Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT LAHORE

JUDICIAL DEPARTMENT

Case No Writ Petition No.238429 of 2018

Ms. Nazia Munir Versus The Government of the Punjab

etc.

S.No. of order/ Date of order/ Order with signature of Judge, and that of
proceeding Proceeding parties of counsel, where necessary.

1) 11.01.2019 Mr. Zafar Iqbal Bhatti, Advocate for petitioner.

Mr. Asif Afzal Bhatti, Assistant Advocate General.
Mr. Khurram Abbas Wahga, Law Officer on behalf of
respondent No.2.

By means of instant constitutional petition filed in

terms of Article 199 of the Constitution of Islamic Republic
of Pakistan, 1973, the petitioner has made prayer as
follows:-

“…In view of the above, it is respectfully prayed

that the writ may kindly be issued against the
respondents with the following directions:-
i. That the impugned orders dated 10.04.2018
as well as 10.09.2018 passed by respondent
No.2 be set aside while declaring the same
absolutely illegal, unlawful, arbitrary,
whimsical, without lawful authority and
amounts to furtherance of discrimination,
an abuse of process of law and authority
and sheer violation of the fundamental
rights of the petitioner being the citizen of
Pakistan and the respondent No.2 be
directed to reinstate/reappoint/to get resume
the petitioner in service as Statistical
Officer (BS-17) in the office of Chief
Executive Officer (District Health
Authority) Lahore immediately for sake of
justice equity and fair play.
Writ Petition No.238429 of 2018. 2

ii. Moreover, the respondent No. 2 may

graciously be directed to regularize services
of the petitioner, as Statistical Officer (BS-
17) in the office of Chief Executive Officer
(District Health Authority) Lahore from the
date of her initial appointment i.e.
05.01.2010 with all back benefits as per the
Government policy and verdicts of the apex
courts in this regard to make up for
indiscrimination done to the petitioner.
iii. It is further prayed that the respondents may
very kindly be restrained to advertise or to
fulfill the aforesaid one post of Statistical
Officer (BS-17) in the office of Chief
Executive Officer (District Health
Authority), Lahore till the pendency of the
titled writ petition in the supreme interest of
justice.
Add interim relief may kindly also be
granted.
Any other relief, which this Hon’ble court
deems fit and appropriate in the
circumstances of this case, may kindly be
granted.….”.
2. At the very outset, while opening his arguments,
learned counsel for the petitioner submits that the petitioner
was inducted into service as Statistical Officer (BS-17) by
District Recruitment Committee way back on 01.01.2010 on
ad-hock basis for a period of one year. It is contended that
on expiry of one year, she was re-appointed for another year
and this process of re-appointment continued till 10.04.2018.
It is contended that the petitioner filed constitutional petition
bearing Writ Petition No.31957/2015 seeking direction for
regularization of her services and a learned Single Bench of
this Court disposed off the same in terms of order dated
15.01.2018 with direction to the respondent to treat the same
as representation and decide the same within thirty days.
Adds that the respondent No.2 did not pass any order and
when the petitioner filed contempt petition, respondent No. 3
Writ Petition No.238429 of 2018. 3

refused to re-appointment of the petitioner. The main crux of

the arguments of learned counsel for the petitioner is that the
petitioner has served more than eight years in the
department and instead of regularizing her service; she has
been dropped by the authority without any legal as well as
moral justification. Adds that the petitioner has now become
overage and this act of the respondent/authority would
certainly destroy the future of the petitioner without any fault
on her part. Learned counsel has placed his reliance upon
the ratio decidendi of august Supreme Court of Pakistan in
the case of “Rizwan Javed and others vs Secretary
Agriculture Livestock and others” (2017 PLC (CS) 712).

3. On the other hand, learned Assistant Advocate

General assisted by learned Law Officer representing
respondent No.2 has opposed this petition with vehemence.
It is submitted that the petitioner was working on ad-hock
basis whereas the law developed so far is mainly with regard
to regularization of services of employees working on
contract basis. It is contended that the criteria for
appointment on ad-hock basis and contract basis are entirely
on different footings. In such backdrop, it is argued that the
petition in hand is liable to be dismissed.

4. Arguments advanced pro and contra have been heard

and record available on file perused.

5. Before going into the merits of the constitutional

petition in hand, this Court is conscious of the fact that the
mainstay of the learned Law Officer is that the criteria for
appointment on ad-hock basis and contract basis are entirely
on different footings. In this perspective, it would be
advantageous to go through definition of the same in order to
resolve the anomaly.
Writ Petition No.238429 of 2018. 4

The definition of ‘Ad-hock appointment’ is contained in ‘The

Punjab Civil Servants Act, 1974, which reads as follows:-

(a). “ad-hock appointment” means appointment of a

duly qualified person made otherwise than in
accordance with the prescribed method of
recruitment, pending recruitment in accordance
with such method’ ;
So far as the definition of ‘contract employee’ is concerned.
As per “The Punjab Regularization of Service Act, 2018, the
same reads as follows:-

“(a).
(b).
(c). “contract employee” means an eligible person
appointed on contract in a department immediately
before the commencement of the Act but does not
include a person appointed to a post in a project,
programme, project management unit, project
management office, time bound (one-time)
development activity or as work-charged employee or
an employee on daily wages;.
6. Bare reading of definitions of ‘Ad-hock appointment’
as well as ‘appointment on contract basis’ reveals that only
eligible/qualified persons are offered services in both the
cases.

7. So far as the case in hand is concerned, there is no

second cavil to this proposition that the petitioner was
inducted into service as Statistical Officer (BS-17) by District
Recruitment Committee way back on 01.01.2010 on ad-hock
basis for a period of one year and on expiry of one year, she
was re-appointed for another year and this process of re-
appointment continued till 10.04.2018, but subsequently after
the elapse of more than eight years, her services were neither
regularized nor extended. The respondent/authority while
terminating her services had neither given a show-cause
notice nor provided opportunity of hearing to the petitioner,
Writ Petition No.238429 of 2018. 5

rather passed the order even without taking into

consideration consequences of the same. Undeniably the
petitioner was offered job by the competent authority after
evaluating her age besides academic as well as professional
qualification. Her period was being extended by the
authority for more than eight years as the competent
authority was fully satisfied with her performance, which fact
itself reflects that her services were not only required for the
department, rather the same were beneficial for the
department as well. Furthermore, there is no allegation/
complaint against the petitioner with regard to carrying out
official duties; rather extension of the period time and again
in favour of the petitioner shows trust of the authority upon
her services. Such extension in the tenure of service of the
petitioner has undeniably created a legitimate expectancy in
her mind with reference to her retention in the service on
regular basis. Now the petitioner certainly has become over-
age and as such she had lost all the chances to get fresh
appointment anywhere as she would be disqualified on this
score alone. It has also been brought into the notice of this
Court that the vacancy of Statistical Officer still exists vacant
in the department. In the same scenario, august Supreme
Court of Pakistan while taking serious note in the case of
“Collector of Customs and Central Excise, Pehsawar and 2
others Versus Abdul Waheed and 7 others” (2004 SCMR
303) has observed as follows:-

“---S.4---Constitution of Pakistan (1973) (Art.212(3)--

-Service of ad-hock appointees,---Validity---
Appointment of civil services were made by Competent
Authority---If prescribed procedure was not followed
by the concerned Authority, the civil servants could
not be blamed for what was to be performed and done
by the Competent Authority---Competent Authorities
should be held responsible and liable for the lapse on
their part---Civil servants had put in more than ten
Writ Petition No.238429 of 2018. 6

years of their service and had lost all their chances to

get fresh appointment elsewhere as they stood
disqualified being overage---Supreme Court noted it
with concern that in case the civil servants were to be
removed then the same would amount to hitting them
hard creating problems for the society at large
considering each of the civil servants being a bread
earner of his family---Appointing Authorities had been
acting mechanically without application of mind,
therefore, the civil servants could not be made to suffer
for whimsical and mechanical acts of the Authorities--
-Supreme Court declined to interfere with the
judgment passed by Service Tribunal as the act of the
Authorities was not in accordance with law---
Authorities had terminated the services of civil
servants without any just and legal cause---Leave to
appeal was refused”.
In the case of ‘Messrs State Oil Company Limited Versus
Bakht Siddique and others” (2018 SCMR 1181), the august
Supreme Court of Pakistan has observed as under:-

“---Employees of State-owned company outsourced to

a contractor---Regularization in service---Plea of
company that employees in question could not be
regularized as they were not the company’s employees
but were outsourced to some contractor---Validity---
State companies/industries had adopted the practice of
outsourcing the employment of posts which were
permanent in nature---Record showed that employees
in question had been in service starting from as far
back as the year 1984---Outsourcing of employees
seemed to be a sham or pretence---Employees in
question, even if assumed to be employees of
contractor, had been performing duties of permanent
nature and should have been regularized---Supreme
Court directed that employment of the employees in
question shall be regularized with effect from the date
when they approached the High Court through the
Constitutional Petition but for their pensionary benefit
and other long terms benefits, if any, available under
the law, they would be entitled from the date when they
joined service of the company---Petitions for leave to
appeal were dismissed accordingly”.
Guidance in this regard is also sought from the cases of
“Board of Intermediate and Secondary Education, DG Khan
and another Versus Muhammad Latif and others” (2018
Writ Petition No.238429 of 2018. 7

SCMR 325), “Board of Intermediate and Secondary

Education, Faislabad through Chairman and others Versus
Tanveer Sajid and others” (2018 SCMR 1405).

8. Apart from this, this Court is of the consistent

view that the act of the respondent/authority is also against
the dictates of substantial justice. It is settled principle of law
that technicality of law and rule shall not operate as an
absolute bar in the way of the court as preference in this
regard would defeat the substantial justice. Guidance in this
regard is sought from the dictum of law laid down by the
august Supreme Court of Pakistan in the case of
‘Mst.Shahista Bibi and another Versus Superintendent,
Central Jail, Mach and 2 others (PLD 2015 Supreme Court
15), wherein it has been held as follows:-

“---Hardship case---Substantial justice by court---

Technicality of law---For doing substantial justice in
the true sense in a hardship case, technicality of law
and rule shall not operate as an absolute bar in the
way of the court because giving preference to the
technicality of law would defeat substantial justice”.
In the case of ‘Nizamuddin and another Versus Civil
Aviation Authority and 2 others (1999 SCMR 467), following
dictum of law has been laid down by the august Supreme
Court of Pakistan:-

“---Art. 25---Equity of citizens---Government is not

supposed to discriminate between the citizens and its
functionaries cannot be allowed to exercise discretion
at their whims, sweet-will or as they please rather they
are bound to act fairly, evenly and justly”.
9. Undeniably the respondent/authority, by not
regularizing the services of the petitioner, despite the fact
that she is not only eligible for the said post, rather she has
served more than eight precious years of her life with the
department and the authority being satisfied with her work
Writ Petition No.238429 of 2018. 8

and conduct has been extending her tenure from time to time,
has acted in a harsh manner, which is against the dictates of
natural justice. The petitioner was neither informed/issued a
notice nor provided an opportunity of hearing prior to
termination of her services which were being extended for a
span of more than eight years just with a stroke of pen in an
arbitrary manner smokes a lot about the highhandedness of
authority. This act of the authority is also hit by the
principles enunciated by the superior courts from time to
time. While dealing with a similar situation, the august
Supreme Court of Pakistan in the case titled “PAKISTAN
AND OTHERS Versus PUBLIC AT LARGE AND OTHERS
(PLD 1987 Supreme Court 304) has observed as follows:-

“---When a public authority is to be exercised for

resolving a controversy regarding rights and
liabilities, the decision would not be rendered without
proceedings in which the person affected is also
afforded an opportunity of hearing.

It is common principle which governs the

administration of justice in Islam that in case of
liability with penal or quasi-penal consequences
and/deprivation of basic rights a notice as well as an
opportunity of hearing, are of absolute necessity. This
by itself has to be recognized as a basic right”.

10. For the foregoing reasons and also seeking

guidance from the dictum of law laid down by the august
Supreme Court of Pakistan in the cases supra, this Court is
persuaded to accept this constitutional petition. As a
consequence whereof, the petition in hand stands accepted.

11. Petition Allowed.

(SAYYED MAZAHAR ALI AKBAR NAQVI)

JUDGE
Approved for reporting:
*Asif*