This order, in limine disposes of the following two constitutional petitions
(1) W. P. No. 3847/77, Sohrab Butt v. Government of Punjab.
(2) W. P. No. 3848/77, Nasimulhaq and another vGovernment of Punjab.
2. The petitioners in both the petitions held the rankof D. S. P. And they are aggrieved by an order of the Home Department dated 28-11-1977 (not placed on record) which states that their ad hoc appointment was reviewed under Martial Law Instructions No. 21, dated 8-8-1977 and they have been found to be ineligible/unsuitable for the post against which they were appoint--ed and as such their services were being terminated with immediate effect.
2. Their case, as set out in the petitions, is that they could not be removed or their services terminated because the selecting authority had found them suitable and that Martial Law Instruction is itself without lawful authority and could not be made the basis for the impugned order.
3. The documents placed on record with the petitions show that their appointment was expressed to be in the following words; " The Governor of the Punjab has been pleased to appoint the following as Deputy Superintendents of Police on ad ho: basis till further orders in relaxation of rules w. e. f. The date they assume charge of the assignment. The terms and conditions will however be determined later."
(Annex. A)
They were thereafter on 29.7-1976 directed to report to the Commandant, Punjab Reserved Police, Chuharkana for training etc., (Annex. `B'). They were in February attached with various Districts.
Their appointment was clearly expressed to be ad hoc. Thereafter the impugned order has come to be passed. The petitioners have throughout been treated to be ad hoc recruits and ad hoc appointment has been defined in section 2, clause (2) of the Civil Servants Act, 1973, in the following words; "Ad hoc appointment means appointment of duly qualified persons made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method."
Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 makes provision for ad hoc appointments in Part IV in rule 22 in the following words; "22.---(1) When a post is required to be filled, the appointing authority shall forward requisition to the selection authority immediately after decision is taken to fill the post.
(2) After forwarding a requisition to the selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of a candidate by the selecting authority ; provided (1) the vacancy is advertised properly in the newspapers ; (2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post ; (3) the selection is made on the basis of merit determined by objective criteria ; (4) the appointment order certificate that a requisition has been sent to the selection authority ; and (5) the appointment is made subject to revocation at any time by the competent authority ; provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade---
(3) Governor may, for special reasons relax any of these conditions in any individual case."
It will be clear from the law applicable to the petition that in the matter of recruitment most of the requirement ever for ad hoc appointments were relaxed and the only supervening factor expressly mentioned was that they were to hold the appointment made till further orders. It had no other limit of time or duration. The orders that followed were for training attachment or pasting. It would, therefore, be incorrect on the part of the petitioners to contend that they were not ad hoc or that their appointment had a fixed tenure. There being express words that it was ad hoc and till further orders they cannot get rid of these conditions. Even the law continuance clause and all to which a reference has been made in the grounds of the petition continued the petitioners till an order to the contrary was passed and it was to be passed by the competent authority. It has now been passed.
With it the right of the petitioners to hold on to the ad hoc appointment, comes to an end. As no jurisdictional fact was necessary for bringing to a end the appointment of the petitioners, none need be mentioned and evenwhat has been mentioned is not correct, the order takes effect notwith--standing the incorrectness of the reason therefor. The powers possessed and reserved by the Government in the case of the appointments of the petitioners was plenary and general. It is, therefore, not possible in they Constitutional jurisdiction to sustain their claim or to continue their appoint--ment when from the very beginning it was made of them that their appointment was to last till further orders and that it was to remain ad hoc.
4. The petitioners are seeking the Constitutional jurisdiction regarding, a Martial Law instruction.
This the Courts will not do unless satisfied about the legal force and efficacy of the general law and that the Martial Law Instruction supplements it and is not in derogation of it. The contention on this point is that the selecting authority was the Public Service Commissioner that their cases were referred to the - Commission had found them suitable and eligible and that the Home Secretary who had determined otherwise. This is an assertion made with regard to facts and record to which ordinarily the candidates are not supposed to have access. The recommendation of the Public Service Commission, one way or the other is not sacrosanct and the last word in the eye of law for ultimately the decision rests with the competent authority. In the absence of rights as indicated above, it is not possible to afford any relief to the petitioners.
5. On an earlier date when the petition came up for hearing, and during the course of the arguments there was a challenge to the Martial Law Instructions itself, I asked the learned counsel to prepare on the question whether the case was not more concerned with the applicability or inapplica--bility of a particular law relating to terms and conditions of service and as such within the exclusive jurisdiction of the Service Tribunal. On that question there are two decisions in the field, one in Muhammad Aslam Bajwa v. Federation of Pakistan (1) and the other in Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others (2). Then the cases came up today the learned counsel stated that he was only challenging the question of suitability and eligibility which were matters in which the jurisdiction of the Service Tribunal was expressly barred. He referred to a number of decisions to contend that matters excluded from the Service Tribunal are not hit by the exclusion of jurisdiction by Article 212 of the Constitution.
(1) PLD 1974 Lah. 545(2) PLD 1977 Lah. 549 This is correct. It is only in respect of the matters on which a petition can be maintained in the Service Tribunal that the jurisdiction of this Court under Article 199 is barred. Nevertheless, for maintaining a petition under Article 199 not only, a mere illegality but also a right of individual must be involved. In the present case, the appointments being ad hoc and expressed to be till further orders, they cannot be protected by resort to the Constitu--tional jurisdiction. Hence the petitions are dismissed in hmine.