' ANWAR ZAHEER JAMALI, J.---This Constitutional petition has been preferred by the petitioner Altaf Qureshi for seeking following reliefs from this Court:--
(a) declare that the petitioner is entitled to be regularised under Sindh Civil Servants (Regularisation of ad hoc Appointment) Act, 1994 having been appointed in 1992.
(b) declare that the qualification of M.A. As prescribed after the appointment of the appellant are not applicable to the petitioner as the same were not the conditions at the relevant time of his appointment though he has passed his M.A. Examination as per directions of the Special Committee and even now is qualified in accordance with the subsequent amended rules of recruitment."
2 The relevant facts as disclosed in the petition are that the petitioner, who as per his educational qualification is a B.A. And LL.B., applied for the post of Assistant Director, Culture Tourism Sports and Youth Affairs Department, Government of Sindh. After interview vide order dated 2-7-1992 he was appointed as Assistant Director on ad hoc basis for six months on the terms and conditions contained in the said order. This period of ad hoc appointment was later on extended for two years.
At the time of such appointment of the petitioner, there were no rules of recruitment in the department. However, vide notification dated 21-4-1994 for the first time, method, qualification and other conditions for such appointment were laid down according to which minimum educational qualification of Assistant Director BPS-17 was prescribed as M.A. In find Division.
3. On 28-7-1994, with the object of regularisation of services of civil servants appointed on ad hoc basis in various departments of Government of Sindh, Act XIX of 1994 the Sindh Civil Servants (Regularisation of ad hoc Appointments) Act, 1994 (hereinafter referred to as the Act of 1994) was passed by the Government of Sindh.
4. When the case of the petitioner was placed before the Special Committee appointed by the Government for this purpose the petitioner was found lacking in his educational qualification being not. M.A. The Special Committee, however, recommended the case of the petitioner for extension of the terms of his ad hoc appointment and accordingly notification dated 1-10-1995 was issued by the Government of Sindh whereby period of ad hoc appointment of the petitioner was further extended up to 21-3-1997 and he was required to acquire requisite qualification of post. In the year 1996 the petitioner bleared his M.A. Examination in I-Division and thus, became qualified for the post held by him on ad hoc basis. On 31-1-1999 he made representation seeking his regularisation, however, despite that case for regularisation of his services under the Act of 1994 was not finalised giving him a cause of action for filing of the present petition.
5. The respondents Nos.1 and 2 filed their separate parawise comments to this petition wherein they stated that the Chief Minister Secretariat forwarded the application of the petitioner to the concerned department requesting therein for his appointment on the aforesaid post. In compliance of such request summary was floated, specifying M.A. In IInd Division as qualification for the post but thereafter in relaxation of the rules, the petitioner was appointed on ad hoc basis.
The respondents further stated that the rules framed on 21-4-1994 were very much applicable to the case of the petitioner for the purpose of regularisation of his service, and as admittedly the petitioner was not holding the requisite educational qualification i,e, M.A. In IInd Division, he was not entitled for regularisation under the Act of 1994. The respondents also stated that the representation dated 31-1-1999 made by the petitioner was turned down by the Chief Secretary Government of Sindh on 4-2-1999 and thereafter the petitioner preferred an appeal before the Sindh Service Tribunal at Karachi. The respondents reiterated that the crucial date for examining the case of regularisation of the petitioners services within the scope of Act of 1994 was 28-7-1994, when the said Act was passed by the Government, admittedly at that time petitioner was lacking in qualification and, therefore, the case of the petitioner was not the one which could have been regularised under the Act of 1994 and thus, the petition is liable to be dismissed.
6. We have heard Mr. Abdul Ghafoor Mangi, Advocate for the petitioner and Mr. Muhammad Qasim Mirjat, Assistant Advocate General for the respondents.
7. Learned counsel for the petitioner mainly contended that the ad hoc appointment of the petitioner was made on 2-7-1992 and at that time no rules of recruitment and appointment in respect of the post held by the petitioner were framed. For this reason the rules of recruitment framed on 21-4-1994 were not applicable in the case of the petitioner and thus, the petitioner was entitled for regularisation of his service under the Act of 1994. Learned counsel further contended that in any case vide notification dated 1-10-1995 the ad hoc appointment of the petitioner was extended upto 21-3-1997 and further he was asked to acquire requisite qualification for his post which he did acquire by passing M.A. Examination in the year 1996 and, therefore, the petitioner is now entitled for the relief claimed in the petition.
8. Mr. Muhammad Qasim Mirjat, Assistant Advocate-General appearing in this case on behalf of respondents did not seriously oppose this petition though in the comments both the respondents have strongly resisted this petition. We are unable to understand such conduct of the learned Assistant Advocate-General which cannot be appreciated.
9. We have carefully considered the arguments advanced before us and perused the material placed on record by the parties.
10. In the instant case it is an admitted position that initial appointment of the petitioner was made by the Government of Sindh under the directions of the then Chief Minister in relaxation of the rules and also in relaxation of the required qualification as specified in the summary submitted by the Chief Secretary to the Chief Minister, mentioning therein the minimum qualification for such post as M.A. In IInd Division. It is also an admitted position that till the enforcement of Act of 1994 with effect from 28-7-1994 petitioner was not holding the requisite qualification i,e, M.A. II-Division for the post on which he was working as an ad hoc appointee. It is pertinent to note that the rules for appointment of such post and prescribed qualifications were notified by the Government on 21-4- 1994 before the enactment of Act of 1994 and thus, the same were very much applicable to the case of the petitioner. The petitioner cannot validly claim immunity from such rules on the pretext that at the time of his initial appointment such rules were not in force. Learned counsel for petitioner in his arguments had referred the notification dated 1-10-1995 issued by the Government of Sindh whereby the ad hoc appointment of the petitioner was extended upto 21-3-1997 and further he was required to acquire requisite qualification of his post on the recommendation of the Special Committee. In order to examine the powers of the Special Committee in such matters and to see as to whether Special Committee could issue such recommendations, it will be useful to peruse the relevant sections of the Act of 1994 specifying such powers of the Special Committee, same are reproduced as under:-- "3. Regularisation of services of certain civil servants.--(1) Notwithstanding anything contained in the Act or rules thereunder, or in any decree order or judgment of a Court, but subject to other provisions of this Act a civil servant holding ad hoc appointment against a post in BPS-16 or above and is in employment on the commencement of this Act shall, on orders made in this behalf, be deemed to have been validly appointed to that post on regular basis with effect from the date of the commencement of this Act.
(2) The orders under subsection (1) shall not be made unless antecedents of such civil servants, his academic qualification experience, age and place of domicile are scrutinized and cleared by a Special Committee appointed by Government.
(3) The Special Committee under subsection (2) shall be headed by the Secretary Incharge of the Department concerned and amongst others shall consist of a representation each from that Department and the Services and General Administration Department.
(4) Where the Commission, has recommended person for appointment to a post in a cadre service before the commencement of this Act such person may be accommodated."
11. A plain reading of above provisions of the Act of 1994 would show that the Special Committee appointed under the Act was formed for a limited purpose, as underlined above. It was thus, beyond the powers and jurisdiction of such Special Committee to issue recommendations for .Extension of period of any ad hoc appointment or to allow him any further time for acquiring the requisite qualification. With reference to the notification dated 1-10-1995 it is also pertinent to note that under the same notification the persons at Serial Nos.4, 5 and 6, who were holding posts under BPS-17 and BPS-18 on ad hoc basis were terminated from service w,e,f, 2-10-1995 due to lack of qualifications and in their case no such recommendations for extension of time or any opportunity for acquiring the requisite qualification was afforded to them. This was a clear instance of discriminating attitude followed by the Special Committee as well as, the respondent No, 1 . In any case, as observed above, the Special Committee constituted under the Act of 1994 had no jurisdiction to extend time in any individual case for acquiring requisite qualification. According to the spirit of the Act crucial date for examining the case of each ad hoc civil servant for regularisation under the Act of 1994 was 28-7-1994 on which date admittedly the petitioner was not holding the required qualification. It will not be out of place to mention here that the petitioner, who is an ad hoc appointee despite non-regularisation of his service under the Act of 1994, still appears to be in service, initially under the blessings of the respondent No,1 who extended period of his ad hoc appointment from time to time and thereafter on the strength of statutes quo order passed in this petition on 14-10-1999 although his continuance in service in this manner is wholly against the directions/observations of the Hon'ble Supreme Court of Pakistan in the matter of Abdul Jabbar Memon and others 1996 SCM R 1349 which reads asunder:-- ' While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitment, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointment into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice t^ all concerned and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith.
' Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement.
12. The apex Court reaffirmed the above view in the case of Mushtaq Ahmad Mohal v. Hon'ble Lahore High Court, Lahore 1997 SCM R 1043 in the following words:-- "17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government setups/institutions."
13. Examining the merits of the relief claimed by the petitioner from another angle the definition of ad hoc appointment as given under section 2(1)(a) of the Sindh Civil Servants Act, 1973 is also relevant, same is reproduced as under: "2. Definitions.--(1) In this Act, unless there is anything repugnant in the subject or context:--
(a) 'ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method.'
14. From the perusal of above definition, it is clear that the powers of ad hoc appointments have been conferred basically as a stop-gap arrangement pending recruitment on the post in accordance with method prescribed under the law. In such circumstances practice of repeated extension of term of ad hoc appointment, as has been done in the case of the present petitioner, cannot be approved as such practice if continued will divert the course of regular appointments in accordance with law and the same will also be violative of the spirit of Articles 18, 25 and 2A of the Constitution-of Islamic Republic of Pakistan, 1973. As a matter of fact, with reference to the Articles of the Constitution, as referred earlier, the validity of the Act of 1994 itself is doubtful. However, as this legal aspect is not an issue before us, we deem it proper not to dilate upon this legal aspect here and leave it open to be decided in some proper proceedings when such question may arise.
In any case the petitioner cannot claim any vested right in his favour on the basis of his ad hoc service for any period which was even otherwise not according to law.
15. In addition to the above, perusal of reply of paras. 9 and 11 of the petition submitted by respondents, which have not be disputed by the petitioner, would show that the petitioner has not approached this Court with clean hands as at the time of filing of present petition, he suppressed the fact that his representation/application for regularisation submitted to the Chief Secretary on 31-1-1999 was disposed of by the Chief Secretary vide his order dated 4-2-1999 and thereafter the petitioner also preferred an appeal before the Sindh Service Tribunal at Karachi on 12-5-1999, being Appeal No,149 of 1999. Even if the petitioner had preferred such appeal after filing of his petition he should have unfolded this fact before this Court thereafter, but he did not care to do. As the petitioner has already availed a remedy available to him under the law, on this ground also this petition is liable to be dismissed.
16. The upshot of the above discussion is that the petitioner is not entitled for any relief prayed in this petition and, therefore, this petition is dismissed in limine with costs.
' A copy of this judgment be sent to the Chief Secretary Government of Sindh for his future guidance with specific reference to the contents of paragraphs 11 and 14 of this judgment.