AYESHA A. MALIK, J:--- This judgment decides upon the issues raised in the instant I.C.A. along with connected I.C.As. Nos,729/2013, 762/2013, 730/2013 and 766/2013 as all appeals impugn the same order dated 20.5.2013 passed by the learned Single Judge in W.P. No,902/2013 along with connected petitions.
2. The Appellants before the Court are dental surgeons (BDS) who were appointed on different dates and have been working in different government hospitals since 2009 as ad-hoc appointees.
At the time when the writ petitions were filed in 2013 the Appellants applied for regularization against 110 seats for which their cases were considered by the Punjab Public Service Commission ("PPSC"). Although the Appellants qualified, however being lower in merit, they were not selected against the 110 seats. The grievance of the Appellants before the learned Single Judge was that they were entitled to be regularized since they had been working on ad hoc basis for several years as dental surgeons; that they qualified the process undertaken by the PPSC for the purposes of filling up the vacancies against permanent seats and that they were discriminated against. The learned Single Judge dismissed the writ petitions on the ground that there is no vested right of the Petitioners to be regularized and that the appointment letters of the petitioners unequivocally states that they would compete with other candidates on open merit for regularization against the said post.
3. Learned counsel for the Appellants argued that the learned Single Judge failed to consider the decisions of the Superior Courts in identical cases being Ch. Iftikhar Ahmad v. Chief Secretary Punjab and others (2012 PLC (C.S.) 1470) and Chief Secretary, Government of Punjab and others v.
Ch. Iftikhar Ahmad (2013 SCMR 392). That the learned Single Judge also did not appreciate that a clear case of discrimination was made out particularly when the Appellants provided Notification dated 17.12.2009 issued by the Health Department whereby ad hoc Hospital Pharmacists (BS-17) were regularized by taking the posts out of the purview of the PPSC under Rule 5 of the Punjab Public Service Commission (Functions) Rules, 1978 and in relaxation of Rules 4, 16, 17 (to the extent of upper age limit) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.
Similarly Notification dated 3.8.2009 issued by the Health Department for the post of Specialist Doctors (BS-18) and Notification dated 6.5.2009 issued by the Health Department for the posts of Medical Officers/Women Medical Officers/Registrars/Assistant Anesthetists/Demonstrators/Blood Transfusion Officers (BS-17) were relied upon amongst other notifications to establish discrimination. Learned counsel argued that the Appellants have been working as dental surgeons for a considerable number of years and that they qualified the selection process but were not regularized as they were lower in merit. Learned counsel further argued that the selection process of the PPSC was simply a short interview in which a few questions were asked hence the marking process was arbitrary with no competitive or qualitative formula for selecting deserving candidates.
4. On behalf of Respondents Nos,1, 2 and 3 learned Law Officer argued that the Appellants were employed on ad hoc basis as a stop gap arrangement until the regular seats were filled up. In terms of the appointment letters the ad hoc appointment will not confer any right for regular appointment to the same post nor will the service count towards seniority. For the purposes of regular appointment, ad hoc employees had to compete with other candidates as per the procedure set out by the PPSC. Learned Law Officer further argued that the Appellants accepted the terms and conditions of their ad hoc appointments and were very well aware of the fact that they had to compete with others for the regular posts, hence their contention that they qualified but were lower in merit is without any justification. Further argued that the Appellants all appeared before the PPSC and failed to come within the ambit of 110 candidates on merit. So far as the allegations of discrimination are concerned, learned Law Officer submitted that no post for dental surgeon has been filled up without recourse to the PPSC. Therefore, the Appellants are not entitled to the relief claimed and the impugned order should be upheld. Learned Law Officer has relied upon Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others (PLD 2002 SC 101), Muhammad Younus Aarin v. Province of Sindh (2007 SCMR 134), Muhammad Bilal Khan v. Azad Government of the State of Jammu and Kashmir (2010 PLC (C.S) 1060), Ejaz Majeed Bhatti and 5 others v. Punjab Public Service Commission (2011 PLC (C.S) 1049), Ameer Solangi and others v.
WAPDA and others (2016 SCMR 46), Government of Khyber Pakhtunkhwa v. Ihsan Ullah and others (2017 SCMR 1201) and Abdul Ghaffar and others v. The President National Bank of Pakistan and others (2018 SCMR 157) in support of his contentions.
5. We have heard the learned counsel for the parties at length and have gone through the record. It is an admitted fact that the Appellants were appointed on ad hoc basis as a stop gap arrangement until the arrival of regular incumbents. It is also an admitted fact that their appointments were extended from time to time and that the Appellants continued to work as ad hoc employees with the Respondent Department without any complaint or disruption. It is also not in dispute that the Appellants appeared before the PPSC after applications were invited for making regular recruitment against 110 posts of dental surgeons. The issue before the Court is that the Appellants did not fall within the selected 110 candidates as their merit was lower. Learned counsel for the Appellants argued the case on the strength of Dr. Naveeda Tufail and 72 others v.
Government of Punjab and others (2003 SCMR 291) in which it was held that the benefit of regularization shall be given to candidates who fulfill the minimum criteria of appointment established in the tests administered by the PPSC and that cases of ad hoc employees shall not be tagged with direct recruits and shall be treated separately by the PPSC. In the cases before us the PPSC carried out a simple interview of all Applicants on the basis of which the merit list was prepared. Learned Law Officer admitted that a few questions were asked on the basis of which marks were allocated and a merit list was prepared. However, he could not identify the criteria on which the selection was made. Interestingly while the experience of the Appellants was before the PPSC, given that they had been working on ad hoc basis, they were not given any credit or benefit of the same. In this regard we are of the opinion that the interview process was totally subjective based on the personal opinion of the interview committee with no objective criteria. We further note that where a test is competitive in nature, with a large number of applicants, the criteria for determining merit must be based on measurable data so as to ensure transparency and fairness.
In this context even through the interview process marks must be allocated on an objective criteria which enables the interview committee to evaluate the candidate in a fair and transparent manner. In this case a few general questions were asked with no objective criteria whatsoever on the basis of which the ad hoc employees were conveniently made lower in merit.
6. With respect to the Appellants' grievance on discrimination, learned Law Officer did not deny the Notifications relied upon. The only argument raised before us was that no dental surgeon was appointed without recourse to the PPSC. There cannot be two different standards for filling up similar posts. There is no explanation or justification as to why the posts of Hospital Pharmacists (BS-17), Specialist Doctors (BS-18) and Medical Officers/Women Medical Officers/Registrars/ Assistant Anesthetists/ Demonstrators/ Blood Transfusion Officers (BS-17) among others have been filled up without recourse to the PPSC. Yet at the same time, similar posts as of the Appellants required the PPSC to interview the candidates. Hence a clear case of discrimination is made out. In this case the Appellants are not seeking regularization as of right. They followed the process carried out by the PPSC but were not regularized because they were lower in merit. We note that public functionaries must act within the four corners of law and must not discriminate in their decision making process. They must be consistent in their decisions in similar circumstances and if there is deviation there must be plausible justification for the same. The august Supreme Court of Pakistan has repeatedly held that the government is not supposed to discriminate between the citizens and its functionaries cannot be allowed to exercise discretion at their whims, sweet will or as they please rather they are bound to act fairly justly and evenly. Reliance is placed on Nizamuddin and another v. Civil Aviation Authority and 2 others (1999 SCMR 467).
7. With reference to the question of regularization, the learned Law Officer has relied on several cases to urge that the Appellants cannot be regularized as there is no vested right. In a recent judgment of the august Supreme Court of Pakistan dated 1.3.2017 passed in Civil Petitions Nos,833 to 840 and 858-L of 2013, the regularization of Pharmacists (BS-17) was considered and the august Supreme Court of Pakistan directed for the regularizations of the Pharmacists as they had successfully qualified the process undertaken by the PPSC while taking into consideration the factum of discrimination with other employees of the health department who were regularized by taking the post out of the purview of the PPSC. The facts are similar to the instant appeals before us. In another judgment of the august Supreme Court of Pakistan dated 8.12.2017 passed in Civil Petitions Nos,409-K to 414-K of 2017 the process of regularization was also upheld for similar reasons. We have also gone through the judgments relied upon by the learned Law Officer being 2016 SCMR 46 (supra) and 2017 SCMR 1201 (supra). These cases are distinguishable from the cases before us because in the cases before us the Appellants were appointed on ad hoc basis against permanent seats whereas in the cases relied upon the posts were project posts being temporary in nature and with the completion or abandonment of the project there was no posts against which those candidates could have been regularized. Hence the reliance on the aforementioned two cases does not help the case of the Respondents. During the course of hearing learned Law Officer informed us that the 110 seats were filled up during the pendency of the appeals and currently the process of filling up 320 seats has been advertised for which the interview process is underway.
However, he admitted that the direction given in the 2003 SCMR 291 (supra) has not been made applicable to the present recruitment process which is underway. Therefore, we are of the opinion that the Respondents being obligated to follow the clear cut direction given by the august Supreme Court of Pakistan in 2003 SCMR 291 (supra) must separately consider the case of the Appellants for the purposes of recruitment.
8. Under the circumstances, all these appeals are allowed and the impugned order dated 20.5.2013 passed by the learned Single Judge is set aside and the Respondents are directed to regularize the services of the Appellants for the posts of dental surgeons.