This judgment shall also dispose of Appeals Nos.1047/93 and 1050/93 as quite identical questions of fact and law seemed to arise in all of them.
The appellant Ishtiaq Hassan was appointed as Research Officer in BS-17 on ad hoc basis with effect from 30-1--1990 initially for six months vide order dated 6-12-1990 (Annex. `A'). His tenure was subsequently extended by order dated 17-6-1992 (Annex. `B') till arrival of a suitable incumbent. His services, however, were terminated all of a sudden with immediate effect by the respondent vide their order dated 18-10-1993 (Annex. `C') without any notice. It was stated that since the aforesaid order was issued with the approval of the Chief Minister, the appellant had no departmental remedy against it and hence he straightaway came to this Tribunal in the form of the present appeal.
3. Counsel claimed that the ad hoc appointment by virtue of its definition as contained in section 12(1)(a) of the Punjab Civil Servants Act, 1974 had to continue pending recruitment in accordance with the prescribed method, meaning thereby that no terminal date could be fixed for its tenure which indeed was co terminus with the process of recruitment of a regularly selected person.
Referring to the provision of rule 22, sub-rule (2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, he submitted vehemently that fixing the maximum period of one year for such employment in fact travelled beyond the definition of the term and hence was bad in law. Similarly he invoked section 10 of the aforesaid Act stating that an ad hoc appointment could be terminated only on the recruitment of a person made on the recommendation of the Selection Authority and further that only the junior most ad hoc appointee will be first relieved on the principle of last come first go. Still more, it was asserted that under the provisions of subsection (3) of section 10 ibid, on termination of the appointment made on ad hoc basis, either 30 days notice or pay in lieu thereof had to be given to him. Last but not the least was the argument that the impugned order being bereft of reasons, was arbitrary and opposed to law.
4. The appeal was contested in their written objections by the respondent contending that the appellant was not a civil servant as they were employees of the Punjab Agriculture Research Board Which was an independent/autonomous body and that his remedy, if any, lay elsewhere. It was further urged that the ad hoc appointment of the appellant could be terminated any time without showing cause, and therefore, it did not create any vested right.
5. Arguments were stressed by both sides. The learned DA. Laid stress on the fact that the very nomenclature of the respondent Board indicated that it was an autonomous body whose employees could not be treated as civil servants and that this Tribunal had no jurisdiction to entertain the appeal. There was some history of creation and re-constitution of the respondent Board. It was not created under the provisions of any statute, nor was it established if it was registered as an autonomous body either in the shape of a Society or Company or Trust etc. Conversely it transpired that it was created by an Executive fiat, which had nothing to do with any statute. It was clearly financed by the Provincial Government and was even administratively under the control of the Secretary Agriculture. According to the test laid down in the PLD 1990 SC 612 (Mst.
M.N. Arshad etc. v. Miss Nameena Khan) and also PLD 1994 SC 123 (Saeed Rabani v. Director- General, Leather Industry Development Organization) the Board should have been created under some Act and should not have been controlled, managed and financed by the Provincial Government. The learned D.A. Conceded that the Board could not sue nor be sued in its own name, nor had its own seal showing it to be an independent body. However, he relied upon U.O. No.SO(AB- 11)1-3/93, dated 15-2-1994 in support of his plea that "64000 grant" was shown in the Sub-Head "64900-Others" and that it pertained to Autonomous Bodies. I have seen these figures in the Chart of Allocation, Federal and Provincial, Finance receipts and Disbursements. I regret to observe that it does not convey if the Board had any independent existence. It received the budgetary grants from the Provincial Government and correspondingly was controlled by the Secretary Agriculture. Even the impugned order was passed by the Secretary in. His capacity as Secretary to the Provincial Government and hence the Board was under the direct control of the Provincial Government. The two authorities referred to above amply discussed the implication of the question involved in this case. It was ruled that if the so-called body was controlled, managed and financed by the Government, it would have the status of an attached department. Nothing was brought on the record to remove the impression that the Board was managed, controlled and financed by the Government and in fact this incident negated the respondent's assertion. Consequently the objection is overruled and the appellant is held to be a civil servant.
6. As for the termination of the ad hoc tenure of the appellant, this Tribunal has already expressed in quite a few cases that the only method' provided in law for terminating such appointment could be found in section 10 of the Punjab Civil Servants Act, 1974 alone. This provision explicitly lays down that termination of ad hoc employment would take effect on selection of a regularly selected incumbent. Admittedly no such incumbent was selected so far and hence the order in question could not have been made.
7. Learned DA relied upon Rule 22, sub-rule (2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 pointing out that such a tenure could at the most last for one year and that after expiry of the year, it would lapse without any further orders. I am afraid fixing the tenure for one year in sub-rule (2) of rule 22 ibid is not in consonance with either the definition of the expression "Ad hoc Appointment" contained in section 2, subsection (1), clause (a) or section 10, subsection (1), clause (ii) of the Punjab Civil Servants Act, 1974. The latter two provisions do not contemplate fixation of any term of period for an ad hoc appointment. It seems, therefore, that such appointment is open-ended. The only condition laid down in these two statutory provisions is that it will continue till a regularly selected incumbent was installed. Thus, comparing the statute with the rules, one finds that the rule goes beyond the statute and therefore it is null and void. Even sub-rule (2) of rule 22 itself suggests that such a tenure will of course continue "pending nomination of a candidate by a Selection Authority". Obviously the tenure will be co-extensive or co terminus with the pendency of nomination of a candidate by the selection authority. It will be appreciated that the proceedings relating to nomination of a candidate by the Selection Authority are not controlled by any provision whatsoever of the act especially in fixing any particular period for its finalisation. The corollary therefore would be that so long as nomination of such a candidate is prolonged by the Selection Authority. The ad hoc appointment will correspondingly continue to exist. In brief, the moment a selected candidate is nominated for appointment, the ad hoc appointee will have to go home. Therefore, he cannot insist for continuity of his tenure.
8. For the reasons discussed above, the appeal is allowed, the impugned order is set aside and the appellant is re-instated with back benefits from the date his job was terminated.