RAJA BASHIR AHMAD KHAN (CHAIRMAN).--- This appeal is directed against Notification No. Admin./Gazetted/44/S.O.-II/92, dated 11-2-1992 whereby the ad hoc appointment of respondent No.3 was regularized with retrospective effect from 2-7-1986.
2. Briefly stated the facts are that the appellant was appointed as Storage Officer B-16 on the recommendations of Public Service Commission on 2-1-1988. Respondent No.3 did also appear before Public Service Commission and was placed at serial No. 8 in the merit list compiled by the said Commission. The respondent No. 3 was originally appointed on ad hoc basis as Storage Officer on 29-6-1986 subject to the approval of Public Service Commission. This ad hoc appointment was allowed to continue and was extended from time to time. There was only one vacancy of storage officer/D.F.C. In the department. The appellant was recommended for appointment against that vacancy but during the process of appointment of the appellant the ad hoc appointment of respondent No. 3 was continued till the regular appointment of the appellant vide Notification No. Seen khay/Gazetted--44/658-67/88, dated 20-3-1988. The ad hoc appointment of respondent No. 3 was revoked with immediate effect vide Notification No. Seen khay/Gazetted--44/1192-41/90, dated 1-11-1990. The respondent No. 3 challenged this order in the High Court by way of writ petition. The High Court was pleased to dismiss the writ petition. The respondent-Government regularized the ad hoc appointment of respondent No. 3 in exercise of its powers under section 22 of the Civil Servants Act, 1976 and also ordered the withdrawal/cancellation of Notification No. Seen khay/Gazetted-44/1132-41/90, dated 1-11-1990.
3. The respondents have refuted the claim of the appellant in their written objections and prayed for the dismissal of the appeal.
4. We have heard the learned counsel for the parties and have very carefully gone through the record. The learned counsel for the appellant has contended that the impugned order is illegal inasmuch as that the respondent No.3 was not a civil servant at the time when the notification of regularization of ad hoc appointment was issued. The appellant has specifically stated in ground `A' of the grounds of appeal that the respondent No.3 was not a civil servant on the day when impugned order has been passed. For the purpose of convenience and fully appreciating the ground No. 9(A) of the grounds of appeal is reproduced below: -- "9(A) that benefit of section 22 of Civil Servants Act, 1976 can be given to a civil servant only. On the day when impugned order Annexure `H' was passed respondent No. 3 was not a civil servant as he had already been removed from services on 1-11-1990."
On behalf of respondents Nos. 1 and 2 the reply is as under: -- The reply of respondent No-3 is also reproduced below: -- "9(A) Sub-para (a) of para. No. 9 is not admitted as correct the law on the point is clear which shall be elaborated at the time of arguments."
It is a settled law that the averments in the pleading should specifically be stated and like -wise replied. The appellant has specifically stated that when the impugned order was passed No. 3 was not a civil servant. To this allegation the relevant law has correctly been given. The defendants Nos.
1 and 2 have not denied in clear words that the respondent No. 3 was not a civil servant at the relevant time. The reply on behalf of these respondents is evasive and vague and having not been denied specifically or by necessary implication shall be taken to have been admitted. In the same manner there is no specific denial on behalf of respondent No. 3 . The reply to ground 9 (A) given by the respondent No. 3 also appears to be evasive and vague which amounts to admission of the facts stated in this para of the memorandum of appeal. In reply to this para it was stated by the respondent No.3 that the law on the point is clear which shall be elaborated at the time of the arguments. The elaboration offered by the learned counsel for respondent No. 3 during the course of his arguments is that the definition of civil servant given in the Service Tribunal Act, 1975 is different from the one given in the Civil Servants Act, 1976 and since the definition of civil servant in the Service Tribunal Act also includes a person who has been a member of civil service of Azad Jammu and Kashmir or who has held a civil post in connection with the affairs of the Government, the respondent No3 shall, therefore, be considered as a civil servant for all practical purposes. The ad hoc appointment of respondent No. 3 was not regularized under the Service Tribunal Act but under section 22 of Civil Servants Act. Therefore, the definition of civil servant given in the Service Tribunal Act is of no avail t9 respondent No. 3. It may be pointed out that the legislature very wisely included that person in the definition of civil servant who has held a civil post because. a person who is dismissed, removed or retired from service is entitled to prefer an appeal and in order to provide the right of appeal to such persons it was necessary to include them in the category of civil servants. The respondent-Government has passed the impugned order in exercise of its authority under section 22 of the Civil Servants Act. The definition given in the said Act is only relevant for the purpose of scrutiny of the said order of the Government and for disposal of this appeal.
5. We have held earlier that the respondents have failed to specifically deny the averments of the appellant that the respondent was not a civil servant at the relevant time. This claim of the appellant without going further into the matter can be decided in favour of the appellant and against the respondents as admission of the facts alleged by the appellant. We, however, feel that this question is not only very important for the decision of this appeal but may prove to be a guideline for the authorities, which are called upon to decide matters of this nature.
6. A brief history of the ad hoc appointment of respondent No.3 and matters connected therewith may be useful for appreciation of the point under discussion. Respondent No3 was appointed, as Storage Officer B-16 on ad hoc basis vide Notification No. Seen khay /857-67/86 dated 29-6-1986.
The qualification of second division graduate for the post was also relaxed. While filling the post on ad hoc basis the following conditions under proviso No. 1 to Rule 23. Are to be first complied with or to be relaxed by the appointing authority : - "(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 certifies 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."
7. The appointment order was issued without the compliance or relaxation of these conditions. This order, therefore, was legally defective from its very inception. The ad hoc appointment of respondent No. 3 as Storage Officer was extended from time to time. The last of such orders was issued under No. Seen khay /Gazetted-44 658-67/88, dated 20-3-1988. Again the appointing authority failed to attach any of the conditions for filling the post on ad hoc basis. The last mentioned order dated 20-3-1988 provided that the extension in the ad hoc appointment was being made till the regular appointment of Mr. Kabir Hussain (selected candidate by the Public Service Commission). The order of regular appointment of Kabir Hussain appellant was made on 2-6--1988. On the same date Notification No. Seen khay/Gazetted- 44/1573-81/88 was issued whereby respondent No. 3 was appointed as D.F.C. Against a vacant post. The said Notification is reproduced as under: -- The perusal of the Notification shows that it was an independent ad hoc appointment from the one made on 29-6-1986 and extended from time to time. The Department appears to have forgotten to get relaxation of the qualification of being a second division graduate for the post of D.F.C. This again was a patent legality and violation of the service rules wherein the qualification prescribed is second division graduate. The ad hoc appointment of respondent No. 3 was extended through Notification No. Seen khay /Gazetted-44/361-392/89, dated 23-1-1989, Notification No. Seen khay/Gazetted-44/2128-38/89, dated 30-9-1989, Notification No. Seen khay/Gazetted-44/92- 101/90, dated 29-1-1990. The extension of eighteen months was made in continuation of the Notification dated 23-1-1989. Thus, the ad hoc appointment or respondent No3 was made and extended to the period ending on 2-4-1990. There is no further extension of the ad hoc appointment of respondent No.3 visible from the record placed before us for the period starting 2- 4-1990. It means that the respondent was not given extension of ad hoc appointment after the expiry of the period of six months allowed under Notification No. Seen khay/Gazetted-44/92-101/90, dated 29-1-1990. The respondent was out of service from 3-4-1990 and onwards. Why and how the respondent No. 3 did not get the extension of his ad hoc appointment or the Department failed to seek the further extension is a matter shrouded in the clouds of mystery. The process of regularization of the ad hoc appointment of-respondent No. 3 was started somewhere in the mid of 1990. The Prime Minister on 9-6-1990 was pleased to approve this proposal. The Chief Secretary on 10-7-1990 made over this case to Additions Chief Secretary (General). After examining the approval of regularization of the appointment the Additional Chief Secretary (General) proposed that the Prime Minister may be requested to review his orders. The Prime Minister was pleased to review the approval of his predecessor on 29-10-1990 but at the same time cancelled the ad hoc appointment of respondent No.3 and Notification to that effect was issued on 1-11-1990. While examining the record, we have found that the respondent No.3 was not in service from the period starting 3-4-1990 and in that situation there was hardly any cause to order the cancellation of ad hoc appointment on 20-10-1990. The value of both the orders is nothing more than a thing, which is done in vacuum that vanishes in the wilderness of the void into nothingness. There was thus no ad hoc appointment, which could be cancelled on 1-11-1990 and could be restored through the impugned Notification. The unfortunate in efficient working of the Departments is clear from the facts of this case. The point, however, remains that the respondent No 3 was not a civil, servant when the impugned Notification was issued. He was a man in the street who could have not been given the benefits of section 22 of the Civil Servants Act. In support of this proposition 1984 PLC 537 Mian Anayatullah v. Ministry of Education and two others can be cited wherein it was held as under: -- "15.The second issue and a ludicrous one at that is, whether a man in the street could be granted extraordinary leave without pay. It is an admitted position that respondent No. 2 has been tendered jobless from 20th April, 1978 onwards (after the appointment of the appellant). He was subsequently, selected by the F.P.S.C. And appointed as a Lecturer with effect from 25th April, 1979.
In other words, respondent No.2 was just a man in the street from 20th April 1978 to 24th April, 1979.
We are alarmed to discover that the Ministry of Education recommended the grant of extraordinary leave without pay to respondent No.2 from 20th April, 1978 to 24th April, 1979 and the Establishment Division readily obliged the said Ministry. As a consequence of this untenable act of the establishment Division, respondent No. 2 was not only `regularised' as a lecturer with effect from 3rd May, 1977 against all rules, he was also deemed to be in continuous service including the period when he was a man in the street. He was, thus, shown to be in continuous employment till his regular appointment through the F.P.S.C. On 25th April, 1979. We are not aware of any law whereby the Government could grant extraordinary leave to a man like respondent No. 2, who did not hold any job in any Government Department and was a man in the street. Even if the respondent No.2 had been in continuous employment, his seniority could not have reckoned before the date of his selection by the F.P.S.C."
The contention of the learned counsel for the appellant prevails. We have no hesitation to hold that the regularization of ad hoc appointment of respondent No.3 was illegal, wrongful and without any effect.
8. The next contention of the learned counsel for the appellant is to the effect that the regularization of ad hoc appointment of respondent No.3 is adverse to the rights of the appellant and is against the rules of equity and justice. The learned counsel for respondent No.3 in reply to the above contentions has submitted that the Government has unfettered authority to order the regularisation of the ad hoc appointment of respondent No. 3. In support of his contention he has placed reliance on PLC 1974 (CST) Note 36 page 18, PLC 1973 page 90, PLC 1J71 page 47 and 1981 PLC
551. We are not in doubt about the law that the Government has authority to regularize the ad hoc appointment but that authority is not so unfettered or wide that may be exercised in each and every case in violation of the rules of equity and justice.
It will be useful to reproduce section 22 of the Civil Servants Act, 1976 before we proceed to examine the authorities at the bar: - "22.Saving. Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
10.The matter for decision in 1971 PLC page 47 (CST) Punjab related to the seniority of the Police Officers, which is dealt under rule 12.2(3), Punjab Police Rules. The question in this authority was in respect of the seniority of different persons. This decision, therefore, is not helpful to the respondents as the impugned order is related to the regularization of the ad hoc appointment. The authority cited as 1974 PLC (CST) Note 36 at page 18 is in the form of a note. It is not possible to know the facts of the case but the rule set out in this case is not of any avail to the respondents.
The learned Tribunal has laid down that the Department should follow consistent policy in regularization of ad hoc appointment to be made either from the date of ad hoc appointment retrospectively or from the date of regularization in all cases without discrimination. In this authority the method of pick and choose and appointment or regularization without discrimination has been held to be followed. In the instant case it is hard to conceive that the action of the Government was not discriminatory. In 1973 PLC 90 (CST) the appellant's service was regularized from the date of his ad hoc appointment but after he was approved by the Public Service Commission. In the instant case respondent No.3 has not been approved by the Public Service Commission before the regularization of his ad hoc appointment. Again in the cited case the Government had withdrawn the regularization of the appellant, which was held to be illegal for the reasons that the Notification of regularization has been issued and acted upon. In the present case Government has not withdrawn the Notification of regularization. The facts of the cases being different, we cannot support the case of the respondents on the strength of this authority. The next case relied upon by the learned counsel for the respondent is 1981 PLC (C.S.) page 551. In this case the provisions of Rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 were under discussion. In the instant case the regularization of ad hoc appointment has been made under Section 22 of the Civil Servants Act. The Authority relied by the learned counsel relates to Rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules. The basis of the relief sought being different in both the cases. We hold that this authority does not help the respondents inasmuch as while considering a case under Appointments and Conditions of Service Rules the Government can relax any one of the rules in individual case of hardships for special reasons to be recorded whereas under section 22 of the Civil Servants Act the Government is authorised to pass any order which is just and equitable. The facts again in the instant case and the reported case and also relaxation ordered under the provisions of different provisions of law are not the same. We cannot read this authority in favour of the respondents.
11. The true scope of the meaning of the provision of section 22 of Civil Servants Act was considered by the Supreme Court of Pakistan in PLD 1991 Supreme Court 35 in the case titled as Muhammad Iqbal Khokher and three others v. Government of Punjab and others. Mr. Justice Rustam S. Sidhwa while agreeing with the view of Mr Justice Shafiur Rahman observed as follows: - "Para. No.4. The learned Governor acted under Section 22 of the Punjab Civil Servants Act, 1974. His action, therefore, requires examination. Section 22 of the Punjab Civil Servants Act, 1974, which is relevant, may be reproduced: -- `Nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule.
This power permits the Governor, as the Chief Executive of the Province at the apex, to deal with serious cases relating to civil servants in such manner as may appear to him to be just and fair, which otherwise cannot be sorted out by the Chief Minister or the Punjab Government under the various powers vested in them by the different rules existing from time to time relating to relaxation. This section is primarily a saving section, basically intended to correct serious cases, where unusual factors place a civil servant in serious disability, which requires correction on the basis of equity and justice by the Governor himself, sitting at the apex of the executive hierarchy.
Amendments, additions and substitutions effected in the rules from time to time, mergers in and transfers from one service to another, etc; create a host of problems, where civil servants placed under serious disability and hardship call for a fair and equitable resolution of their difficulties. To meet these genuine cases, the Governor has been granted this special savings power to deal with such cases, so as to remove injustice and inequity which may stand in the way of a civil servant in securing his just rights. In short, it is a power rarely used, unless to serve justice or correct grave injustice, and perhaps never used arbitrarily to reward a person or to grant him an undue privilege over the right of another.
Para No. 6. Section 22 of the Punjab Civil Servants Act, 1974 since it gives the Governor great latitude to act according to his personal judgment, falls in the field of that special power called `discretion'.
It would not be out of place here to say a few words about this enhancing field of authority. The word `discretion' is associated with the action of separating, `discerning, distinguishing or judging. It deals with the liberty or power of deciding or acting according to one's own personal view, conscience or judgment, as one thinks fit the controlled or uncontrolled power to decide or dispose of a matter. In legal interpretation discretion, therefore, is sometimes as illusive as the shadow, which stalks the provision that has to be interpreted, and sometimes as firm as the provision, which throws up the illusion. In one case it may permit uncontrolled liberty or power to decide a matter or act any one's own personal pleasure, view, choice or judgment. In another, it may compel a person to decide or act within the stricter or controlled limits allowed by law or rules of procedure or subject to conditions precedent or subsequent laid down for the exercise of the power. Between the two polarities, discretion has never acquired any settled or established meaning which can be applied universally in any given case. Each case, where discretion is to be exercised, has to be judged according to its own facts. The nature of this power in the particular section or rule, the object of the said section or rule, the scope of the Act or the rule where the power appears, or the conditions and limitations which define or limit its exercise, or the conditions precedent which have to be fulfilled beforeit can operate, all require to be carefully examined before any idea can be formed as to how it can be exercised.
Para. No. 7. The words `nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant' in section 22 of the Act only shows that when dealing with the case of any person the learned Governor can operate in an uninterrupted field, so that any limitation or abridgement provided by any section of the Act or by any rule would not stand in his way to do complete justice. It gives the Governor freedom to ignore limitations and restrictions that may tend to stultify his action. However, the words to deal with the case of any civil servant in such manner as may appear to him to be just and equitable bind him not to proceed outside the parameters of being just and equitable. Whilst the first Part of the Section frees him from limiting factors contained in the Act or the rules, the closing part limits him to that which should not be unjust and inequitable. In short, it is the power to ignore consciously any Section of the Act or any rule that may prohibit or restrain the Governor to do what he is attempting to do, provided he limits his action to what is just and equitable. Ephuistically it is the power of trespass circumscribed by the limits of justice and fairplay. What is just and equitable? The word `just denotes that which is right and proper, that which can be justified in law.
Since we are dealing with the rights of civil servants under the Punjab Civil Servants Act, 1974 and the various rules that are framed thereunder or are already inforce, the word `just' would mean that which is legal and proper under the said Act or the rules or that which imports the exercise of good judgment or discriminatory appraisal within the bounds of reason and which negatives the presence of any arbitrary, unreasonable or capricious determination, or anything which causes injury to a person. The word `equitable' means that which is founded in equity, i.e. That which is fair, reasonable, unbiased, impartial, even handed; the construction of a matter according to its reason and spirit. Thus, the section creates a balance. The learned Governor, in appraising the case of a civil servant, can ignore limiting or abridging factors contained in the Act or in any rule, but he must confine himself within the limits of justice and equity, for no sooner he finds he is about to transgress those limits, a cut off point arises and he must control impetuousity and stay further transgression, so that the purpose of the law or rule may not be flagrantly violated or degraded under the guise of its exercise. What is just and equitable, would vary in each case, depending upon its facts and circumstances."
12. The impugned Notification was based on the proposal of Minister for Food contained in his note dated 20-9-1991 which is reproduced below: -- While going through the note of the Worthy Minister, we find that it firstly traces the history of the ad hoc appointment of respondent No. 3 and a substantial part of it has been used in condemnation of the previous Government and then it has been stated that the respondent No. 3 is capable Officer and he has shown excellent performance during his 4-1/2 years service in the Department and the following observations has been made for regularizing the ad hoc appointment of respondent No.3: -- The observations contained in the above para have already been dealt by High Court in Writ Petition No. 118 of 1990, decided on 24-12-1990 filed by respondent No3 against Azad Government and one Anwar-ul-Haq in para. No. 14 of the judgment. The Hon'able High Court observed as below: -- "In present case, nothing else except satisfactory performance of duty by the petitioner during the period of his four years service, was made the basis to give him the benefit of section 22 of the Act.
This would suggest that a routine performance of duty was considered an exception, though ordinarily every civil servant holding civil post was enjoined to perform his duties satisfactorily."
13. In the note of the Food Minister it has been stated that the Government had no authority whatsoever to pass dictatorial order (Nadir Shahi) and the removal of the civil servant from the service is not in accordance with law or justice. We feel that the attention of the Minister for Food was not invited to the Notification NoitY'/Gazetted-4/1573-81/88, dated 2-6-1988 wherein it was stipulated that the appointment would be purely temporary and for six months. The ad hoc appointment shall not confer any right of regular appointment and the Government could revoke this ad hoc appointment any time without any notice. We believe that if the order of appointment of respondent No. 3 had been in the notice of the Minister he must have made different view to what he said in his note.
14. We have to see as to what extent the impugned order satisfied the guiding principles laid down in the Supreme Court authority. Respondent No.3, a third division graduate was initially appointed as Storage Officer by relaxing the conditions of second division graduate and without fulfilling others conditions for ad hoc appointment. In the last of the series of orders of appointment as Storage Officer, respondent No.3 was appointed till the regular appointment of appellant.
Respondent No.3 was appointed District Food Controller on 2-6-1988 against a vacant post out of the whole lot of eligible candidates and without protecting the legal rights of appellant who has been inducted in the service on the recommendations of Public Service Commission. The impugned order, therefore, by any stretch of imagination cannot be declared as just and equitable.
In the circumstances we are of the opinion that the impugned Notification has been passed in violation of the spirit and purpose for which the powers have been given to the Government under section 22 of Civil Servants Act.
15. The learned counsel for respondent No.3 has contended that the impugned Notification has not been acted upon inasmuch as the seniority of the parties has not so for been determined. The appellant is not an aggrieved person and, therefore, cannot file this appeal. The respondent No.3 has been allowed regularization of his ad hoc appointment since 2-7-1986. By virtue of this Notification the respondent No. 3 ranks senior to the appellant, which is the cause for infringement of terms and conditions of his service. We, therefore, cannot accept the contention advanced on behalf of respondent No.3.
16. We have given our serious thoughts as to what relief could be granted in this case. We are of the firm belief that under the impugned Notification, the ad hoc appointment of respondent No. 3 could not be regularized. The conclusion, which we have formed in this case that the regularization of ad hoc appointment of respondent No. 3 was illegal, improper and unjust is the natural consequence of- entry into service by respondent No. 3 through back door. But at the same time we cannot lose sight of the fact that if the appointment of respondent No.3 is terminated, this will cause an immeasurable hardship to him. We, therefore, propose to take lenient view of the matter and proceed to modify the impugned order in such manner, which may provide to relief to the appellant but suppress hardship to respondent.
17. In the circumstances, we partly allow this appeal and modify the impugned order to the extent that the regular appointment of respondent No. 3 shall be deemed to have taken effect from 11-2- 1992. The parties shall bear I their respective costs.