Judgement – Ad-hoc Appointment has no Vested Right for Regularization 26.05.2021

Judgement – Ad-hoc Appointment has no Vested Right for Regularization 26.05.2021

OFFICE MEMORANDUM

Subject: Ad-hoc Appointment

JUDGMENT

Anwaar Hussain, J.– The petitioner, who was employed as Hospital Pharmacist (BS-17), on ad hoc basis, vide order dated 15.02.2010, has invoked the constitutional jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan, 1973 (“the Constitution”) on the ground that his wrongful termination on 21.12.2010 deprived him from getting regularized along with other similarly placed Hospital Pharmacists and his representation in this regard has been wrongly rejected vide order dated 31.12.2016 (hereinafter “the Impugned Order”). It has been prayed that Impugned Order passed by respondent No.2 be declared as illegal and unlawful and consequently respondents be directed to regularize the services of the petitioner as Pharmacist (BS-17) either from the date of his initial appointment as ad hoc employee or at least from the date of passing of interview held by the Punjab Public Service Commission (hereinafter “PPSC”), with all back benefits and also allow him to join the duty.

2. Brief facts, as stated in the petition, are that the petitioner was employed as Hospital Pharmacist (BS-17), on ad hoc basis, upon the recommendations of the Departmental Selection Committee after fulfilling all local formalities vide order dated 15.02.2010.

The appointment was for a period of one year. However, the services of the petitioner were terminated on the basis of false and frivolous allegations vide order dated 21.12.2010 where-against he preferred an appeal before the Chief Secretary, Punjab, which, too, was declined through order dated 30.07.2012. Since the services of the petitioner were terminated by levelling serious allegations and attaching a stigma to his career, the petitioner approached Punjab Service Tribunal (hereinafter “the PST”) by filing an appeal under Section 4 of the Punjab Service Tribunal Act, 1974, which was allowed vide judgment dated 18.09.2014 and it was held that the last words i.e.,
“On account of irregularities committed by him in the purchase/maintenance of medicines in the said hospital” shall be treated as deleted. In the meantime, many Hospital Pharmacists (BS-17), under the order of the Chief Minister, Punjab, were regularized and few of them, who were meted discriminatory treatment, approached this Court in constitutional jurisdiction by filing Writ Petition No.4219/2011 titled as “Muhammad Sheraz, etc., v. Government of the Punjab, etc.” (hereinafter referred as “Muhammad Sheraz case”). The said petition was partly allowed, qua the Hospital Pharmacists, in the light of law laid down by the Hon’ble Supreme Court of Pakistan in Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) (hereinafter referred as “Naveeda Tufail Case”). The judgment in Muhammad Sheraz case was upheld in ICA Nos.188/2012 and 193/2012 vide judgment dated 07.02.2013, by a Division Bench of this Court. The petitioner after deletion of the stigma attached with his termination, filed a Writ Petition No.692/2015 whereby a direction was passed, on 14.01.2015, to respondent No.2 to analyse the case of the petitioner and to decide whether he is to be treated alike with the petitioners in Muhammad Sheraz case; however, vide Impugned Order, respondent No.2 has rejected the representation of the petitioner on the ground that the petitioner does not fulfil the criteria laid down in the judgment passed in Muhammad Sheraz case. Hence, the present constitutional petition.

3. Report and para-wise comments were filed by respondents No.1 & 2, which state that the petitioner, in furtherance of the direction of this Court dated 14.01.2015, was called for personal hearing on 19.08.2016 and 03.10.2016 and was heard at length by the Additional Secretary (Admn)/Hearing Officer on behalf of respondent No.2. The report further spells out that the petitioner was appointed on ad hoc basis and any employee, who is appointed on ad hoc basis, cannot be reinstated once his services are terminated.

The Health Department only regularized the services of Pharmacists in compliance with the judgment of this Court in Muhammad Sheraz case, who had been serving for more than one year on adhoc basis and have unblemished service record and since present petitioner had already been terminated on 21.12.2010 after service of only 10 months and 06 days, therefore, he did not fulfil the criteria laid down in the said judgment and, therefore, his representation was rightly rejected.

4. Learned counsel for the petitioner submits that the sole ground on which the petitioner has been non-suited and held not covered by the judgment rendered in Muhammad Sheraz Case is the stigma attached with his termination which has now been deleted by the learned PST, therefore, the case of the petitioner is fully covered by Naveeda Tufail case. Therefore, he is entitled to regularization as held by this Court in Muhammad Sheraz case. The learned Counsel also relied on the point that decision in Muhammad Sheraz case was upheld in ICA vide judgment dated 07.02.2013 and leave was refused by the august Supreme Court vide judgment dated 01.03.2017 passed in C.P. No.833-L/2013 and connected matters.

5. Conversely, learned Law Officer along with departmental representative submits that an ad hoc employee has no vested right to be regularized even after successful completion of his ad hoc appointment; the petitioner was not in service when the petitioners in Muhammad Sheraz case were considered for regularization who were in service. Rather the petitioner was terminated on ground of irregularities committed by him. Learned Law officer places reliance on the judgment dated 17.09.2020 passed in Writ Petition No.16185/2019 and order dated 19.08.2020 passed in Writ Petition No.36633/2020. Further argued that when the petitioner submitted his online application, for recruitment of 113 posts of Hospital Pharmacists, in furtherance of advertisement dated 15.08.2010, he was lower in merit (at merit No.254) and, hence, was not selected and was accordingly informed vide letter No. PPSC-RA-IV-2012/254-RA dated 27.03.2012. Finally submits that there is no vacancy of Hospital Pharmacist available at the moment and no recruitment process is underway.

6. Arguments heard and record perused.

7. The instant petition involves the determination of the following issues: i. Whether an ad hoc employee having been terminated, prior to completion of his period of employment, could be reinstated in service by this Court? ii. What is the effect of deletion, by the learned PST, of adverse remarks, stigmatizing the petitioner at the time of his termination from ad hoc employment, which prevented him to seek the benefit of Naveeda Tufail case at the time when the similarly placed persons got relief in Muhammad Sheraz case? iii. Whether the finding of service tribunal having attained finality and not challenged before the Hon’ble Apex Court could be assailed through Writ Petition in a circuitous manner before this Court?

8. The questions referred hereinabove requiring adjudication are inter-linked and hence, will be dealt together; however, before addressing the same, it is of great relevance to understand the true import of ratio in Naveeda Tufail case as well as the decision of Muhammad Sheraz case. In Naveeda Tufail case, the august Supreme Court has directed the authorities concerned to initiate the process of regularization of ad hoc employees whose services were continued for a number of years without resorting to process of filling those posts through permanent recruitment or regularization.

The rational undercurrents of the Naveeda Tufail case lied in the principle of legitimate expectancy for having been in service as ad hoc employee for a great length of time. Naveeda Tufail case also states that ad hoc employees have no right to hold the posts beyond the period for which they were appointed and as such it is a stop gap arrangement and in case they are to be considered for regularization, they must go through the process of selection by the PPSC.

In Naveeda Tufail case, the august Supreme Court of Pakistan gave a concession to the petitioners before the court by requiring that their cases not be tagged with the direct recruitment category and they be treated separately for the purposes of recruitment/regularization by giving them additional marks and relaxation of age so as to facilitate their regularization. No doubt that similarly placed Hospital Pharmacists who approached this Court on the touch stone of ratio decidendi laid down in Naveeda Tufail case were regularized by the department in furtherance of the decision by this Court in Muhammad Sheraz Case, which has been upheld by the honorable Apex Court and it is also admitted fact that the petitioner participated in the process of selection through PPSC and as the petitioner was no more in service at the time of participating in the process, he was denied benefit of ratio in Naveeda Tufail case and was placed along with other participants who were fresh candidates and he failed to qualify as he fell at serial No. 254 whereas posts available were 99 in number but there is a marked difference between the facts of Muhammad Sheraz case and that of the present petitioner.

The present petitioner was not and is still not in-service due to his termination after a period of 10 months and 06 days when his representation for regularization has been denied by the respondents whereas the petitioners who were afforded the relief in Muhammad Sheraz case were in service for more than one year. It is admitted position that the petitioner was appointed as Hospital Pharmacist (BS-17) on ad hoc basis on 15.02.2010 for a period of one year only; however, he was terminated on 21.12.2010 on account of alleged irregularities committed by the petitioner in the purchase/maintenance of medicines in the hospital of his positing i.e.. Aziz Bhatti Shaheed (DHQ) Hospital, Gujarat. The appeal filed by the petitioner before the Chief Secretary met the same result vide order dated 30-07-2012. The petitioner assailed the order before the PST by filing appeal seeking reinstatement into service, which was partially allowed vide judgment dated 18.09.2014 in the following manner:

“However, under rule 22(2) clause(5) of the first Proviso of PCS (A&CS) Rules, 1974, ad-hoc appointment may be revoked/terminated by the competent authority anytime, therefore, the appellant can not be reinstated in service being an ad-hoc appointee who had already served for 9 months out of his total one year admissible service period. In this way, from the termination order issued by the competent authority i.e. secretary Health Department Punjab under No.SO(Dental)10-17/2020, dated 21.12.2010, whereby the appellant was terminated with immediate effect, the last words “On account of irregularities committed by him in the purchase/maintenance of medicines in the said hospital” shall be treated as deleted.

(emphasis supplied)

It is pertinent to point out that while the last words forming part of the termination order dated 21.12.2010 stigmatizing the petitioner were deleted, his termination was never set aside and remained in field till date. The judgment of the learned PST attained finality as it is admitted fact that the same was not challenged before the honorable Apex Court under Article 212(3) of the Constitution. Instead having got the stigma removed/deleted, the petitioner filed a writ petition No. 692-2015 titled as ‘Asif Mushtaq v Government of the Punjab etc., wherein only a direction was passed to the respondents to analyze the case of the petitioner and to decide upon the fact whether the case of the petitioner is covered by the judgment passed in Muhammad Sheraz case.

This seems to be the petitioner instead of taking the proceedings in the learned PST, initiated by the petitioner himself to their logical conclusion through the judicial hierarchy, turned towards this Court. At this juncture, it would be relevant to highlight that the petitioner had joined ad hoc service in 2010 and was terminated on 21.12.2010 whereas the law in Naveeda Tufail case had been laid in 2003, which implies that the petitioner had chosen the PST as a forum of his own choice from which the petitioner cannot take volte-face.

Moreover, the petitioner had also knocked before the learned PST with the dual prayer of removing stigma as well as reinstating the petitioner. It is matter of record that while the stigma had been removed, the termination had been upheld and maintained by the learned PST, which has attained finality as the same was never assailed before the apex Court. This raises the most fundamental question as to whether the order/judgment of the PST could be sought to be set aside through writ jurisdiction before this Court. Article 212(3) of the Constitution of Islamic Republic of Pakistan states as under:

• “An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.”

Thus, the petitioner through the instant petition intends to nibble away the order of the PST in an indirect manner whereas order of the PST could only be assailed under Article 212(3). This is evident from the fact that the PST has maintained the termination, the regularization cannot be directed without reinstatement, which would otherwise imply this Court sitting as an appellate forum of the PST which the Constitution debars. This makes the Naveeda Tufail case as well as Muhammad Sheraz case stand poles apart from the case of the petitioner.

9. During the course of arguments, the learned Counsel for the petitioner vehemently stressed that had the petitioner not been terminated on the basis of stigma attributed to the petitioner, he would have been traversed and sailed along those who were regularized through Muhammad Sheraz case. This is merely a self-harboured hypothetical assumption on the part of the petitioner. Had this been the case, the petitioner would have been only able to continue with the remaining period of his ad hoc employment i.e., 01 month and 24 days and that too with or without an extension in service. It is a well settled principle of law that an ad hoc employee has neither the right to hold the post beyond the period for which he was appointed nor the government has a right to continue with such ad hoc appointees for a long period. Honourable Supreme Court in Abu Bakar Farooq through Chairman and others v. Muhammad Ali Rajpar and others (2019 SCMR 830) (hereinafter referred to as “Abu Bakar case”) while examining the law on ad hoc appointments held that an ad hoc employee had no vested right. More so when the petitioner had not been in ad hoc employment even for a year let alone for a long time creating any hope or legitimate expectation of retention.

The Division Bench of this Court while placing reliance on Abu Bakar case dismissed an Intra Court Appeal through a reported judgment titled Dr. Jamshed Dilawar and two others v Government of the Punjab through Chief Secretary and 4 others (2021 PLC (C.S.) 411) wherein the ad hoc employees had sought their regularization. The Division Bench of this Court refused to direct regularization as there was no process of recruitment underway in the Department which is precisely the situation in the instant case too, hence, no question of regularization at this stage arises on this score as well.

10. In view of what has been discussed, this constitutional petition is devoid of merits and, therefore, dismissed with no order as to cost.