By means of instant constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made prayer as follows:- "...In view of the above, it is respectfully prayed that the writ may kindly be issued against the respondents with the following directions:- i. That the impugned orders dated 10.04.2018 as well as 10.09.2018 passed by respondent No.2 be set aside while declaring the same absolutely illegal, unlawful, arbitrary, whimsical, without lawful authority and amounts to furtherance of discrimination, an abuse of process of law and authority and sheer violation of the fundamental rights of the petitioner being the citizen of Pakistan and the respondent No.2 be directed to reinstate/reappoint/to get resume the petitioner in service as Statistical Officer (BS-17) in the office of Chief Executive Officer (District Health Authority) Lahore immediately for sake of justice equity and fair play. ii. Moreover , the respondent No. 2 may graciously be directed to regularize services of the petitioner , as Statistical Officer (BS-17) in the office of Chief Exec utive Officer (District Health Authority) Lahore from the date of her initial appointment i.e. 05.01.2010 with all back benefits as per the Government policy and verdicts of the apex courts in this regard to make up for indiscrimination done to the petitioner . iii. It is further prayed that the respondents may very kindly be restrained to advertise or to fulfill the aforesaid one post of Statistical Officer (BS-17) in the office of Chief Executive Officer (District Health Authority), Lahore till the pendency of the titled writ petition in the supreme interest of justice.
Add interim relief may kindly also be granted.
Any other relief, which this Hon'ble court deems fit and appropriate in the circumstances of this case, may kindly be granted .....".
2. At the very outset, while opening his arguments, learned counsel for the petitioner submits that the petitioner was inducted into service as Statistical Officer (BS-17) by District Recru itment Committee way back on 01.01.2010 on ad-hock basis for a period of one year. It is contended that on expiry of one year, she was re- appointed for another year and this process of re-appointment continued till 10.04.2018. It is contended that the petitioner filed constitutional petition bearing Writ Petition No.31957/2015 seeking direction for regularization of her services and a learned Single Bench of this Court disposed off the same in terms of order dated 15.01.2018 with direction to the respondent to treat the same as representation and decide the same within thirty days. Adds that the respondent No.2 did not pass any order and when the petitioner filed conte mpt petition, respondent No. 3 refused to re-appointment of the petitione r. The main crux of the arguments of learned counsel for the petitioner is that the petitioner has served more than eight years in the department and instead of regularizing her service; she has been dropped by the authority without any legal as well as moral justification. Adds that the petitioner has now become overage and this act of the respondent/authority would certainly destroy the future of the petitioner without any fault on her part. Learned counsel has placed his reliance upon the ratio decidendi of august Supreme Court of Pakistan in the case of "Rizwan Javed and others vs Secretary Agriculture Livestock and others" (2017 PLC (CS)
712).
3. On the other hand, learned Assistant Advocate General assisted by learned Law Officer representing respondent No.2 has opposed this petition with vehemence. It is submitted that the petitioner was working on ad-hock basis whereas the law developed so far is mainly with regard to regularization of services of employees working on contract basis. It is contended that the criteria for appointment on ad-hock basis and contract basis are entirely on different footings. In such backdrop, it is argued that the petition in hand is liable to be dismissed.
4. Arguments advanced pro and contra have been heard and record available on file perused.
5. Before going into the merits of the constitutional petition in hand, this Court is conscious of the fact that the mainstay of the learned Law Officer is that the criteria for appointment on ad-hock basis and contract basis are entirely on different footings. In this perspective, it would be advantageous to go through definition of the same in order to resolve the anomaly .
The definition of 'Ad-hock appointment' is contained in 'The Punjab Civil Servants Act, 1974, which reads as follows:- (a). "ad-hock appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method' ; So far as the definition of 'contract employee' is concerned. As per "The Punjab Regularization of Service Act, 2018, the same reads as follows:- " (a).
(b).
(c). "contract employee" means an eligible person appointed on contract in a department immediately before the commencement of the Act but does not include a person appointed to a post in a project, programme, project management unit, project management office, time bound (one-time) development activity or as work-charged employee or an employee on daily wages;.
6. Bare reading of definitions of 'Ad-hock appointment' as well as 'appointment on contract basis' reveals that only eligible/qualified persons are offered services in both the cases.
7. So far as the case in hand is concerned, there is no second cavil to this proposition that the petitioner was inducted into service as Statistical Officer (BS-17) by District Recruitment Committee way back on 01.01.2010 on ad-hock basis for a period of one year and on expiry of one year, she was re-appointed for another year and this process of re -appointment continued till 10.04.2018, but subsequently after the elapse of more than eight years, her services were neither regularized nor extended. The respondent/authority while terminating her services had neither given a show-cause notice nor provided opportunity of hearing to the petitioner, rather passed the order even without taking into consideration consequences of the same. Undeniably the petitioner was offered job by the competent authority after evaluating her age besides academic as well as professional qualification. Her period was being extended by the authority for more than eight years as the competent authority was fully satisfied with her performance, which fact itself reflects that her services were not only required for the department, rather the same were beneficial for the department as well. Furthermore, there is no allegation/ complaint against the petitioner with regard to carrying out official duties; rather extension of the period time and again in favour of the petitioner shows trust of the authority upon her services. Such extension in the tenure of service of the petitioner has undeniably created a legitimate expectancy in her mind with reference to her retention in the service on regular basis. Now the petitioner certainly has become over age and as such she had lost all the chances to get fresh appointment anywhere as she would be disqualified on this score alone. It has also been brought into the notice of this Court that the vacancy of Statistical Officer still exists vacant in the department. In the same scenario, august Supreme Court of Pakistan while taking serious note in the case of "Collector of Customs and Central Excise, Peshawar and 2 others Versus Abdul Waheed and 7 others" (2004 SCMR 303) has observed as follows:- "---S.4---Constitution of Pakistan (1973) (Art.212(3)- -Service of ad-hock appointees,---V alidity-- Appointment of civil services were made by Competent Authority---If prescribed procedure was not followed by the concerned Authority , the civil servants could not be blamed for what was to be performed and done by the Competent Authority---Competent Authorities should be held responsible and liable for the lapse on their part---Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage---Supreme Court noted it with concern that in case the civil servants were to be removed then the same would amount to hitting them hard creating problems for the society at large considering each of the civil servants being a bread earner of his family---Appointing Authorities had been acting mechanically without application of mind, therefore, the civil servants could not be made to suffer for whimsical and mechanical acts of the Authorities- -Supreme Court declined to interfere with the judgment passed by Service Tribunal as the act of the Authorities was not in accordance with law-- - Authorities had terminated the services of civil servants without any just and legal cause---Leave to appeal was refused".
In the case of 'Messrs State Oil Company Limited Versus Bakht Siddique and others" (2018 SCMR 1181), the august Supreme Court of Pakistan has observed as under:- "---Employees of State-owned company outsourced to a contractor---Regularization in service---Plea of company that employees in question could not be regularized as they were not the company's employees but were outsourced to some contractor---Validity-- State companies/industries had adopted the practice of outsourcing the employment of posts which were permanent in nature---Record showed that employees in question had been in service starting from as far back as the year 1984---Outsourcing of employees seemed to be a sham or pretence-- -Employees in question, even if assumed to be employees of contractor, had been performing duties of permanent nature and should have been regularized---Supreme Court directed that employment of the employees in question shall be regularized with effect from the date when they approached the High Court through the Constitutional Petition but for their pensionary benefit and other long terms benefits, if any, available under the law, they would be entitled from the date when they joined service of the company---Petitions for leave to appeal were dismissed accordingly".
Guidance in this regard is also sought from the cases of "Board of Intermediate and Secondary Education, DG Khan and another Versus Muhammad Latif and others" (2018 SCMR 325), "Board of Intermediate and Secondary Education, Faislabad through Chairman and others V ersus T anveer Sajid and others" (2018 SCMR 1405 ).
8. Apart from this, this Court is of the consistent view that the act of the respondent/authority is also against the dictates of substantial justice. It is settled principle of law that technicality of law and rule shall not operate as an absolute bar in the way of the court as preference in this regard would defeat the substantial justice. Guidance in this regard is sought from the dictum of law laid down by the august Supreme Court of Pakistan in the case of 'Mst.Shahista Bibi and another Versus Superintendent, Central Jail, Mach and 2 others (PLD 2015 Supreme Court 15 ), wherein it has been held as follows:- "---Hardship case---Substantial justice by court-- Technicality of law---For doing substantial justice in the true sense in a hardship case, technicality of law and rule shall not operate as an absolute bar in the way of the court because giving preference to the technicality of law would defeat substantial justice".
In the case of 'Nizamuddin and another Versus Civil Aviation Authority and 2 others (1999 SCMR 467), following dictum of law has been laid down by the august Supreme Court of Pakistan:- "---Art. 25---Equity of citizens---Governm ent is not supposed to discriminate between the citizens and its functionaries cannot be allowed to exerci se discretion at their whims, sweet-will or as they please rather they are bound to act fairly , evenly and justly".
9. Undeniably the respondent/authority, by not regularizing the services of the petitioner, despite the fact that she is not only eligible for the said post, rather she has served more than eight precious years of her life with the department and the authority being satisfied with her work and conduct has been extending her tenure from time to time, has acted in a harsh manner, which is against the dictates of natural justice. The petitioner was neither informed/issued a notice nor provided an opportunity of hearing prior to termination of her services which were being extended for a span of more than eight years just with a stroke of pen in an arbitrary manner smokes a lot about the highhandedness of authority. This act of the authority is also hit by the principles enunciated by the superior courts from time to time. While dealing with a similar situation, the august Supreme Court of Pakistan in the case titled "PAKISTAN AND OTHERS Versus PUBLIC AT LARGE AND OTHERS (PLD 1987 Supreme Court 304) has observed as follows:- "---When a public authority is to be exercised for resolving a controversy regarding rights and liabilities, the decision would not be rendered without proceedings in which the person affected is also afforded an opportunity of hearing.
It is common principle which governs the administration of justice in Islam that in case of liability with penal or quasi-penal consequences and/deprivation of basic rights a notice as well as an opportunity of hearing, are of absolute necessity . This by itself has to be recognized as a basic right".
10. For the foregoing reasons and also seeking guidance from the dictum of law laid down by the august Supreme Court of Pakistan in the cases supra, this Court is persuaded to accept this constitutional petition. As a consequence whereof, the petition in hand stands accepted.
11. Petition Allowed.