SAIFULLAH And Others vs TARIQ HUSSAIN And Other Respond

SHAFIUR RAHMAN, J: --Leave to appeal was granted to examine whether the High Court could, in constitutional jurisdiction, by the impugned judgment dated 2-5-1989 grant the civil servants, who were the writ petitioners before it, the relief to the terms and conditions of their service.

2. The respondents/writ petitioners claimed to have been appointed ad hoc Naib- Tehsildars by Order of the competent authority on various dates. All the appointment letters contained the condition that the appointment is on ad hoc basis, subject to the clearance under the relevant rules by the Divisional Selection Committee. When the regular recruitment to the service under the rules applicable was undertaken and posts were advertised, the applicants including the ad hoc appointees were directed to take up the written examination, the interview and also to undergo the Selection process before the Divisional Selection Committee. To this, the writ petitioners objected on the ground that fceir selection was regular and proper and that they could only be asked to pass the departmental examination and not the written examination.

3. The High Court entertained the constitution petition notwithstanding the objection to its jurisdiction treating it a case relatable to the fitness or otherwise of the writ petitioners to hold a particular post and proceeded to grant them the relief on the ground as stated hereunder:- "It may be seen that for contesting the age limit of a candidate has been fixed to be 18 to 20 years on 1st December, 1988. Then he has to go through written and oral tests. Besides 50% posts are to go to direct appointees and 50% to promotees. From amongst 50% of direct appointments 30% of the posts are to go to persons of rural areas. By these conditions on the face of it some of the petitioners Would loose their jobs in spite of qualifying. Manifestly it is violation of the condition laid down in the appointment orders issued by the respondent."

This has led to the two appeals before us.

4. The narration of facts and the relief claimed by the writ petitioners itself shows that it was not a question of fitness or otherwise of the applicants which . Was in issue. The question brought for adjudication in constitutional jurisdiction was whether the ad-hoc appointees could be asked to go through the written examination and the Selection procedure which was being followed for making initial recruitments under the rules. In other words, the question was whether as ad hoc appointees, it was a part of the terms and conditions of their appointment that they should take examination in the manner prescribed and proposed. The question of their fitness or otherwise could have arisen only when they would have been adjudged, as a result of such test and interview, fit or otherwise not fit for appointment. In the circumstances, the matter being relatable to terms and conditions of service, the jurisdiction of the High Court was barred under Article 212(3) of the Constitution. For this our judgments in the Superintendent of Police, Headquarters, Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387 and Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 are referred.

5. The High Court has not held that the test, the interview and the selection procedure is not the one prescribed under the rules or the administrative instructions issued under the rules applicable to the direct recruits. Unless it was so held or the vires of such 4 provision was disputed, the avoidance of the formal written test, interview and process of selection could not be assumed. An ad-hoc appointment is by the very definition provided under the Civil Servants Act one who is qualified but his appointment is not in accordance with the rules. The writ petitioners could not, therefore, claim to be regular appointees only required .To undertake the departmental examination and nothing beyond.

6. For the foregoing reasons both the appeals are allowed, the judgment of the High Court is set aside as without jurisdiction and the writ petition filed by the respondents stands dismissed.