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Petitioner: SAEED IQBAL WAHLAH VS Respondent: PRIME MINISTER OF PAKISTAN
1995 P L C (C
1995 P L C (C.S.) 294
[Federal Service Tribunal]
Present: Abdul Razzaq A. Thahim, Chairman, Ch. Hasan Nawaz and Muhammad Ismail Members
SAEED IQBAL WAHLAH
versus
THE PRIME MINISTER OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Islamabad and 3 others
Appeals Nos. 6(K) of 1990, 216(R) of 1991 and 176(L) of 1993, decided on 12th April, 1994.
Per Muhammad Ismail, Member and Abdul Razzaq A. Thahim, Chairman, agreeing‑‑
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4(1)(b)‑‑‑Appeal before Service Tribunal‑‑‑Competency‑‑‑Civil servant was initially allocated to Police Service on basis of his merit position in the C.S.S. competitive examination‑‑‑Civil servant, on availability of some vacancies in Customs and Excise Group was subsequently offered post of Assistant Collector in Customs and Excise Group, keeping in view his preference for that group and was appointed as such by Competent Authority‑‑‑Such appointment was a decision, determining fitness of civil servant for appointment to a particular post/group and, thus, Service Tribunal had no jurisdiction to entertain civil servant's appeal as the same was hit by S. 4(1)(b), Service Tribunals Act, 1973‑‑‑Appeal, not being against any final order of departmental authority was also not competent.
Per Ch. Hasan Nawaz, Member‑‑Contra‑‑
(b) Service Tribunals Act (LXX of 1973)---
‑‑‑‑S. 4(1)‑‑‑Appeal‑‑‑Competency‑‑‑Civil servant having been allocated specific group, accepted terms and conditions thereof, and joined Civil Service Academy for training‑‑‑Memorandum of appeal filed by civil servant did not disclose any order whether original or Appellate made by departmental authority in respect of any of the terms and conditions of his service by which he felt aggrieved‑‑‑Civil servant had also not contended that there was any violation of the terms and conditions of his service‑‑‑Civil servant, therefore, could not invoke jurisdiction of Service Tribunal in terms of S.4(1), Service Tribunal Act, 1973.
Per Ch. Hasan Nawaz, Member‑‑‑Contra‑‑‑
(c) Civil service‑‑
‑‑‑‑ Appointment to specific group‑‑‑Such appointment was based on advice tendered by Public Service Commission‑‑‑Civil servant's claim for appointment to a specific service having not been recommended by Public Service Commission, would not entitle him to that particular post.
Per Ch. Hasan Nawaz, Member‑‑‑Contra‑‑‑
(d) Civil Servants (Appeal) Rules, 1977‑‑‑
‑‑‑‑R. 5(4), proviso 2‑‑‑Appeal‑‑‑Competency‑‑‑Departmental appeal filed by civil servant beyond prescribed period of limitation before Service Tribunal would be considered to be time‑barred.
Per Ch. Hasan Nawaz, Member‑‑‑Contra‑‑‑
(e) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4(1)‑‑‑Service Tribunal (Procedure) Rules, 1974, R. 7‑‑‑Appeal‑‑‑Non joinder of necessary parties who were likely to be affected if civil servant's appeal was allowed‑‑‑Failure to implead those persons would render the appeal not maintainable.
Per Ch. Hasan Nawaz, Member‑‑‑Contra‑‑‑
(f) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 3‑A(2)(c)‑‑‑Order of Tribunal in case of difference of opinion of two Members thereof, would be in terms of opinion of the Chairman of the Service Tribunal, whereby appeal was dismissed.
Syed Mansoor Ali Shah for Appellant.
Hafiz Tariq Naseem for Respondents.
Date of hearing: 26th June, 1993.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑‑We are concerned, in this judgment, with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973, filed on 18‑1‑1990 after due fulfilment of the Statutory requirement of exhausting the departmental remedy.
2. Facts are not in dispute. The appellant passed the Central Superior Service Examination of 1987 held by the Public Service Commission securing 27th position in order of merit. Before taking the test, the first three options for appointment under the Federal Government were the District Management Group, Customs and Excise Group and the Police Service of Pakistan. He was initially allocated to Police Service of Pakistan with effect from 1‑11‑1988 on the basis of merit position and available vacancies of the competitive examination of 1987 and asked to report for common training at the Academy on 1‑11‑1988 by offer of appointment dated 28‑9‑1988. Subsequently, however, on the availability of a few more vacancies in the Customs and Excise Group, he was selected for appointment against one of those vacancies as Assistant Collector (B‑17) because of his preference for that group over the Police Service of Pakistan. In pursuance, by letter dated 28‑11‑1988 issued by the Central Board of Revenue, he was asked to report for training to the Director‑General, Civil Service Academy, Lahore on 1‑12‑1988 for common training. This was followed by Notification dated 11‑12‑1988 appointing him as Probationer (B‑17) at the Academy.
3. One Mr. Sardar Usman Rana was also one of the successful candidates of the competitive examination of 1987. His position in order of merit being 19th, he was allocated to the District Management Group in accordance with his preference and the availability of vacancy. After having joined the Academy for common training programme on 29‑11‑1988 he made an application to the Secretary, Establishment Division for his reversion to the Education Department of the Punjab where he had a lien against the post of Lecturer. The request was granted and he was informed through letter dated 11‑3‑1989 that he was allowed to revert to the Education Department without recovery of training costs as a special case in relaxation of the instructions on the subject.
4. On availability of vacancy in the Punjab Province quota in the District Management Group on account of Mr. Sardar Usman Rana's reversion, the appellant submitted an application to the Secretary, Establishment Division on 2‑7‑1989 for his allocation to the Group against that vacancy on the ground of his preference expressed at the time of examination and the fact that he was the next available person in order of merit from the Province of Punjab. He was informed by Memo, dated 6‑8‑1989 that his request could not be allowed "under the existing rule". On receipt of this Memorandum on 26‑8‑1989 at Karachi, he addressed an appeal to the Prime Minister of Pakistan on 24‑9‑1989 with the prayer that he may be reallocated against the vacant seat in the District Management Group against the quota of Punjab Province on cancellation of Establishment Division's decision conveyed through memo, dated 6‑8‑1989.
5. The departmental appeal went without response and he was obliged to have recourse to the Tribunal with the present appeal praying that the Establishment Division's order conveyed through Memo dated 6‑8‑1989 may be set aside with an order for his reallocation to the vacant seat in the District Management Group.
6. Preliminary objections regarding maintainability of the appeal and limitation aside, the defence in the main is that the appellant had no cause of action in view of the provisions of Establishment Division's O.M.No.l/29/87- TV, dated 19‑4‑1988. It was pleaded that the vacancy caused in the District Management Group against the quota of Punjab Government on account of the repatriation of Mr. Sardar Usman Rana, was carried over to the next competitive examination to be held in 1988 under the provisions of O.M., dated 19‑11‑1988 on account of vacancy having occurred four and a half months after the start of common training programme. The appellant's request for reallocation was rather late, because of having been made on 2‑7‑1989. It was refused by the competent authority, partly because of the fact that the vacancy had been carried over to the next competitive examination in terms of O.M., dated 19‑4‑1988 and partly because it was time‑barred.
7. The first point which falls for determination is whether, under the circumstances of this case, the appellant was entitled to allocation to the District Management Group against the Punjab quota vacancy caused on account of the repatriation of Mr. Sardar Usman Rana to the Education Department. It obviously emanates from an objection in respect of existence of "a legal cause of action". The respondents', main stay in support of their case is on certain executive instructions issued in the shape of Office Memorandum. The first in point of time is the one issued on 4‑11‑1987 which we reproduce in detail because of its importance and bearing on the just decision of the point involved:
"Establishment Division
(Training Wing)
No.1/29/87‑TV Islamabad November 4, 1987.
Office Memorandum
Subject: VACANCIES CAUSED BY REPEATER AND NON‑JOINERS
The undersigned is directed to say that it has been a practice since Competitive Examination, 1983, that the vacancies caused by repeaters and no‑joiners are filled by the next eligible candidates of the same examination. The experience has shown that the vacancies caused by repeaters create uncertainty and the regular annual in take of the Ministries/Divisions concerned is seriously disturbed. Moreover, for filling the vacancies caused by repeaters and non‑joiners by the Commission the whole allocation already made is disturbed which apart from causing dislocation, delays the process of reallocation, with the result that the fresh nominees of the Commission cannot join Civil Service Academy, Lahore for training along-with their batchmates.
In view of the above position, it has been decided that the vacancies caused by repeaters and non‑joiners will be carried over to the next Competitive Examination with effect from the Competitive Examination, 1987. The following phrase from the offer of appointment may be deleted from the Competitive Examination 1987‑‑
'The resultant vacancy will be offered to the next eligible candidates immediately thereafter.'
(Sd.) Muhammad Azam Rathore
Deputy Secretary (IT)"
8. It may be taken as common ground and this in fact is the respondents case in view of the provisions of O.M., dated 4‑11‑1987, that ever since the competitive examination of 1983 the practice was that the vacancies caused by repeaters and non‑joiners were filled by the next eligible candidates of the same examination. It may also be taken as an admitted fact that this practice was still in vogue when applications for the competitive examination of 1987 were invited, and there used to be a phrase before this examination in the offer of appointment "that the resultant vacancy will be offered to the next eligible candidate immediately thereafter". It was still there in existence before the issuance of O.M., dated 4‑11‑1987. There can possibly be no denial of the fact that the appellant as also other candidates gave their preference in the relevant application forms for various groups while being positively conscious of the aforementioned practice in vogue under which the vacancies caused by "repeaters and non‑joiners" were to be offered to the next eligible candidates. This being so, the appellant's preference for the District Management Group must be taken to have brought about a substantive indefeasible right to the Punjab quota vacancy caused on account of the repatriation of Mr. Sardar Usman Rana to the Education Department. We find it difficult to escape from the fact that he would not probably have offered himself as candidate for the examination in the absence of aforementioned practice. In so far as he goes, the only important aspect of the matter is that he knew it as a fact that a vacancy in the District Management Group, resulting from whatever reason, will be offered to him if he happened to be the next eligible candidate. This undoubtedly constituted a substantive right enforceable under the law.
9. We propose to see the matter from another point. The practice mentioned in the O.M., dated 4‑11‑1987 was not the creation of any executive instructions. In actual fact the executive instructions on the point were in acknowledgment of the entitlement of successful candidates of the same competitive examination to be considered for appointment against vacancies meant for that year, whether they were originally announced at the time of inviting applications for examination or resulted on account of subsequent events during the common training programme. The announcement of vacancies for a particular year amounted to properment of an equal job opportunity. The candidates filling the requisite forms for examination with preference for different groups availed of that opportunity; and once so availed, it could not be taken away by a subsequent rule, much less by or on the Authority of an executive instruction; and that too in violation of the provisions of Article 37 or 38 of the Constitution which inter alia enjoin upon the State to create equal job and employment opportunities for all citizens. These Articles embodying the directive. principles of policy read with the provisions of Article 25 of the Constitution bring about and ensure equality of every citizen before law, which includes the right to just and fair treatment.
10. We may refer with advantage to Delhi High Court's judgment in Sunder Dev v. Deputy Commissioner of Police and another (1984 (2) SLR 226), where it was held "that in the absence of rules, a post could not be carried forward and even if the rules are amended subsequent to the date of application, the amended rules will not apply." Although it was a case decided under the Indian Constitution, it will be worth its while to quote the following observations in support of the view taken by us in the preceding paragraphs:
"Opportunity is the one prize a free society has to offer. It assures the individual the scope with in which to make the most of his ability. The petitioner was prepared to face the competitive challenge. But the department would not give him the appointment. The department is even now restricting the opportunity open to him, though the Division Bench broadened the opportunity by abolishing the reservation for Scheduled Castes and scheduled tribes in this limited quota of 10 per cent open to the petitioner as a departmental candidate. Opportunity must offer outlets to talents of every sort. This is what opportunity means. Our Constitution guarantees freedom. Freedom, wrote Zechariah Chaffe, the legal scholar, is not safely but opportunity. And whatever diminishes one threatens the other. Equality of opportunity means opening the door to all which privilege, status, and establishment, had once closed to many. Equality of opportunity means that there will be no artificial inequalities by privilege:" 11. It is our considered view that, under the circumstances, the appellant was entitled to the vacancy caused in the District Management Group on account of the reversion of Sardar Usman Rana and that this entitlement is the creation of his preference for this group in the application for appearing in the examination. The principle of equality of opportunity has been recognised in the provisions of Article 25 read with those of Articles 37 and 38 of the Constitution and it cannot be nullified by an arbitrary and unjust exercise of powers. An authority in support becomes available from the case: The State of Mysore v. S.R. Jayaram (AIR 1968 SC 345), which is also based on the Indian Constitution. The following observations are in point:
"The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9(1) and the first part of Rule 9(2) seek to achieve this aim. The last part of Rule 9(2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though Rule 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order and merit, Rule 9(1) is subject to Rule 9(2) and under the cover of Rule 9(2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious candidate and a Class II post to a more meritorious candidate. We hold that first part of Rule 9(2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16(1) of the Constitution and must be struck down:"
12. The existence of a tangible and indefeasible right being there, the next question for determination is whether it could be taken away by the executive instructions issued through O.M. dated 19‑4‑1988. It makes the following reading:
"Government of Pakistan Cabinet Secretariat Establishment Division (Training Wing) Islamabad
No.1/29/87‑T.V. Islamabad the 19th April, 1988.
Office Memorandum
Subject: VACANCIES CAUSED BY REPEATER AND NON‑JOINERS
In supersession of this Division's O.M. of even number, dated 4th November. 1987 on the above subject, the undersigned is directed to say that any vacancy caused due to repeaters or non‑joiners within two weeks of the starting of the training course at the Civil Services Academy, shall be filled up from amongst the candidates of the same examination. The vacancies so caused after two weeks of the start of the Academy training shall be carried over to the next competitive examination.
(Sd.) Muhammad Azam Rathore Deputy Secretary (IT)"
13. A closer application to the provisions of this C.M. would show that they hardly make any sense. In the first place, we have not been able to understand what exactly is conveyed by the word "repeater", when it is used in relation to District Management Group. As we have it from the dictionary, "repeater" in the present case would be one who repeats an examination, obviously with the purpose of improving his merit, so that he may become entitled to a group of his choice. The District Management Group ordinarily supposed to be at the top, there would be no repeater in this group; considering that a candidate who becomes entitled to placement in this group in order of merit would not repeat the examination, even if he wishes to go down to another group. This being so, no vacancy can ever be caused in the District Management Group of a "repeater".
14. Another aspect of the matter is also available. The candidates allocated to other groups on merit may repeat the examination in order to improve their position for District Management Group. Vacancies can thus be possibly caused on account of "repeaters" in those groups. But even in that case, it is not possible to visualise a situation where such vacancies will come about within two weeks of the start of common training course in the Academy. As for instance a candidate allocated to Customs and Excise Group in consequence of 1987 competition would repeat his examination in the year 1988, may be after start of the common training with the successful candidates of 1987 examination. The result of 1988 would be announced in the later part of the year 1989 and by the time a candidate with improved position leaves his group, the common training of the previous batch would already have come to an end. Therefore, how can there be a situation where a vacancy would be caused by a repeater within two weeks of the start of common training.
15. This was with regard to the phrase "any vacancy caused due to repeaters". The expression "any vacancy caused due to non‑joiners within two weeks of the starting of training course," is equally interesting. If a candidate fails to join on the first day of start of the training programme, a vacancy will be caused right from that day and we find it difficult to comprehend a situation where a vacancy would be caused within two weeks of the start of the training. Therefore, the expression that "any vacancy caused due to repeaters or non -joiners within two weeks of the start of the training course" hardly makes any sense. It is not possible to conceive a situation where a vacancy would be caused within two weeks. What the competent authority seems to have intended to convey was that vacancy thus caused, on the first day of the start of training programme, will be filled within two weeks. We believe that this in fact was the intention; but then, if it be so, that would be altogether a different story, which could be conveyed by different phraseology. What was intended to be expressed is certainly not there.
16. Further, the expression "the vacancies so caused after two weeks of the start of the academy training" is also meaningless and suffers from inherent unsoundness, considering that no vacancy can possibly be caused after two weeks of the start of the training. As already pointed out, a vacancy is caused due to non‑joiners right from the first day, and we fail to comprehend what the competent authority meant by saying "vacancy so caused after two weeks." It comes to our mind that in both the cases a vacancy is caused by a non‑joiner on the very first day and it is the job of the concerned authority to fill it, whether it is done within two weeks or after two weeks of the start of the training programme. We see absolutely no reason why an eligible candidate should be made to suffer when the thing is to be done, not by him but by the concerned authority. Fact of the matter is that the O.M. in question is not only unhappily worded, it is meaningless and absurd. Therefore, on account of the inherent infirmity alone, it did not take away the right acquired by an eligible candidate of the same competitive examination on the basis of his preference for a particular group.
17. The aforementioned considerations apart, even if it be assumed that the provisions of this O.M. do make some sense, it is not applicable to the appellant's case. This is because the vacancy caused in this case was not due to any "non‑joiners" in the sense in which this word has been used in the O.M. Mr. Sardar Usman Rana did join the common training programme on 1‑11‑1988 and there could be no occasion of a vacancy "within two weeks" as the concerned authority has chosen to express. After having so joined, by application dated 20‑11‑1988 he made a request to be allowed to revert to his parent department. It remained pending for decision till 11‑3‑1989 when he was eventually informed that his repatriation had been allowed. The decision was made after about four and a half months of the start of the programme. The appellant had every right to ask the competent authority to consider him for the vacancy, which was the result of a situation, obviously outside the ambit of O.M. dated 19‑11‑1988.
18. We now proceed to examine the matter on the surmise that O.M. dated 19‑4‑1988 was meant to serve a purpose. Even then it is not possible to hold that it is enough to take away the appellant's right to be considered for the vacancy. Article 240(a) of the Constitution provides that, subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined: (a) in the case of services of Federation, posts in connection with the affairs of the federation and all Pakistan Services, by or under Act of Majlis‑e‑Shoora (Parliament)." It was contended by the appellant's learned counsel, and not without substance either, that these provisions cut across the principle of "eminent domain" and they do not leave any scope for regularisation of appointment to all Pakistan Services by executive instructions, in particular when no order adverse or detriment to the interests of the citizens can be passed, unless it has the backing of a properly framed law or rules.
19. It was in pursuance of Article 240(a) of the Constitution that the Civil Servants Act 1973 was enacted in order to regulate by law, the appointments of persons to and the terms and conditions of persons in the service of Pakistan. Section 25 of the Act provides that "the President or any person authorised by the President in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act." Clause 2 of the section lays down that "Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." It is clear from these provisions that the purpose of this Act regarding terms and conditions of service could be carried out only by making rules. Clause 2 of the section, inter alia, saves only such instructions on the subject as were in force immediately before the promulgation of the Act and that too only to the extent of consistency with its provisions. The sub section provides that such instructions will be…
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