MUHAMMAD SAJID MEHMOOD SETHI, J.- Brief facts of the instant writ petition are that applications from the eligible candidates for selection / recruitment against the posts of Assistant Accounts Officer (BS-16) (hereinafter referred to as "AAO") on permanent basis in the Punjab Food Department were invited by the Punjab Public Service Commission (hereinafter referred to as "PPSC") vide advertisement No.24 / 12 which was published in Daily Jang and Daily Nation on 03.12.2012. The terms and conditions of eligibility were duly notified in the advertisement. In response to the said advertisement, 1774 applications were received by the respondents. The written test was conducted on 17.06.2013 after scrutiny of their applications. As a result of their written test, 16 candidates, including the petitioners, were finally summoned for interview. Both the petitioners were selected on permanent basis, and recommendations were sent to the Administrative Department on 05.09.2013. However, respondent No.2 issued appointment letters in favour of petitioners against the posts of AAO on contract basis. Through the instant writ petition, the said impugned letter has been assailed with the following prayer:- "In view of the above, it is most respectfully prayed that an appropriate writ may kindly be issued, directing the respondent No.1 to issue revised / fresh order in favour of the petitioners for their appointments against the posts of Assistant Accounts Officer (BS-16) on regular basis w.e.f.
13.12.2013, and to grant all consequential service benefits to the petitioners by way of treating petitioner's appointment against the post of Assistant Accounts Officer (BS-16) on regular basis w.e.f 13.12.2013.
Any other better relief, which this Honourable Court may deem just and proper under the facts and circumstances of the case, may also be awarded to the petitioners, in the interest of justice."
2. Learned counsel for petitioners submits that all the legal process for selection and recruitment against the posts of AAO in the Food Department, Government of the Punjab, was completed on permanent basis, as required under specific provisions of Section 2 (2) of the Punjab Civil Servants Act, 1974, read with Rule 16 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, as well as Section 7 of the Punjab Public Service Commission Ordinance, 1978, read with Rule 3 of the Punjab Public Service Commission (Functions) Rules, 1978, as such a lawful right has already been created in favour of the petitioners for their appointments against the posts of AAO on regular / permanent basis. Learned counsel further submits that petitioners submitted an application before respondent No.1 on 25.02.2014 which was entertained by his concerned staff vide diary No.779 dated 25.02.2014, wherein petitioners requested to issue revised order on regular basis as per recommendations of PPSC, but neither the petitioners have been called and granted a chance of personal hearing nor any written order has been passed and communicated to them in respect of decision of above application of petitioners till date. He further submits that impugned inaction of respondent No.1 to regularize the petitioners in terms of the process for selection and recruitment, mentioned above, is absolutely illegal and without lawful authority. In support of his contentions, learned counsel has relied upon Rukhsar Ali and 11 others v. Government of N. W.F.P.
Through Secretary Education, Peshawar and 3 others (2003 PLC (C.S.) 1453), which was upheld by the Hon'ble Supreme Court of Pakistan in Government of N.-W.F.P. Through Secretary Education and others v. Rukhsar Ali and 24 others (2005 SCMR 22).
3. On the other hand, learned Assistant Advocate General contends that the Contract Appointment Policy, 2004 (hereinafter referred to as "Policy") was issued on 29.12.2004. The said policy shifted the government hierarchy from regular mode of appointment to the contract mode, in view of the changing management practices and to achieve the goal of good governance in public sector departments / organizations. He further contends that since 29.12.2004, after the issuance of the Policy, all the appointments are required to be made on contract basis even against permanent posts as the mode of recruitment was declared as "Contract Mode" as per Para No.2 of the Policy, whereas regular mode of appointment was only allowed under special circumstances thus, three posts of AAO were advertised on 03.12.2012, and after a due process, PPSC recommended the suitable / successful candidates for the post of AAO. Learned Assistant Advocate General further contends that offer of appointment letters on contract basis was issued to the petitioners and in compliance, petitioners submitted their acceptance / joining reports. Consequently, the petitioners were posted in different places by the competent authority. He submits that as the petitioners were appointed on contract basis, they now cannot claim to be appointed on permanent basis as according to the Policy, the appointments were meant to be made on contract basis.
4. Arguments of learned counsel for the parties have been heard and record perused.
5. Record reveals that PPSC advertised posts of AAO for recruitment on permanent basis through a consolidated advertisement No.24 / 12 in Daily Jang and Daily Nation on 03.12.2012, and consequently the petitioners being fully eligible and having the requisite qualification, applied for the recruitment against the said post on permanent basis. Consequently, after assessing the eligibility and suitability of the petitioners through written test and interview, the petitioners were selected on merit on all Punjab basis, and were recommended for their appointments against the posts of AAO on permanent basis by the PPSC. Section 2 (2) of the Punjab Civil Servants Act, 1974, states that an appointment whether by promotion or otherwise shall be deemed to have been made on regular basis. Section 4 lays down that appointment shall be made by the Governor or a person authorized by him in that behalf. Section 6 says that a person appointed on probation shall be eligible for confirmation in a service or a post as may be prescribed. Rule 3 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, stipulates that appointment to posts shall be made by promotion, transfer or initial recruitment as may be prescribed. Rule 6 provides that the initial recruitment to the post is to be filled on the basis of examination or test conducted by the Commission. Section 7 of the Punjab Public Service Commission Ordinance, 1978, provides the functions of commission which shall be to conduct test and examination to recruitment to provincial services and posts. Rule 3 of the Punjab Public Service Commission (Functions) Rules, 1978, lays down that the commission shall conduct test and examination and take all tests necessary thereto for recruitment to the provincial services and civil posts.
6. As such all the lawful legal procedural requirements were fulfilled in the case of petitioners as required under the specific provisions of Section 2 (2) of the Punjab Civil Servants Act, 1974 read with Rule 16 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. A lawful right has already been accrued in favour of the petitioners. There is no lawful justification vested with the respondent No.2 to issue appointment letters in favour of the petitioners against the post of AAO on contract basis.
7. As far as argument of learned Assistant Advocate General as to the contract appointment of the petitioners in terms of the Policy is concerned, suffice it to say that no policy can override the provisions of Sections 2, 4, 5, 6 & 7 of the Punjab Civil Servants Act, 1974, read with Rules 3, 6, 7, 8, 16 & 18 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, which is a full and final mechanism whereby the entire scheme of appointments of civil servants of the Province of the Punjab has been mentioned. According to the provisions of the said Act and the Rules, there is no provision for making appointments against civil posts on contract basis in the Province of the Punjab, and even till today, no amendment has been made in the aforesaid provisions of law for authorizing the competent / appointing authorities to make appointments against civil posts in the Province of the Punjab on contract basis. As such, the impugned action of respondent No.1 is not sustainable in the eye of law. Reference can be made to Messrs Shaheen Cotton v. Federation of Pakistan (PLD 2011 Lahore 120), Messrs Al-Raham Travels v. Ministry of Religious Affairs, Hajj (2011 SCMR 1621), Niaz Muhammad v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad (2008 PTD 1517) and Mst. Riffat Siddique v. District Co-ordination Officer etc (2015 PLC (C.S.) 279).
8. It is the mandate of law that all the public powers must be exercised reasonably and honestly for the purpose for which same are conferred, and in view of the Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution"), the public functionaries are under a lawful obligation to treat the cases of employees / subordinates fairly, justly and without arbitrariness. In this regard, reliance is placed on Mrs. Abida Parveen Channar v. High Court of Sindh at Karachi (2009 SCMR 605) and the case of Tariq Aziz-Ud-Din and others (2010 SCMR 1301). It is also relevant to observe here that in the year 2013, PPSC recommended 97 candidates for appointment on regular basis against 97 posts of Deputy District Accounts Officer / Deputy Treasury Officer / Deputy District Officer (Accounts) (BS-17) in the Punjab Treasuries and Accounts Service, Finance Department, Government of the Punjab, and consequently, the Finance Department, Government of the Punjab, Lahore issued appointment orders in December 2013 in favour of 97 candidates who were recommended by the PPSC on regular basis which fact has not been denied by the respondents. Thus, the act of respondents so far as the Contract Appointment Policy, 2004, is concerned, is not permissible in terms of the Article 25 of the Constitution.
9. Moreover, the discrimination caused against the petitioners is unwarranted under the Constitution of the Islamic Republic of Pakistan, 1973, and this act of respondents is illegal, which entails interference of this Court in its Constitutional jurisdiction. Reliance in this regard can be placed on Engineer Naraindas and another v. Federation of Pakistan and others (2002 SCMR 82) and Ejaz Akbar Kasi and others v. Ministry of Information and Broadcasting and others (PLD 2011 Supreme Court 22).
10. Similar proposition of law came under discussion before the learned Division Bench of Peshawar High Court, Peshawar, in the case of Rukhsar Ali supra, wherein it was held that the post, which was to be filled in on regular basis, could not be converted into that of contract basis with the decision of the Provincial Cabinet without amending / changing the existing law, rules and regulations. The relevant para of the said judgment is reproduced as under:- "11. The question that requires determination in these cases is as to whether the posts which were to be filled in on regular basis could be converted into that of contract basis with the decision of the Provincial Cabinet without amending / changing the existing law, Rules and Regulations, answer to this question is in negative for the reasons.
Firstly, the cases which are to be brought before the Cabinet, manner of submission of cases of Cabinet, method of disposal and procedure regarding Cabinet meeting has been prescribed in Rules of Business 1985. In Rules 19 cases are to be brought before the Cabinet have been mentioned, of submission of cases to Cabinet rule 25 lays down the manner of submission of cases to Cabinet, Rule 22 prescribes the procedure regarding the Cabinet meeting and Rule 25 lays down how action on Cabinet's decision is taken. The decision dated 01.7.2001 of the Provincial Cabinet shows that the meeting of the Provincial Cabinet was held for approval of various budgetary measures, for the Financial year 2001-2002. While deciding the budgetary measures for the said Financial year, the cabinet also decides that all fresh recruitment when approved by the Governor, will be on contract basis and not on regular basis. This decision was taken only keeping in view the financial implications for the recruitment of various Civil Servants, without any properly summary mentioning therein the existing laws governing the terms and conditions of the Civil Servants, and the effect of changing the regular service to that on contract basis. Neither any proposal for amendment in the existing law, Rules and Regulations was made nor any draft of the Ordinance or order proposing the amendments were submitted to the Cabinet duly vetted by the Law Department. In nutshell the decision of the Cabinet dated 01.7.2001 shows that change of posts from regular basis to that of contract basis was not on the Agenda of the Cabinet at all, therefore, the proper procedure as mentioned in Rules of Business was not adopted; therefore, the decision dated 1.7.2001 with regard to the change of recruitment Policy was against the ibid Rules."
The above judgment was assailed by the Government of N.-W.F.P. In the Hon'ble Supreme Court of Pakistan, which was also upheld in the case of Government of N.-W.F.P. Through Secretary Education and others v. Rukhsar Ali and 24 others (2005 SCMR 22), with the following observations:- "8. Eighthly, the method of initial appointment is comprehensively given in the Civil Servants Act 1973 and the rules framed thereunder. The recruitments in hand were also done in accordance therewith but without changing the law on the subject, a sudden volte-face has been taken by the Government to the extreme detriment of the citizens concerned. Ninthly, being the last but not the least, is the act of discrimination whereby numerous candidates having come through the same process were appointed on 'regular basis' while the respondents were not. Today, learned counsel for the respondents / caveators has produced a long list of appointments indicating a number of 20 to 21 candidates who were appointed on 'regular basis' after the so-called policy decision of 1.7.2001 but the respondents being similarly placed and similarly recommended by the commission were totally ignored without any feeling of guilt. Six of such notifications have already been mentioned at page 15 of the impugned judgment.
9. Keeping all these reasons in mind we are of the view that nothing legal or factual escaped the notice of the High Court, elaborately discussed in its judgment. There being no merit in the petitions, those are thereby dismissed and leave to appeal refused."
11. Following the ratio settled in Rukhsar Ali's case supra, this petition is allowed and the respondent No.1 is directed to issue revised / fresh order in favour of the petitioners for their appointments against the posts of Assistant Accounts Officer (BS-16) on regular basis with effect from 13.12.2013, and to grant all consequential service benefits to the petitioners by way of treating their appointment against the post of Assistant Accounts Officer (BS-16) on regular basis with effect from 13.12.2013. No order as to costs.