SH. AZMAT SAEED, J. --- Through this judgment, it is proposed to decide this Constitutional petition as well as the connected Constitutional petitions involving common questions of law, Writ Petitions Nos. 21820/2010, 22548/2010, 24910/2010, 23386/2010, 4041/2010 and 71/2011 have been filed to call in question a notification/order passed by the respondents dispensing with and terminating the services of the petitioners, who had been working of Additional Prosecutors General and Deputy Prosecutors General in the Prosecution Service of the Government of Punjab. It is the case of the petitioners in all the aforesaid Constitutional petitions that pursuant to an advertisement issued by the respondents they applied for and eventuall were appointed as Additional Prosecutors General and Deputy Prosecutors General in BS-19 and BS- 18 respectively on contract basis for a period of 3 years extendable on perforniance basis. Such appointments, it is contended, were made under the Recruitment Policy/Contract Appointment Policy, 2004 of the Government of Punjab. The appointments in the Prosecution Service which had been constituted under the Punjab Criminal Prosecution Service (Conditions, Functions and Powers) Act, 2006 became the subject-matter of litigation in which judgments were passed by a Full Bench of this Court in the case reported as "Muhammad Saleem and 12 others v. Secretary Prosecution, \Government of Punjab, Lahore and another" (2010 PLC (CS) 1), holding such appointments as valid. The matter also reached the Hon'ble Supreme Court of Pakistan and was adjudicated upon in the judgment reported as "Abid Iqbal Hafiz and others v. Secretary Public Prosecution Department, Government of the Punjab, Lahore and others" (PLD 2010 SC 841) and in terms of the aforesaid judgments it is contended that the petitioners were entitled to be retained in service as Additional Prosecutors General and Deputy Prosecutors General till the arrival of the selectees by the Punjab Public Service Commission. It is the case of the petitioners that till date no such selectees have arrived. It is contended that the number of-sanctioned posts of Deputy Prosecutors General in the Prosecution Service is 50 and till date 50 persons have not been selected by the Commission for appointment as Deputy Prosecutors General. It is their case that only 24 such person have been selected by the Commission. It is further contended on behalf of the petitioners that they have been dealt with in a discriminatory manner as at least one other person with identical and legal status has been retained it is added that the action of the respondents is in violation of the dictum of the Hon'ble Supreme Court of Pakistan in the judgment reported as PLD 2010 SC 841. The grievance has also been raised that the impugned order is arbitrary and in violation of Section 24-A of the General Clauses Act. In the above context, it is prayed that the impugned notification dispensing with their services be declared without lawful authority and the petitioners in the above-mentioned Constitutional petitions may be allowed to continue as Additional Prosecutors General and Deputy Prosecutors General till the appointments of rightful permanent incumbents.
2. Writ Petitions 23519/2010, 23930/2010, 24044/2010, 24149/2010, 24632/2010 and 12438/2010 (Multan) have been filed to call in question the legality of an order/notification dispensing with and terminating the services of the petitioners as Assistant District Public Prosecutors. The said petitioners were also appointed in the Prosecution Service on contract basis for a period of 3 years extendable under the Recruitment Policy/Contract Appointment- Policy, 2004 of the Government of Punjab following applications made by them pursuant to an advertisement issued by the respondents. The appointments of the petitioners were in BS-17. It is the case of the petitioners that in view of the judgments of the Full Bench of this Court and of the Hobble Supreme Court of Pakistan, referred to above, the petitioners are entitled to be retained in service until the arrival of the selectees by the Punjab Public Service- Commission and till date the Commission has not selected the. Assistant District Public Prosecutors against the posts occupied by the petitioners and, therefore, the order/notification dispensing with their services is without lawful authority and the petitioners are entitled to be retained and regularized.
3. Writ Petitions Nos. 21819/2010, 21811/2010, 22303/2010, 22927/2010, 23375/2010, 23005/2010, 26240/2010 and 22848/2010 have been filed to call into question an order/notification issued by the respondents dispensing with their services as Deputy District Public Prosecutors. The petitioners were appointed in BS-18 as Deputy District Public Prosecutors in the Prosecution Service of the Government of Punjab on contract basis under the Recruitment Policy/Contract Appointment Policy, 2004. Relying upon the judgments of the Full Bench of this Court and of the Hobble Supreme Court of Pakistan, referred to above, it is contended on behalf of the petitioners that till date no regular appointees have been selected through the Punjab Service Commission against the posts occupied by the petitioners. Such selectees of the Punjab Service Commission are merely fraction of the sanctioned posts of Deputy District Public Prosecutors, hence the petitioners are entitled to be retained in service. It is further contended that the impugned order/notification is arbitrary and offends against under Section 24-A of the General Clauses Act.
4. The respondents have vehemently resisted the aforesaid Constitutional petitions by taking up the plea that all regular appointments through initial recruitment in the Prosecution Service were required to be effected u/S. 8(4) of the Punjab Criminal Prosecution Service (Conditions, Functions and Powers) Act, 2006, which mandates that such appointments should he made only through a selection process to be conducted by the Punjab Service Commission. Relying upon the same judgments, the Assistant Advocates General appearing on behalf of the respondents contends that the original appointments of the petitioners were on temporary measure till regular appointments were made through the Commission and such appointments now having been made the petitioners are no longer entitled to be retained in service and the order/notification dispensing with their services is in accordance with law and in compliance of the judgments of the Hobble Supreme Court of Pakistan. Adds that the petitioners even otherwise have no vested right, It is further contended that the petitioners having been appointed by way of initial recruitment to their respective posts were only entitled to retain the same till regular appointments through initial recruitment was effected by the Punjab Service Commission and their claim has no nexus with the posts required to be filled, otherwise then by initial recruitment.
5. The learned counsels for the parties have been heard and record perused.
6. The appointments of Prosecutors in the Punjab Criminal Prosecution Service, and disputes relating thereto has a rather chequred and tortuous history, Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006), hereinafter to be referred as 'Act' was promulgated on the 8th of April, 2006. Section 8, sub-section (4) of the Act provides that no direct recruitment on a regular basis of District Public Prosecutor (DPP) Deputy District Public Prosecutor, Assistant District Public Prosecutor, Additional Prosecutor General and Deputy Prosecutor General shall be made except on the recommendation of the Punjab Service Commission. Pursuant to power conferred under Section 15 of the Act, Rules called Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006) were made on the 27th of July, 2007. Rule 4, sub-rule (3) provides that no person shall be appointed through initial recruitment on regular basis except on the recommendation of the Commission.
7. The Government of Punjab invited applications for appointment in the Prosecution Service in terms of Recruitment Policy/Contract Appointment Policy, 2004 in purported relaxation of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The said recruitment was challenged before this Court inter alia on the ground that the same was in violation of Section 8, subsection (4) of the Act. Writ Petition was disposed of by a learned Judge of this Court in terms of order dated 11.12.2006 holding said recruitments as valid as a temporary measure necessary as a 'stop gap arrangement' for making the prosecution services operational until appointments were made through Punjab Service Commission. However, the learned Judge of this Court directed that in the meanwhile all appointments made by scrutinized and re-examined through a selection process so conducted by a panel of qualified selectors including retired Judge of this Court or that of the apex Court. Pursuant to aforesaid judgment of this Court, selection committee was constituted to review the appointments and commenced the process, on the conclusion thereof, several of the original appointees failed to qualify, and their services were terminated. Such terminated Prosecutors invoked jurisdiction of this Court through various Constitutional petitions which alongwith connected matters were heard by a Full Bench of this Court, during pendency whereof, an order dated 7.5.2009 was passed by a Full Bench of this Court holding that upon arrival of the selectees from the Commission, the policy of 'First in First Out' would be applicable. Pursuant whereof, once again services of several of the Prosecutors were terminated by the Government- of Punjab, whiq,h was challenged through a Civil Miscellaneous Application claiming that the policy of 'Last In First Out' should be implemented. Aforesaid CMA was dismissed by a Full Bench of this Court by means of order dated 2.6.2009, which was assailed and the apex Court by way of order dated 1.7.2009 observed that aggrieved persons would be afforded opportunity of hearing and decide the matter alongwith connected petitions already pending before the Full Bench of this Court, which eventually pronounced judgment on 4.12.2009, 2010 PLC
(CS) 1 supra. Some of the petitioners being aggrieved of the said order dated invoked jurisdiction of the apex Court. The matter was disposed of with the consent of the parties vide order dated 8.1.2010 in the following terms:-- "(1) The Government of the Punjab through Prosecutor General be directed to manage examination of all the prosecutors presently functioning in the Province of the Punjab in terms of sub-section (4) of Section 8 of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, in two phases:- -
(I) The examination of the petitioners shall be concluded by the Punjab Service Commission within two months commencing from 11.1.2010 to 11.3.2010 as per procedure. Besides above candidates, any other candidate interested in appointment against any of the vacancies, which shall be advertised by the Punjab Service Commission, shall also be eligible to file application and such applications shall be dealt with strictly in accordance with service rules prevailing in the Province.
(ii) Other than the petitioners, there are prosecutors working in the Province who had been retained. They have also to undertake examination of the Punjab Service Commission to meet the requirement of sub-section (4) of Section 8 of the above-referred Act. In respect thereof, the exercise shall be completed within next two months commencing from 12.3.2010 to 12.5.2010 and the fresh candidates interested for recruitment shall also be eligible to apply alongwith them. Their cases shall also be dealt with by the Punjab Service Commission strictly in accordance with law as noted herein above.
(i.e) Petitioners have not been allowed one month's notice pay in lieu of termination of their services, therefore, Government of the Punjab shall pay them notice pay of one month and compensation in addition to it for the equal period (one month) shall also be paid to them.
However, this arrangement shall come to an end on completion of the period of two months.
(2) There should not be any discrimination between the candidates either belonging to the first batch or the second batch and they should be treated at par before the Punjab Service Commission.
(3) The above arrangement has been made without prejudice to the impugned judgment which shall remain intact with its full force as a result whereof the Prosecution Branch is not obliged to entrust work to the petitioners during the stipulated period mentioned hereinabove. Furthermore, any observation against the candidates appearing before the Punjab Service Commission made at any stage against them shall not be treated a stigma against them while appearing before the Commission."
8. Subsequently, the order of the Full Bench of this Court dated 4.12.2009, referred to above, was challenged by another set of aggrieved persons, which was decided by the Honourable Supreme Court vide judgment published reported as PLD 2010 SC 841 supra, wherein, their Lordships of the apex Court observed as under:-- "The learned Full Bench of the High Court, in its judgment took the view that the said appointments were nothing but a stopgap, an interim and transitory arrangement. Having considered the matter from different angles, we are of the considered opinion that no exception can be taken to the view of the Full Bench of the High Court."
From the aforesaid judgment of the apex Court, relevant excerpt is reproduced as follows:-- "A perusal of the above-quoted provisions of the Act and the Rules would show that sub-section
(3) envisaged "initial recruitment" while sub-section (4) laid down that the "direct recruitment on regular basis would be made on the recommendation of the Commission". These two provisions were further elaborated by the provisions of rules 2(d) and rule 4(1) and (3) of the Rules. Thus, initial recruitment may either be made on regular basis or on contract basis. However, the Act and the Rules both clearly stipulated that the initial recruitment on regular basis would be made on the recommendation of the Commission."
Their Lordships of the apex Court further held as under:-- "Under Section 16, the Punjab Civil Servants Act, 1974 and the rules framed thereunder were made applicable to the appointments under the Act. By virtue of rule 4(i) and (ii) of the Punjab Public Service Commission (Functions) Rules, 1978, recruitment on contract for a specific period or for a period of one year or less pending selection of a candidate on the basis of test conducted by the Commission was excluded from the purview of the Commission. The appointments in question, having been made under the Contract Appointment Policy, 2004 of the Government of the Punjab would be "initial recruitment on contract basis" within the meaning of Section 8(3) of the Act read with rule 2(d) of the Rules obviously limited to the duration specified in the appointment letter, and, in no way, could be termed as regular appointments within the contemplation of Section 8(4) read with rules 4 and 5 of the Rules. Thus, reliance by the learned counsel on the provisions of Section 8(3) of the Act read with rule 5(1) of the Rules was of little help for the proposition that the appointments in question' were regular appointments."
"As held by the learned Single Judge of the High Court, it was a short term arrangement so as to the instantly make the Prosecution Department functional and not a permanent dispensation."
Following passage from the judgment of the apex Court in the said case is reproduced as under:-- "In any case, all the Prosecutors were now being treated equally, all of them would have an equal opportunity to seek regular appointment under the auspicious of the Commission or to appear before the Selection Committee for review of their contractual appointment until the arrival of the selectees of the Commission."
Their Lordships of the apex Court in the judgment referred to above, also held as follows:-- "This Court view order dated 8.1.2010, reproduced above, directed the Government of the Punjab to conduct examinations of all the Prosecutors presently functioning in the Province in terms of Section 8(4) of the Act against the posts to be advertised by the Commission in which, besides the petitioners/all the Prosecutors, other eligible candidates would be participating."
"We are inclined to take the view those who qualified in the interviews would be treated as temporary/contract appointees until the arrival of selectees of the Committee who in turn obviously would continue in contract service until the arrival of selectees of the Commission, but in no case the period of temporary/contract appointment shall exceed one year as held by the learned Single Judge of the Lahore High Court in Mushtaq Ahmed Mohal's case (supra). Those seeking regular appointment would be required to appear in the examination to be conducted by the Commission whether they were the persons whose contract was terminated or who had been retained after the qualified in the interviews held by the Committee."
Their Lordships of the apex Court, had finally drawn the below quoted conclusions in the judgment cited ibid:--
21. The position crystallizing from the above discussion may be summarized as under:--
(1) The persons whose cases were not competently scrutinized/examined, they shall appear before the Committee for the validation of their temporary/contract appointment subject to the language employed in the appointment letter;
(2) If the petitioners opted to appear before the Committee which shall now be constituted to review the temporary short terms 'arrangements as per their contract appointment letters, the Committee would dispose of their cases expeditiously, preferably Within a period of four weeks from the receipt of copy of this order;
(3) The term of the temporary/contract appointment would not exceed a period of one year;
(4) If the petitioners or others who had appeared in the interview before the Committee, or anyone else who wanted induction in terms of this Court's order dated 8.1.2010 passed in the aforesaid civil petitions, they would be at liberty to appear in the examination to be conducted by the Commission for regular appointment; and
(5) The Prosecution Department is directed to send requisitions to the Commission for advertisement of the posts for initial recruitment in accordance with law and the rules."
8-A. An over view of the applicable law and the judgments of this Court as well as of the Honourable Supreme Court of Pakistan referred to and quoted herein above, makes it clear and obvious that by virtue of Section 8, sub-section (4) of the Act, all initial appointments on regular basis to the posts held and claimed by the petitioners could only be effected through the auspicious of Punjab Service Commission. Petitioners were appointed without undergoing any selection process of the Commission.
9. The appointments of the petitioner were on temporary /contract basis under a Recruitment Policy with its inbuilt limitation as to its tenure. Said appointments were valid only as transient measure and stopgap arrangement until the regular recruitment through Punjab Service Commission. The process of recruitment through the Commission was not only mandated by law but was necessary in order to ensure transparency and for upholding the merit. In this behalf specific directions were given by the apex Court to initiate and conclude the process of recruitment of initial appointment to the said posts under Section 8, sub-section (4) of the Act, 2006 through the Commission. Said directions have been apparently complied with and recruitment process completed as is evident from the documents placed on record by respondents. Petitioners were given full opportunity to participate in the said selection process conducted by Punjab Public Service Commission, but either the petitioners opted not to subject themselves to said scrutiny or applied, were examined by the Commission and found wanting and therefore were not selected.
10. The petitioners were appointed by way of initial recruitment, and were at best, entitled to retain their posts until the process of initial recruitment for regular appointment through Punjab Public Service Commission was completed. The appointments if any to be effected otherwise than by initial recruitment have no nexus to the rights of the petitioners, nor is of any legal consequence to the /is at hand. In the above circumstances the impugned notifications appear to have been issued to compliance with the directions of the Honourable Supreme Court of Pakistan, and no exception can be taken thereto.
11. For the above facts and reasons, these petitions must fail and are accordingly dismissed with no orders as to cost. .