' This judgment shall decide Writ Petitions No,144 of 1998, 1660 of 1998, 1709 of 1998, 339 of 1999, 391 of 1999, 405 of 1999, 1936 of 1998, 1758 of 2000, 2443 of 2000 and 2098 of 2000 as common questions are involved.
2. The petitioners in all these cases were appointed on ad hoc basis in the respective Departments of the Federal Government. The matter of regularization of their service came under considerations. Vide Letter No,2/3/94-CP-5 dated 21-10-1997 of, the Government of. Pakistan, Cabinet Secretariat, Establishment Division, addressed to the Secretary of the Federal Public Service Commission, Islamabad, the following formula was devised:--
(1) Cases of ad hoc appointees who were fully qualified and recruited after properly following the prescribed procedure including invitation of applications through advertisement and observance of Provincial quotas were to be referred to the FPSC for confirmation;
(ii) Cases where the prescribed procedure in terms of qualifications, observance of Provincial quotas and invitation of applications through advertisement, etc. Were not observed while making the recruitment, such appointees will appear alongwith fresh candidates before the F.P.S.C. For selection. To enable such ad hoc appointees to appear before the F.P.S.C. As they may have crossed the prescribed maximum age limit for a particular post, the appropriate age relaxation may be allowed through an amendment in the relevant S.R.O.
3. Initially the said formula was to be applied in cases of ad hoc employees recruited during the period October, 1981 to December, 1990 and then this period was fixed at October, 1981 to 1995.
4. The persons falling in either of the said two categories will be referred to as category (1) and category (11).
5. Before I proceed further I may state here that according to the agreed statement of the learned counsel for the petitioners in Writ Petition No,144 of 1998 and the learned Law Officer, out of 31 petitioners named therein, 10 stand regularized, one has died, eight have been terminated while four have left or resigned. This leaves only eight petitioners in the said Writ Petition No,144 of 1998 whose cases need to be considered, These are petitioners No,1, 2, 3, 4, 6, 8, 11 and 21.
6. Dr. G.S. Khan, Advocate, who led the arguments in all these cases, contends that in terms of section 2(1) (a) of the Civil Servants Act, 1973, "ad hoc appointment" means appointment of a duly qualified person made otherwise than prescribed method of recruitment, pending recruitment in accordance with such method. Further refers to section 2(2) of the said Act to state that for the purposes of the said Act, an appointment, whether by promotion or otherwise, shall be deemed to have been made on regular basis if it is made in the prescribed manner. Learned counsel contends that the said categorisation constitutes an act of discrimination inasmuch as if a duly qualified person has been appointed on ad hoc basis then both of them will be suffering from the same irregularity i,e, having not been appointed in accordance with Par III of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and this being so, the petitioners in these cases not falling under category (i) have been deprived of the opportunity of consideration of their cases by the F.P.S.C. For regularization/confirmation for no fault attributable to them. Reliance has been placed upon a judgment dated 27-10-1999 of this Court in Writ Petition. No,2087 of 1999, the case of Dr. Naveeda Tufail and 72 others v. Government of Punjab and (2003 PLC (C.S:) 69 and a follow up of the said judgment in order dated 24-4-2003 of the Hon'ble Supreme Court of Pakistan, in, inter alia, Cr.Org. P.13 of 2003.
7. Learned Deputy Attorney General for Pakistan vehemently argues that only a duly qualified person with reference to the date of his ad hoc appointment can be considered. Further contends that the said categorisation is intelligible and has rationale inasmuch as a distinction is sought to be made between duly qualified persons appointed after observing formalities and such persons who are not so qualified and have further been appointed without observance of formalities.
8. I have examined these cases in the light of the respective submissions of the learned counsel for the petitioners and the learned D.A.G. I have already reproduced the relevant portion of the impugned letter dated 21-10-1997 above. Now I may state the basis of the categorization as is apparent upon a reading of the said letter:-- (a)(I)Fully qualified ad hoc appointees recruited after, inter alia, invitations of applications through advertisement and observance of Provincial Quotas.
(b)(II) Appointees lacking in qualification appointed without observance of the said two conditions.
9. Now so far as the question of duly qualified or lacking the requisite qualifications at the time of ad hoc appointment is concerned, I am in full agreement with the learned Deputy Attorney General that these two constituted an intelligible differentiate having rational with the exercise to be undertaken by the Government. However, so far as the observance of quota or invitation of applications through advertisement are concerned, to my mind the said appointees have nothing to do with the same. It was far the Appointing Authorities to observe the said formalities and in case there is lapse on their part the duly qualified appointees cannot be allowed to suffer for the same when the cases are being sent for consideration to the F.P.S.C.
10. Another aspect which is evident in most of these cases is that the ad hoc appointees were allowed to continue indefinitely. I am told that at the time the appointments were made and further when these were allowed to continue, there was no "pending recruitment" within the meaning of the said section 2(1)(a) of the Civil Servants Act, 1973. In these circumstances the observations made by the Hon'ble Supreme Court in the said case of Dr. Naveeda Tufail and 72 others, and further in the said order dated 24-4-2003 in the matter of implementation of the same, fully apply to the present case.
11. I may further note here that the F.P.S.C. Itself expressed reservation rather lodged a protest on the said categorizations vide letter dated 13-9-1995 addressed to the Establishment Division. I may re- produce here the following excerpt from the said letter. In para. 3 it has been stated:-- "As for the status of ad hoc appointees, the Commission treat them all on an equal footing because none of them has been appointed on the advice of the Commission and all of them are now to be regularized by the Commission regardless of the category in which they have been listed."
Following advice was tendered:-- "It is advised in view of the foregoing that in the interest of equal opportunity and an even-handed treatment to ad-hoc appointees, the Government may re-consider their formula for regularization conveyed vide Establishment Division's above referred letter. An expedient and convenient one- time method which can be adopted for this purpose is to refer the cases to the Commission through the President by invoking the provisions of section 23 of the Civil Servants Act, 1973 read with section 7(b) of the F.P.S.C. ' Ordinance, 1977 for regularization of all ad hoc employees appointed so far.
12. Now it will be seen that whether it is category (I) or it is category (II) the ultimate decision is to be made by the F.P.S.C. After considering the cases of the ad hoc appointees. However, the Federal Government has taken upon itself to make the employees in category (II) to compete with the fresh candidates before the F.P.S.C. For selection. In my humble opinion, there is no justification whatsoever for this discriminatory treatment. As stated by me above; none of the ad hoc employees irrespective of the said categories has been appointed in the manner prescribed (Part,III of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973). I am told that Arif Muhammad Qazi petitioner No,1, in fact, falls in category (I) but was considered by the F.P.S.C. And his case was rejected. This will show that notwithstanding the said categorizations the decision ultimately lies with F. P. S. C.
13. In view of the above discussion I dispose of all these writ petitions with the direction that cases of all the said petitioners who were duly qualified for appointment to their respective posts at the time of their appointment shall be sent to the F.P.S.C. Irrespective of the said categorizations and it will be for the F.P.S.C. To consider all the cases and to take a decision in the matter. In case any difficulty is felt, the matter can be referred to the President in terms of section 23 of the Civil Servants Act, 1973. No orders as to costs.