Whether ad hoc employee, who was switched to contract employee and then finally regularized in service could be granted seniority with effect from the date of his ad hoc appointment

Citation Name : 2019 PLC(CS) 835 SUPREME-COURT
Side Appellant : RIFFAT SHAHEEN
Side Opponent : GOVERNMENT OF KHYBER PAKHTUNKHWA
S. 7---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018, Rr. 11 & 37---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2015, R. 7 [since repealed]---Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980, R. 4 [since repealed]---Allotment of Government accommodation---Right of spouse to retain government accommodation allotted to husband after his retirement---Petitioner, who was employed as a PTC teacher resided with her husband in a government accommodation---Husband was working as an Assistant Director in a Provincial training institute---Upon retirement of husband, a grace period of six months was allowed, where after, the Provincial Government issued a vacation notice to the petitioner and her husband---Petitioner applied for transfer of the accommodation in her name under R. 4 of the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980---Said request was not acceded to---In the meantime, Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 was promulgated which repealed and substituted the previous Rules---Consequently, the petitioner's application was not accepted which prompted her to approach the High Court in its constitutional jurisdiction---Said constitutional petition was also dismissed---Petitioner contended that under the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980, a vested right had accrued in her favour which could not be taken away through a subsequent change in law/rules---Held, that the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980 ('Rules of 1980') as well as the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2015 ('Rules of 2015') were repealed by the Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 2018 ('Rules of 2018')---Rules of 2018 specifically provided that the Rules of 1980 and 2015 stood repealed except to the extent as were not inconsistent or in conflict with the Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 ('the Act') and the Rules of 2018---Rules of 2015 did not provide for out of turn allotment to the spouse of a retired civil servant---Further, the Act and Rules of 2018 did not provide an automatic benefit to the spouse or children of a deceased or retired civil servant to retain the government accommodation on retirement/demise of the original allottee, however, their rights had been safeguarded by providing a special quota in the available government housing which was based on seniority of applications---List of eligible children and spouses of retired/deceased employees was accordingly maintained by the concerned department---Petitioner would be entitled to allotment of an official accommodation at her own turn and she could not rely upon the Rules of 1980 and or of 2015 in order to advance her claim---Further, she had already retained the government accommodation for a grace period of six months whereafter she and her husband were obliged to vacate the government accommodation and utilize house rent allowance which was paid by the government---Petitioner's name appeared at Sr. No.13 of the waiting list maintained by the Provincial Government for allotment of government accommodation---Petitioner did not have a legitimate right to retain the government accommodation originally allotted to her husband on the basis of 1980 Rules because the same had been repealed, and her case was governed by the Act and the Rules of 2018 and no legally enforceable vested right existed in her favour---Appeal was dismissed accordingly.

Citation Name : 2019 PLC(CS) 740 SUPREME-COURT
Side Appellant : ABU BAKAR FAROOQ
Side Opponent : MUHAMMAD ALI RAJPAR
Ss. 8 & 11(3)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr. 10 & 19---Federal Public Service Commission (Functions) Rules, 1978, R. 3---Ad hoc appointment---Regularization in service---seniority , reckoning of---Scope---Whether ad hoc employee, who was switched to contract employee and then finally regularized in service could be granted seniority with effect from the date of his ad hoc appointment---Since the appointment on ad hoc basis was a "stop gap" arrangement, therefore, as provided in S. 11(3) of the Civil Servants Act, 1973, it stood terminated either on the expiry of the period for which such ad hoc appointment was made or on the appointment of a person recommended by the Commission---Such ad hoc appointee did not acquire a right to claim his seniority in accordance with S. 8 of the Civil Servants Act, 1973 vis-a-vis the civil servants who were appointed on regular basis on the recommendation of the Commission after going through the selection process---Ad hoc employee neither had right to hold the post beyond the period for which he was appointed nor the government had a right to continue with such ad hoc appointee for a long period of time---Extended appointment on ad hoc basis only arose where the government violated the provision of R. 3 of the Federal Public Service Commission (Functions) Rules, 1978 and without placing a requisition before Commission for regular appointment filled the post on ad hoc basis and then kept on extending the period of such ad hoc appointment---In such a situation the ad hoc appointee clung on to his post knowing fully well that his ad hoc appointment was not in accordance with the prescribed method of appointment and was only a "stop gap" arrangement, till recruitment in accordance with the prescribed method of appointment was made---Such conduct of the government had always been deprecated by the Courts, however, such shortcoming/non-adherence to the legal requirements by the competent authority could earn no benefit for the ad hoc appointee for the simple reason that bestowing the benefits of regular appointment upon an ad hoc employee would not only amount to regularizing unlawful appointment and providing premium to the beneficiary of such wrong but would also amount to opening another door of entry into service of Pakistan by frustrating the only prescribed mode of appointment through the Commission---Appeals were allowed accordingly.

Citation Name : 2019 PLC(CS) 449 PESHAWAR-HIGH-COURT
Side Appellant : CHAIRMAN, FBR through Member Administration
Side Opponent : MUHAMMAD ASFANDYAR JANJUA
Ss. 8(3) & 9---Civil Servants (seniority ) Rules, 1993, R. 2(3)(b)---Occupational Groups and Services (Probation, Training and seniority ) Rules, 1990, R. 7(1)---seniority , determination of---Question as to whether in cases where length of service was provided for promotion, the time spent in litigation prior to the first appointment of civil servant could be counted towards such length of service---Respondent passed civil services examinations conducted by the Federal Public Service Commission in the year, 1996, however, he was treated to be domiciled of Punjab, instead of Sindh (Urban) and consequently could not be declared successful on account of high merit list of Punjab---Respondent in the year 1997 challenged such treatment by filing a Constitutional petition before the High Court of Sindh, which was allowed upon his furnishing an undertaking that he would not claim the seniority ---Said order was maintained by the Supreme Court and the respondent was finally allowed to proceed for training in Sindh Civil Service Academy from where he passed the mandatory final passing out examination on 1-9-2009---After requisite training and on completion of five years mandatory service, the respondent was promoted from BS-17 to BS-18---Respondent was aggrieved when the Departmental Selection Board in its meeting did not recommend his name for promotion from BS-18 to BS-19 for want of 12 years mandatory service in BS-17 and above, which length of service according to the department, the respondent would complete in future on 26-8-2019---Contention of respondent that it was the Board's fault that he was treated as Punjab domiciled and was declined his due right to join service and was made to litigate for a period of ten years, therefore, he could not be denied the benefit of such promotion, merely for want of length of service---Held, that provision of subsection (3) of S. 8 of Civil Servants Act, 1973 if read in conjunction with R. 2(3)(b) of the Civil Servants (seniority ) Rules, 1993 left no doubt that the seniority of a civil servant on initial appointment to a service, cadre or post had to be reckoned from the date of his joining the post after being recommended by the Selection Authority and not from a date prior thereto---Even Rule 7 of the Occupational Groups and Services (Probation, Training and seniority ) Rules, 1990 empowered the Government to determine the seniority of the probationers after Final Passing Out Examination---No section of law or rule framed thereunder was brought to the court's notice which could empower the Government in cases of initial appointment to fix the seniority of a civil servant from a date prior to his induction in civil service upon successful completion of training---Respondent on account of certain acts or omissions on the part of the Board could not maintain his seniority with officers of his Common Training Programme (CTP) with whom he had cleared CSS examination and neither he completed his necessary training with officer of his CTP nor, he could be inducted in service with them---Remedy to such act or omission at the most could be induction in service by rectifying the wrong---In the present case, no mala fide on the part of the Board has been alleged but, even in cases where such act or omission was found to be tainted with mala fide the remedy could be anything but not seniority without actual length of service---Impugned order of Federal Service Tribunal whereby respondent was given benefit of placement of his seniority with officers of Common Training Programme (CTP) with whom he had cleared CSS examination, was set aside---Appeal was allowed accordingly.

Citation Name : 2019 PLC(CS) 449 PESHAWAR-HIGH-COURT
Side Appellant : CHAIRMAN, FBR through Member Administration
Side Opponent : MUHAMMAD ASFANDYAR JANJUA
Ss. 8 & 9---'seniority ' and 'Promotion'---Not vested rights---Neither any seniority nor any promotion could be claimed or granted without actual length of service on account of vested rights.