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Petitioner: CHAND IQBAL and others VS Respondent: PROVINCE OF THE PUNJAB and others
Court Name: Lahore High Court Judge(s): Shahid Jamil Khan Title: CHAND IQBAL and others vs PROVINCE OF THE PUNJAB and others Case No.: Writ Petition No.26883 of 2021 Date of Judgment:2021-07-04 Reported As: 2023 PLC (C.S.) 530 Result: Petition allowed
JUDGMENT
JUDGMENT SHAHID JAMIL KHAN, J. This judgment addresses the issues, surfaced after withdrawal of recommendation, by Punjab Public Service Commission ("PPSC"), for appointments of petitioners, when those were acted upon by issuing appointment letters. So appointed, the petitioners were terminated as a consequence. They claim themselves to be civil servants and seek treatment in accordance with the relevant law and procedure. Conversely, the respondents have raised objection on maintainability of these petitions, in view of bar under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), necessary corollary of which is that petitioners are civil servant, and arguing in same breath that the appointments were temporary, therefore, could be terminated, in absence of a notice and without following any procedure. It is, however, not disputed that cause of termination is the withdrawal of recommendations and not terms and conditions of service or disciplinary matter. 2. The pleadings and arguments have raised following legal issues: - i) After issuance of appointment letters, whether petitioners are Civil Servants', if so, whether they could be terminated without a notice, in absence of procedure. ii) For bar of jurisdiction, under Article 212, is it sufficient that petitioners are Civil Servants or the reasons for termination should relate to 'terms and conditions' of service? iii) Whether Punjab Service Tribunal ("PST") can adjudicate on the reasons, leading to withdrawal of recommendations by PPSC? iv) Whether, PPSC became "functus officio' after issuance or implementation on the recommendations for appointments? (Kashif Mustafa Case relied upon by petitioners) 3. Background and facts, relevant to the lis are:
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The petitioners, in this and connected petitions, were appointed as Deputy Accountants (BS-16), in Finance Department, however, were-terminated on withdrawal of recommendation by PPSC. The termination is challenged along with the withdrawal of recommendations. Contents of one of the impugned termination order dated 09.04.2021 are reproduced:- "ORDER IT(FD)(ESTT-II)10-1/2020 (New Recruitments) In pursuance to the letter of Punjab Public Service Commission bearing No.ESTT-I/2019-PPSC/405, dated 07.04.2021, wherein PPSC has withdrawn for all intents and purposes, the paper / test / selection process, completed against the post of Deputy Accountant (BS-16), Finance Department, the services of Chand lqbal D/o Muhammad Iqbal, recruited as Deputy Accountant (BS-16) vide this Inspectorate Orders bearing No.IT-FD(Estt-II)10-1/2020(PF-183) dated 01 .12 .2020 are, hereby, terminated with immediate effect. Punjab Public Service Commission has further conveyed that the test/paper against the said post shall be conducted afresh in due course of time of the existing candidates only and no fresh advertisement shall be given for recruitment against this post and the existing candidates shall not be required to either again remit admission fee or submit on-line admission form.' [emphasis supplied] It is apprised by learned AAG, assisted by Deputy Secretary, PPSC, that on receiving information about leakage of question papers and its use by the candidates, matter was referred to Anti- Corruption Establishment ("ACE"). On ACE's report, the recommendations were withheld; where recruitment process was not completed, however, recommendations already sent for the posts of Deputy Accountant, Finance Department were withdrawn, by invoking Regulation 63 of PPSC Regulations, 2016, which is reproduced:- "63. If any error or omission is detected in the eligibility of a candidate or result or merit list at any stage even after its dispatch to the Department concerned, the recommendation(s) made on the basis of such a mistake/error shall be withdrawn to review by the Commission and duly rectified." [emphasis supplied] The letter of withdrawal dated 28.01.2021, by PPSC is also reproduced:- "2. It is stated that in pursuance of findings of Anti-Corruption Establishment, based upon the investigation conducted by it, against leakage of Punjab Public Service Commission's papers, the Punjab Public Service Commission while exercising its powers under Regulation No.63 of PPSC's Regulation, 2016, hereby withdraws for review the recommendations for the post of Deputy Accountant (BS-16) which were conveyed vide letter No.PSC-RA-I/2020/30 dated 09-09-2020. Further process in the matter shall be shared after review/rectification by the Punjab Public Service Commission under the Regulation ibid." [emphasis supplied] On being confronted to show, from record, that any of the error or omission, relating to the petitioners' eligibility, result or in preparation of the merit list, was identified. Learned AAG read a letter by ACE addressed to Chief Secretary Punjab, which is reproduced for reference: - "One of the accused Mr. Ghazanfar Khan admitted that he passed the written examination under Roll No.22018 after having question paper beforehand from Mr. Usman a private person after paying Rs.250,000/-. He also confessed that Mr. Usman sold this paper to many other candidates including his real brother Arshed Ahmad son of Ahmed Khan (Arshed Ahmad) who passed this examination and now working in District Accounts Office, Jhang." [emphasis supplied] On a specific question it is not denied that the impugned action of withdrawal is based on statement of Ghazanfar Khan, a candidate at Roll No.22018 and accused before ACE. He admitted, in his statement, to be a beneficiary along with another (Arshed Ahmad), who is now working in
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District Accounts Office, Jhang. For other candidates, his statement of selling question papers by one Muhammad Usman is relied upon. On this material/evidence, DG ACE recommended for action against the petitioners in following words: - "5. On the basis of role of different culprits, evidence gathered during investigation so far as perusal of WhatsApp groups chat history of the culprits and candidates for the posts, it is recommended that the examinations conducted by the PPSC against the posts mentioned in Annex-B, where Candidates have not joined their duties, may be cancelled. It is also recommended that a reference may be sent to the Finance Department for the post of Deputy Accountant BS-16 for taking necessary action as the recruitment process has been completed and candidates have joined their duties." [emphasis supplied]' 4. After withdrawal of recommendations on 28.01.2021, the matter was placed before Full Commission of PPSC, which was reviewed and decided vide letter dated 07.04.2021 addressed to the Additional Chief Secretary and Finance Secretary, Government of the Punjab, Lahore. Relevant part of the decision is reproduced: "8. The final meeting of the Full Commission of PPSC was held on 17.03.2021 at 11:30 am, for review of the decision taken on 28.01.2021 about putting on hold the recruitment/appointment process against above said 12 papers/posts. After detailed discussion on the report submitted by the Anti- Corruption Establishment Punjab, in form of a 'Note for Chief Secretary' along with annexure, the Full Commission observed that the Anti-Corruption Establishment and the corroborating circumstances, endorsed by the internal probe at PPSC level, established the leakage of papers against 12 posts, and keeping these papers intact would tantamount to compromising the fair play, meritocracy and transparency of the Punjab Public Service Commission, therefore, giving due consideration to Regulation No.63 of PPSC's Regulations-2016, the Full Commission of PPSC unanimously decided as under:- (a) withdraw, for all intents and purposes the papers/tests/selection processes, completed/under going, against the following posts: - i. Deputy Accountant (BS-16), Finance Department. .................. 9. In view of the foregoing, the decision of the Full Commission of Punjab Public Service Commission, taken or, 17.03.2021, is conveyed accordingly." [emphasis supplied] 5. The issue wise findings, in backdrop of the facts are as under; 1) 'Civil Servant', under Section 2(1)(b) of Punjab Civil Servants Act, 1974 ("Act of 1974"), means a "member of civil service of the province or who holds a civil post" but does not include persons; on deputation, employed on contract or a worker/workman. Civil post can be permanent or temporary; permanent post is sanctioned without limit of time [5.2(1)(f] also called sanctioned post and temporary post is a post other than a permanent post [S.2(1)(k)]. There is no confirmation for an appointment against a temporary post [S.6(4)]. An ad hoc appointment [Section 2(1)(a)] though against a permanent post, is temporary in nature. A duly qualified person is appointed, otherwise than recruitment in accordance with the prescribed method. The temporary employment is liable to termination on thirty days' notice or pay in lieu thereof [S.10(3)]. Appointment of the petitioners was initial, against permanent posts of Deputy Accountants (BS-16) in Finance Department, made through a prescribed method of recruitment. Under Section 5(1), initial appointment, against a permanent post, is to be on probation for such period as may be prescribed. Relevant clauses from one of the appointment letters dated 01.12.2020, is reproduced for facility:-
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"iii. You will remain on probation for two years, extendable for another two years if not terminated by the Competent Authority. However, on successful completion of period of probation, your service will be considered for confirmation. iv. Your services are liable to termination without assigning any reason or serving any notice during the period of probation.' [emphasis supplied] 6. Since petitioners were appointed initially against permanent/sanctioned posts through prescribed procedure, therefore, are Civil Servants on probation. Service of a probationer civil servant is dealt with under Section 5 of the Act of 1974. Provisions, relevant to this case, are reproduced: - . "5. Probation.--(1) An initial appointment to a service or post referred to in section 4, not being an ad hoc appointment, shall be on such probation and for such:period of probation as may be prescribed. (2) ... (3) Where, in respect of any service or post, the satisfactory completion of probation includes the passing of a prescribed examination, test or course or successful completion of any training, a person appointed on probation to such service or post who, before the expiry of the original or extended period of his probation, has failed to pass such examination or test or to successfully complete the course or the training shall, except as may be prescribed otherwise,-- (a) if he was appointed to such service or post by initial recruitment, be discharged; or." [emphasis supplied] The person, initially appointed as probationer can be discharged under subsection (3) (a), if he does not successfully complete the probation, including passing of a prescribed examination. It is important to note that word 'discharge' is used instead of termination. On satisfactory completion of probation, the Probationer becomes eligible for confirmation, in accordance with the prescribed rules [S.8(1)]. Rule 7 of The Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 ("Rules of 1974"), provides procedure for confirmation of a probationer: "7. (1) A person appointed to a post in a grade against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise; provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all. ... ... (2). No person shall be confirmed in a post unless he has successfully completed such training and passed such departmental examination as may be prescribed. (3) ... ... (4) Subject to the provisions of sub-rule (2) above, if no orders have been made by the day an which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended. ... ... (5) A probationer, who has satisfactorily completed his period of probation against a substantive vacancy, shall be confirmed w4 effect from the date of his continuous appointment in such a vacancy: ... ...." [emphasis supplied] A right to be confirmed is created, when a probationer successfully completes his probation period, as phrase "shall be confirmed" is used under the Rule 7(5) read with the Section 8(1).
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The termination of service for all kind of appointments is dealt with under Section 10 of the Act of 1974. The provisions relating to termination a probationer civil servant are reproduced:- "10. Termination of service.---(1) The service of a civil servant may be terminated without notice-- (i) during the initial or extended period of his probation" .... ..... (2) In the event of a post being abolished or number of post in a cadre or [service] being reduced the services of the most junior person in such cadre or [service] shall be terminated. (3) Notwithstanding the provisions of subsection (I) but subject to the provisions of subsection (2), the service of a civil servant in temporary employment or appointed on ad hoc basis shall be liable to termination on thirty days' notice or pay in lieu thereof.' [emphasis supplied] Though under Section 10(1)(i), ibid, a Probationer can be terminated without notice, yet non- obstante provisions of subsection (3), require termination on 30 days' notice or pay in lieu thereof. If, after appointment, the permanent post is abolished or posts are reduced, services of the most junior persons (civil servants) shall be terminated without notice. In this Court's opinion; notice envisaged under Section 10(1)(i) is Show-Cause Notice, confronting with the reasons for termination and consequent proposed action of termination from service. Whereas, the notice under Section 10(3) is an "Intimation Notice", informing that the service would no more be required, after the date specified therein or from the date of such notice with one month's pay in lieu of intimation notice. Purpose of intimation notice appears to save the civil servant from a surprise, which might harm him psychologically or socially. If petitioners' case is examined under the provisions, discussed above, it is established that petitioners are civil servants on probation. They are not discharged under Section 5(3)(a) for not passing examination or failing to successfully complete course or training nor are they terminated under Section 10(3) on 30 days' notice or pay in lieu thereof. Petitioners' termination is on withdrawal of recommendation by PPSC on the apprehension of using unfair means during recruitment examination, which carries a stigma. If no stigma of misconduct, inefficiency or corruption is attached with the termination of a probationer's service then it is a "termination simplicitor", therefore, no Show-Cause Notice and subsequent procedure is required. [2016 PLC (C.S.) 155 Nadeem Asghar Nadeem and others v. Province of the Punjab and others], [2004 SCMR 44 Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others], [1990 SCMR 1510 Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others] and [PLD 1974 SC 393 Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan]. However, if stigma is attached to termination, Show-Cause Notice and proceeding thereafter are necessary, as is deducible from the judgments, ibid. In Nadeem Asghar Nadeem's case August Supreme Court examined the issue on touchstone of Article 10A of the Constitution, as vires of Section 10(1)(i) of the Act of 1974 were assailed. Hon'ble Court opted to read down the provision and held:- "29. For the above reasons it is held as follows:- A. In the light of Article 10A read with Articles 4, 9, 14 and 25 of the Constitution, section 10(1)(i) of the Punjab Civil Servants Act, 1974 is read down, to the extent, that in cases where termination of a probationer is on the grounds of misconduct, inefficiency, corruption, etc prior notice is mandatory and is required to be issued to the probationer. B. Where the probationer has failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer can be terminated without notice, but any such termination order must carry reasons for termination.
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C. In case the probationer has passed eligibility criteria and has been found liable for misconduct, inefficiency or corruption, the competent authority does not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order. Petitioners' termination is not simplicitor, due to withdrawal of recommendations on the allegation of using unfair means during recruitment examination, therefore, answer to the first proposition is; "after issuance of appointment letters, the petitioners are 'Civil Servants', they could not be terminated without a show cause notice and in absence of due process/procedure". 7. The next legal proposition, as noted in paragraph No.2, supra, relates to bar of jurisdiction under the Article 212. Jurisdiction of the Court under Article 199 of the Constitution, is ousted, when matter relates to "terms and conditions", including "Disciplinary Matters". Relevant provisions of the Article 212 of the Constitution are reproduced:- "212. (1) Notwithstanding anything hereinabove contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of - (a) Matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shall abate on such establishment: [emphasis supplied] In this case, petitioners have been terminated for a fault on the part of PPSC, during conduct of recruitment examination, which was prior to the issuance of appointment letter, therefore, cannot be construed to have any relation with the terms and conditions of petitioners' service. Nor the fault or consequent withdrawal by PPSC accrued during service after appointment letter, therefore, the disciplinary Matters, if any, has no nexus with the service. Under Section 4(1)(b) of Punjab Service Tribunals Act, 1974, appeal against the impugned termination order does not lie before the Service Tribunal. As the termination is on withdrawal of recommendation by PPSC, therefore, squarely falls within the phrase "fitness or otherwise of a person". Relevant provision is reproduced hereunder:- "4(1)(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and" [emphasis supplied] 8. The view, ibid, is fortified by August Supreme Court's judgment in Dr. Ahmad Salmon Waris, Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others (PLD 1997 Supreme Court 382), relevant part of which is reproduced hereunder: - "For attracting the aforesaid bar in exercise of jurisdiction under Article 199 of the Constitution by the High Courts, it is to be first shown that the petitioner is a civil servant and that the dispute relates to the terms and conditions of his service, unless the aforesaid two conditions co-exist, the provisions relating to the ouster of jurisdiction will not be attracted. Reference in this regard may be made to the recent decision reported in 1991 SCM R 1041 (I.A. Sherwani and others v. The Government of Pakistan through Secretary, Finance Division and others), wherein the question of ouster of jurisdiction of the Courts, under Article 212 of the Constitution of the Islamic Republic of Pakistan came up for consideration, which has been answered as under:-
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From the above-quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of Section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact." [emphasis supplied] The judgment, ibid, in Dr. Ahmad Salmon Waris' case was relied upon by learned Balochistan High Court in Abdul Khaliq Mandokhel and 2 others v. Chairman. Balochistan Public Service Commission and another (2016 PLC (C. S.) 1184) to hold that selection/recommendation by Balochistan Public Service Commission (BPSC) cannot be brought under challenge before Service Tribunal. Since the termination in question does not involve terms and conditions of service after appointment as Deputy Accountants (BS-16) nor disciplinary proceeding during this service is in question, therefore, it can safely be held that "bar of jurisdiction, under the Article 212, is not attracted merely because petitioners are civil servants". In this backdrop, the third proposition, supra, is also answered that Punjab Service Tribunal does not have jurisdiction to entertain petitioners' appeal against impugned termination orders, being passed on withdrawal of recommendations by PPSC. Hence, this Court has jurisdiction under Article 199 of the Constitution to entertain and decide the issue. 9. After holding that impugned termination orders could not be passed in absence of show-cause notice and due process, challenge to withdrawal of, recommendations by PPSC is also examined. The law dealing with the proposition is scrutinized; Public Service Commission, Federal or Provincial, is constituted on command of the Constitution in its Article 242, which is reproduced:- "242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province may, by law provide for the establishment and constitution of a Public Service Commission. (1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President [on the advice of the Prime Minister.] (1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister. (2) A Public Service Commission shall perform such functions as may be prescribed by law.' [emphasis supplied] This Article is placed in Chapter 1, titled 'Services', of Part XII of the Constitution. Article 240 of this Chapter, envisages that appointment and conditions of service of the person in 'Service of Pakistan', shall be determined by respective legislature of the Federation or Provinces. Service of Pakistan, as defined under Article 260(1), means any service, post or office in connection with affairs of the Federation or of a province. The Province of Punjab has established the Public Service Commission through Punjab Public Service Commission Ordinance, 1978 ("PPSC Ordinance"). Functions of PPSC are prescribed under its Section 7, which appear to be advisory, however, if advice is not accepted, PPSC is required to be informed accordingly (Section 8). Primary function is to conduct test and examination for recruitment. Both the Sections are reproduced:- 7. Functions of Commission.- The functions of the Commission shall be- (a) to conduct tests and examination for recruitment to- (i) such Provincial services and posts connected with the affairs of the Province, as may be prescribed; and (ii) such posts in or under a Corporation or other body or organization set up by Government under" any law, as may be prescribed;
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(b) to advise the Government on such matters as may be prescribed, relating to the…
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