of Articles 25, 27 and 4 of the Constitution of Islamic Republic of Pakistan, 1973 have been violated in the instant case; the declaration of purported results after about a year of the holding of interviews is illegal and unlawful, as in the case of Dewan Azmat Said Muhammad v. Maudood Masood and another (Civil Petition No. 687 of 2006), it has been held that if the judgment is not announced within a reasonable time, it shall be struck down; reliance is also placed on Muhammad Bakhsh and others v. The State (1989 SCMR 1473), Muhammad Latif v. Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 9 others (2003 CLC 1064) and Crescent Sugar Mills & Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad and 2 others (PLD 1982 Lahore 1); he has also made the submissions about the change of political government and victimization of the petitioners in that scenario; it is further submitted that non- signing of each page of the result sheet by the Interview Committee Members is a serious lapse and such result shall carry no sanctity; he has drawn distinction about the rights of ad hoc employees and the employees appointed on the contract basis and asserts that the petitioners are under the contractual appointments, in this context, by placing reliance upon Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291), it is submitted that the appointments of the petitioners should be directed to be regularized.
8. Dr. Khalid Ranjha, Advocate has argued that the present proceedings should not be taken as adversarial in nature, rather inquisitorial proceedings and the Court should assume the parental jurisdiction and considering the petitioners as its own peers (sic); the matter entails the future of young members of the bar who had been given an opportunity to prove themselves and their case should not be considered on a strict criteria of judicial or juridical norms; the judgment of this Court in Writ Petition No. 8456/2006 is overwhelmed by the obsession of transparency and this was for a transitional purpose; he requests that let the judgment be taken in its letter and spirit; the government record must be examined so as to find out if the Recruitment/Contract Appointment Policies have been adhered to by the new government; many persons who took part in the Selection Committee proceedings had no authority in this behalf and were strangers, and thus their result should not be made the basis of petitioners' removal from the service.
Mr. Muhammad Ahmad Qayyum, Advocate and Mr. Atir Mehmood, Advocate appearing for the respective clients in Writ Petitions Nos. 3939/2008, 9526/2008, 9659/2008 and 2178/2009 have also made the submissions more and less to the same effect.
9. Kh. Haris Ahmad, the learned counsel for the respondents has explained as to how and why the Act, 2006 was enforced. According to him, the preamble of the Act, which has been reproduced above, is the key to the object -behind it, therefore, the entire impugned action must be considered and construed in the context and spirit thereof and in the light of the judgment of this Court passed in Writ Petition No. 8456/2006. It is submitted by him that according to Section 8(3) of the Act, 2006, "all the appointments, except that of the Prosecutor General, to various posts in the Service, shall be made through initial recruitment in the manner as may be prescribed; " as per sub-section (4), "no direct recruitment shall be made on regular basis "to those posts except on the recommendation of the P.P.S.C. It is stated that as no rules had been framed under the Act, 2006 at the time when the judgment dated 11.12.2006 was pronounced by this Court in Writ Petition No. 8456/2006, therefore, this Court was of the candid, C.L.R. considered and absolutely correct view no contractual appointment could thus be made; that the Act, 2006 is a special law and the appointments there-under could only be made in the prescribed mode; the appointments of the petitioners are neither on regular basis nor under the Recruitment/Contract Appointment Policy, as has been argued, because the rules were framed under the Act, 2006 on 26.7.2007 and till then under the special law the contractual employments were impermissible on the basis of the general service laws and the policies framed thereunder, therefore, the appointments of the petitioners cannot even be considered on contract basis, (though it is now permissible as per the rules); such appointment at the best under the law and with reference to the judgment of this Court in Writ Petition No. 8456/2006 can be said to be a stopgap arrangement, which could only be for a period of one year and in no manner has conferred any vested right in the petitioners to seek its enforcement (of their contractual employment) from this Court; all the petitioners have approached this Court with unclean hands; their appointments, are based upon arbitrary and extraneous exercise of authority and on political considerations, and are violative of the preamble of the Act, 2006; the entire process of the recruitment was a sham, a farce and a fraud upon the law relating to the recruitment in the state employment; employment is not the bounty by the State and if given/distributed in the manner as has been done in these cases, it shall be against the fundamental right of the citizens of the country and shall infringe various dictums of the Honourable Supreme Court; the appointees have not only over-lived their tenure permissible under the law, but also even that granted by the judgment of this Court passed in Writ Petition No. 8456/2006; the appointments of the petitioners, which otherwise were illegal, at the best can only be deemed to have been protected by the judgment of this Court, but for a specific purpose and tenure, otherwise there is no legal basis of their (petitioners) staying in the service, especially now when they have failed to pass through the interviews; the petitioners are estopped to take the objection about the Selection Committee, because they have participated in the proceedings and have waived and acquiesced to the above and it is after their removal, that they are now challenging the constitution of the said Committee; the status of the Selection Committee was not in the nature of an "Agency" regarding which the rule of delegation of power shall be applicable, rather it was an administrative setup, established to fulfill the object of the judgment of this Court and to judge the merit of each candidate thus, it was a body which was free to specify its own quorum and also adopt the procedure for that purpose; on account of the termination/dismissal of the petitioners, no vacuum snit be created in the Prosecution Department, which could cause any impasse or standstill in the working thereof. It is further argued that the appointment could only be made as per the provisions of Section 8 of the Act, 2006; there is a complete process, which imperatively needs to be followed if the appointments are claimed by the petitioners to have been made under the Contract Appointment Policy, 2004 as the petitioners have not been appointed after their selection through the committee envisaged by the Policy; besides under Rule 7, the Prosecution Department. Should have its own selection committee because the Policies, 2004 do not cater for the evaluation of the specialized nature of the assignments/jobs, but this legal process has not been adhered to and the appointments are thus even not under the Policy; the Selection Committee was a committee of its own special nature, which was given a special task to carry out the decision of this Court (portions reproduced above) in letter and spirit and that has been accomplished in a bona fide manner and with honesty of purpose; there are no elements of mala fide or lack of transparency or unfairness as alleged by the petitioners. It is mentioned that it is not a case where on account of any lapse on part of the prosecution department, a prejudice has been caused to the petitioners , rather they had manoeuvred their appointments with male fide intentions, and such persons who have approached the Court with soiled hands are not entitled to the grant of any Constitutional discretionary relief. In support of his contention that the appointments were made with dishonesty of purpose, the learned counsel has made extensive references to various summaries, appointment letters etc. Which have been filed alongwith the written statement to Writ Petition No. 9394/2008 and according to him, the advertisements in this case for the appointments were published in the newspapers dated 12.7.2006 and 15.8.2006, but the appointments were made even before those, as in clear from the first summary prepared and submitted on 12.6.2006 to the Chief Minister, Punjab by Ch. Mushtaq Ahmad Khan, prosecutor General, Punjab, in which it has been mentioned as under:- It has come to my notice that 30 seats i.e. 10 Additional Prosecutors General and 30 Deputy Prosecutors General have been additionally sanctioned for appointment of which officers process has not as yet been started as requisite period of experience is yet to be approved by the Honourable Chief Minister, Punjab hence long time is going to take place to make regular appointments. (underlined for emphasis)
It is therefore, of utmost necessity that vacancies, which have not been filled up so far although sanctioned in the Budget, are immediately filled up in relaxation of recruitment policy so that prosecution work may not suffer."
General, Punjab again two Additional Prosecutors General and one Deputy Prosecutor General were got appointed. Vide a summary dated 4.7.2006, the Secretary Public Prosecution sought the appointments of various persons as Additional Prosecutor General and Deputy Prosecutor General as it was proposed that- ,' ......................... The persons mentioned at para 4 may be appointed on contract basis till the appointment through due process, in relaxation of recruitment process.
6. Chief Minister may kindly relax the conditions of procedure of selection provided in the Recruitment Policy/Contract Appointment Policy and approve proposals contained in para 5,"
This summary was approved, but strangely Ch. Amjad Hussain, Advocate and Ch. Fayyaz Ahmad Warriach, Advocate (the clients of Mr. Farooq Amjad Mir), who were not proposed (as their names are not even mentioned in the summary), were directed to be appointed by the Chief Minister.
'Numerous summaries have been placed on the record of the Prosecution Department on the basis of which it is submitted that the approval for appointment of number of persons was sought in relaxation of the Recruitment/Contract Policy; it is not mentioned in the summaries if the candidates proposed for the appointment have applied and even the reference to their qualifications and bio data is missing. Kh. Haris Ahmad, Advocate has also pointed out to a summary in which reference has been made to an interim order dated 3.11.2006 passed by this Court in Writ Petition No. 8456/2006 and it (the summary) reads, "His Lordship has, however, permitted making of appointments to all advertised posts temporarily (underlined for emphasis) as has been done earlier, for a period of 6 months in the public interest". Thus, in the garb of the above, large number of recommendations were again made by the Prosecution Department for the appointments to various posts, and were approved by the Chief Minister in a mechanical manner.
On 26.1.2007, another summary was moved to the Chief Minister, Punjab and in paragraph No. 2 it was mentioned:--- "To accommodate all recommendations, the Department proposes that the individuals enlisted in Annexures-B&C may be appointed, by creating additional 50 posts of Deputy District Public Prosecutors (BS-18) and 150 posts of Assistant District Public Prosecutors (BS-17), on a temporary basis in relaxation of rules, Recruitment Policy, 2004 and Contract Appointment Policy, till the arrival of selectees of the Punjab Public Service Commission or the selectees under Contract Appointment Policy. The appointments Will be subject to
(i) (ii) Review/confirmation by the Selection Committee constituted for the purpose ." A long list of the recommendees was filed therewith, who all were appointed. In a directive dated 11.8.2006 by.
G.M. Sikandar, Principal Secretary to Chief Minister, a direction was issued that Mr. Omer Zeshan, Advocate may be interviewed alongwith others and considered for the slot. The same is the position, which is reflected through another summary dated 26.1.2007.
10. During the period of caretaker government, the situation , according to Kh. Haris Ahmad, was not different and by following the same pattern, the appointments were randomly made, oblivious of the real object of law (i.e. The Act, 2006), as is clear from the summary dated 15.6.2007, which prescribes:--- .
"After approval of list of candidates by the Chief Minister, upon receiving different requests, Minister Public Prosecution replaced the names approved in Summaries at (Annexures-A&B) or changed the designation of recomrnendees from Deputy District Public Prosecutor to Assistant District Public Prosecutor or vice versa (Annexures-E, F, G, H & I). The Department, in "anticipation of approval of Chief Minister issued offer of appointment and withdrew the offers of appointment already issued.
However, this requires ex-post facto approval of Chief Minister." " (underlined for the emphasis)
"To accommodate all recommendations, the Department proposes that the individuals enlisted above may be appointed by creating 3 additional posts of Deputy Prosecutors General (BS-18) on a temporary basis, in relaxation of. Rules, Recruitment Policy, 2004 and Contract Appointment Policy, till the arrival of selectees of Punjab Service Commission or the selectees under Contract Appointment Policy."
"On reconsideration, Chief Minister has observed that in the wake of the postponement of the General Elections till February 18, 2008 it would not be prudent to keep the important posts vacant.
Therefore, after discussing the matter with the Secretary, Public Prosecution, Chief Minister has been pleased to approve the appointments of following 16 persons in the office of Prosecutor General Punjab, in relaxation of procedure prescribed in Recruitment Policy, 2004 and Contract Appointment Policy."
There are unending examples of the above mechanism and the appointments throughout have been made in the same manner.
It is argued by Kh. Haris Ahmad that from the above, it is clear that without following any procedure whatsoever, any policy, putting the candidates before any forum for adjudging or testing their ability, caliber and competency, in an oblique way just with a purpose of obliging certain people and serving particular interests, the appointments at all the levels were made. He submitted that it is quite whimsical and sounds ridiculous that the people those who had got themselves appointed in a dubious and clandestine manner have cheeks to allege mala fide against the present political regime of the province, which has done nothing more than implementing the result of the selection committee, a body constituted by the previous government. He has argued that the rule of legitimate expectation in the present cases at the most does not go beyond clause 3 of the terms and conditions of appointment and once they (the petitioners) crossed the threshold of clause 3, only then they may claim their cases falling within clause 1 thereof. Explaining the delay in announcing the result, the learned counsel has mentioned that the last batch was interviewed on 12.4.2008 and the result was announced in May, 2008 and soon thereafter, the impugned orders were issued. In support of his contentions about the estopple, waiver, acquiescence) participation in the proceedings without objecting to the jurisdiction at the appropriate point of time, its effects etc., the learned counsel has relied upon the judgments reported as Mirza Nasir and 2 others v.
Mirza Hakim-ud-Din, Managing Director, Jahangir Engineering Company, Gujranwala and 2 others (2001 MLD 431), Mukhtar Ahmad Gondal v. Government of the Punjab through Secretary Health, Civil Secretariat, Lahore and 2 others (2000 YLR 4), Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore (PLD 1964 SC 829), Dr. Muhammad Arif Mahmood Bhatti v.
Professor Shabbir Ahmad Nasir, Chairman. Special Selection Board and 9 others (2006 PLC (CS)
119), Asif Hameed and others v. State of Jammu and Kashmir and others (AIR 1989 SC 1899) (para 27(c), Nasir Said v. WAPDA through its Chairman and another-(PLD 1987 SC 421), Muhammad Rafique v. Qamar A.I and 8 others (2003 MLD 52) and Judicial Review by De Smith (--Edition).
It is further stated that on account of the removal of the petitioners, no vacuum or standstill shall be caused at any level because the department has sufficient strength to meet . The requirement, rather the department by creation of various posts is overcrowded. It has been explained by Syed Zahid Hussain Bokhari, the Prosecutor General, present in the. Court that in certain Courts which have more than one police station within its jurisdiction, instead of one Prosecutor for that Court, there is one each for a police station, which otherwise could be handled by a Prosecutor for all the police stations. The learned counsel has also argued that the appointment orders/notifications and the terms and conditions referred to above (those including the case of Mr. Fayyaz Warraich), which he has placed on the record of Writ Petition No. 9526/2008 and Writ Petition No. 2178/ 2009 are interconnected and should be construed and interpreted as one document; the petitioners had no vested light to be interviewed by a particular set of the committee rather they had a right to appear and interviewed by a fair and independent committee which chance has been provided to them and availed, but they could not succeed.
11. It may be pertinent to mention here that during the course of hearing, the Court of its. Own required the Prosecution Department to produce the record pertaining to the interviews. Jt has been pointed out by Kh. Haris Ahmad, Advocate that these interviews were conducted in 60 batches out of which, in 8 batches all four members of the originally constituted committee were present, however, in rest of 52, in 31 batches, the Prosecutor General was not present and in his place someone' else participated and- out of 21 batches, in 7 i.e., 44 to 50, only one original member of the selection committee was present while in batches Nos. 31, 32 & 51 to 59, there were only two original members; he thus, frankly conceded that as far as the interview of batches Nos.
44 to 50 is concerned, it is unfair and infirm in the eyes of law while that of batches Nos. 31, 32, 51 to 59 also does not conform to the rule of transparency and fairness, however, he has left this matter to the Court for determination about the fate of the results of these batches. It may be added here that with regard to 31 batches in which the Prosecutor General was not present and some one else (stranger) participated, Kh. Hans Ahmad, Advocate has prepared the charts, which have been.
Submitted in the Court and on account of which; some of the petitioners have been declared as 'pass' by excluding the marks awarded by the stranger and some of those who have been retained as succeeding in the interview stood 'fail' by excluding the marks of the stranger. He has also responded to the argument about the omission of the Governor's name in the termination order and states that it is only notional to issue order in the name of the Governor, who otherwise has no role to play in these 'kinds of matters, therefore, non- C.L.R. reference to the Governor (in the is absolutely irrelevant and of no material significance.
12. As during the course of hearing, one of the questions which emerged for the determination of this Court is about the status of all (including the petitioners and those who have been retained pursuant to the result of the interview), therefore, in order to avoid the possibility of any Prejudice to the retainees, a notice in terms of Order I, Rule 8, C.P.C. Was issued to them by publication in the newspapers. Mr. A.K. Dogar, Advocate has appeared before this Court on 26.5.2009 on behalf of almost all the retainees and has stated that they have been rightly retained and the services of the petitioners were validly terminated. He has argued that if any stranger had participated in the meetings of the selection committee for the purpose of interview, it shall make no difference as the result (of the Committee) shall be protected by the doctrine of de fecto jurisdiction. He has placed reliance on the judgments reported as Lt. Col. Farzand A.I and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore (PLD 1970 SC 98), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738), Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore (PLD 1964 SC 829), Hafeezud Din v. Mian Khadim Hussain Additional Deputy Commissioner, Lahore and another (PLD 1965 Lahore 439) and The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha (PLD 1958 SC 437). He further argued that one can approach this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the enforcement of a right, rather for the establishment of a right, and such right must be complete, clear and simpliciter and actual infringement thereof must be proved; for this, support has been drawn from Asdullah Mangi and others v. Pakistan International Airlines Corporation and others (2005 SCMR 445) (at page 462); it is submitted that the petitioners lack such a right, which could be enforced under the law.
13. Mr. A.K. Dogar, Advocate, however, has again appeared on 23.6.2009 on behalf of the same group (retainees), but stated that he has become wiser and would now even defend the petitioners (but the petitioners present in the Court who are large in number have not owned him).
Be that as it may, he states that certain relevant facts needs to be first set out in the chronological order as follows:-- The Act, 2006 came into force on 08.04.2006, Section 8(3) provides that all the appointments shall be made in the manner prescribed; no rules were, however,' framed till 27.7.2007 under the Act, 2006; the applications were invited through tile newspaper advertisements dated 12.7.2006 and 15.8.2006 wherein the qualifications for the requisite posts are clearly mentioned; in the advertisements though minimum age has been provided for these posts but not the maximum; it is not mentioned in the advertisements that the candidates shall have to leave on the arrival of the recommendees from the P.P.S.C.; on 25.7.2006 Mr. Mushtaq Ahmad Mahal, Advocate filed Writ Petition No. 8456/2006, he pleaded that the advertisements were without lawful authority, no valid appointment could be made pursuant thereto, and the department be directed to send a requisition; on 11.12.2006, in the noted matter, the judgment was passed by one of us (Umar Ata Bandiai, J.); according to him, under this judgment, the impugned appointments were held to be valid, the prosecution department was directed to send a requisition with six months for the appointments on regular basis, the selection committee was directed to be constituted for the purposes of testing/interviewing the candidates: pursuant to the above, the committee was constituted on 5.1.2007 and the committee for the first time, held its meeting on 31.3.2007; before' that on 1,22007 (making reference to one of the cases he represents), the letter of appointment was Issued which envisages:-
(I) The appointment shall be temporary and on contract basis till the arrival of the selectees of the Punjab Public Service Commission or upon the selectees under the Contract/Recruitment Policy.
(ii) The appointment shall be subject to review /confirmation by the Selection Committee.
(iii) Other terms and conditions shall be settled latter.
The committee in its first meeting held on 31.3.2007 took the following decisions:---
(i) Interview criteria laid down by the Punjab Public Service Commission shall be adopted.
(ii) Proceedings shall not be vitiated on account of the absence of anyone of the members and such member can be represented by the officer in the line of command.
He has mentioned that the committee on account of the huge work took about a year and few months to complete the job.
On 23.5.2007, the terms and conditions of contract were given; on 27.7.2007, the rules under the Act, 2006 were enforced; the services of the petitioners were terminated on account of having failed to pass through the interview conducted by the selection committee and those who succeeded were retained. It is argued by Mr. Dogar that Section 8(3) of the Act, 2006 should be read alongwith Rule 5(1) of the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 ("the Rules, 2007") and schedule thereto, on account of which, two conditions for the regular appointment in the service must be fulfilled (1) the person making appointment should have the authority, and (2) the candidate must possess the requisite qualification. He states that both these conditions are squarely met in all these cases as the Chief Minister, who has made the appointments , is the competent authority. And, it is not the case of the Government of Punjab that all those who were appointed lacked the requisite qualifications, therefore, all the appointments are regular in absolute and true legal sense; Section 8(4) of the Act, 2006 thus, 'shall not be attracted to such appointments which (the appointments) shall fall within the domain of past and closed transaction, rather its (Section 8(4)) application is prospective .In nature and shall only be vis-a-vis the appointments to be made in futurio and cannot effect the appointments , under consideration.
This is the correct and the only possible/practicable interpretation of the Section according to him and if not so construed, the provisions of Section 8(3) shall become redundant and redundancy can never be attributed to a statutory provision, he therefore, submits that harmonious construction rule should be applied to the matter. He has argued that the not corollary on account of the above is that the persons who stand appointed pursuant to Section 8(3) read with Rule 5(1) and the schedule, cannot be removed on the ground that they have failed to pass a test/interview or the recommendee of the P.P.S.C. Has arrived or would arrive, rather they could only be removed on the grounds envisaged by the Government Servants (Efficiency & Discipline) Rules, 1973 and that too after issuing a show-cause notice in terms .Of Section 16 of the Act, It is also argued that since Rule 5(1) and the schedule attached thereto does not contain any such condition of the candidate passing through the selection committee, therefore, the result of the committee which has been made basis of termination should altogether be ignored as it is a superfluity and would not be relevant, the reason being that they (all those appointed) have fulfilled the two fundamental conditions mentioned above (the eligibility, and appointment by competent authority) and are thus the regularly appointed persons, who cannot be removed vide impugned action. Mr. A.K.
Dogar, Advocate states that if it is a case of the respondents (the Prosecution Department) that the candidates were irregularly appointed and they have to give way to the recommeodees of the P.P.S.C., the proposition has been squarely dealt with and settled by numerous judgments of the Honourable Supreme Court, such as:--- Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v.
Sadullah Khan (1996 SCMR 413); Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others (PLD 2003 SC 724); Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas A.I Malano and another (2004 SCMR 630); Muhammad Shoaib and 2 others v. Government of N.W.F.P. Through the Collector. D.I. Khan and others (2005 SCMR 85); 'Province of Punjab through Secretary, Excise and Taxation, Government of Punjab and others v.
Sargodha Textile Mills Ltd., Sargodha, etc. (PLJ 2006 SC 81) equal to:--- Muhammad Zahid lqbal and others v. D.E.O. Mardan and others (2006 SCMR 285); Abdul Salim v. Government of N. W.F.P. Through Secretary Education Secondary, N.W.F.P., Peshawar and others (2007 PLC (CS) 179); Fuad Asadullah Khan 'v. Federation of Pakistan through Secretary Establishment and others (PLJ 2009 SC 441) equal to;--- Fued Asadullah Khan v, Federation of Pakistan through Secretary Establishment and others (2009 SCMR 412); Province of Punjab through Secretary Agriculture, Government of Punjab and others v. Zulfiqar A.I (2006 SCMR 678).
Mr. A.K. Dogar has also referred to Delhi Transport Corporation v. D. T.C. Mazdoor Congress and others (AIR 1991 SC 101) to argue that the public employment is a public property and is not a bounty from those who are in authority. He has argued that right to profession/job it is a fundamental right of a citizen, which is akin to the right of birth and, therefore, such right may be enforced and all those appointed cannot be displaced from their employment in a whimsical and illegal manner. Before concluding his submissions, the learned counsel has reverted to the doctrine of de fecto, and described it to be a doctrine of necessity and argued that because in the circumstances, when some members were absent from the Selection Committee meetings, the vacancies had to be temporarily filled, due to the necessity, as the holding of the interview was a compulsion, therefore, such meetings or the result produced thereby cannot be termed as invalid.
Lastly he has argued that collateral attack on the proceedings of the Selection Committee cannot be made.
It may be observed here that some of the retainees themselves and some represented by the counsels have made submissions, defending the validity of their appointments and by arguing that those (their appointments) are not order challenge, therefore, no order adverse to their rights and interest should be passed. Most of them have adopted the arguments of Mr. A.K. Dogar.
14. Heard. We are of the considered view that the impugned action is neither the result of any mala fide, political victimization, dishonesty of purpose on behalf of the present government (of the Province of Punjab) nor it is tainted with any ulterior motive/object toillegally displace the petitioners and/or to appoint in their place their own persons. These allegations are nothing except rhetoric, loud, bald, baseless and unsubstantiated; this view is fortified for the following reasons:---
(i) That the Selection Committee was constituted prior to the present government, pursuant to the order dated 11.12.2006 passed, in Wirt Petition No, 8456/2006. The interviews commenced from 12.4.2007 and the process was completed by 12.4.2008 and by this time, the present regime had not taken over
(ii) Anybody, who participated as a stranger in the interviewing process, was not during the time of the present government, rather prior, thereto.
(iii) Neither there are any allegations in the main petition to which, reference may be made, nor (there) is any material on the record on account of which it can be judicially concluded if the selection committee was influenced and the interviews and the result has been manipulated by the present government.
(iv) The present government rather has simply acted on the result, which has been declared by the Selection Committee and we are amazed as to how the question, of political victimization etc. Can be agitated by the petitioners in the matter.
Therefore, the contentions of the learned counsels for the petitioners in this behalf fundamentally being unfounded are hereby discarded. We are also not convinced if the rule of legitimate expectancy is applicable in the instant matter, because no law has been cited under which, the petitioners had any legitimate expectation to be appointed on the regular basis. The arguments of Mr. Farooq Amjad Mir, Advocate in this regard are self-contradictory; on the one hand, he has admitted that the appointments of his clients are on temporary basis and the relationship inter se the parties is to be governed on the basis of the contract and thus, the moment anybody from the P.P.S.C. "arrives, his clients automatically shall go to home, but on the other hand, his clients are defending the appointments on the said doctrine. It may be pertinent to mention here that all the posts have been duly advertised for the regular appointment through P.P.S.C. And the petitioners had sufficient opportunity through a legally institutionalized and proper channel. To prove their competency and by a fair and transparent manner to get the job, but only a few (out of the petitioners) appeared and could not qualify and the remaining (a large number of the' petitioners) have not even dared to approach the P.P.S.C. Can in such a situation the rule of legitimate expectancy be pressed in service by the petitioners? The answer obviously is 'No'. It may also be mentioned that the arguments of Mr. Farooq Amjad Mir, Dr. A. Basit, Mr. Tahir Mehmood Khokhar and Mr. A.K. Dogar, Advocates on an important proposition involved in the matter about the nature of the petitioners/retainees' appointment are fundamentally apart, rather to a degree contradictory (this shall become more clear in the course of this judgment), but at this juncture it may be mentioned that Mr. Mir stated that the appointments though are contractual, but retainable by the petitioners only till the arrival of the recommendee of the P.P.S.C., while Dr. A. Basit pleaded that the appointments were to be made on the basis of the Recruitment/Contract Policies, therefore, as these- policies have not been followed, the petitioners must be allowed to complete the period of three to five years (even 8 years) and their recruitment should be processed afresh under the Policies; the petitioners thus have the right to continue for that period notwithstanding the arrival of any recommendee of the P.P.S.C. Mr. Khokhar has not gone beyond except that, the appointments are contractual and not ad hoc and has the protection of law, and the petitioners' appointments cannot be dispensed with before the period provided in the Contract Appointment Policy, except on the charges/proof of misconduct, which is not the position in these cases. Mr. A.K.
Dogar however, has taken a totally different stance that the appointments are "Regular" by all means; this was vehemently controverted by Dr. Basit there and then, by standing up in the Court.
It is thus seen that not one supports the viewpoint of the other.
15. Anyhow, in view of the backdrop of the case as elaborately highlighted above to our mind, there are two fundamental questions involved in the matter:- .
(i) What is the true nature of the appointments of the petitioners/retainees. And whether their services can be dispensed with (not terminated) at any point of time, and/or in the manner as has been adopted in these cases.
(ii) What is the effect of certain lapses, which have come to the notice of this Court on account of the examination of the record of the prosecution department vis-a-vis the persons (strangers) who have participated in the interviewing process and also some lapses (if any) in proper compilation of the result.
Section 8(3)(4) of the Act, 2006, which is the relevant provision in this behalf, read as under:- "Appointments.-- (1) ________________________ (2) (3) All the appointments, except that of the Prosecutor General, to various posts in the Service, shall be made through "initial recruitment in the manner as may be prescribed: " (underlined for emphasis)
Provided that at least fifty percent appointments on the posts of Additional Prosecutor General, and Deputy Prosecutor General shall be made through promotion.
(4) "No direct recruitment shall be made' on regular basis" (underlined for emphasis) to the post of District Public Prosecutor, Deputy Public Prosecutor, Assistant District Prosecutor, Additional Prosecutor General 'and Deputy Prosecutor General except on the recommendation of the Punjab Public Service Commission."
As has been repeatedly mentioned earlier, the expression `prescribed' has been defined in Section 2(j) to mean by the rules and the regulations. No rules were framed under the Act, 2006 till 27.7.2007, admittedly not when the advertisements were published on 12.7.2006 and 15.8.2006, and even when considerable appointments had already been made. Anyhow, in the advertisements it has been stated that the recruitments shall be on the contract basis and under the caption 'TERMS AND CONDITIONS' it was provided that "all the recruitments will be made according to the Recruitment Policy/Contract Policy, 2004". Thus, referring to the Recruitment Policy, 2004 dated 17.9.2004 (without prejudice and conceding if such general policy was applicable to the recruitment process enunciated under the Act, 2006 before the framing of the rules) it may be stated that the appointments even there-under could not be made to the posts of BS-11 and above without an interview (whereas all the posts in question are above the said scale); such interview could only be conducted as per clause-10 by a Selection Committee meant for the purpose; if the selection is to be made at the provincial level, by a committee comprising of, where the appointing authority is Chief Minister, the Administrative Secretary concerned being the Chairman, while two officers of the Department to be nominated by the Administrative Department with the approval of Minister Incharge and one officer of S&GAD to be nominated by the Regulations Wing. However, it is permissible that if the department find that the said committee shall not be relevant to its peculiar circumstances and/or the job requirement (for the lack of requisite expertise), the department may get its special committees constituted after obtaining approval of the Chief Minister, routing the matter through Regulations Wing, S&GAD. It is not established in these cases, rather is a disappointing factor that before appointments no interview was ever conducted by any committee of any sort, though as shall be seen in the succeeding part of the judgment that such a special committee is claimed by the government/prosecution department to have been formed. As far as the Contract Appointment Policy dated 29.12.2004 is concerned, it is again specifically mentioned in clause-VI that appointment on contract basis shall be made through the appropriate selection committees as notified by the Government. Moreover, under sub-clause (ii) it is provided that even though the contract appointments are excluded from the purview of the P.P.S.C., however, the Departments should. Preferably adopt the channel of P.P.S.C. For such contractual appointment against posts, which otherwise fall within the purview of P.P.S.C. Under Sub-Head V above, by seeking relaxation of Rule 4 ibid from the Chief Minister; besides, under clause-VII, a Contract Appointment Regulations Committee (CARC) has been constituted vide Notification No. SRO.IV(S&GAD)12-2/2004, dated 16.4.2004 which is as follows :--(i) Secretary Regulations, S&GAD Chairperson
(ii) Secretary, Punjab Public Service Member Commission.
(iii) Additional Secretary (Regulations) Member Finance Department.
(iv) Additional Secretary (Management)
S&GAD Member/Secretary
(v) Additional Secretary (Regulations) Member S&GAD.
(vi) A representation of A.D. Concerned Member (not below the rank of Additional Secretary. Where the department does not have an Additional Secretary then Deputy Secretary shall represent the Department).
(vii) Any other Member to be co-opted by the Committee.
This process too was not followed qua these appointments. It may be reiterated that till 27.7.2007 no rules had been framed under the Act, 2006 and thus it is highly obscure even with reference to Section 16 of the Act, if any recruitment could be made in the prosecution service ("the service") except on the regular basis till then and, therefore, the Contract Appointment Policy, 2004, could be made the basis and invoked for the appointments in the service.
Be that as it may, in order to throw further light on the proposition, it shall be appropriate at this stage to refer to the stance of the Government, the Prosecution Department and CL.R. the Prosecutor General in the proceedings of Writ Petition No. 8456 of 2006 and certain interim orders passed therein; the main respondents (mentioned above) of the case in their parawise comments took up the categorical position that the appointments are not regular in nature rather in order to meet a compelling situation of making the prosecution service functional and to render and give effect to the provisions of the Act, 2006, that the temporary contractual appointments were being made, as there is no prohibition in law (the Act, 2006) in this regard, for which purpose a selection committee has been constituted. It was specifically mentioned in various paragraphs thereof:- ............................... A Recruitment Committee (copy attached ) has also been constituted? Prescribed by Recruitment Policy, 2004. In order to make the recruitment process fair and transparent a Member of the Punjab Public Service Commission has also been included as Member of the Selection Committee. ...................................................... No initial recruitment is being made on regular basis . ...................................... The advertisement is in accordance with the provisions of the Contract Appointment Policy.
Most appointments have been made in relaxation of the provision of the Contract Appointment Policy only till the time that recruitment are completed in conformity to the said policy. . . . . .
(i) Additional Chief Secretary
(ii) Secretary Prosecution Department
(iii) Prosecutor General Punjab The impugned advertisement and the procedure being followed by the Punjab Government are legally and otherwise valid. These do not suffer from any legal infirmity ................................ ....................... The impugned, advertisement cannot be examined on the touchstone of the jurisdiction of the Provincial Public Service Commission, inasmuch as, as explained above the proposed appointments, under challenge are not regular appointments and do not fall within the mischief of Section 8(4) of Act of 2006. The same are being made as a stop-gap arrangement to make the newly created department of Criminal Prosecution Service functional, as at the earliest as after the enforcement of the Act, it is only the prosecutors appointed under the Act who can prosecute the criminal case. , As such to avoid vacuum, the questioned mode of appointments is the best possible mode to have the best prosecutors in a most transparent manner. ............................................. It is the task and most essential duty of the State, to ensure that the State cases are most effectively prosecuted and it is ensured that no offender goes unpunished. With this background the Government of Punjab has taken steps to launch the Public Prosecution department and to make Immediate stop-gap arrangement, in this regard, Recruitment of officers and other staff on contractual basis is inevitable part of the chain of this process. Without making such ad-hoc appointments the department cannot start functioning. The appointments on contractual basis have to be inevitably made, without which the department will not be able to commence its activities."
Furthermore, while making proposals in the context of the interim orders dated 3.11.2006 and 10.11.2006 passed by the Court in the noted writ petition, the Prosecutor General Punjab submitted in writing:--- PROPOSALS Ill. Following proposals are made for consideration by your Lordship:
(A) Honourable Chief Minister is of the considered view that the initial appointments required to be filled up on regular basis has to be made on the recommendations of Public Service Commission for which a reference shall be made to the Commission within the shortest possible time.
Administrative department has however, desired a period of six months to be able to send the reference, which period appears to be reasonable the reference as such can be directed to be sent to the Public Service Commission within a period not less that six months.
(B) Till the time the appointments on regular basis are made, the government can be allowed to complete the process of making of appointments under the contract policy through the Selection Committee to be constituted by the competent authority comprising of amongst others Honourable retired Judge/Judges of the High Court Honourable retired Members of the Public Service Commission and any assessor with a sufficient practical experience of prosecution of criminal cases.
(C) In the face of the immediate difficulty, which has arisen due to the immediate enforcement of Act-Ill of 2006 and the direction of his Honourable Courts, to take over the prosecution service with immediate effect, stop-gap appointments of prosecutors may be allowed to be made by the government till the selection of prosecutors is made under the Contract Policy. In case this Honourable Court feels that even stop- gap appointments should be reviewed by the above-referred Committee, such appointments can also be subjected to review or reconsideration by the Selection Committee to be constituted by the competent authority, after the appointments are made by way of stop-gap arrangement."
The interim orders dated 3.10.2008, 3.11.2006 and 10.11.2006 passed during the course of hearing Writ Petition No. 8456/2006 shall also shed the perception of the Government of Punjab, the Prosecutor General and the Department, and the Court (the learned Single Judge) in' relation to these appointments:- 03.10.2006: "Prosecutor General, respondent No. 2 submits that the applications received pursuant to the advertisement given by respondent No. 2 are being processed and the candidates shall be put through written examination and interview for selection. No appointments have been made so far . As a stopgap arrangement certain temporary appointments have been made but these shall be subject to the normal selection process. .................. 03.11.2006: "The only legal point supporting this petition against contract recruitment of staff by the Punjab Criminal Prosecution Service ("P.C.P.S.") is that with the exception of the post of Prosecutor General, appointments to its posts must be made on recommendation by the Punjab Public Service Commission ("P.P.S.C."). The learned Prosecutor General submits that the P.C.P.S. Is constituted by the Punjab Criminal Prosecution Service (Constitution, Functions & Powers) Act, 2006 ("Act") promulgated on 3.4.2006. Pending its constitution at full strength through recruitment of regular staff, temporary measures are being adopted to give the P.C.P.S. Functional capability. For this purpose contract recruitment of bare minimum staff is being made pursuant to the impugned advertisement dated 12.7.2006.
2. Furthermore he has assured that the direction in Section 8(4) of the Act requiring P.P.S.C. ,recommendations for regular recruitment of employees in the P.C.P.S. Shall be followed in letter and spirit. However, he clarifies that mandate in Section 8 of the Act is not a bar to contract recruitment because it applies to regular and not contract appointments. Further, that contract appointments are also excluded from the purview of the Punjab Civil Servants Act, 1974 and subordinate law thereto. Therefore the impugned action does not violate any applicable law. He emphasizes that In order to meet the object of the law and to provide a service that is In the public interest, the P.C.P.S. Must start functioning immediately. For that reason as noted above stop gap appointments on purely contract basis are contemplated which shall be subject to regularization upon the recommendations of the P.P.S.C. The 468 posts to be filled by the said contractual appointments are stated to be correctly listed in paragraph-I of the writ petition.
3. Considering that the Organization and establishment of the P.C.P.S. Has to be built from scratch, transitory appointments to essential posts therein, prima facie, appear justified pending the process of regular recruitment through the P.P.S.C. However, the scope and duration of the contract appointments offered by the P.C.P.S. Would indicate whether the acknowledged statutory obligation under. Section 8(4) of the Act is receiving due obedience and compliance. In this regard, both the scale of appointments contemplated and the contract period of three years service offered is attacked as being excessive because contrary to statutory object, regular appointments to these posts are postponed for the contract duration and in doing so the mandatory procedure of appointment is avoided. Clearly, the impugned action cannot intend nor can be allowed to result in circumventing provisions of the Act.
4. In view of the foregoing considerations, the learned Prosecutor General has been invited to reconsider the terms of contract appointments both with regard to their duration and number of posts offered so that a stop gap arrangement is visible in faithful acknowledgment of the requirements imposed by Section 8(4) of the Act. In this behalf the learned Prosecutor General shall apprise the Court as to the time period required by the 'P.C.P.S. To mobilize the P.P.S.C. With the requisition for appointments of officers on regular basis and the causative factors for such period during which contract appointments are obviously justified.
5. If in the meantime the respondents are inclined to make temporary appointments in order for work of the P.C.P.S. Before the Courts to be performed, they may in view of the public interest favouring the rendition of such service make appointment extending for a period of six months, but in any event, subject to the decision of this petition."
10.11.2006: "Both learned counsel agree that once the matter for recruitment on merit of P.C.P.S. Personnel is sent to the P.P.S.C., it shall take them at least a period of three months for completing the selection process. The learned counsel for the P.P.S.C. Shall assist the Court on this point.
2. The learned counsel also informs that the Provincial Government has not yet forwarded a requisition to the P.P.S.C. For undertaking the recruitment process for P.C.P.S. Staff. This is an un-satisfactory situation, particularly because the Act, which contemplates immediate provision of services by the P.C.P.S. Has already been in force for longer than six months. The letter by the Provincial Government dated 7.11.2006 predicating the recruitment process upon the framing of service rules is mis-directed. Fair criteria of selection may be settled without awaiting service rules to be framed. In any event, during the transition, civil servants legislation may be applied or it at all, contract appointments can be made; but through the P.P.S.C., as such methods would conform with statutory intent. The Provincial Government shall make a statement about the time required for finalizing a requisition for the vacancies available for recruitment of officers in P.C.P.S.
3. The Act prescribes a method of recruitment of P.C.P.S. Personnel and also visualizes the P.C.P.S. To be functional forthwith. The Court is concerned with faithful and transparent enforcement of the said statutory mandate. In the first instance the concerned agencies of the Provincial Government, ought in consultation with the P.P.S.C. To mobilize the prescribed selection process forthwith.
Moreover, to meet the statutory priority of immediate P.C.P.S. Functionality, temporary appointments may be necessary. Or else an important statutory 'initiative to promote public interest through improved prosecution assistance before judicial fora may be hampered.
4. Therefore, temporary appointments may justifiably be made in the P.C.P.S. For which the learned Prosecutor General shall bring proposals to Court. These shall ensure that any' temporary or ad hoc appointments in P.C.P.S. Are made transparently, strictly on merit and subject to review and confirmation by the P.P.S.C. In the shortest possible time. Transparency in this behalf may be ensured by involving outside assessors of professional stature and integrity in the process of interviews and selection. Also as learned counsel for the petitioner suggests, the law allows P.P.S.C.
To be involved in recruitment of even temporary and ad hoc employees.
5. It is reiterated that the current process of contract selection of temporary P.C.P.S. Employees initiated by the respondonts n ay continue in conformity with the views expressed above but no appointments shall be made under that process until its broad outline is discerned by the Court from the disclosures and the proposals made by the respondents as directed above."
It is pursuant to these orders that the Proecutor General submitted the proposals reproduced above. Anyhow, in the light of the above, a notification/corrigendum/order dated 27.11.2006 was issued/passed by Mr. Shaigan Shareef Malik, Secretary Public Prosecution (copy has been placed on the record of Writ Petition No. 8456/2006 and reads as below:--- "No. SO(Admn.)PPD/6-8/2006 With reference to this Department's orders No. SO(Admn.)PPD/6- 8/2006, dated 15.11.2006 for appointment to the posts of Additional Prosecutors General, Deputy Prosecutors General, Deputy District Public Prosecutors, Assistant District Public Prosecutors and Law Officers, the following lines shall be inserted in each order and shall be deemed to have been inserted from the date of issue of the orders: "This appointment shall be subject to any order passed by the Honourable Lahore High Court, Lahore, in Writ Petition No. 8456/06 titled Mr. Mushtaq Mohal v. Government of the Punjab etc. In the context of appointments."
There is also another important instrument which must be referred to for the purposes of elucidating this proposition, it is the letter (laying down the terms and conditions of employment) with the caption "OFFER OF APPOINTMENT AS ASSISTANT DISTRICT PUBLIC PROSECUTOR ON A TEMPORARY BASIS", and provides as under:--- "You are hereby offered the post of Assistant District Public Prosecutor in Basic Scale 17 plus a Special Allowance of Rs. 5000/- per month, in the Punjab Criminal Prosecution Service, on the following conditions:
(i) The appointment will be temporary and on contract basis till arrival of selectees of Punjab Public Service Commission or the selectees under Contract Appointment Policy.
(ii) (iii). The appointment will be subject to review/confirmation by a Selection Committee constituted for the purpose."
Except Mr. Farooq Amjid Mir, no one has pleaded that this offer letter was not sent to him; even in the letter of appointment of Mr. Mir's clients, reference has been made to the terms and conditions to be sent, obviously these are the standardized terms and conditions and (notwithstanding it were sent or not or withheld by someone) shall be read in every case,
16. As has been seen that though it was required under the two Policies that the interviews shall be conducted for these appointments and even a specific mention in the letter, that the appointments shall be subject to the Review/Confirmation, but no such exercise was undertaken; no committee has ever evaluated the caliber and ability of the petitioner/retainees before their appointments, rather the Chief Minister, who was the competent authority in this regard has made all the appointments by relaxing the relevant rules. It is not mentioned in the respective summaries as to which particular rule was being invoked for such relaxation, but assuming (without in any manner accepting that the said rule is attracted) it to be Rule 23 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, which reads "The Chief Minister may, for special reasons to be recorded in writing, relax any one of the rules in any individual case of hardship, to the extent prescribed by him", it may held that to attract the rule, two broad conditions should be fulfilled; special reasons to be recorded in writing, there are none; And relaxing of any rule in any individual case of hardship. Despite our utmost effort, we have not been able to fit any of these cases' (appointments) within the noted second condition of the rule, no reference to any particular rule which was being relaxed, no mention of any individual case in this regard has been made, what to speak about the hardship. It is also not shown from the petitioners' side if in the garb of the two noted rules, the Chief Minister had any power to even dispense with the application of the Policies, particularly the Contract Appointment Policy, 2004. Therefore, the exercise of the power in this respect seems to be absolutely illusionary, colorable and extraneous to the said rule. Now examining if Rule 5 of the Punjab Public Service Commission (Functions) Rules, 1978 was applicable, which provides "Notwithstanding anything contained in rule 3, the Chief Minister may, in the public interest, specify posts which may be filled, without reference to the Commission, by persons possessing such qualifications and experience and in such manner as he may determine." Suffice it to say that though under the rule, certain posts which otherwise are liable to be filled through the process or Public Service Commission, can be taken out of its purview, but there is no power vested in the Chief Minister in this rule (rather both the rules noted above) to relax the Recruitment/Contract Appointment Policy by dispensing with the interviews of the candidates.
Besides, it may be mentioned here that clause (i) of the noted letter is subservient to clause (iii) thereof and even the temporary contractual employment of the appointees was subject to the review/confirmation, which were never conducted. Moreover, from the clear language of clause (i) the temporary appointees have to give way to the selectees of the P.P.S.C., who obviously shall be the regular employees, but also those appointed under the Contract Appointment Policy, which means that the petitioners/retainees at the time of their appointment were not even considered by the department itself, as the formal contract employees and this was so made clear to them, which status was duly accepted by them and thus they joined the assignment; furthermore, it was notified to all that the appointments shall be subject to the outcome of Writ Petition No. 8456 of 2006, it is for such reason that in the summary dated 26.12.2006 (reproduced above) submitted to the. Chief Minister, the position was made quite clear, that the appointments are stopgap arrangement, temporary in nature and the recruitment shall be subjected to review/confirmation by a selection committee (constituted pursuant to the judgment dated 11.12.2006).
17. It is thus keeping in view the noted background and the circumstances, the provisions of the law, the documents referred to above, the said two policies, that the judgment dated 11.12.2006 passed in Writ Petition No. 8456/2006 should be construed and its effects be examined and the nature and status of appointments in question must be adjudged/settled. From the reading of the whole judgment, particularly the portions reproduced above (including interim orders) and the comments/proposals of the government and prosecution department, the following ratio can be deduced:-
(A) The Single Bench judgment incorporates the undertaking given by the Prosecutor General and issued directions based on findings.
(B) The judgment is founded upon the view that the object of the. Act, 2006 should not be frustrated and, therefore, the working of the Prosecution Department in the Courts should not suffer and/or come to a standstill during the period that the P.P.S.C. is engaged in doing the recruitment of qualified officers.
The order finds:-
(i) That to obey the statutory mandate and to uphold merit and transparency in recruitment, mode of appointment prescribed by the statute must be adhered; and therefore, it should be reverted for validatinq transitional appointments made in derogation of the statutory rule.
(ii) That the appointments already made or to be made in future contrary to the statutory mode for energizing the prosecution department shall be a stopgap arrangement and must be limited to the minimum number and for minimum duration as undertaken by the Prosecutor General, where- after such and all other posts shall be filled only on the recommendation of the P.P.S.C.
(iii) That for the purposes of appointments already made or for those to be made till the recommendees of the P.P.S.C. Are appointed regularly, a Selection Committee undertaken to be constituted by the Prosecutor General, shall test, scrutinize and recommend appointees/candidates on the touchstone of merit and transparency.
(iv) That the Selection Committee shall comprise qualified selectors and shall include a Judge of the High Court. Merit and transparency shall be adhered strictly in the selection process for temporary contractual appointments.
(v) That the period of temporary contractual appointments shall be of bare minimum duration which in any case shall not exceed one year It is vivid from the above that without the judgment dated 11.12.2006 being there, no sanctity could be attached to the appointments under question. And it is in order to enable the functioning of the prosecution service for the purposes of practical implementation of the Act, 2006, as a stopgap arrangement, a moratorium was provided, but circumscribed. By the conditions, including the scrutiny of such temporary contractual appointments, which otherwise were not permissible under the law, by a selection committee and the check about the tenure of bare minimum duration not exceeding one year. It is the judgment which rescued the prosecution department, avoided the impasse and a predicament in the enforcement of the Act, 2006, and for the time being protected the appointments; the judgment was/is in rem, fully attracted, applicable and binding upon all the concerned (all the stakeholders including the petitioners and the retainees); it was not challenged and thus attained finality; rather was accepted, acted upon and followed by everyone; all the appointments as indicated in the corrigendum dated 27.11.2006 (reproduced above) were made subject to the decision of the Court in the said Constitution petition; the government pursuant thereto formed the selection committee and all the appointees on the basis thereof appeared before that committee and subject themselves to the interview. Therefore, in this sequence and scenario, a complete bar is imposed on the appointees to challenge the Constitution of, and/or the process (the review/confirmation) of recruitment by the said committee and it shall be ludicrous to hold that the petitioners/retainees are not bound by the result thereof, if they have been examined by the same committee or by the majority of the members, who were originally appointed by the Chief Minister; the suggestion that they should be C. L. R. examined by some other committee afresh is absolutely unfounded.
18. Attending to the argument of Mr. A.K. Dogar that all the appointments are regular. It may be held that under Section 8(4) the Act, 2006, the regular appointments can only be made through the process of P.P.S.C. And thus by the express command of the law in no other way. For his submission that for the purposes of such appointments only two conditions: (i) the requisite qualification and (ii) the appointments should be made through the competent authority, are enough, suffice it say that these conditions at the best after the enforcement of the rules i.e. Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 on 27.7.2007 can be termed to be relevant for the prospective appointment on the contractual basis, but by no rule of interpretation rather being against the express provision, theses can be termed to be the regular appointments especially in the retrospective context.
Rather in the light of the judgment of this Court dated 11.12.2006 passed in Virit Petition No. 845'6/2006 and also whatever has been discussed above, to hold these appointments as regular shall be a feign, a farce and a sham. And in our considered view, the appointments are nothing more but a stopgap, pro tempore, standby, interim, ephemeral and a transitory arrangement, which were meant for the moment, and for the time being, awaiting the appointments on the regular basis or if and when permissible (especially after the rules) on account of the contract.
Besides, these appointments, as mentioned earlier, were/are subject to. The fundamental, imperative and a condition sine qua non i.e. "the appointment will be subject to review/confirmation by a selection committee constituted for the purpose". And all the appointees shall only be eligible for the contract employment once they cross the threshold of the afore- mentioned review/confirmation by a selection committee. Though the petitioners claim that such a committee was not constituted by the government and they should not be prejudiced on C.L.R. account of this lapse, but it may be held that the committee constituted pursuant to the judgment of this Court, which was accepted by all (the stakeholders) shall be deemed to be one formed under the noted condition and, therefore, all those who have passed through the test of the committee may be retained by the government in the service only as' the contractual employees, whereas who failed to qualify, their services can be dispensed with. We are unable to agree with Mr. Mir that the petitioners should be retained till the time someone to their post is recommended by the P.P.S.C., rather are of the considered view that all those who have failed to pass the interview, notwithstanding any recommendee of P.P.S.C., shall have to go, as having been removed, instead of termination, which expression in the facts of the case is not apt to use.
19. We are also not in agreement with Dr. A. Basit that the appointment of the petitioners is temporary in the sense of awaiting their appointment in terms of the Recruitment/Contract Appointment Policies, 2004 and thus they are entitled to retain their posts for a envisaged by the Polices, to evaluate their appointments.
Before parting with the discourse on this proposition, it may be stated that some of the appointments have been made even before any advertisement was issued to initiate the process of recruitment. Not only that, there is no reference in the various summaries sent to the Chief Minister for the appointment of the petitioners/retainees specifying their qualifications; those (summaries) are not shown, to accompany even the applications of the candidates; their profile or curriculum vitae (C.V.) from which the competent authority could evaluate, assess and determine their caliber for handling such an important office; all seems 'to be either conspicuously missing or not established to have been looked into for the purposes of due application of mind (of the competent authority), yet the, appointments have been made.
The question No. 1 accordingly stands answered.
20. As far as the second question is concerned, it may be held that there are three kinds cf the authorities, which can be delegated/sub-delegated under the law, firstly, relating to the Agencies regulated under the law of Contract/Agency, thus if the principal has expressly conferred upon his agent for further delegation of power/authority that can only be so delegated to the extent provided, otherwise not; in this behalf the legal principle about the sub-delegation by necessary implication on account of the specific nature of agency cannot be ruled out. Anyhow (subject to the above) it may be observed that according to the settled law a power-of-attorney should be strictly construed and applied. Secondly, the statutory authority, in this behalf, it may be mentioned that the rule, where the law requires an act to be done/performed in a particular manner it should be so performed and not otherwise, and that what cannot be done directly cannot be done indirectly, can be attracted. If the express provision of law has conferred power for the exercise of an authority by a particular person or body, it should only be exercised strictly in accord thereto.
And if there is no provision for the delegation/sub-delegation in the law, under no rule or principle of law, such power could be exercised by any other person/body, on the basis of delegation by whom, such power is exercisable under the law. Thirdly, the C.L.R. administrative authority, which in our view is not only akin to the above two, rather embeds the trails of both the categories . In the matter pertaining to statutory/administrative authority, there is a judicial consensus and a bias against the permissibility of the delegation of power, which is reflected in the maxim delegatus non potest delegare. The central question for the delegation/sub-delegation has always been (in cases of statutory and administrative powers) what was/is the intention of the law, which tilts towards non-delegation until so lucidly permissible.
In the instant case there is no cavil that the power to form the selection committee vested with the Chief Minister, who had originally appointed the four members committee for the purposes thereof.
In the order of the Chief Minister, which was in the nature of the approval of the summary, no power has been delegated to the members of the committee who in fact shall be deemed to be the nominees of C.M's administrative authority to further delegate their power to anybody. Such delegation could neither be done collectively by the committee nor singularly by any member, may be the Prosecutor General or the Secretary of the service. This could also not be so done in the garb of formulating any procedure for regulating the affairs or conducting the business of the selection committee, therefore, we fully agree with the learned counsel for the petitioners that it is the originally constituted committee, which could only conduct the interview and none else. In this regard, the person if any who participated in the proceedings of the committee was a stranger and, therefore, his evaluation/allocation of marks could not be counted towards the selection process. We had required Kh. Haris Ahmad to produce before this Court a complete information/details as 'to how many persons were interviewed by the committee as a whole.
Pursuant thereto, he has placed before the Court four Sets; Set No. 1 comprises of all the four members or the committee who had interviewed '8 batches, on account of which, out of 128 candidates who were interviewed, 56 have passed and 34 failed; obviously these 34 who have failed if are the petitioners, have no case in the context of this proposition. As regards Set No. 2 in which only three original members participated and fourth person was the stranger, according to the details provided, in all, 492 candidates were examined, 186 have passed and 274 failed. We had given the Prosecution Department a task of preparing the result by excluding the marks of the stranger, to the candidates. The complete information has been provided, as per which, five candidates, who' originally failed (by excluding the marks of the stranger, to the candidates. The complete information has been provided, as per which, five candidates, who originally failed by excluding the marks of the stranger) now stand passed. As against those who have originally passed, out of them five have failed (by excluding the marks of the stranger), which earlier had been added to their count and it is on that basis that they had passed the interview. As due to the participation of three original members, the quorum of selection committee was complete, thus the rule of severance can be validly and duly applied to the result of this .Set, and whatever result emerges on account of the exclusion of the stranger's marks, shall be taken to be the result of the committee. As far as the candidates of the third category those who have been interviewed only by two original members and the other member/members being the stranger, suffice it to say that this interview in our considered view is highly improper, because the quorum of only fifty percent representation of the originally formed committee shall not be enough for that purpose, therefore, the rule of severance which was invoked in Set. No. 2 shall not be applicable to this Set, as also the fourth Set in which only one of the members of the original committee was a part, which obviously is/was a farce and sham exercise. Therefore, the result of the candidates mentioned in Sets Nos. 3 and 4 cannot sustain at all, resultantly the department is directed to hold the interview of these candidates afresh in terms of the appointment .Clause No. (iii) of the appointment letter reproduced above and till the outcome thereof, the termination of the services of such candidates, as their interviews have not been validly conducted, is declared to be without lawful authority and jurisdiction. It may be stated with clarity that this principle shall also be applicable to all the retainees, who have been declared 'pass', through the process of interview in the form of Sets Nos.
3 and 4. They too shall have to re-appear before the selection committee to be so constituted.
21. As regards the question raised by Mr. Farooq Amjad Mir and some other lawyers, that because the record of the results maintained by the prosecution service produced before this Court is in the lead pencil and certain pages have not been signed by the member of the committee and there is possibility of the maneuvering and manipulation of the result, we have examined that record in the Court and find the apprehension to be unfounded. The batch-wise and the final result has been signed by the members of the committee who interviewed and there is no evidence on the record to hold that even if the marking being in lead pencil, in any way the result has been tampered with. It may be held that presumption of correctness is attached to the official record and there is no material, available with the petitioners except bald allegation, to convince us to hold otherwise. On account of the above decision that only the result of the original committee is being kept intact and also that of the committee in which three original members participated by excluding the result/marks of the stranger, the question/objection of the petitioners' side about the coram non judice is rendered infructuous, and as regards the other candidates who have been interviewed by either two original . Members or one member, as the result for all has been quashed, therefore, to their extent too, the argument does not hold a ground. Furthermore, in the light of the above decision,the ancillary argument that where the law requires an act to be done in a particular manner, it must be done in that way and not otherwise; that the selection committee has not applied its proper mind; about the issuance of show-cause notice/providing hearing before the impugned action, regularization of the petitioners; the allocation of funds for such seats in the budget as argued by Dr. A. Basit; application of clause 24-A of the General Clauses Act; the rule of locus poenitentiae; the allocation of marks of the interview and the criteria, has no force. We are also not convinced with the argument of Mr. A.K. Dogar that the appointments are irregular but as the retainees are qualified and have been appointed by the competent authority, therefore, these appointments must be regularized on the touchstone of the judgments mentioned at pages Nos. 45 & 46. Furthermore, the submission of the learned counsel in the context of de fecto doctrine has also no force because of our decision in the context of question No. 2 as the result of the committee comprising of all original four members has been upheld; by applying the rule of severance, same is the result of the committee where three original members were present and one was stranger, while the result of the committee where only two or one original member was present has been quashed. The submission that the result has been declared after a considerable period, suffice it to say that as has been explained by Kh. Haris Ahmad, the interviews commenced on 12.4.2007 and concluded on 12.4.2008, the result was announced in May, 2008. We do not find there being any delay in this regard causing any prejudice to the petitioners. We are also not convinced by the submissions of Kh. Haris Ahmad that because of the participation of the petitioners/retainees, the rules of waiver, estopple and acquiescence be invoked against them; in this behalf it may precisely be held that the petitioners were not notified in advance about the change, besides, they had no option except to submit before the Committee which at the relevant time was proceeding with the matter. In any case on account of our.Decision on the proposition, the objections/pleas have lost efficacy.
22. For the submission that the petitioners have been discriminated as against those who are appointed as Additional Prosecutors General and Deputy Prosecutors General for the High Court etc., because they have not been subjected to interview, though all were required in the light of the judgment of this Court dated 11.12.2006, we find the argument having some force, but are not inclined to grant premium and advantage to the petitioners on account, rather the Prosecution department is directed to conduct the interview through the selection committee of all those (Additional Prosecutors General and Deputy Prosecutors General), who till date have not been interviewed by a committee. Therefore, the submission about the discrimination is left with no force.
23. It may be pertinent to mention here that during the course of hearing, certain retainees through Mr. A.K. Dogar had moved any application that the petitions are not maintainable in view of Article '212 of the Constitution of Islamic Republic of Pakistan, 1973 and, therefore, on account of the lack of jurisdiction of this Court, should be dismissed. The learned counsel stressed and emphasized that the objection should be treated as preliminary and the decision thereupon be rendered forthwith: Suffice it to say that at the time when this application was moved, the case had already been argued for weeks, the judgment earlier had been reserved, even prior thereto Mr. Dogar had argued at length without raising such objection and it is only on account or certain development that the Bench was reconstituted and the hearing in the matter on rehearing by the new Bench was also at the verge of completion, therefore, we decided to take up this plea of bar alongwith the main decision. Mr. A.K. Dogar in this regard has argued that the petitioners are the civil servants and in this regard has argued that the petitioners are the civil servants and therefore, their termination relates to the terms and conditions of the service, thus the petitions must be discarded on this score alone. We are afraid that as has been elaborately discussed above, that the petitioners are not the civil servants, and we disagree with Mr. A.K. Dogar's submission that they are regular employees in the service, therefore, the objection is unfounded and is hereby rejected.
24. In the light of above, the writ petitions, which pertains to all those petitioners who were interviewed by the original committee of four members and have failed are hereby dismissed; those regarding the candidates/petitioners, who were interviewed by three members of the original committee and have failed by excluding the numbers of the stranger, are also dismissed.
As regards the writ petitions relating to the petitioners/candidates, who have been interviewed by the committee in which either two original members or one original member participated, those are allowed with the direction to the respondents to constitute a fresh committee, hold interview and to decide about their fate. It is reiterated that this shall also be applicable to all the persons who have been retained on account of the interview conducted by a committee comprising of either two original members or one, they should also be reassessed and their fate be decided accordingly.
25. As regards those retainees who on account of the data provided by the prosecution department have failed due to the exclusion of the marks granted to them by the stranger (reference in this behalf is made to the interview conducted by a committee in which there were only three original members and one was stranger), the department obviously shall treat such persons/retainees as 'fail'. All the Additional Prosecutors General and the Deputy Prosecutor Generals mentioned in Section 8(1) of the Act, 2006, shall also be subjected to interview by the newly constituted committee. /order accordingly.