Find a Lawyer

Civil Petitions Nos. 918 and 919 of 1979, decided on 21st March 1981.

(On appeal from the judgment and order of the Service Tribunal dated 18th September 1979 in Appeals Nos. 94, 95 and 96 of 1979).

(a) Martial Law Instructions, 1977 (Regularisation of Ad Hoc Appointments) [M. L. A.. Zone A ]-

-- No. 21 read with Punjab Civil Servants Act (VIII of 1974), Ss. 2(1)(a) & 10-Ad hoc appointment-Termination of services Ad hoc appointments being not made in accordance With prescribed method of recruitment liable to be terminated in event of regularly recruited candidates bring available--Petitions appointment on condi tion of their services being liable to termination without notice and without assigning any cause and petitioners' accepting their appoint ments on clear understanding of rot having acquired any vested legal right to hold appointment on regular basis, grievance of petitioners regarding advertisement having been put out by Department for fresh recruitment on regular basis even when petitioner still Conti nued in service, held, entirely misconceived--[Abdul Majid Sheikh v. Mushaffe Ahmad P L D 1965 S C 208; Fayyaz Hussain v. Admi nistrator, Lahore Municipal Corporation P L D 1972 Lab. 316 ; The State v. Ziaur Rahman P L D 1973 S C 49 ; Muhammad Aslam v. Government Of Pakistan P L D 1978 Lah. 325 and . Province a Punjab v. Abdul Rehman Khan P L D 1979 S C 711 held not applicable.

Abdul Majid Sheikh v. Musharfe Ahmed P L D 1965 S C 208 ; Fayyaz Hussain v. Administrator, Lahore Municipal Corporation P L D 197 Lah. 316 ; The State v. Ziaur Rahman P L D 1973 S C 49 ; Muhammad Aslam v. Government of Pakistan P L D 1978 Lah. 325 and Province of Put jab Abdul Rehman Khan P L D 1979 S C 711

(b) Marital Law, Instructions, 1977 (Regularization of Ad Hoc Appointments) [M. L. A.. Zone A ]-

-- No. 21 read with Punjab Civil Servants Act (VIII of 1974), Ss. 2(l)(a) & 10-Ad hoc appointment - Termination of service Powers of Government having been assumed by Martial Law Admi nistrator in Province concerned such Administrator authorised to order scrutiny of ad hoc appointments-Contention as to orders of termination of services having stood vitiated by reason of inclusion of a Military Officer in Selection Committee, held, misconceived particularly when such orders passed by competent authority of department con cerned.

Civil Petition No. 918 of 1979

Anwar Sipra, Advocate instructed by S. Inayat Hussain Advocate-on Record for Petitioner.

Nemo for Respondents.

Civil Petition No. 919 of 1979

S. Inayat Hussain, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing : 21st March 1981.

.-This order will dispose of Civil Petitions for Special Leave to Appeal bearing Nos. 918 and 919 of 1979, both of which raise identical question of law and fact. Muhammad Shahbaz Cheema, (petitioner in No. 918 of 1979), was appointed on ad hoc basis as Sub-Engineer in the Punjab Irrigation Depart ment on 2-8-1976. ; On the 8th of August 1977, Martial Law Instruction No., 21 was issued for the scrutiny and regularization of all ad hoc appoint ments. A Selection Committee consisting of two Superintending Engineers of the Irrigation Department, along with an Army Officer, scrutinised the case of the petitioner; as a result of which his services were terminated by order dated the 31st of August 1977. This order was signed by the Superintending Engineer (Headquarters, Sargodha Region, Irrigation Department). It is stated that a fortnight earlier, i.e. on the 16th of August 19.77, the irrigation Department had invited fresh applications for recruitment to the posts of Sub-Engineer in the Irrigation Department. The learned counsel for the petitioner is not aware whether the petitioner applied for consideration in response to this fresh advertisement. The petitioner invoked the writ jurisdiction of the Lahore. High Court to challenge the order of termination of his services, but the writ petition was dismissed on the 14th of December 1977, mainly on the ground that the petitioner should have filed an appeal before the Services Tribunal. He, accordingly, filed an appeal before the Services Tribunal, but the same has been dismissed on the 18th of September 1979.

In the second case before us, the petitioner Amir Ahmad was also appointed on an ad hoc basis as Sub-Engineer in the Punjab Irrigation Department on 4-2-1977, and his services have been similarly terminated under Martial Law Instruction No. 21 by an order made by the Superin tending Engineer, Headquarters of Irrigation, Sargodha Region, with effect from the 31st of August 1977.

It is stated that this petitioner fad applied for fresh appointment in res ponse to the departmental advertisement dated the 166 of August 1977, and was even interviewed in that connection on the 28th of August 1977, but even then his services as ad hoc appointee were terminated. He invoked the writ jurisdiction of the High Court but his writ petition was dismissed on the 27th of February 1979. Thereafter he filed an appeal before the Punjab Services Tribunal, which was dismissed on the 18th of September 1979.

Leave to appeal is sought in both these cases on the following grounds :

(a) The Selection Committee, constituted under instruction No. 21, was not a validly constituted body as it included a Military Officer in violation of the provisions of the Punjab Civil Servants Act, 1974, which defines the competent authority as meaning the appropriate civilian authority and does not include any Military Officer;

(b) that the Instruction in question was intended only to regularise the cases of ad hoc appointees, but the authorities went beyond its terms in issuing an advertisement for fresh recruitment to the posts held by the petitioners ; and this act also showed mala fides on their part as fresh recruitment was resorted to when the petitioners were still holding the posts in question, and

(c) the orders of termination of the services of the petitioners suffer from arbitrariness, as they do not contain any reasons. In the case of Amir Ahmad an additional point was made by Mr: Inayat Hussain that his work had, in fact, been found satisfactory by the Super intending Engineer, but this report was not even noticed by the Selection Committee and for this reason also the orders stood vitiated.

In support of these submissions, the learned counsel for the two petitioners have placed reliance on Abdul Majid Sheikh v. Mushaffe Ahmed (1), Fayyaz Hussain v. Administrator, Lahore Municipal Corporation (2), The State v. Ziaur Rahman (3), Muhammad Aslam v. Government of Pakistan (4) and Province of Punjab v. Abdul Rehman Khan (5).

After bearing both the learned counsel at some length, and examining the provisions of the relevant statutes, we are of the view that there is no merit in these petitions.

The term ad hoc appointment has been defined in clause (a) of sub section (1) of section 2 of the Punjab Civil Servants Act, 1974 as meaning appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accord ance with such method. According to section 10 of the same Act, the services of a civil servant may be terminated without notice during the initial or extended period of his probation and if the appointment is made on ad hoc basis liable to termination, then on the appointment of a person on the recommendation of the selection authority. Subsection (P L D 1973 S C 49) of section 10 further contemplates that notwithstanding the provisions of subsection (P L D 1965 S C 208), but subject to the provisions of subsection (P L D 1972 Lah. 316), with which we are not concerned in the present case, the service of a civil servant in temporary employment or appointed on ad hoc basis shall be liable to termina tion on 30 days' notice or pay in lieu thereof.

It appears that it was in accordance with these provisions that in that appointment orders given to the petitioners, it was clearly stipulated, clauses (P L D 1978 Lah. 325) and (PLD1979SC711) of the offer of appointment, that their services were liable to be terminated without notice and without assigning any cause, Both the petitioners accepted their ad hoc appointments on the clear under standing that they were not acquiring any vested legal right to hold the, appointments on a regular basis. In fact, from the very definition of the term, as reproduced by us in the preceding paragraph, it is clear that an ad hoc appointment is not made in accordance with the prescribed method of recruitment, and is liable to be terminated if a regularly recruited candidate becomes available. In this background, it is clear that the grievance of the petitioners that an advertisement had been put out by the Department for fresh recruitment on a regular basis, even when the petitioners were still continuing in service is entirely misconceived. Their ad hoc appointment was only a stopgap arrangement, and the Department was under a legal obligation to make regular recruitment during the continuance of the petitioners on an ad hoc basis.

Martial Law Instruction No. 21 seems to have been promulgated for the precise purpose of scrutinising such ad hoc appointments, which had been made otherwise than in accordance with the prescribed method of recruit ment, and were apparently continuing for long periods without justification. The petitioners were undoubtedly at liberty to compete for regular recruit ment, and it would then be for the competent authority to determine their suitability in that behalf.

The contention that the orders of termination stood vitiated by reason of the inclusion of a Military Officer in the Selection committees is also misconceived, as the powers of Government having been assumed by the Martial Law Administrator in the Province, he had the authority to order scrutiny of ad hoc appointments. The order of termination was, however, mad by the competent authority, namely, the Superintending Engineer concerned. As ad hoc appointments were liable to be terminated even without assigning any reason, the order made by the Superintending Engineer could not be invalidated on the ground that it was preceded by scrutiny by a Committee set up under Martial Law Instruction No. 21. The termination could have been ordered even without such scrutiny.

Turning now to the authorities referred to by the learned counsel, we find that they are hardly of any assistance to the petitioners. In the first case of Abdul Majid Sheikh the Court was dealing with a temporary employee, who was continuing service until further orders, and it was held that in such a case the provisions of the 1962 Constitution relating to procedure and safeguards for the removal of civil servants were attracted. These observations have no relevance to the case of an ad hoc appointee, who does not hold the post on any regular basis whatsoever, and whose appointment is specifically made subject to termination at any time, by the relevant law, namely, the Punjab Civil Servants Act, 1974.

The case of Syed Fayyaz Hussain Qadri also has no relevance in the present context, as the question there was whether Legal Adviser of the Lahore Municipal Corporation could be removed by the Corporation or by the Government, and it was held that before the promulgation of the Ordi nance of 1965, the power of removal vested in the Municipal Corporation, and could not be exercised by Government. We have already observed that in the case of the two petitioners orders of termination have been made by the competent Suprintending Engineer and not by the Selection Com mittee, and, therefore, no benefit accrues to the petitioners on the basis of this case.

Reference was made to the case of Ziaur Rahman' aid others to show that a mala fide act is by its nature an act without jurisdiction but there is hardly any occasion to invoke this principle in the present case. We have already stated that in the very nature of things it was necessary for the department to initiate the process of regular recruitment, and, accordingly no question of mala fides would arise if the department undertook regular recruitment when the petitioners were still in service. This is, indeed, what had to be done because of the ad hoc nature of the appointments held by the petitioners.

There is apparently some mistake on the part of the learned counsel in referring us to the case of Muhammad Aslam Bodla and 5 others as it has no bearing on the service matters we are considering here.

In the last case, namely, that of Sardar Abdul Rehman Khan Durrani one of the questions before the Court was as to who was the competent autho rity in the case of a Deputy Superintendent of Police. In the instant case there is no such doubt as to who was the competent authority.

For the foregoing reasons, we are of the view that two petitioners being only ad hoc appointees had no vested legal right to continue in service, once the department had resorted to fresh recruitment. Their services were terminated in accordance with law by the competent authority. The Service Tribunal was, therefore, right in refusing to interfere in both these cases. Both the petitions, accordingly, fail and are hereby dismissed.

Petitions dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.