' This will dispose of Writ Petitions Nos. 2021, 240, 250, 206, 578, 209, 2078, 8308, 7772, 3202, 1516, 824, 363, 3177, 370, 10232, 434, 341, 1042, 857, 861, 939, 805, 764, 272, 486, 391, 902, 485, 1251, 831, 925 of 1991 and 9937 of 1992.
2. The petitioners in these writ petitions were appointed as Subject Specialists by various orders of the Government of the Punjab. Their appointments were ad hoc appointments and were subject to the same terms and conditions. Two of those terms and conditions, common to all those appointments, were, and here I quote from one of the appointment orders dated 11-11-1987.
Annexure A in Writ Petition No, 7772 of 1991, were mentioned at serial Nos. 2 and 4; they read: "2. The appointments are purely temporary as stopgap arrangement up to 31-12-1987 or till the arrival of a selectee from the Selection Board/Punjab Public Service Commission whichever is earlier.
4. Liable to termination at any time even within the period specific above (1) on one week's notice or payment of one week's salary in lieu thereof, without assigning any reason from either side."
' The period of their ad hoc appointment was extended from time to time. The authors of those orders were not consistent in the use of the language in which they were couched. For instance, by an order dated 25-3-1988 (at page 64 of Writ Petition No,2021 of 1991), the terms of the said appointment were extended "for a period of six months subject to the condition that the total service of ad hoc appointment does not extend one year on the same terms and conditions mentioned in their appointment orders till the arrival of selectee of the Selection Board/Punjab Public Service Commission". In the latter orders issued from time to time, the position was made clearer. To quote from one of them viz. Appointment letter dated 14-6-1988 at (page 66 of Writ Petition No,2021 of 1991), "consequent upon the approval of the Government of the Punjab, Education Department ..... .. ...The extension in the ad hoc appointment is accorded... ... .. ...For a period of one year subject to the condition that it does exceed one year from the date of their joining as Subject Specialist or availability of the Punjab Public Service Commission's recommended, whichever is earlier". The last time, the period of their appointments was. Extended was by a notification of the Government of the Punjab Education Department, dated 30-1-1990 (see Annexure 'K' in Writ Petition No, 2021 of 1991); that notification reads: "In exercise of his powers conferred on him under rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, the Governor of the Punjab is pleased to order the ad hoc appointments of the following Subject Specialists with immediate effect in various subjects given against their names, in BS-17 (Rs,2065--155--3925) for a period of six months or till the availability of a regular incumbent whichever is earlier as per terms and conditions prescribed under the rules."
' As there was no order further extending their period of appointment, the Director, Public Instructions (Schools), Punjab, sent a T.P. Message dated 23-12-1990 (see Annexure ' L' of Writ Petition No, 2021 of 1991) to all the Directors of Education (Schools), Punjab, saying that though the terms of appointments of the petitioners had expired, yet they are "being allowed to continue by the respective Heads of Institutions. This irregularity of their part is very objectionable and the Government have taken very serious note of it". The Director of Education (Schools), therefore, directed that "no Subject Specialist whose ad hoc tenure has expired, is allowed to continue working in the Institutions under your control".
3. The petitioners have challenged the direction, contained in the T.P. Massage dated 23-12-1990, by these petitions under Article 199 of the Constitution on various grounds, the relief sought being that this action is without lawful authority and is of no legal effect and that the petitioner be, to quote from Writ Petition No, 2021, "allowed to continue to work as Subject Specialists ...
4. It was contended and for this contention reliance was placed upon the extension orders such as the one dated 25-3-1988 referred to above, that as the Selection Board or the Punjab Public Service Commission has not selected a candidate, the petitioners are entitled to continue in service; that the Government now intended to appoint other persons on ad hoc basis to take the place of the petitioners and thus in removing the petitioners, the Government are acting unreasonably; that the petitioners are being removed from service without assigning any reason and in any case, they are being treated with discrimination contrary to Article 25 of the Constitution for some of the ad hoc appointees have been given by the Government an option to rejoin the service. It was argued that most of the petitioners have become over age for Government service and this was because they were allowed to continue in service and by removing them, the petitioners are being deprived of their source of livelihood and the students are being deprived of their services.
4-A. The learned Additional Advocate-General who appeared to oppose these petitions raised a preliminary objection and invited me to decide that objection first; that objection was based upon Article 212 of the Constitution. It was argued that the petitioners are in the service of Pakistan; that the matters raised in these petitions relate to the terms and conditions of their service and that their only remedy is before the Punjab Service Tribunal, established under Article 212 of the Constitution by the Punjab Service Tribunals Act, 1974, Article 212 of the Constitution reads:-- "212. Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:---
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court to Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matters which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other- than an appeal pending before the Supreme Court, shall abate on such establishment: ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal."
' The expression "Service of Pakistan:" is defined in Article 260 of the Constitution, to mean "any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly.....................
5. In pursuance of Article 212 of the Constitution, the Provincial Legislature of the Punjab enacted two Acts, namely the Punjab Civil Servants Act, 1974 and the Punjab Service Tribunals Act, 1974. The purpose of the Punjab Civil Servants- Act, 1974 was to regulate by law, the appointment to, and the terms and conditions of the services of the Province of the Punjab, and to provide for matters connected therewith or ancillary thereto. Section 3 of that Act provides the "that terms and conditions of service of a civil servant shall be as provided in this Act and the rules" and section 4 thereof enacts that "appointments to civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf". Section 10 of that Act reads:-- "10. Termination of service.---(1) The service of a civil servant may be terminated without notice:--
(i) during the initial or extended period of his probation: ' Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred and promoted on probation from one grade, cadre or post to another grade, cadre or post his service shall not be terminated so long as he holds a lien against his former post, grade, or cadre, and he shall be reverted to his former grade, or as the case may be, cadre or post;
(ii) if the appointment is made on ad hoc basis liable to termination on the appointment of a person on the recommendation of the selection authority, on the appointment of the such person.
(2) In the event of a post being abolished or number of posts in a cadre or grade being reduced the services of the most junior person in such cadre shall be terminated.
(3) Notwithstanding the provisions of subsection(1) but subject to the provisions of subsection (2), the service of a civil servant in temporary employment or appointed on ad hoc basis shall be liable to termination on thirty days notice or pay in lieu thereof."
' The expressions "ad hoc appointment "and "civil servant" have been defined in section 2 of the Act; the expression "ad hoc 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"; and the expression "civil servant" means "a person who is a member of a civil service of the province or who holds a civil post in connection with the affairs of the Province but does not include:
(i) a person who is on deputation to the Province from the Federation or any other Province or authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or (iii)
' The purpose of the Punjab Service Tribunals.Act was to "provide for the establishment of Service Tribunals to exercise exclusive jurisdiction regarding the matters relating to the terms and conditions of service in respect of the services of the Province of the Punjab and for matters connected therewith or ancillary thereto:.
6. The definition of the expression "Civil Servant" in the Punjab Service Tribunals Act, 1974 is the same as in the Punjab Civil Servants Act, 1974. Under section 4 of the Punjab Service Tribunals Act, "any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may within thirty days of the communication of such order to him ... ... ...Prefer an appeal to the Tribunal".
7. I agree that the question of this Court's jurisdiction under Article 199 of the Constitution must be decided before the petitioners are entitled to have the other contentions considered. The real question is whether this Court's jurisdiction under Article 199 of the Constitution stands excluded by Article 212 of the Constitution in such matters. This is so because the power conferred upon this Court under Article 199 of the Constitution is the power of judicial review; that power is a great weapon in the hands of Judges but "the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power", namely, the separation of powers between the Parliament, the Executive and the Courts. (See Nothinghamshire C.C. v. Secretary of State (1986) 1 All ER 199).
8. These observations, it may seem paradoxical, were made by a learned Judge of England which as is well-known has no written Constitution.
9. It is obvious that the words "notwithstanding anything hereinbefore contained' in Article 212 have reference, others, to Article 199 of the Constitution which confers the powers of judicial review upon this Court. (See Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lahore 545). If I may venture to quote from my judgment in Muhammad Asif v. Secretary to Government of the Punjab, C & W Department, Lahore and 4 others (1990 PLC (C.S.) 257) "the very jurisdiction that Article 199 confers upon the High Courts is the jurisdiction, among others, to declare that any act done or proceedings taken by person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect and when by another Article, namely, Article 212, the Constitution itself excludes the jurisdiction exercisable under Article 199, then the obvious intention is to exclude the jurisdiction to call an action or proceeding in question also on the ground that it is without lawful authority, that is, without jurisdiction". It was held in Islamic Republic of Pakistan v. Dr. Safdar Mahmood (PLD 1983 Supreme Court 100, 106) that "under the new scheme, the appointment of persons, and their terms and conditions in the service of Pakistan were to be regulated by the Civil Servants Act and any grievance arising in respect thereof was to be dealt with by a Service Tribunal, which was conferred wide powers to redress any wrong done to the civil servants". Under the new dispensation, it was held further "the Service Tribunal was made the sole arbiter of all disputes relevant to the terms and conditions of civil servants; the jurisdiction of ordinary Courts was excluded altogether in these matters" and hence the disputes relating to the service rights of civil servants were made the exclusive concern of the Service Tribunals. "The only limitation to their otherwise complete power in all such matters was that a right to this Court to grant leave to appeal in cases wherein it was satisfied that a substantial question of law of public importance was involved, was allowed by sub- Article (3) of Article 212 of the Constitution". In Saifullah v. Tariq Hussain (1991 SCMR 2027), also a case of ad hoc employees, it was held that if the matter relates to the terms and conditions of service, the jurisdiction of the High Court is barred under Article 212(3j of the Constitution.
10. It has been seen that the Punjab Service Tribunals Act, 1974 was enacted in pursuance of Article 212 of the Constitution. There is also no question that the petitioners are persons in the service of Pakistan, as that expression is defined in Article 260 of the Constitution, for they held posts or offices in connection with the affairs of the Province of the Punjab, and that they are civil servants within the meaning of the expression "civil servant" as defined in the Punjab Service Tribunals Act, 1974, for they were persons who held civil posts in connection with the affairs of the Province. It was argued that one of the questions requiring determination being whether the act of the Government is contrary to some of the fundamental rights enshrined in the Constitution, this Court and not the Service Tribunals under the Punjab Service Tribunals Act, 1974, has the jurisdiction. I, however, regard it as well-settled that the Administrative Court or Tribunal, established in pursuance of Article 212 of the Constitution, is competent to examine whether or not a law is void by reason of its conflict with the fundamental rights or is otherwise ultra vires or that the order made is mala fide or that a service rule is ultra vires of the law. (See Muhammad Hashim Khan v. Province of Baluchistan (PLD 1976 Quetta 59) approved in Iqbal Ahmad Khurram v. Government of Pakistan and others (PLD 1980 SC 153) or whether a particular order is with or without jurisdiction. (See Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lahore 545 at 565). Learned counsel for one of the writ petitioners Sh. Zia Ullah, Advocate, however, referred to section 3 of the Punjab Civil Servants Act, 1974 and argued that this is a case in which the terms and conditions of the petitioners' service were not provided in the Punjab Civil Servants Act, 1974 and the rules made thereunder but were provided in the appointment order itself. In his view, therefore, the petitioners had no remedy before the Punjab Service Tribunal. This contention does not, in my view, take into account the provisions of section 10 of the Punjab Civil Servants Act, 1974. As has been seen, under that section, the service of a civil servant may be terminated without notice if the appointment was made on ad hoc basis. By subsection (3) of that section, the service of a civil servant on ad hoc basis is liable to termiantion on 30 days' notice or pay in lieu thereof notwithstanding the provisions of subsection
(1) thereof. There is then rule 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. That rule empowers the appointing authority, if that be necessary in the public interest, to fill a post on ad hoc basis for a period not exceeding one year. We have seen that some of the extension orders (see for instance the one at page 106 of Writ Petition No, 2021 of 1991) were made expressly in exercise of the powers conferred under rule 22. I cannot agree, therefore, that the terms and conditions of the petitioners' service were not provided by the Punjab Service Tribunals Act, 1974 and the rules made thereunder. Kh. Saeed-uz-Zafar, counsel for some of the petitioners advanced the view that the petitioners are not civil servants within the meaning of the Punjab Civil Servants Act, 1974 because they were employed on contract. His contention too was based upon the fact that the terms and conditions, on which the petitioners were appointed, were detailed in the appointment orders. His contention, therefore, was that as the petitioners are not civil servants, they cannot approach the Service Tribunal. It seems to me fairly clear that all powers of appointment are derived from the Punjab Civil Servants Act and as there are provisions in that Act and the rules made thereunder expressly providing for persons appointed on ad hoc basis, I cannot think that merely because some of the terms and conditions were mentioned in the appointment orders, that made the petitioners contract employees.
11. But assuming that the petitioners were not civil servants and that the relationship between them and the Government was contractual relationship, then that would make this case one of master and servant. "The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract, he must pay damages for breach of contract. So, the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defense it depends on whether the facts emerging at the trial prove breach of contract." (See Ridge v. Baldwin and others (1964 AC 40 at 65). It should follow, therefore, that if the true relationship between the petitioners and the Government is contractual, then the proper remedy for the enforcement of the obligations is a suit for damages and Article 199 of the Constitution is not the appropriate remedy. Mr Ahmed Bilal Sufi, Advocate, appearing for some of the petitioners argued that as the appointment of the petitioners did not fulfill the requirements of rules 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, they are not civil servants. The answer is provided by Ghulam Sarwar v. Province of Punjab (1982 SCMR 46). There also the contention was that the normal rules of appointment had not been followed; it was held that the appointment had been made on compassionate ground it was expressed to be ad hoc and that simply by lapse of time, such an appointee could not become regular. In that case, the petitioner before the Supreme Court had not been given a month's notice as was required to be given while terminating the services of an ad hoc appointee; it was held that this requirement of law was not an alternative in the absence of such a notice.
12. It remains to be observed that ad hoc employees of the Government have always been treated as civil servants within the meaning of the Punjab Service Tribunals Act, 1974. In this connection, reference may advantageously be made to cases reported 1985 SCMR 1408, 1983 SCMR 859, 1982 SCMR 408, 1981 SCMR 469, 1982 SCMR 46 and 1991 SCMR 2027.
13. Learned counsel for the petitioners cited some Single Bench cases of this Court, including Sh.
Mudassar Ahmed v. Government of Pakistan (1991 PLC (C.S.) 1047) Malik Muhammad Hand v.
Government of Punjab (1991 PLC (C.S.) 1104), but in view of the law laid down by the Supreme Court in the above cited cases, these need not detain us. Some cases from the Indian jurisdiction were also referred to by. Kh. Saeed-uz-Zafar, Advocate but it appears that there is no provision in the Indian Constitution such as Article 212 of our Constitution.
14. The ground that the action of the Government is without jurisdiction and mala fide was advanced to contend that this Court's jurisdiction under Article 199 is available. This contention assumes, and wrongly in my view, and is also tainted by the perennial fallacy that an order without jurisdiction is not an order for any purpose or is legally non-existent for the purposes of appeal. This is not so. (See Kafi Forfie case (1958) AC 59 and Calvin v. Carr - (1979) All ER 440). Then, the question of adequacy or inadequacy of the remedy of appeal arises under Article 199 of the Constitution, but where, as here, this Court has no jurisdiction under that Article, that question does not arise.
15. For these reasons, I hold that the jurisdiction of this Court under Article 199 of the Constitution stands excluded by Article 212 of the Constitution. The petitions are dismissed but the parties are left to bear their own costs.