Present
Mr. Justice Mushir Alam.
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 22.10.2009 and 16.02.2010
Date of judgment : 25.02.2010
Petitioners : Dr. Rubina Mangi & others,
through Mr. Habib Ahmed,
Muhammad Nawaz Shaikh, Zameer Ghumro, Irfan Ahmed Meo, Advocates
Versus
Respondents : Province of Sindh and others,
through Mr. Abdul Fatah Malik, AAG. a/w Mr. Adnan Karim,AAG
JUDGMENT
Aqeel Ahmed Abbasi, J. The brief facts in all these petitions are that the petitioners in consequence of advertisement published in newspapers including daily Kawish dated 05.01.2006 applied for the post of Woman Medical Officer/Medical Officer (Male) (BPS-17). The petitioner and others appeared in the written test conducted by Population Welfare Department, respondent No.2, whereof 475 candidates of Woman Medical Officer and 23 candidates of Medical Officer (Male) were declared successful in the written test. Result was published in daily Kawish dated 23.01.2008, successful candidates were called for interview/viva voce on different dates in the month of February 2008 before the respondent No.3 (Sindh Public Service Commission), who after conducting interview/viva voce announced the result of interview/viva and the names of successful candidates were published in daily Kawish on 05.03.2008. The successful candidates were short listed through this viva voce whereby 131 Woman Medical Officers and 04 Medical Officers (Male) were declared as successful. Thereafter respondent No.3 recommended the names of the successful candidates to respondent No.2 for issuance of notification of appointment.
2. According to the petitioners, by one reason or the other the recommendation of respondent No.3 were not accepted by the government. According to the counsel for the petitioner some of the incumbent whose recommendation for appointment were sent by the respondent No.3 to the government, approached the High Court in Constitutional Petition Nos.D-1371, D-1395 & D-1475/08 relating to the same subject matter and this Court vide order dated 15.09.2008 was pleased to grant relief to these petitioners in the following terms:-
"This being the position, we set aside the earlier decision of Government, as referred to in para 7 of the counter affidavit of Mr. Abdul Rehman Panja (ibid), and direct the Government to either approve the recommendations of the Sindh Public Service Commission, and issue offer letters/appointment letters to the petitioners, within one month from the date of this order, or in case the Government declines to accept such recommendations a speaking order should be passed for that purpose. It is further clarified that if within the stipulated time, no decision is taken, then the recommendations of the Commission would be deemed to have been duly approved by the Government and the petitioners duly appointed with effect from the date of expiry of such period. A copy of this order be delivered to the learned Additional A.G. for its compliance."
3. During the pendency of the present petition it was learnt that the Chief Minister Sindh has passed order in view of the directions in above mentioned C.Ps whereby the present petitioner sought permission of this Court to amend the petition accordingly. Such permission was given and the petitions were amended accordingly.
4. Now through these petitions the petitioners have impugned the order passed by the Chief Minister Sindh on 07.10.2008 available as Annexure 'J' page 65 of C.P.No.D-1909/08 on the following grounds:-
(i) That Chief Minister Sindh is not competent authority under the facts and circumstances and its Minister concerned who can pass such order.
(ii) That respondent Nos.1 & 2 are legally bound to issue appointment order to the petitioner after final recommendation of the respondent No.3.
(iii) That after having passed the departmental written test as well as interview/viva voce vested right has accrued in the petitioner which cannot be taken away through impugned order by the Chief Minister.
(iv) That the impugned order is in violation of the specific direction by this Court whereby the respondent was directed to pass speaking order.
(v) That impugned order is a non-speaking order and the directions of the Court as contained in para 9 have not been followed.
5. It was argued that the recommendations of Sindh Public Service Commission cannot be brushed aside or discarded by the new government setup particularly by the Chief Minister who in terms of item No.10 of the schedule to rule 4 Civil Servant Transfer and Posting Rule 1974 is not the competent authority for the grade below BPS-19. Reference to rule 10 of Civil Servant Transfer and Posting Rule 1974 was also made. It was argued that it was the Minister concerned who is the competent authority in case of the petitioner and since the orders are passed by Chief Minister the same are of no legal effect. Reliance in this regard was placed on reported judgment Abdul Majeed Zafar Vs. Govt. of Punjab, 2007 SCMR 330 and Syed Munawer Sultan and 6 others v. Province of Sindh through Chief Secretary and 2 others PLC 2009 (CS) 640.
6. Conversely, at the very outset Mr. Abdul Fatah Malik, learned Addl. A.G., pointed out that the petitioners were to be appointed as contract employees, therefore, provision of Civil Servant Transfer and Posting Rule 1974, is not attracted as the same are applicable in the case of regular appointment. It was argued that the reference is also misconceived as rule 3 para 3 deals with initial appointment (regular appointment). It was further argued that in terms of Rule 4(1) of Sindh Public Service Commission (Function) Rules 1990, the Commission cannot undertake test for recruitment to posts "which are to be filled on contract for specified period". According to the learned AAG the petitioner are not civil servants in terms of definition of Civil Servant provided in Section 2 clause B of Civil Servant Transfer and Posting Rule 1974, which specifically excluded the appointees under contract/deputationist/contractual, from the purview of definition of civil servant. It was argued that vested right in any case was not created in the petitioners as neither they can be termed as civil servant nor they were as such appointed even on contract basis by the Competent Authority. It was merely the process, which otherwise was undertaken during the ban by the interim government and the same does not create any right in the incumbent, what to talk about the vested right. More particularly in the absence of any offer/appointment letter by the competent authority. To support his argument reliance was placed in the reported judgment Government of Baluchistan, Department of Health through Secretary, Civil Secretariat, Quetta Vs. Zahida Kakar, 2005 SCMR 642, Abdul Khaliq v. University of Karachi through Registrar and 2 others, 2003 SCMR 817 & Secretary, Finance and others Vs. Ghulam Safdar, 2005 SCMR 534.
7. We have heard the learned counsel for the petitioners and learned AAG on behalf of the respondent. Before addressing the impugned controversy relating to the claim of the petitioners on legal plane, it will be advantageous to refer to para 9 of the C.P. No.D-1371, 1395, 1475/2008 hereunder:-
"9. After hearing the learned counsel for parties, we are of the opinion that the decision referred to by the learned Addl. A.G., if any, does not reflect the correct position, as at the whims of the Government, the recommendations of Sindh Public Service Commission cannot be brushed aside or distracted by the new Government setup, merely for the reason that the procedure followed was not according to their wishes but as per the decision of the previous Government. There is no denial of the fact that according to the procedure laid down by the then Government the petitioners have appeared in the selection process for the contract post of BPS-17 advertised by the Government and have successfully cleared their written tests held by the respondent No.2 and interviews held by the Sindh Public Service Commission. The posts referred to the Sindh Public Service Commission, but contractual, for one year only, therefore, per rule 4(i) of Sindh Public Service Commission (Functions) Rules 1990, written test through Commission was not mandatory in their case, but the petitioners are being denied such appointments for no valid reasons. Indeed, transparency is required in the appointments of all officers in Government service, even on contract basis, but the process of selection, which has been completed in an orderly manner, cannot be upset on this pretext, in an arbitrary manner without disclosing a single instance of obscurity of foul play. It is pertinent to mention that respondent No.1 has not even bothered to place on record copy of such proposal/order, which the learned Addl. A. G. has referred to from para 7 of the parawise comments/Counter Affidavit of Section Officer Mr. Abdul Rehman Panja." (Photostat Annexure "G").
8. However, while making above observations the Division Bench of this Court remanded the matter to the government with the directions to either approve the recommendations of Sindh Public Service Commission or pass appropriate order by giving reasons for the same. It was further observed that in case no decision is taken, the recommendations of the Commission would be deemed to have been approved by the Government. With this background of the case, the impugned order has been passed by the Chief Minister Sindh on 07.10.2008. Prima-facie the first contention of the petitioner that the orders of this Court in the above referred petitions have not been duly complied with or have been violated, appears to be untenable, as the Chief Minister Sindh has already passed the impugned order after giving reasons for not approving the recommendations of the Commission regarding entitlement of the petitioners.
9. The case laws referred and relied by the counsel for petitioners under the circumstances are not relevant to the controversy in hand, therefore, the reliance in this regard is misplaced.
10. We are of the view that the petitioners/incumbents can neither be termed as civil servants in terms of definition of civil servant provided in Section 2(b) of Civil Servants Transfer and Posting Rules 1974 nor can claim any vested right more particularly in the absence of approval/appointment by the Competent Authority. The contract employees are specifically excluded from such definition. As regards the interviews taken by SPSC in the case of contract employees we are of the view that in term of Rule 4(1) of Sindh Public Service Commission (Function) Rules, 1990, there is specific bar for conducting such test for recruitment to post which are to be filled on contract for specified period.
"Rule 4: The Commission shall not conduct tests for recruitment to posts which are to be filled:-
(i) on contract for a specified period; or
[(ii) for a period of six months or less pending selection of a candidate on the basis of test conducted by the Commission:
Provided that the above period may be extended:-
(a) for further period of six months with the approval of the Commission if a requisition for filling the post was sent to the Commission within two months of the filling of the post on ad-hoc basis and the Commission has failed to nominate a candidate; or
(b) in any other case, by order of the Chief Minister.]
(ii) without test by the order of the Chief Minister."
11. Under the facts and circumstances of the case it appears that the exercise undertaken during the period of interim government for the recruitment to the post on contract basis by the department and interview/viva through SPSC was not in accordance with law. Moreover, in the absence of the approval/appointment by the competent authority no vested right has accrued in the incumbent/petitioners. In this regard we are fortified in our view by following case law:-
1) Government of Baluchistan, Department of Health through Secretary, Civil Secretariat, Quetta Vs. Zahida Kakar, 2005 SCMR 642 The Hon'ble Supreme Court has held as under:
"It is an admitted fact that the service of the respondents was on purely temporary basis and specifically on contract. Such appointment terminates on the expiry of contract period or any extended period on choice of the employer or appointment authority. Prima facie, it does not create any vested right. (though in the instant petition petitioners were not even appointed on contract by the competent authority)."
2) Abdul Khaliq v. University of Karachi through Registrar and 2 others, 2003 SCMR 817. The Hon'ble Apex Court held that mere selection by Selection Board in the absence of approval/appointment by the competent authority to such post does not create any vested right in the incumbent.
3) Secretary, Finance and others Vs. Ghulam Safdar, 2005 SCMR 534, The Hon'ble Apex Court has held as under:
"Be that as it may, it is difficult to sustain the prayer of the respondents since mere selection in written examination and interview test would not, by itself, vest candidates with a Fundamental Right for enforcement as such in the exercise of Government jurisdiction of the High Court. Admittedly, the appellants had not issued any offer of appointment to the respondents and their appointment was subject to clearance by the Establishment Division under the Centralised System of Recruitment till it was discontinued in November, 1996, which again coincided with the imposition of ban on fresh recruitments, which could not be safely ignored by the appellants. Thus, the High Court was not right in overlooking this aspect of the case and issuing a writ of mandamus of the nature prayed for."
12. Looking at the facts of this case and after examining the relevant law and the case law cited hereinabove we are of the opinion that the petitioners have no vested right to claim their appointment through these Constitutional Petitions, which are accordingly dismissed alongwith all listed applications with no orders as to costs.
. J U D G E
J U D G E
Dated 25 .02.2010.