' MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this single judgment, I propose to decide Writ Petitions No,5906 of 2011, No,6665 of 2011, No,9608 of 2011, No,15339 of 2011, No,15483 of 2011, No,17051 of 2011, No,17052 of 2011, No,17157 of 2011, No,17158 of 2011, No,16721 of 2011, No,17156 of 2011, C.M.No,2281 of 2011, C.M.No,2471 of 2011, C.M.No,2501 of 2011, C.M.No,2568 of 2011, C.M.No,2583 of 2011 and C.M.No,2828 of 2011.
2. In the main petition (W.P.No,5906 of 2011), number of applicants have filed application under Order I, rule 10, Code of Civil Procedure, 1908 which are allowed and they are made party/petitioners in the writ petition and as such all the applicants under Order I, rule 10, C.P.C. Will be treated petitioners for the purpose of this judgment.
3. Briefly stated the facts of case are, petitioners were earlier appointed on contract basis as Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutors, Deputy District Public Prosecutors and Assistant District Public Prosecutors under the Recruitment Policy/Contract Employment Policy, 2004 (Punjab). Their appointments were challenged and ultimately the matter went up to the Hon'ble Supreme Court of Pakistan and the Hon'ble Supreme Court of Pakistan vide judgment Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others (PLD 2010 SC 841) finally decided the matter in the following terms:- "21. The position crystallizing from the above discussion may 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 term 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; ' The term of the temporary/contract appointment would not exceed a period of one year; ' 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 Cubit Petitions, they would be at liberty to appear in the examination to be conducted by the Commission for regular appointment; and ' The prosecution Department is directed to send requisitions to the Commission for advertisement of the posts of initial recruitment in accordance with law and the rules."
4.The present petitioners were thus re-interviewed and appointed under the dictum laid down by the Hon'ble Supreme Court of Pakistan, their case is covered under the following guideline of the Hon'ble Supreme Court of Pakistan;--- "If the petitioners opted to appear before the Committee which shall now be constituted to review temporary short term 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 the order. "
5.That in pursuance of interview by Departmental Committee, they were issued appointment letters on 5-7-2010 in the following terms: "ORDER No,SO(A)/PPD/9-228/2010.--- In pursuance to the directions of Supreme Court of Pakistan, Public Prosecution Department conducted interviews of those Assistant District Public Prosecutors (BS-17) whose cases were not competently scrutinized at the time of appointment. As per recommendations of the committee, following Assistant District Public Prosecutors (BS-17) have been declared successful and offered one year contract employment w,e,f, 5-7-2010 to 4-7-2011 including one month mandatory notice before termination of contract as provided in the "Contract Appointment Policy 2004" or till arrival., of selectees of Punjab Public Service Commission whichever is earlier.
' All ADPPs who are working at place of their domicile and offered one year contract shall convey two stations, other than their domicile place, within 3 days for their posting and transferring which the department will issue appropriate orders."
6. During the continuous of petitioners contract of service, the respondent/Government of the Punjab, Service General Administration Department (Regulations Wing) on 10-11-2010 issued a notification with the subject "appointment of contracted in BS-16 and above on regular basis" under the conditions which are reproduced as under:-- "(a) The contract employees appointed as per service rules on the recommendations of the Punjab Public Service Commission are to be considered for appointment on regular basis. For this purpose, concerned Administrative Departments shall submit cases of employees for their appointment on regular basis to the Chief Minister, Punjab through the Regulations Wing S&GAD and Finance Department. While submitting such cases to the Chief Minister it may be ensured that the contract appointments were made in accordance with the provisions of the service rules regarding age limit qualifications and experience wherever prescribed. The appointments on regular basis may be recommended on case to case basis keeping in view the performance of the individual employee.
(b) The contract employees, who were appointed as per eligibility criteria and on the recommendations of the Punjab Public Service Commission are to be considered for appointment on regular basis, subject to the condition that the concerned Administrative Department shall first get the service rules of the posts framed at the earliest and then submit the cases to the Chief Minister of the contract employees who fulfill the conditions of service rules regarding age limit, qualification and experience wherever prescribed. Summaries shall be submitted to the Chief Minister, Punjab through the Regulations Wing, S&GAD and Finance Department. The appointments on regular basis may be recommended keeping in view performance of the contracted falling in this category.
(c) The cases of contract employees in BS-16 and above, who were appointed on the recommendations of the respective selection committees as per provisions of the service rules may be referred to the Punjab Public Service Commission for determining their suitability for appointment on regular basis against the posts held by the contract employees.
(d) ' The contract employees, who were appointed on the recommendations of Departmental Selection Committee and in accordance with the eligibility criteria, duly approved by the Chief Minister, Punjab, may be referred to the Punjab Public Service Commission for determining their suitability for appointment on regular basis against the posts held by the contract employees, after getting the service rules framed with the approval of the Chief Minister.
3. Further necessary action may be taken accordingly."
7. The petitioners then filed representation before respondent No,1 requesting that their cases may be referred to Punjab Public Service Commission (PPSC) in terms of judgment of Hon'ble Supreme Court of Pakistan. Their representation was declined; the petitioner has assailed the act of respondent Government for not referring their cases to Punjab Public Service Commission. The petitioners have prayed as under;--- "In the light of above submissions it is most graciously prayed that the rejection of the representations of the petitioner by respondent No,2 may kindly be declared to be illegal, tainted with mala fide, against the law, void as initio, unlawful and having been passed without lawful authority. It is also prayed that petitioners may be allowed to utilize the benefits of the notification dated 10-11-2010 issued by the respondent No,3 and the respondent No,2 may kindly be directed to refer the cases of the petitioners to the Punjab Public Service Commission for the determination of suitability and fitness for appointment on regular basis against the posts occupied/held by the petitioners."
8. Respondent No,1 filed written statement and asserted that Notification dated 10-11-2010 of S&GAD is not applicable to contract appointment of prosecutors as they are governed by the provisions of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006; the appointment of petitioners was time bound and made on specific directions of the Hon'ble Supreme Court of Pakistan only for one year or till the arrival of selectees of Punjab Public Service Commission whichever is earlier. It is also asserted that when the issue for regularization of contract appointments in BS-16 and above was considered, the contract appointment of prosecutors in the Public Prosecution Department was never considered as the public prosecution department has its own statutory law which already stipulates the appointment of prosecutors on the recommendations of PPSC. It is submitted that respondent No,1 is not bound to refer the case of petitioners to PPSC.
9. Respondent No,3 has also filed written statement and raised the same objections which were taken by respondent No, 1.
10. Mr. Farooq Amjad Meer, Advocate/learned counsel for petitioners submits that it is not denied that petitioners contract was for one year and the departmental committee constituted under the directions of the Hon'ble Supreme Court of Pakistan appointed them after completing all process as provided under the respective law and policy, the petitioners are thus the contract employees of respondent No,1. Notification dated 10-11-2010 is applicable in the petitioner's case as well. He submits that Hon'ble Supreme Court of Pakistan has not directed respondent to offer employment to petitioners out of way and without fulfilling the criteria required for the posts held by them. He submits that petitioners could not be discriminated with the other contract employees of Government of Punjab. Learned counsel submits that petitioners only grievance is that in terms of notification dated 10-11-2010 their case be referred to PPSC, they are not asking any special favor, they have to appear before the PPSC in case their case are referred by respondent No,1 and PPSC will be the sole judge to determine their eligibility for the respective post.
11. Mr. Muhammad Siraj-ul-Islam Khan, learned Additional Advocate-General, Punjab submits that petitioners case is time bound contract which will expire after the completion of one year period or on availability of selectees of PPSC whichever is earlier. The circular referred to by petitioners is not applicable on the petitioners case as they were appointed on the directions of the Hon'ble Supreme Court of Pakistan and as such the respondents are, not bound to refer the petitioners case to PPSC; the petitioners if wanted to continue with the service they have to prove the eligibility criteria of PPSC and after determining the suitability for appointment of petitioners on regular basis by the PPSC they will be entitled to be appointed. Further submits that petitioners case has finally been decided by the Hon'ble Supreme Court of Pakistan and as such they could not be treated the contract employees of respondent No,1; the respondent No,1 has to recruit the employees under section '(3)(4) of Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007.
12. Learned counsel appearing on behalf of respondents Nos.1 and 3 have adopted the argument of learned Additional Advocate-General, Punjab .
13. Arguments heard record perused.
14. The earlier appointments of petitioner along with others were scrutinized by the Hon'ble Full Bench of this Court which was assailed before the Hon'ble Supreme Court of Pakistan and finally the Hon'ble Supreme Court of Pakistan held in the following terms:-- "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 term 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 of initial recruitment in accordance with law and the rules."
15. The respondent No,1 then constituted a departmental committee in terms of judgment of the Hon'ble Supreme Court of Pakistan and after interviewing the petitioners as detailed in letter dated 5-7-2010 they were offered one year contract employment commencing from 5-7-2010 to 4-7-2011 in terms of Contract Appointment Policy, 2004 or till arrival of selectees of PPSC whichever is earlier.
The contract offered to petitioners shows that in pursuance of direction of the Hon'ble Supreme Court of Pakistan, Public Prosecution Department constituted Committee, conducted interviews of the petitioners, recommended them for offering a contract employment of one year with the specific condition that the maximum period of their contract will be one year along with one month mandatory notice before termination of contract or till arrival of selectees of PPSC whichever is earlier. This shows that petitioners were interviewed and found suitable for offering the contract of service but the maximum validity of their contract was fixed one year or till arrival of selectees of PPSC whichever is earlier.
16. Admittedly, before the arrival of selectees or the expiry of contractual period of petitioners contract, the Government of the Punjab issued a Notification No, DS(O&M)5-3/2004/contract (MF)
Government of Punjab Services and General Administration Department (Regulation Wing). The petitioners claim refuge under clauses (c) and (d) of the said notification which is read as under:--
(c) The cases of contract employees in BS-16 and above, who were appointed on the recommendations of the respective selection committees as per provisions of the service rules may be referred to the Punjab Public Service Commission for determining their suitability for appointment on regular basis against the posts held by the contract employees.
(d) The contract employees, who were appointed on the recommendations of Departmental Selection Committee and in accordance with the eligibility criteria, duly approved by the Chief Minister, Punjab, may be referred to the Punjab Public Service Commission for determining their suitability for appointment on regular basis against the posts held by the contract employees, after getting the service rules framed with the approval of the Chief Minister.
17. Clause (c) of the said notification provides that employees in BS-16 and above appointed on the recommendations of respective selection committees as per provisions of the Service Rules may be referred to PPSC for determining their suitability for appointment for regular basis against the post held by the contract employees.
18. Clause (d) of the said notification provides that those contract employees who were appointed on recommendations of departmental selection committee and in accordance with the eligibility criteria duly approved by the Chief Minister of Punjab may be referred to PPSC for determining their suitability for appointment on regular basis against the post held by contract employees after getting service rules framed with the approval of Chief Minister.
19. The conjunctive study of above two clauses of the notification shows that two types of contract employees are covered under the said two clauses; one is that whose contract of employment is based on the recommendations of selection committees of respective hiring department and the second category is of those employees whose contracts were recommended by the departmental committee in accordance with the eligibility criteria approved by the Chief Minister; meaning thereby the Chief Minister has approved an eligibility criteria for posts for different departments, contractual employees falling in both the 'above categories qualify for referring their case to PPSC, the reason for referring their cases is the determination of their suitability for regularization of the post held by them. The intention of issuer of Notification thus is that referring the case to PPSC will not enable the referred employee to be regularized on post held on contract, but the referred employee has to prove himself eligible and suitable as per criteria fixed by the PPSC.
20. In the judgment referred to above, Hon'ble Supreme Court of Pakistan has held that all appointments in the Government departments should be transparent, fair, just and on merits. The petitioners before the Hon'ble Court were appointed on contract basis, but their contracts were found in violation of law hence they were given an option to appear before a committee, and it was the committee who after scrutinizing their eligibility offered them contract of one year conditional appointment, not extendable further.
' The petitioner's case is covered under the guideline No,2 of the judgment of Hon'ble Supreme Court of Pakistan. Admittedly a committee was constituted by the respondent No,1 who interviewed the petitioners and offered them a contract of one year as referred to above. The petitioners are now claiming that they are the contract employees appointed by the committee after evaluating their suitability and as such the respondent Government is bound to refer their case to PPSC under Notification dated 10-11-2010.
21. It is an admitted fact that petitioners are the contract employees of respondent No,1 and are rendering services under the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 and as such their contract of employment is at par with the other contract employees and they could not be discriminated on the ground that they were appointed on the direction of the Hon'ble Supreme Court of Pakistan, the Hon'ble Supreme Court of Pakistan has directed the respondents for constituting a committee for reviewing temporary short term arrangement as per their contract appointment letter and it was not the direction of Hon'ble Supreme Court of Pakistan that committee will be bound to offer them contract of service, the committee was at liberty to offer fresh contract of service or not. The committee constituted by the respondent interviewed the petitioners and found that petitioners qualify to be appointed as contract employee. It is not the case of respondent that the petitioners were not interviewed nor the committee recommended their case for offering the contract of one year, the respondent case is that the petitioners are employees of special contract and their contract employment is different from the contract of other employees of Punjab Government. It is not understandable how the petitioners could be separated from the other contract employees of Government of the Punjab, especially when Hon'ble Supreme Court of Pakistan never directed the respondents to offer the contract to applicants who opted to appear before it, the committee was fully competent to refuse to offer the contract to applicants if they deem fit. Admittedly, seats are available. The petitioners are performing their duties as per satisfaction of employer; there is no allegation of incompetency or irregularity against the petitioners.
22. Now the question arose, what will be the effect of referring the case of petitioners to PPSC by respondents?
23. The Notification dated 10-11-2010 supra specifically provides that the PPSC will be the sole authority to determine suitability and eligibility of candidate for appointment on regular basis against the post held on contract. The referring of petitioner's case to PPSC does not mean that PPSC is duty bound to select them. The PPSC will examine the case of petitioners on the basis of suitability criteria laid down for the said post. The petitioners are not requesting for recommending their case for regularization of their post but their case is only that they are the contract employees; their contract of employment has not expired nor the selectees of PPSC are made available; hence they be referred to the PPSC under the Notification supra like other contract employees of Government of Punjab and in case they fulfill the criteria laid down by the PPSC for the post held by them, the PPSC may select them or may reject them. If PPSC select them then they will be deemed to be regularized like other employees.
24. The Notification supra does not give any concession to the contract employees from the suitability criteria fixed by the PPSC for the post held. All the employees whose case will be referred under the said notification have to fulfill the requirements of the p9st held by them.
25. The petitioners are holding the posts on contract and in case they passed the suitability and eligibility criteria of PPSC, they will be regularized and the respondents have not to create further posts for them.
26. There is a difference between the reference and recommendation. The recommendation may create some right in favor of petitioners but reference does not create any right.
27. The petitioners are willing and ready to fulfill all requirements of PPSC for the post held by them and as such in my humble opinion the petitioners case falls within the Notification supra. The petitioners have acquired knowledge and experience about the post held by them and as such they may produce better result than new appointees, if selected by the PPSC.
28. The arguments of learned Additional Advocate-General, Punjab that it is a matter of past and close transaction in terms of judgment of the Hon'ble Supreme Court of Pakistan is not tenable. The Hon'ble Supreme Court of Pakistan scrutinized all appointments on contract basis prior to the judgment and has not approved the earlier contract of employment in exclusion of PPSC, the Hon'ble Supreme Court of Pakistan has finally decided the matter and the respondents constituted fully empowered departmental committee who interviewed the petitioners and on the departmental committee's recommendations, petitioners were offered contract of service. The petitioners under the existing contract could not claim any independent right for waiver of any condition of suitability and eligibility criteria laid down by the PPSC for the post held by them. In case the respondents refers the petitioners case to PPSC, the PPSC will examine their case strictly as per suitability and eligibility criteria applicable to the respective posts held by the petitioners.
29. There is another aspect of the case that the petitioners whose contract of service has expired, they are not debarred to appear before the PPSC, if post of ADPPs/DDPPs is advertised and in case they successfully pass the suitability and eligibility criteria for the post, the PPSC may recommend them for the post advertised and as such the petitioners being contract employees are not asking any extra ordinary relief; they will appear before the PPSC and will pass the required criteria for the post held by them.
30. The present situation was not prevailing at the time when the Hon'ble Supreme Court of Pakistan decided the issue qua the earlier contract of employment of petitioners as these appointments were in exclusion of PPSC, the Hon'ble Supreme Court of Pakistan has finally directed that all appointments in government service should be transparent, fair, just and on merits and the sole judge to decide the merit is PPSC.
31. In view of the above, this petition is allowed to the extent that the respondent No,1 will refer the petitioners cases to PPSC for scrutinizing their suitability and eligibility in accordance with law on the touchstone of merits and transparency as held by the Hon'ble Supreme Court of Pakistan.