Full Judgment Text & Judicial Ruling

2010 P L C (C

2010 P L C (C.S.) 1

[Lahore High Court]

Before Mian Saqib Nisar, Iqbal Hameed-ur-Rahman and Umar Ata Bandial, JJ

MUHAMMAD SALEEM and 12 others

Versus

SECRETARY PROSECUTION, GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petition No.9394 of 2008, decided on 4th December, 2009.

(a) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----Preamble---Object and purpose of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006.

(b) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 2(j)---Word "prescribed" occurring in S.2(j), Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 means as prescribed by Rules and Regulations under the Act.

(c) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----S. 8(3)(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dispensing with services of District Public Prosecutors etc.---Allegation of political victimization etc. by present Provincial Government---In the present case Selection Committee was constituted (prior to the present government) pursuant to the order, dated 11-12-2006 passed in Writ Petition 8456 of 2006; interviews commenced from 12-4-2007 and the process was completed by 12-4-2008 and by this time, the present regime had not taken over; anybody, who participated as a stranger (not member of the Committee constituted) in the interviewing process, was not during the time of the present government, rather prior thereto, neither there were any allegations in the main writ petition to which reference could be made nor (there) was any material on the record on account of which it could be judicially concluded if the Selection Committee was influenced and the interviews and the result had been manipulated by the present government, present government rather had simply acted on the result, which had been declared by the Selection Committee---Held, impugned action (dispensing with services) was neither the result of any mala fide, political victimization, dishonesty of purpose on behalf of the present Government (of the Province of Punjab) nor it was tainted with any ulterior motive/object to illegally displace the functionaries (petitioners) and/or to appointment at their place their persons---Such allegations were nothing except rhetoric, loud, bald, baseless and unsubstantiated.

(d) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)---

----Ss. 8(3)(4), 16 & 2(j)---Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007---Recruitment Policy/Contract Policy, 2004---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maxim: res ipsa loguitur---Appointments and dispensing with services of District Public Prosecutors etc. and those retained in service---Nature---Appointment of said officials was subject to Rules and Regulations as mentioned in S.2(j) of Punjab Prosecution Service (Constitution, Functions and Powers) Act, 2006, which Rules/Regulations had not been framed till 27-7-2007 admittedly not when the advertisements were published on 12-7-2006 and 15-8-2006 and even when considerable number of appointments of said functionaries had already been made---Advertisements had stated that appointments shall be on the contract basis and under the caption of "terms and conditions" it was provided that "all the recruitments will be made according to the Recruitment Policy/Contract Policy, 2004"---Appointments made under the Recruitment Policy/Contract Policy, 2004 could not be made to the posts of BS-11 and above without interview whereas all the posts in question were above the said scale---Interview could only be conducted by a Selection Committee meant for the purpose; if the selection was to be made at the Provincial level, by a Committee comprising of, where appointing authority was Chief Minister, the Administrative Secretary concerned being the Chairman, while two officers of the Department to be nominated by the Administrative Department with the approval of Minister Incharge and one officer of S&GAD to be nominated by the Regulations Wing---Before making the appointment of said functionaries no interview was ever conducted by any Committee of any sort, though such a Committee was claimed by the Government/Prosecution Department to have been formed---Recruitment Policy/Contract Policy, 2004 had further prescribed that though appointment on contract basis was excluded from the purview of the Provincial Public Service Commission, however, the department should preferably adopt the channel of Public Service Commission for "contract appointments" against posts, which otherwise fell within the purview of Public Service Commission by seeking relaxation of relevant rule from Chief Minister; besides, under the Policy, a Contract Appointment Regulation Committee had been constituted---Said process was also not followed qua the appointments in the present case--- Validity---Held, in the light of the judgment of the High Court (Lahore) passed in 'Writ Petition No.8456 of 2006, to hold their appointments as regular shall be a feign, a farce and a sham---Said appointments were nothing more but a stopgap, pro tempore, standby, interim, ephemeral and a transitory arrangement, which were meant for the moment, and for the time being, awaiting the appointments on the regular basis or if and when permissible (especially after the promulgation of Rules) on account of the "contract"---Appointments were subject to the fundamental, imperative and a condition sine qua non i.e. "that the appointment will be subject to review/confirmation by Selection Committee constituted for the purpose" and all the appointees shall only be eligible for the "contract employment" once they cross the threshold of the review/confirmation by the Selection Committee---Committee constituted pursuant to the judgment of High Court, which was accepted by all the stakeholders shall be deemed to be the one formed under the noted condition and therefore, all those who had passed through the test of the Committee may be retained by the Government in the service only as the "contractual employees", -whereas who failed to qualify their services could be dispensed with---All those who had failed to pass the interview, notwithstanding any recommendee of Public Service Commission shall have to go, as having been removed, instead of termination, which expression in the facts of the present case, was not apt to use---Some of the appointments had been made even before any advertisement was issued to initiate the process of recruitment, not only that there was no reference in the various summaries sent to the Chief Minister for the appointment of the petitioners/retainees specifying their qualifications, those summaries were not shown to accompany even the applications of the candidates, their profile or Curriculum Vitae (CV) from which the competent authority could evaluate, assess and determine their caliber for handling such an important office, all seemed to be either conspicuously missing or not established to have been looked into for the purpose of due application of mind of the competent authority, yet the appointments had been made---High Court expressed its sheer disappointment and felt perturbed at the way very important offices connected with the judicial system of the country had been filled, and observed that such significant State assignments surely were not a bounty, alms or a charity from the people in authority, rather should be awarded to those who were deserving and behaved to the office and in the present cases, all this had been done in vain and on this account maxim res ipsa loguitur (the thing speaks for itself) was duly attracted to the matter---Held further that constitutional petitions, which pertained to all those petitioners who were interviewed by the original Committee of four members and had failed were dismissed; those regarding the candidates/petitioners who were interviewed by three members of the original Committee and had failed excluding the numbers of the "stranger" were also dismissed---Constitutional petitions relating to the petitioners/candidates, who had been interviewed by the Committee in which either two original members or one original member participated, those were allowed with the direction to the authorities to constitute a fresh Committee, hold interview and to decide their cases, this shall also be applicable to all the persons who had been retained on account of the interview conducted by a Committee comprising of either two original members or one, those could also be reassessed and their cases be decided accordingly---Retainees who on account of the data provided by the prosecution department had failed due to the exclusion of the marks granted to them by the `stranger', the department shall treat such persons retainees as "fail"---All the Additional Prosecutors-General and Deputy Prosecutors-General mentioned in S.8(1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 shall also be subjected to interview by the newly constituted Committee---Reasons detailed.

(e) Punjab Criminal Prosecution Service (Constitution Functions and Powers) Act (III of 2006)---

----Ss. 8 & 16---Appointments---Terms and conditions of service---Delegation of authority---Scope and principles-Maxim delegatus non potest delegare: delegated authority cannot be redelegated---Applicability---Scope.

There are three kinds of the authorities, which. can be delegated/sub-delegated under the law: Firstly: Relating to the agencies regulated under the law of Contract/Agency, if the principal has expressly conferred upon his agent for further delegation of power/authority that can only be so delegated to the extent provided, otherwise not; in this behalf the legal principle about the sub-delegation by necessary implication on account of the specific nature of agency cannot be ruled out. Anyhow (subject to the above) a power of attorney should be strictly construed and applied. Secondly, the statutory authority, the rule, where the law requires an act to be-done/performed in a particular manner it should be so performed and not otherwise, and that what cannot be done directly cannot be done indirectly, can be attracted. If the express provision of law has conferred power for the exercise of an authority by a particular person or body, it should only be exercised strictly in accord thereto. And if there is no provision for the delegation/sub-delegation in the law, under no rule or principle of law, such power could be exercised by any other person/body, on the basis of delegation by whom, such power is exercisable under the law. Thirdly, the administrative authority, which is not only akin to the above two, rather embeds the trails of both the categories. In the matter pertaining to statutory/administrative authority, there is a judicial consensus and a bias against the permissibility of the delegation of power, which is reflected in the maxim delegatus non potest delegare. The central question for the delegation/sub-delegation has always been (in cases of statutory and administrative powers) what was/is the intention of the law, which tilts towards non-delegation until so lucidly permissible. In the present case, power to form the Selection Committee vested with the Chief Minister, who had originally appointed the four members committee for the purposes thereof. In the order of the Chief Minister, which was in the nature of the approval of the summary, no power had been delegated to the members of the committee who in fact shall be deemed to be the nominees of Chief Minister's administrative authority to further delegate their power to anybody. Such delegation could neither be done collectively by the committee nor singularly by any member, may be the Prosecutor-General or the Secretary of the service. This could also not be so done in the garb of formulating any procedure for regulating the affairs or conducting the business of the Selection Committee, therefore, it was the originally constituted committee, which could only conduct the interview and none else. In this regard, the person .if any who participated in the proceedings of the committee was a `stranger' and, therefore, his evaluation/allocation of marks could not be counted towards the selection process.

(f) Delegation of authority---

----Kinds---Scope and principles---Maxim: delegatus non potest delegare---Applicability---Scope.

Farooq Amjad Mir, Dr. A. Basit, Dr. Khalid Ranjha, Tahir Mehmood Khokhar, Atir Mehmood, Muhammad Ahmad Qayyum, Muhammad Aslam Nagi, Irfan Malik, Khurram Khan, Ahmad Awais and Fahad Ahmad Siddiqui for Petitioners.

Mr. A.K. Dogar for the candidates, who passed the interview and retained by the Prosecution Department.

Kh. Haris Ahmad, Ahmad Rauf, Muhammad Raza Qureshi, Saad Rasul, Syed Zahid Hussain Bokhari, Prosecutor-General, Shaigan Shareef, Secretary to Government of Punjab, Prosecution Department, Lahore, Rana Maqbool Ahmad Khan, Secretary to Government of Punjab, Prosecution Department, Lahore and Ishtiaq Qadeer Moussavi, Director (Appeals), Prosecution Department, Lahore for Respondents.

Dates of hearing: 16th, 21st, 22nd, 27th, 28th, 29th, 30th April, 4th, 6th, 7th, 26th May, 23rd June, 7th July, 29th September, 1st 22nd, 26th, 28th, 30th October and 3rd November, 2009.

JUDGMENT

MIAN SAQIB NISAR, J.--- In the system meant for the dispensation of justice qua field of criminal law, the prosecution department undoubtedly has a pivotal, significant and a crucial role to play; earlier, the said department was part of the police service/ establishment and Prosecutor Sub-Inspectors (PSI) used to appear before the courts upto the sessions level in the police uniform, having no independence and impartiality; this was considered unbecoming to the office; thereafter, from amongst the lawyers the slots were filled by the government for various courts on the contract basis, yet on account of innumerable vices about the procedure of selection, efficiency, integrity and independence, an acute need was felt that a permanent prosecution service be established which should conform to the status, function and role of the office in the said system. Thus, in order to ensure the prosecutorial independence for better organization in the field, the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (Act III of 2006) (hereinafter referred to as "the Act, 2006") was enforced on 8-4-2006; the object and the purpose of the service is conspicuously spelt out from the preamble of the Act, 2006, which reads:---

"Whereas it is expedient to establish an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutorial independence, for better coordination in the criminal justice system of the Province and matters incidental' thereto."

2. It may be pertinent to mention here that including the Prosecutor-General there are various slots/posts envisaged by the Act, 2006 and sections 8(3)(4) of the Act, 2006 provide:--

"8. Appointments . --- (1) ..

(2)

() All the appointments, except that of the Prosecutor-General, to various posts in the Service, shall be made through initial recruitment in the manner as may be prescribed: (underlined for the emphasis)

Provided that at least fifty per cent appointments on the posts of Additional Prosecutor-General and Deputy Prosecutor-General shall be made through promotion.

(4) No direct recruitment shall be made on regular basis (underlined for the emphasis) to the posts of District Public Prosecutor, Deputy District Public Prosecutor, Assistant District Prosecutor, Additional Prosecutor-General and Deputy Prosecutor-General except on the recommendation of the Punjab Public Service Commission:

Section 2(j) of the Act, 2006 defines the word "prescribed" which 'B means, prescribed by rules or regulations made under the Act.

3. In order to fill up certain posts, mentioned above, on temporary contractual basis, two public advertisements were got published by the Prosecution Department in the newspapers on 12-7-2006 and 15-8-2006, and under the head `terms and conditions', it was mentioned that "All the recruitments , will be made according to the Recruitment Policy/Contract Appointment Policy, 2004. Pursuant to the above, the petitioners (who are mostly the District Public Prosecutors, Deputy District Public Prosecutors and Assistant District Public Prosecutors) claim to have applied and appointed.

4. During the course of the above, on 26-7-2006, a Writ Petition No.8456 of 2006 was filed by Mr. Mushtaq Ahmad Mohal, Advocate challenging the aforesaid advertisements and the appointments being made pursuant thereto, mainly on the ground that the provisions of the Act, 2006 do not permit those on the basis of contract; the said writ petition came up for hearing before a learned Single Bench of this Court, one of us (Umar Ata Bandial, J), who after seeking the comments from the Prosecution Department, considering the contentions/views of the petitioner of the case, the Prosecutor-General, the Additional Prosecutor-General and Mr. Ghulam Shabbir Thaheem, Advocate for the Punjab Public Service Commission ("PPSC"), passed the judgment dated 11-12-2006 whereby the writ petition was disposed of, the important/ relevant paragraphs of the judgment are reproduced below:---

"(6) The statutory mode of appointment through an institutionalized process provides merit based transparency. Any different process of recruitment and appointment to posts in the PCPS, howsoever sound and fair, cannot be at par. Firstly, because it deviates from the statutory mandate and secondly, because it shall be ad hoc and therefore open to dispute.

(7) The learned Prosecutor-General has emphatically conveyed the intention of the respondent No.1 to curtail the number and period of contractual appointments to the bare minimum and that ultimately all appointments in the PCPS shall be made subject to PPSC scrutiny or verification. With respect to the matter of time lag, he informs that the respondent No.1 shall send its requisition to the PPSC on or before 30-6-2007 for commencing its recruitment process for posts in the PCPS. Thereafter, it is for the PPSC to complete its process which too is liable to take considerable time. During the interregnum, therefore, he urges that the respondent No.1 should be allowed to carry out contractual recruitment through a fair and transparent process. All 'stop gap appointments already made in the PCPS by the respondent No.1 and further contractual appointments that are necessary for energizing the PCPS shall be made subject to the scrutiny, examination and approval of the PPSC. Thus ultimately no appointment made in PCPS except that of Prosecutor-General shall be beyond the purview of PPSC action. (underlined for the emphasis)

(8) It is stated that the respondent No.1 shall conduct its recruitment process of contractual appointees through a panel of qualified selectors that shall include a retired Judge of the High Court or the Honourable Supreme Court. Merit and transparency in such selection process of contractual appointment shall be adhered strictly. Based on the foregoing safeguards, which are generally reflected in the additional facts submitted in writing by him, the learned Prosecutor-General has argued that in every new organization transitional measures are necessary to put it in place. If the respondent No.1 is not allowed to undertake contractual appointments, the PCPS shall be prevented from performing its functions until the statutory and transitional process for recommendations by the PPSC is completed. Such an event shall defeat the statutory object for the creation of the PCPS.

(9) The Court has given its anxious consideration to the steps being taken by the respondent No.1 to mobilize the PCPS and the stages that must be covered for recruitment of Prosecutors on regular basis in the PCPS on recommendation by the PPSC. There is weight in the submissions made by the learned Prosecutor-General that contract appointments are necessary and should be made. In this behalf, the independence and professional capability of the panel of selectors will also promote merit and fairness in the contractual appointments recommended by them.

(10) It is however noted that the proposed mode of selection, nevertheless, contains defects that have legal consequences. The prolonged period of three years contract appointment offered by the respondents is inconsistent with the statute and the respondent's purport to expedite selection of regard appointees by PPSC. This period must therefore be curtailed by the respondent No.1 to the bare minimum duration, namely, exceeding six months but not much more than one year. (underlined for the emphasis) The contract period is of importance also because according to the letter dated 8-12-2006 by the respondent No.1 addressed to the learned Prosecutor-General, the PPSC has declined to review or confirm the temporary appointments made and projected to be made by the respondent No.1 during the current period of transition. This refusal also applies to the impugned contractual appointments. Therefore, unless the contract appointees join the mainstream competition before the PPSC, they shall form an exclusive class of prosecutors immune from PPSC scrutiny for the duration of their respective contracts. (underlined for the emphasis) This is not a fair scenario to create nor is it compatible with the Act. Therefore, in a realistic legal context, the stand taken by the PPSC also necessitates that a short contractual term of service is offered by the respondent No.1.

(11) Accordingly, subject to the foregoing limitation of duration of contractual appointment and the obligation that the respondent No.1 shall forward within six months its requisition to the PPSC for induction, recruitment and appointment on regular basis of PCPS Prosecutors, the impugned temporary contractual appointments proposed to be made by the respondent No.1 are held to be lawful and valid. Petition disposed of in foregoing terms."

The above judgment was not challenged by any stakeholder, thus has attained the finality. Rather to strictly adhere thereto and to act upon it, the Secretary, Public Prosecution Department moved a summary dated 26-12-2006 to the Chief Minister of Punjab. It is mentioned therein that the Lahore High Court disposed of the Writ Petition No.8456 of 2006 titled "Mushtaq Ahmad Mohal v. Government of the Punjab and others vide order dated 11-12-2006 with the following observation:--

(i) The recruitment on regular basis for the posts of Punjab Criminal Prosecution Service be referred to the Punjab Service Commission within 6 months.

(ii) The recruitment on contract basis be subjected to review/ confirmation by a Selection Committee (underlined for the emphasis) which should include one retired Judge.

(iii) While holding the appointments so far made on temporary basis as valid (underlined for the emphasis), the Court has observed that these appointments along with other temporary appointments which may be made will all be subject to review/confirmation by the Committee referred to in (ii) above.

In Paragraph No.4 of the summary, it has been mentioned:---

"The inclusion of a retired Judge of High Court or Supreme Court is a deviation from the Selection Committee already notified under Recruitment Policy, 2004. (Annex-B) However, in pursuance of orders of Honourable High Court and para.10 of the Recruitment Policy which provides that in cases where department finds that the said committee is not relevant to their peculiar circumstances, they may get their own committees constituted after obtaining approval of the Chief Minister routing the matter through Regulation Wing, S&GAD (Annex-C), the Department proposes the following Selection Committee to review/scrutinize the candidates appointed on temporary basis against posts included in Punjab Criminal Prosecution Service.

(1) Secretary, Public Prosecution.

Chairman

(2) A retired Judge of High Court or Supreme Court of Pakistan.

Member

3. A retired Member of Civil Service

Member

4. Prosecutor-General, Punjab

Member

The TERMS OF REFERENCE enunciated in the summary were:

(i) The Selection Committee shall strictly follow the procedure laid down in the Recruitment Policy-2004 as well as criteria approved for the posts.

(ii) It shall review all appointments on temporary basis made against posts in the Punjab Criminal Prosecution Service.

The summary was approved by the Chief Minister of Punjab on 29-12-2006, thus the following panel of the…

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