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Petitioner: MUHAMMAD SOMRO VS Respondent: PRINCIPAL, BALOCHISTAN RESIDENTIAL COLLEGE, LORALAI
2000 P L C (C
2000 P L C (C.S.) 21
[Quetta High Court]
Before Amirul Mulk Mengal and Javed Iqbal, J
Dr. Haji MUHAMMAD SOMRO
Versus
PRINCIPAL, BALOCHISTAN RESIDENTIAL COLLEGE, LORALAI and 2 others
Constitutional Petition No. 10 of 1995, decided on 25th April, 1996.
Balochistan ,Model Residential Secondary Schools Ordinance (XVII of 1983)‑‑‑
‑‑‑‑S.8(2)(d)‑‑‑Baluchistan Civil Servants (Efficiency and Discipline) Rules; 1992, Rr. 4 & 5‑‑‑Constitution of Pakistan (1973), Art. 199.‑‑Constitutional petition‑‑‑Compulsory retirement‑‑‑Petitioner who was appointed as Medical Officer (B‑17), was retired from service on ground that his conduct and performance was not found satisfactory‑‑‑Show‑cause notice was issued by the Authority to petitioner and Enquiry Committee was constituted and on report of Enquiry Committee, firstly services of petitioner were terminated and then he was retired from service‑‑‑Validity‑‑‑Authority being empowered to appoint, suspend, terminate or dismiss staff from B‑1 to B‑16 in accordance with Balochistan Medical Residential Secondary School Ordinance, 1983, it was beyond its jurisdiction to remove petitioner who was in B‑17‑‑‑Retirement order was issued by Secretary of Provincial Government, but he being not Appointing Authority of the petitioner, his order carried no legal sanctity and only Chairman, Board of Governors of the Institution who was Appointing Authority of petitioner, was competent to pass retirement order‑‑‑Petitioner who was neither appointed by Provincial Government nor through Public Service Commission, was not civil servant, thus, his terms and conditions of service could not be regulated or governed by Civil Servants Act or Rules framed thereunder‑‑‑Institution had been constituted and was being run under Balochistan Model Residential Public School Ordinance, 1983 whereunder certain Rules and Regulations had been framed and petitioner who was also appointed under said Ordinance, his terms of services would be governed under such Rules and Regulations‑‑ Procedures provided by Rules and Regulations framed under Balochistan Model Residential Public School Ordinance, 1983 having not been adopted at the time of retiring the petitioner from service, order of retirement was without jurisdiction‑‑‑Discretion vested in any functionary, was to be exercised judiciously and not in an arbitrary and fanciful manner‑‑‑Where a procedure had been prescribed, that procedure should be followed in letter and spirit till any exception was provided‑‑‑Constitutional petition filed by petitioner was disposed of with direction that, representation made by petitioner before Authorities should be disposed of in accordance with relevant Rules and Regulations.
1986 SCMR 1063 ref.
Muhammad Aslam Chisthi for Petitioner. Raja M. Afsar for Respondent No. 1. Advocate‑General for Respondents Nos. 2 and 3.
Date of hearing: 31st October, 1995.
JUDGMENT
JAVED IQBAL, J.‑‑‑This is a Constitutional petition preferred on behalf of Dr. Haji Muhammad Soomro under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:‑‑
"It is prayed that in consideration of above learned Court may be pleased:
(A) (i) to declare that impugned orders of termination and superseding order of retirement respectively, dated 3rd July, 1994 and 3rd August, 1994 have been passed without lawful authority;
(ii) declaring that petitioner was holding a substantive appointment as Medical Officer in Residential College/School, Loralai.
(iii) to declare that order of Principal, dated 20th of April, 1994 treating petitioner as probationer is without lawful authority;
(B) (i) learned Court may further be pleased to issue appropriate directions, both mandatory had prohibitive, for reinstatement of petitioner with all past service benefits.
(ii) Costs of petitioner also claimed."
2. Briefly stated the facts of the case are that petitioner was appointed as Medical Office (B‑17) in Model Residential Public School, Loralai, which since has been upgraded to that of Balochsitan Residential College Loralai, after having approval of Chairman Board of Governors as provided in Balochsitan Model Residential Secondary Schools Ordinance, 1983 (Ordinance XVII of 1983). His services were to be governed by Efficiency and Discipline Rules of Government of Balochsitan, and the relevant Regulations. The petitioner was relieved from P.I.D.C. Harnai Woolen Mills with effect from 25th of April, 1992 and an amount of Rs.1,05,326.21 was deposited as Pension contribution by P.I.D.C. The petitioner's conduct and performance was not found satisfactorily and after initiation of disciplinary action and issuance of show‑cause notices, the petitioner was relieved from services vide Notification of even number, dated 3‑7‑1994 which was subsequently modified vide Notification of even number, dated 3‑8‑1994 and petitioner was retired from service. Being aggrieved petitioner filed Representation/Appeal to Government of Balochistan, Governor Balochistan and Chief Minister Balochistan, but no decision whatsoever was made. Appeal, however, could not be filed before Service Tribunal as in identical case it was held that Residential College Loralai being body incorporate established under the provision of Ordinance XVII of 1983 as such it was beyond the competency of Service Tribunal to get the grievance of the petitioner redressed.
3. It is mainly contended by Mr. Muhammad Aslam Chishti, Advocate on behalf of petitioner that since petitioner was holding substantive appointment as such the impugned orders of termination and retirement are illegal, arbitrary and have been passed without lawful authority, as his service could not have been terminated without following the prescribed procedure as enumerated in Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992. It is next contended that the impugned order of retirement has been issued by Secretary Education, while he was, not appointing authority of the petitioner and as such it carries no legal sanctity as the appointing Authority was Chairman Board' of Governors. Mr. Muhammad Aslam Chishti, Advocate has referred to the appointment letter of petitioner wherein it was made clear that the petitioner's services were to be governed and regulated by Efficiency and Discipline Rules and Regulations as approved by the Board of Governors. It is urged with vehemence, that Principal Residential College, Loralai, was neither competent Authority nor notified as authorised officer under Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, as such in the issuance of show‑cause notice and constituting of Enquiry Committee were not only illegal but without lawful authority. It is argued that no reasonable opportunity was afforded to petitioner to defend himself properly and orders were passed summarily without observing the requisite formalities pas being, mandatory in nature. Mr. Muhammad Aslant Chishti, Advocate remained critical of the orders passed by Secretary Education being tainted with mala fides, as such the same are liable to be set aside, as having been by passed in excess of jurisdiction. It is also mentioned that Principal has no authority to issue letter, dated 20‑4‑1994 whereby the petitioner was treated as probationer. It is next contended that in view of the Provisions as contained in Regulation XII‑2 of aforesaid Regulation, 1988, as the services of confirmed member can be terminated only by the Authorities specified in the Regulation.
4. Raja M. Afsar, Advocate appeared on behalf of Principal and strenuously controverted the position as canvassed by Mr. Muhammad Aslam Chishti, Advocate by arguing that the Residential College has been established by the Government of Balochsitan in pursuant to an Ordinance promulgated by Governor of Balochistan in 1983 and Institution is being governed by its own Regulation and it is not mandatory to follow the procedure as prescribed in Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992 in letter and spirit. It is next contended that after completion of all the necessary legal formalities and affording proper opportunity of hearing the petitioner was retired from service on account of misconduct and inefficiency. It is also argued that staff of the Institution is neither recruited on the recommendations of Public Service Commission, nor on ad hoc basis by the Education Department, Government of Balochistan, but a Selection Committee has been constituted in this regard. Raja M. Afsar, Advocate also pointed out that a Regulation concerning the disciplinary matters has already been promulgated and disciplinary action was initiated and finalized after having completion of the requirements. It is also contended that the performance of the petitioner was not above board, be who started either availing of leave or remained absent without any of information or permission to leave the station and his conduct was timely brought to the notice of Secretary Education on 27th May, 1994. It is also explained‑that Balochistan Residential College Loralai is an Institution where all the developments of the students are recorded in accordance with the procedure of the Institution and primarily the petitioner was responsible for maintaining good health, record of the students and also annual physical development record as per cumulative record of the College, which duty was assigned by the Principal but he did not care about it and failed to take any notice about his job description. It is argued treat neither the students nor the teacher and p, is were satisfied with his work and conduct, and as such under compelling circumstances he was retired from service after affording him sufficient time for improving his work and conduct, but instead of doing the needful, petitioner always attempted to challenge the authority of Principal and indulged himself in unnecessary correspondence only to put the college Administration in trouble. Raja M. Afsar, Advocate contended that a show‑cause notice was issued under the instructions of the Secretary Education Department, Government of Balochistan, who is a member of Board of Governors, but no reply whatsoever was given in due course of time and an attempt was made to get the Attendance Register from the possession of the concerned Officer for misuse. It is also argued that as per Regulation of Institution, the service of petitioner was terminated after having the approval of competent Authority as it was in the interest of smooth administration of the College as the irresponsible Officer like petitioner could not be allowed to perform his duties half heartedly and in a careless manner as it may affect the prestige and exemplary discipline of the Institution. Raja M. Afsar, Advocate further contended that the petitioner could have moved the appropriate Appellate Forum for redressal of his grievances, and as such the Provisions as contained under Article 199 of the Constitution cannot be invoked.
5. Mr. Yaqoob Khan Yousafiai, Advocate‑General appeared on behalf of Government of Balochistan and Board of Governors and followed the arguments as advanced by Raja M. Afsar, Advocate with addition that the academic standard of the Institution must be maintained.
6. We have carefully examined the respective contentions as adduced on behalf of petitioner and respondents in the light of relevant provisions of law and
available record. We have also examined carefully the powers and Jurisdiction of the Principal, who shall be the Chief Executive and Administrative and Academic Head of the College responsible for execution of the decision of the Board and run Institution in accordance with the rules and by‑laws framed by the Board from time to time. The Principal shall have the power to appoint/suspend/terminate/or dismiss the staff from B‑ I to B‑16 in accordance with the rules. It is, thus, crystal clear that in so far as Principal of the Institution is concerned it is beyond his jurisdictional ambit: to remove any employee having B‑17, but however, disciplinary action can` be initiated by the Principal on account of misconduct. In so far as selection and appointment against approved post of B‑17 and above are concerned the Executive Committee is competent to do so comprising of Secretary, Education Department Government of Balochistan, being its Chairman and 5 others members, meaning thereby that Executive Committee being appointing Authority can take suitable action in case of misconduct. The following procedure has been proscribed for termination and dismissal which is reproduced herein below for ready reference:‑‑---
(XII) Termination and Dismissal. ---(1)During probationary period a member of staff may be terminated without assigning any reason by giving him one month notice or pay in lieu thereof.
(2) The service of a confirm member may be terminated‑by the Board or the person authorized by the Board on the recommendation of the Principal if a member is:‑‑
(i) Found guilty of misconduct.
(ii) Found not complying with the instructions of his officers.
(iii) Found involved in immoral activities.
(iv) In‑efficient and‑in‑capable for the job appointed for.
(v) If does not abide by the rules formulated for Civil Servant or for the staff of Model Residential Public School from time to time.
(3) In all such cases the Principal will issue show‑cause notice and recommend the case to the Board, for termination or dismissal as the case may be.
(4) The Board will listen to the case of the staff member and constitute an inquiry committee to look into the matter, and decide the case in accordance with the rules and regulations.
(5) Such case against a Government Servant shall be decided as per Government Servant Efficiency and Conduct Rules.
(6) In case the matter is not much serious the Principal may award light punishment as under:‑‑
(a) He may issue a simple warning to the employee.
(b) He may issue explanation or show‑cause notice to the person concerned.
(c) He may withhold the increment for a specific period.
(d) He may suspend a person .for a period not exceeding three months.
7. A bare perusal would indicate that the powers of the Principal as conferred upon him under the above reproduced provisions are limited and after issuance of show‑cause notice and recommendations for termination or dismissal, the role of Principal comes to an end and, thereafter it is for the Board to listen to the case of Staff member, which means that proper opportunity of hearing shall be afforded to the incumbent concerned to decide the matter in accordance with Rules and Regulation. The first step is to be taken by the Board is 'Listening to the Case and second step would be the constitution of an Enquiry Committee which of course depends on the result of first step which is 'listening to the case'. A thorough scrutiny of the relevant provisions in the Ordinance including as referred to above would make it clear that vast powers have been conferred upon the Board regarding termination and dismissal which shall be made as per Government Servant Efficiency and Conduct Rules, It is to be noted here at this juncture that specific mention of the Balochistan Civil Servant (Efficiency and Discipline) Rules, 1992 has not been made. It may, not be escaped unnoticed that Board has to give preference to the Provisions as contained in the Ordinance and Regulation made thereunder to run the Institution and Administration smoothly for the simple reason that Government of Balochistan (Efficiency and Discipline) Rules, made under Balochistan Civil Servant Act, 1974 cannot be made applicable in to as petitioner is a Civil Servant. This aspect of the matter has been discussed by learned Balochistan Service Tribunal relying on 1986 SCMR 1063 and relevant portion whereof is reproduced herein below for ready reference:‑‑
"The respondent No. I invoked the procedure prescribed in section 4 of the Balochistan Service Tribunal Act, 1974 for the, redress of his service grievance pertaining to seniority as Superintendent. Such a procedure is available to a civil servant as defined in the Balochistan Civil Servants Act, 1974. The definition provided is a person who is a 'member of civil service of the Province of Balochistan or who holds a civil post in connection with the affairs of the Province. The further provisions in the Act are that such appointments shall be made in the prescribed manner by the Government of Balochistan or by person authorized by it in that behalf' and drat every such civil servant shall hold office during the pleasure of the Government of Balochistan and that the terms and conditions of service of a civil servant shall be as provided in this Act and the Rules'. None of these conditions was satisfied in the case of respondent No.1 as he was not appointed by the Government of Balochistan or its delegatee. He did not hold the office at the pleasure of the Government of Balochistan and his terms and conditions of service were not regulated by the Civil Servants Act and the rules framed thereunder. He was an employee of the University. His terms and conditions of Service were regulated by the rules framed by the University. The Vice‑Chancellor was his Appointing Authority. None of these authorities acted as delegatee of the Balochistan Government while employing or regulating the terms and conditions of the service of the respondent. He cannot, therefore, be held to be a civil servant for the purpose of Civil Servant Act and for that reason he was not entitled to seek redress from the Tribunal under section 4 of the Tribunals Act."
8. The Balochistan Service Tribunal after considering an identical case held that "We are of the clear view that since the appellant had been directly recruited by the Principal of the College which is a private Institution and the appellant has never been in service of the Government nor he has gone to join College on deputation from any Government Department, as such he is not a Civil Servant, therefore, this appeal being incompetent is accordingly dismissed. "In the light of abovementioned discussion it can be inferred that the petitioner, who was neither appointed by Provincial Government of Balochistan nor through Public Service Commission of Balochistan, is not civil Servant as such his terms and conditions‑ of service cannot be regulated or governed by Balochistan Civil Servants Act, 1974 or Rules framed thereunder specially when the College is being run by separate Ordinance and Regulations. It was, thus, not incumbent for the authority to appoint Authorized Officer' by adopting a prescribed procedure as enumerated, in Balochistan Civil Servants ('Efficiency and Discipline) Rules, 1992.
9. It is remarkable to note that the staff of the Institution is neither recruited on the recommendation of Public Service Commission nor on ad hoc basis by the Education Department, Government of Balochistan but a separate Selection Committee has been constituted for this purpose, as such the question of applicability of Efficiency and Discipline Rules, formulated by Government of Balochistan does not arise on this score too. We have also focused our attention to the appointment orders of‑petitioner which is l reproduced herein below for ready reference:‑‑----
APPOINTMENT
Consequent upon the approval of the Chairman Board of Governors Model Residential Public School Loralai under section 8(2)(d) of the Balochistan Model Residential Public School Ordinance, 1983, Dr. Haji Muhammad son of Muhammad Usman Soomro is hereby appointed as Medical Officer in B‑17 alongwith all the allowance admissible under the rules.
2. His services will be governed by the Efficiency and Disciplinary Rules of the Government of Balochistan, and Regulations as approved by the Board of Governors Model Residential Public School Loralai.
3. He is directed to report for duty not later than 25th April,1992.
By The: Order of the Chairman Board of Governors Model Residential Public School Loralai.
10. The contents of above reproduced order are indicative of the fact that the appointment was made in pursuance of the provisions as contained in section 8(2)(d) of the Balochistan Model Residential Public School Ordinance, 1983; by the Chairman Board of Governors and his services are to be governed by the Efficiency and Discipline Rules, Government of Balochistan and Regulation as approved by the Board of Governors. The application of Regulation in governing the terms and conditions of the services of, petitions by no stretch of imagination can be excluded altogether as appointment was made under the Provisions of Balochistan Model Residential Public School Ordinance, 1983, and not under Balochistan Civil Servant Act. The status of Civil Servant which has its own peculiar feature cannot be conferred upon the petitioner on the sole ground that a' mention was made about Efficiency and Discipline Rules in appointment order.
11. The record made available to us, is silent as to whether the disciplinary proceedings regarding petitioner were placed before Board in accordance with the prescribed procedure or not? It is also remarkable to note that petitioner at first instance was relieved from services and subsequently he was retired. Flow this conversion was made and by whom is also not clear? The Appeal /Representations made by the petitioner are pending without decision. No doubt that show‑cause notice was issued and due opportunity to consult the record was also given, but the question as to whether the prescribed procedure was followed or not is yet to be answered. Even for the sake of arguments, if it is admitted that discretion was exercised by the competent Authority in retiring the petitioner, but it hardly needs any explanation that discretion vested in any functionary irrespective of the fact who is who, is to be exercised judiciously and not in an arbitrary and fanciful manner. Where a procedure has been prescribed that should be followed in letter and spirit till any exemption is provided.
12. We have also examined prescribed procedure for termination and dismissal in the Regulation which has been reproduced in the preceding paragraphs of this judgment. A close scrutiny would indicate that the Principal is only competent to issue show‑cause notice and make recommendation for termination or dismissal. It is thereafter, for the Board of Governors to listen to the case of Staff Members and decide in accordance with Rules and Regulations. It is noteworthy and seems quite astonishing that no right of appeal has been given against termination or dismissal. But the provided right of appeal only deals with light punishment' awarded by the Principal. In the said background the responsibility of the Board is increased to perform its function with care and caution to listen to the case of Staff Member arid constitute an Enquiry Committee if circumstances so justify to look into the matter. The prime and primary function of the Board is to listen the employee whose dismissal or termination has been recommended. It appears that no such opportunity was given to the petitioner, and besides that all the Representations made by the petitioner are awaiting decision. There is no cavil to the proposition that an aggrieved employee can make Representation to explain his position irrespective of the fact whether such provision is available in the relevant Regulation or otherwise, as he cannot be condemned unheard, which would be violative of the principle of natural justice. We are, therefore, inclined to direct that Representation made by the petitioner on 31‑8‑1994 to Government of Balochistan which was also endorsed to Minister for Education as well Secretary Education shall be treated as pending and to be disposed of by the competent forum in accordance with law within a period of 30 days after receipt of copy of this judgment. The petitioner is also directed to approach Secretary Education and furnish a copy of Representation made on 31‑8‑1994 F for placing the same before Board of Governors/Competent Authority for disposal in accordance with Rules and Regulations. The petition is disposed of accordingly.
H.B.T./755/Q Order Accordingly.