' RIAZ KAYANI (CHAIRMAN).---We intend to dispose of 114 appeals out of which 102 appeals have been brought by the ad hoc Lecturers whereas 12 appeals have been filed by the Subject Specialists also ad hoc appointees, through this single judgement since common questions of facts and of law are involved. Details pertaining to the number of appeals assigned, names of the appellants and the counsel representing them are mentioned in Appendix A attached to this judgment.
2. All the appellants were appointed on ad hoc basis, of course by a Selection Board comprising of Chairman and Members who were Subject Specialists and a definite criterion was adopted for awarding marks for qualifications as well as for interview. The tenure of ad hoc appointees, was extended from time to time till 5th August, 2000, when the impugned order terminating their appointments was passed by Special Secretary Higher Education, Government of the Punjab, Lahore. For facility of reference, the order which is short in tenor is reproduced as under:-- "Director of Public Instructions (Colleges) and the Directors of Education are already in the know of the fact that the terms of appointment of the ad hoc lecturers has expired on 30-6-2000; meaning thereby that they are no more- on the strength of the Education Department.
' In view of the above, arrangements may be made in such a way that the teaching process is not disturbed in the colleges when they reopen after the summer vacation. Directors may make adjustments within their Divisions for this purpose, if need be."
' After service of this general order upon the appellants, they lost no time in resorting to a two pronged remedy, first by making departmental representation to the Governor of Punjab highlighting, that having served the department for more than a decade, in some cases, without there being any complaint of any kind from any quarter, they cannot be thrown out in an unceremonious manner, without providing them an opportunity of hearing. Other remedy recoursed to was invoking the Constitutional jurisdiction of the Lahore High Court through a number of writ petitions. A Full Bench constituted by the Hon'ble Chief Justice, consolidated the writ petitions and through a single judgment pronounced in Writ Petition No,16955/2000, dismissed the various pleas raised by the appellants/writ petitioners on 17-10-2000. It may be relevant at this juncture to mention that the main stay of the dismissal order was the bar of Article 212 of the Constitution to give relief to the writ petitioners simultaneously, directing them to knock the door of the Punjab Service Tribunal to seek redress of their grievance. Not being satisfied, appellants filed a number of petitions for Special Leave to Appeal before the Hon'ble Supreme Court of Pakistan.
Once again before the apex Court, the petitions were consolidated and through a single judgment, after hearing the parties, the same were dismissed on 20th June, 2001, upholding the' views expressed by the Lahore High Court that the proper forum to agitate the grievance was the Service Tribunal.
3. Hafiz Tariq Nasim, learned counsel for the appellants in a number of appeals opened the arguments after other learned counsel representing various appellants agreed to the arrangement that the arguments shall be addressed by Hafiz Tariq Nasim and they would only add to his arguments on an issue which was in addition to the points canvassed by the learned Advocate mentioned.
4. Learned counsel at the very outset contended that vide notification issued by the Chief Secretary, Government of the Punjab, dated 28th January, 1996, unequivocally in unambiguous terms declared his intention that the Government of the Punjab was pleased to direct that all employees appointed on ad hoc basis in the Punjab should be regularized against the available vacancies. The order now impeached dated the 5th of August, 2000, severely undermined the impact of the referred notification of 28th January, 1996. This clash between the impugned order that the said notification, equipped him with the arguments that the respondents cannot approbate and reprobate as such, as course of action deprecated by the Supreme Court in a number of judgments. A few of them relied upon was the case of Chairman, Minimum Wages Board, Peshawar and another v. Fiaz Khan Khattak reported in 1999 SCMR 1004 which elaborated the rule that the authorities could not approbate and reprobate in the same breath about the same matter and having regularized the services of civil servant could not take the plea that he was ad hoc, temporary employee, whose service could be terminated. Reliance was also placed on the case of Jehangir Mirza, Senior Superintendent of Police, Lahore and others v. Government of Pakistan in PLD 1990 SC 1013 and Muhammad Raza Mehdi v. The Vice Chancellor/Chairman Syndicate N.E.D. University of Engineering and Technology, Karachi, and others reported in 1998 PLC
(CS) 1260.
5. Arguments though forceful apparently got demolished by the production of clarification issued by the Government of the Punjab, Services and General Administration Department-Cabinet Wing, dated 15th February, 1996, which reads as under:-- "SUBJECT: ADHOC APPOINTMENTS.
' Sir, ' I am directed to refer to the subject cited above and to state that Notification No,CAB-1/2-8/82, and another notification of even number dated 28-1-1996 having the same contents conveying the directions to regularize all the employees appointed on ad hoc basis in the Punjab have been brought to the notice of the Government of the Punjab.
2. I am to clarify that the Cabinet Wing, SGA&I Department, Government of the Punjab has not issued any such directions. The contents of the aforesaid notification are without lawful authority and are forged and as such should not be complied with.
3. Needless to say that any action taken in pursuance of the aforesaid forged notifications is without lawful authority. Orders issued under them, if any, should be withdrawn forthwith.
4. The Superintendent, Government Printing Press is requested not to print/publish the aforementioned notifications."
6. Learned counsel for the appellants did not repudiate the Circular dated 15th February, 1996, rather kept mum once it was read before him. We shall not advert to this issue any further as the so-called notification dated the 28th January, 1996, is to be considered as non-existent.
7. Second argument canvassed by the learned counsel for the appellants was the main stay of his whole case, as such, requires close exegesis and attention. It was stated by him that the ad hoc employees had to continue in service till regular selectee was available after his appointment by the competent authority and that eventuality having not arisen impugned order is bad in law and requires to be set aside. Elaborating the arguments, learned counsel referred to section 10 of the Punjab Civil Servants Act, 1974. In order to appreciate the contents of the provisions of law quoted, it is reproduced as under:-- "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 49 (service) cadre or post to another 50 (service) cadre or post his Service shall not be terminated so long as he holds a lien against his former post, 52 (service), 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 such person.
(2) In the event of a post being abolished or number of posts in a cadre or 53 (Service) being reduced the services of the most junior person in such cadre or 54 (service) 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 appointment on ad hoc basis shall be liable to termination on thirty days' notice or pay in lieu thereof."
' Stress of the learned counsel was on section 10(1)(ii) to state that appointment on ad hoc basis can only be terminated on the appointment of a person on the recommendations of the selection authority and in this regard quoted the following precedent cases in support of his proposition:-
(a) Secretary to Government of the Punjab, Agriculture Department, Lahore and 4 others v. Sheikh Naveed Kamal, Assistant Research Officer 2001 SCMR 1661.
(b) Ishtiaq Hussain v. Secretary Agriculture Department, Government of the Punjab, Lahore, and another PLJ 1996 Tribunal Cases Service 32.
(c) Asad Ullah Munir Tarar v. Chief Engineer, Irrigation Development Zone, Lahore 1995 PLC (C.S.)
938.
(d) Muhammad Ayub v. Secretary to Government of the Punjab, Agriculture Department, Lahore 1995 PLC (C.S.) 428; and finally
(e) Imran Ahmad v. Secretary to Government of the Punjab, Agriculture, Lahore 1995 PLC (C.S.) 611.
' The ratio decidendi of all these cases was that the appointment of an ad hoc employee can be terminated without notice on the arrival of the selectee/recommendee of the selection authority.
Taking his arguments to its logical conclusion, learned counsel submitted that neither any requisition was sent by the Government under rule 22 of the Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974, to the selection authority nor any selectee/recommendee was selected to fill in the posts held by the appellants. Therefore, through an omni bus order dated 5th August, 2000, heads of the appellants could not be placed on the chopping block until the procedure discernable in section 10(1)(ii) (ibid) was followed in letter and spirit. Conversely, learned District Attorney pleaded with vehemence that the ad hoc appointee had no vested right to stay in service for an unlimited period. He drew our attention to a requisition made by the Education Department to the Punjab Public Service Commission for about 1500 posts of Lecturer in various disciplines through a consolidated advertisement No,8/1998 and 1/2001, informing us that within a few weeks the selectees would be inducted in service. However, on a query we were told that the ad hoc appointees asked to pack-up and go home vide the impugned order numbered more than 4000.
8. The point being of utmost importance, we have given our earnest consideration. Although the terms and conditions of appointment of ad hoc employees present a rosy picture giving an open license to the Education Authority to terminate their services at any time without assigning any reason, not vesting them with any right till their selection by the Punjab Public Service Commission yet in the present case for all intents and purposes termination was' not made by invoking any condition of their appointment letters but strictly in accordance with section 10(3) (ibid). It is true that the impugned order may not have been captioned to be under the said provision of law but what we have to see is the tenor and spirit of the termination order. Adverting to the impugned order once again, the respondent, Secretary Education, addressing the Director Public Instructions (Colleges), Punjab, Lahore, and all the Directors of Education (Colleges) in the Province of Punjab reminded that the term of appointment of ad hoc Lecturers expired on 30th June, 2000, meaning thereby that they were no more on the strength of the Education Department and exhorting them to make alternate arrangements on the re-opening of the educational institutions after the summer recess comes to an end in such a manner that teaching process is not disturbed. Now subsection (3) of section (10) (ibid) clearly over rides subsection (1) and subsection (2) of the main section by the insertion of the words "notwithstanding the provision of subsection (1) service of employees on ad hoc basis shall be liable to termination on 30 days' notice or pay in lieu thereof."
9. In a more recent judgment of the apex Court in the case of Chief Secretary, Government of the Punjab, Lahore and another v. Abdul Majid reported in 2001 SCMR 1971 while interpreting the provision of section 10 of the Punjab Civil Servants Act, 1974, their Lordships held as under:- "7. A perusal of section 10(1)(ii) of the Punjab Civil Servants 'Act indicates that the appointment made on ad hoc basis is liable to be terminated on the appointment of a person on the recommendations of the Selection Authority. However, if this provision is read alongwith subsection
(3) we feel no difficulty to conclude that the services of the ad hoc appointee can be terminated even before the appointment of a person on regular basis against the recommendations of the Selection Authority, however, subject to notice of 30 days or pay in lieu thereof. It may be noted that as far as ad hoc appointee is concerned he enjoys no vested right in the service till the time no selection on regular basis on the post against which he is working is made by the Selection Authority. Because an ad hoc appointee at the time of induction in service accepts the condition that his services can be terminated at any moment even before the expiry of the period for which an appointment has been made."
' It would be worth while to glean through the terms and conditions of their appointment manifested in their appointment letters at the time of induction in service on ad hoc basis:--
(i) In a purely temporary capacity for a period not exceeding one year and shall automatically be terminated on the expiry of the said period of one year unless extended by prior order/on the arrival of Selecttee of the Punjab Public Service Commission whichever is earlier or upto the date on which permanent incumbent of the post resume duty.
(ii) Notwithstanding the condition (i) above the appointment, is subject to the revocation at the discretion of the Government.
(iii) Liable to termination at any time, even within the period specified in (i) without assigning any reason from either side.
(iv) You will have to compete before the Punjab Public Service Commission with other candidates in accordance with the Rules, as and when the post is advertised by the Commission, if you do not compete before the Commission no extension would be granted in ad hoc appointment.
' After having accepted the above conditions, it is too late in the day for the appellants to take a somersault that they are entitled to remain in service till regular selection of candidates to be posted against the posts now held by them are made. In the celebrated judgment mentioned, their Lordships referred to the case of Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another reported in 1985 SCMR 1408 wherein it was held as under:-- "5. The rules prescribed for recruitment provided not only qualifying marks in individual subjects but also in the aggregate. By not obtaining qualifying marks in the aggregate the petitioners failed to obtain entry according to the prescribed method. The prescribed rule was neither relaxed nor changed, either expressly or by implication. Instead their appointment was taken and expressed to be otherwise than in accordance with the prescribed rule i,e, ad hoc, on terms reproduced. The termination of their service was in accordance with the law applicable to ad hoc appointments and in accordance with terms and conditions on which they were appointed. They can take as many chances as they like, subject of course to their eligibility, but their insistence that their ad hoc appointment should be continued meanwhile is untenable. We find no merit in this petition and leave to appeal is refused."
' We were told during the course of arguments by the departmental representative that nearly all the appellants appeared before the Punjab Public Service Commission in examination conducted for regularization of their ad hoc appointments, some of them availed two/three chances, but failed to qualify. This stance was re-iterated in the comments submitted by Secretary Higher Education before this Tribunal. Another significant judgment dealing with ad hcc appointments is that of Muhammad Ashraf v. Government of the Punjab, reported in PU 1998 Tribunal Cases (Service) 77 by a Full Bench of the Punjab Service Tribunal, Lahore, wherein it was held that appellant having accepted ad hoc appointment on clear understanding that he has not acquired any vested legal right to hold appointment on a regular basis, could not agitate that his services cannot be done away with till selection of a regular incumbent as the wording of section 10(3) of the Punjab Civil Servants Act, 1974 over rides the provision of subsection (1) which envisages the arrival of a selectee.
10. It is now well-settled law that any appointment to a public office should be through a transparent process by advertising the posts in newspapers of wide circulation enabling all and sundry possessing the requisite (qualification to try their luck by submitting applications as required. Thereafter, an independent Selection Committee comprising of Subject Specialists is convened to pick-up candidates strictly on merits. After undergoing through the rigours of test and interviews, the selected candidates thereafter have to prove their fitness on medical grounds and it is only then, that the induction in service can be termed to be clean and honourable, in accordance with the fundamental right 18. In the illuminating judgment of Abdul Jabbar Mamon and others relating to Human Rights cases reported in 1996 SCMR 1349 the Hon'ble Supreme Court while enquiring into various complaints of violation of Fundamental/Human Rights found that Federal Government, Provincial Governments, Statutory Bodies and Public Authorities had been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising vacancies and at times by converting ad hoc appointments into regular appointments, held that such practice was prima facie violative of Fundamental Rights (Article 18) guaranteeing to every citizen freedom of profession. Supreme Court after notice to all concerned and after full hearing in the matter ordered that violation of such Fundamental Rights should be discontinued forthwith, so much so, authorities were directed to take immediate steps to rectify and reverse orders so as to bring such practice in accord with the Constitutional requirement.
11. The resume of the discussion leads us to an inevitable conclusion that an ad hoc employee has no vested right to continue in service, till the arrival of a selectee as section 10(3) (ibid) is of over- riding nature and can be used, as in the present case, to terminate the service either on one month's pay or on 30 days' notice. The appellants were also bound under the express stipulation entered with the respondents at the time of their induction, one of them being that on the expiry of initial or extended tenure of ad hoc appointment they can be asked to quit. Appellants cannot renege on the conditions on which they accepted their ad hoc appointments. The impugned order, therefore, does not suffer from any illegality.
12. Another argument raised by the counsel for the appellants was that the impugned order violated Article 25 of the Constitution of Islamic Republic of Pakistan inasmuch as the appellants have been discriminated by terminating their services through the impugned order whereas similarly placed Lecturers working on ad hoc basis were regularized in some cases by the Governor, Punjab, and in other cases by the Chief Minister, Punjab, so much so that even the Education Secretary intervened to convert the temporary appointment on ad hoc basis to regular appointment. This rank discrimination, it was submitted, cannot at all be countenanced in law being violative of the fundamental rights guaranteed under the Constitution. Learned counsel in this context has appended an undated notification issued by the Governor of the Punjab regularizing w,e,f, 1-9-1972, appointment of ad hoc Lecturers serving in P.E.S.I. (Collegiate Branch Men Section) of Rawalpindi Region. Another Notification dated 29th June, 1989, by Education Secretary, Government of the Punjab, on the advice of the Chief Minister, Punjab, regularized the services of an ad hoc Lecturer in Urdu, Miss Tanveer Firdous, serving in Government Girls Inter College, Ghulam Muhammad Abad, Faisalabad, in relaxation of rules regarding procedure, age and qualifications as a special case with immediate effect. Before we proceed further relaxation of qualification has been held to be abhorrent and no such powers vests with any authority.
Three/four other such instances have been quoted and we need not go into further details as the point made out is decipherable for effective adjudication. Undoubtedly, class discrimination without reasonable classification has always been looked down by our superior Courts and without any demur or reticence has been set at naught. However, in order to plead ground of discrimination, the appellant must show that the cases selected for comparison were out come of legal orders. Regularization of an ad hoc appointee can only be resorted to under the provision of rule 22 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, which require forwarding of a requisition by the appointing authority to the selection authority, who fall back on their own mechanism of appointment. In the present case as incorporated in the terms and conditions of the appellants, regularization of their appointment was to be through Punjab Public Service Commission and as a matter of fact, the appellants did make attempts to go through the rigours of the mode of selection but failed. Rule 23 (ibid) only the Chief Minister to relax any one of the Rules but that too in an individual case of hardship by giving special reasons. No such case has been shown to us and neither the disability of any of the appellant as envisaged under rule 23 has been pointed out. The case law cited by the learned counsel for the appellant by reference to the case of Engineer Naraindas and another v. Federation of Pakistan and another (2002 SCMR 82) and the case of Government of Sindh v. Saleem Raza (2001 SCMR 701) proceeded on entirely different premises and, with profound respects, are not very apt tod be quoted in the present appeals as the facts are entirely different. To the contrary, the case of Abdul Wahid v. Chairman, Centeral Board of Revenue, Islamabad, reported in 1998 SCMR 882 clinches the issue by the mandate that mere fact that two persons had obtained certain advantage otherwise not admissible; could not constitute adequate ground for claiming similar advantage on the basis of discrimination.
13. Although we have came to the conclusion that there is no merit in the appeals brought by the appellants, yet we would like to answer a final argument addressed by the learned counsel. It was submitted by the counsel that while terminating the ad hoc appointments of the appellants, principles of natural justice were flagrantly violated, inasmuch as neither any show-cause notice was served upon the appellants nor an opportunity was provided before any authority to enable them to explain their case. Learned counsel in support of his arguments relied upon the case of Pakistan International. Airlines through its Chairman and others v. Nasir Jamal Malik and others (2001 SCMR 934 = 2001 PLC (C.S.) 890). The precedent case related to the employees of National flag career where their services were terminated according to their terms and conditions of service. The apex Court held that although the terms and conditions of their service were akin to the relationship of master and servant, yet they were entitled to a right to be heard to show that the master infringed the terms and conditions of service to the detriment of its employees. The point mooted by the learned counsel for the appellants is absolutely misconceived. Opportunity of hearing or for that matter the rule of audi alterm partem is only applicable where rights of an individual are affected in matters relating to person, property, service or reputation. The rule could have been successfully invoked if the respondents had resorted to the provisions of Efficiency and Discipline Rules for proceeding against the appellants on the ground of misconduct or inefficiency.
Nothing of the sort has taken place in the present appeals. The appellants were ad hoc employees, which we have held created no vested rights in their favour, and the impugned order, dated 5th August, 2000, desired not to extend their tenure any further by issuing direction to all concerned in the Education Department to make arrangements in their respective institutions for replacing the appellants with the teaching staff already on rolls so that the teaching process is not disturbed after the institutions opened at the end of the summer vacation. Letter impeached makes it abundantly clear that the action to be taken was not prompted by the removal of ad hcic lecturers on ground of misconduct or inefficiency. Therefore, no rights whether it be of property, person, service or reputation were ever affected. Our views get strengthened by the observation made by the Hon'ble Supreme Court in the case of Amjad Ali and others v. The Board of Intermediate and Secondary Education and others (2001 SCMR 125) and we would do no better but to reproduce a passage from the said judgment:-- "6. Learned counsel for the petitioners attempted to argue that Regulation No,12(2) of the Regulations; provided that services of a probationer could be terminated before the expiry of period of probation if his performance was not satisfactory and in these cases, the petitioners were not heard before the issuance of notice to them of termination of service to explain their position in the matter of satisfactory service. This argument has also no force. The petitioners were not dismissed from service with a stigma. It was a case of termination of service simpliciter before the expiry of period of probation by the Competent Authority. In such a case, it was not necessary to hear them. The termination of their service having been made in accordance with the terms and conditions of service as contained in their order of appointment and they having accepted the same, cannot now turn around and object if the said terms and conditions had been invoked."
' To quote yet another judgment countering the point tried to be built by the learned counsel is the case of Muhammad Ashraf v. Government of the Punjab, (PLJ 1998 Tribunal Cases (Service) 77), Relevant portion is quoted as under:-- "Learned counsel for the appellants lastly argued that the impugned orders of termination are illegal as the same had been passed without any notice, as required under subsection (3) of section 10 of Punjab Civil Servants Act, 1974."
' Repelling the arguments, it was held "ad hoc employee" is entitled to a month notice before termination of his services but in the absence of such a notice. His claim extends to a month's pay.
He could seek one month's pay from the appropriate authority and cannot, on that score avoid the termination of his ad hoc appointment." In the present appeals, impugned order was passed on 5th August, 2000, the appellant had through their own showing after getting the impugned order suspended in its operation first from the High Court and then from the Supreme Court have served for many more months than one single month.
14. Learned District Attorney at the fag end of the argument raised a half-hearted plea that the appeals were barred by time. It was stated by him that the original order terminating the services of the appellants was passed on 5th August, 2000, although the representation to the next higher authority was made on 19-8-2000 well within tine, the appellant should have invoked the jurisdiction of the Punjab Service Tribunal after the expiry of statutory period of 90 days if no order was passed by the appellate authority. Arguing further, learned District Attorney stated that the order rejecting the departmental appeals was passed on 9-7-2001, much after the expiry of statutory period of 90 days, as such, the appeals filed before the Punjab Service Tribunal on 13-7- 2001 were grossly barred by time and should be dismissed on this score alone. We do not subscribe to his views. After passing of the impugned orders, the appellants agitated their grievance first in the Lahore High Court and then in the Supreme Court of Pakistan. The rejection of the departmental appeal surfaced after the dismissal of petition for Special Leave to Appeal by the Supreme Court on 20-6-2001. In other words, the departmental appeals were kept pending till the final result of the litigation commenced by the appellants in the superior Courts. Appellants came within one month to the Service Tribunal from the date of rejection of their appeals on 9-7-2001. Even otherwise, law is now well settled by the judgment of Syed Firdose Ali v. Secretary, Establishment Division, Islamabad, reported in 1997 SCMR 1160 that either the appellant should agitate his grievance before Service Tribunal after waiting for 90 days from the date a departmental appeals is filed to enable the appellate authority in the department to pass necessary order and if such order is not passed then the appeal may be filed within next 30 days or at his own risk the appellant may file an appeal whenever the departmental appeal is decided within the next 30 days of the passing of the order. The objection that the appeals are time barred is over ruled.
15. No other point was mooted before us. The appeals brought, for the reasons given by us in detail, are devoid of merit, have not persuaded us to interfere in the impugned order. Therefore, all the appeals are dismissed leaving the parties to bear their own costs.
16. In any case before parting with the judgment, we may observe that at the time of admission of the appeals, it was brought to our notice that the Government in the Education Department have not paid the salaries to the employees/appellants for .The period they actually worked. We passed orders that the appellants be paid for the period after 5th August, 2000, in which they have actually worked, as firstly the High Court and then Supreme Court suspended the operation of the impugned order. The Education Department procrastinated the matter on one pretext or the other, till the date of final arguments, the order of payment of salary was not complied with. We had fixed the appeals for announcement of the judgment on 24-4-2002 but before we pronounced our verdict, Additional Secretary (Admn.) Higher Education Department, submitted before the Tribunal, a letter dated 24th April, 2002, addressed to the Accountant General, Punjab, and all District Accounts Officers in the Punjab directing them that in pursuance of the orders of the Tribunal, payment of arrears of pay to the ad hoc. Lecturers (Male/Female) for the period mentioned against each to be made. The learned counsel for the appellants, however, denied to have received any payment. The letter is issued on 24th April, 2002. We have been assured that the payment will be made in due course. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.