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Petitioner: Muhammad Saleem VS Respondent: Federal Public Service Commission and others
Court Name: Supreme Court of Pakistan Judge(s): Umar Ata Bandial, Munib Akhtar Title: Muhammad Saleem vs Federal Public Service Commission and others Case No.: Civil Appeal No.1481 of 2015 Date of Judgment:2019-12-16 Reported As:KLR 2020 Supreme Court Cases 67, 2020 PLC (C.S.) 306, 2020 P SC 52,
JUDGMENT
JUDGMENT Munib Akhtar J. The appellant assails the order of the learned Federal Service Tribunal dated 04.05.2015. The matter relates to the Occupational Group called the Military Lands and Cantonments Group (herein after referred to as the "ML&C Group"), and the absorption therein (in terms of the Office Memorandum whereby the Group was constituted) of the contesting private respondents. These respondents were in the Income Tax Group (now called the Inland Revenue Service) and the Audit and Accounts Group (now called the Pakistan Audit and Accounts Service). They were absorbed in BS 18, in terms of paragraphs 5 and 8 (relating, respectively , to horizontal movement and lateral entry) of the aforementioned Office Memorandum. The appellant, on the other hand, was inducted directly in the ML&C Group itself in BS 17. His grievance is that the aforesaid absorption of the contesting respondents is contrary to the Civil Servants Act 1973 ("1973 Act") and the rules framed thereunder , and adverse to the rights and expectations of the members of the ML&C Group (i.e., officers like himself) to suitable promotion within the Group. 2. The appellant (and certain other officers similarly placed) had initially filed a writ petition in the Islamabad High Court, which was dismissed both by a learned Single Judge and (on appeal in ICA) by a learned Division Bench. The appellant filed a leave petition in this Court, which was disposed of by order dated 24.10.2013. It was held, setting aside the orders made in the High Court, that "the writ petition filed by the petitioners is treated to be a service appeal and is remitted to the learned Service Tribunal for decision in accordance with law". It was in such circumstances that the matter was decided by means of the impugned order . That order dismissed the appeal (while making some observations regarding seniority). The appellant again approached this Court, and leave was granted vide order dated 04.12.2015 to consider whether , as claimed by the appellant, the impugned order was
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contrary to the law laid down by this Court in In re: Criminal Original Petition No. 89 of 2011 2013 SCMR 1752 and National Assembly Secretariat v . Manzoor Ahmed and others 2015 SCMR 253 . 3. Learned counsel for the appellant submitted that the contesting private respondents were transferred to the ML&C Group by order dated 14.06.2006 "on deputation basis... for a period of 03 years or till such time officers of ML&C Group become available from FPSC/Establishment Division, whichever is earlier , in their own pay scales..." (to quote from the said order). At that time, all of the transferred officers were in BS 17. They continued serving in the ML&C Group and in the meanwhile were promoted to BS 18 in their own Groups (i.e., the Income Tax Group and the Audit and Accounts Group). By order/notification dated 11.06.2010 they were permanently absorbed (as one batch) in the ML&C Group in BS 18. After giving the history of the litigation as set out above, learned counsel submitted that there was no concept of the permanent absorption of an officer transferred on deputation, and there was nothing in either the 1973 Act or the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 ("APT Rules") that could apply to the circumstances of the present case. Learned counsel submitted that the contesting respondents were absorbed ostensibly in terms of paragraphs 5 and 8 of the Office Memorandum dated 11.05.1975 whereby the ML&C Group was constituted (herein after the "ML&C Group OM"). It was submitted that while Office Memorandums, as issued from time to time (compiled for convenience in various editions of the ESTACODE) were, and had the authorit y of, law they could not be contrary to either the 1973 Act or the rules framed in terms thereof. They were subordinate to the latter . In case of any conflict or inconsistency , they necessarily had to yield to the Act and the rules. That, it was submitted, was precisely the situation here. Paragraphs 5 and 8 were contrary to, and inconsistent with, the Act and the rules and hence the absorption of the contesting respondents was patently unlawful. Certain judgments of this Court, including those mentioned in the leave granting order , were relied upon. It was prayed that the appeal be allowed. 4. Learned counsel for one of the priva te respondents (No. 14) submitted that the appeal before the learned Tribunal was barred by limitation and that the appellant had not challenged the notification under which the contesting respondents were absorbed. In any case, the petition itself (sent by this Court to the learned Tribunal to be dealt with as an appeal) had been filed after more than 30 days of the issuance of the notification, which was the period stipulated for filing appeals in the Service Tribunal. It was submitted that the ground of limitation had never been waived by the respondents. Turning to the merits of the case, learned counsel submitted that the ML&C Group OM set out the terms and conditions of service of civil servants in the Group. The Group was effectively disbanded in 2000 but was restored in 2007. Learned counsel submitted that on 25.10.2007 a presentation was given to the Prime Minister in relation to the Group. A series of decisions were taken, including the revival of the Group. Learned counsel focused on the following decision: "Permanent absorption of already serving CSS qualified deputationists who are willing and are considered fit by the ML&C Department. This may be done through a selection committee consisting of representatives of Defence, Establishment Divisions and DG, ML&C." Learned counsel submitted that pursuant to this decision a meeting of the selection committee was held on 12.10.2010 where the entire matter was carefully considered in depth. The minutes of the meeting were referred to, and in particular reliance was placed on paras 3 and 4 thereof. These provided as follows: "3. DG. ML&C gave a brief presentation to the participants highlighting the need and purpose of permanent absorption of the officers of other groups already serving in the Deptt:. He revealed that against a sanctioned strength of 77 officers in ML&C Deptt:, only 38 were currently available out of which 02 officers were serving out of cadre on deputation to various other departments. The shortage of officers had occurred mainly due to stoppage of fresh induction in the Deptt: for over a decade and retirements of a large number of serving officers during the period. DG informed the meeting that the most critical shortage of officers was being faced in junior and middle managerial positions as against sanctioned strength of 22 officers in BS-17, only 03 were available while against sanctioned strength of 26 in BS-18, only 9 officers were available. This shortage was seriously affecting the departmental functioning since junior and middle ranking officers were required to man the slots at execution level of the Department and their absence was telling heavily upon service delivery and enforcement. While the shortage at intake level i.e. BS-17 might be made good in a few years time by induction of officers through CSS, there was
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no method to fill up the wide gap of short fall in BS-18 which can be filled through promotion only that may take far more time. The only solution to this problem lay in absorption of already serving deputationists who had obtained sufficient experience and exposure of the departmental working. 4. DG, ML&C informed the Committee that the approval of Prime Minister contained in the minutes of the Briefing of 2007 circulated by PM Secretariat vide No.96/GS/Estab/2006 Dated: 02.11.2007 laid down that already serving CSS qualified officers who were willing and considered fit by the ML&C Deptt: should be absorbed. Accordingly , willingness of serving deputationists was duly obtained and an internal mechan ism was devised to select best officers by forming a Departmental Selection Board comprising the DG, ML&C, Addl: DG, Regional Directors and the DDG(HQ). The aforesaid Board thoroughly scrutinized the work and conduct of deputationists and recommended six officers of Income Tax Group and two officers of Pakistan Audit & Accounts Service for absorption in ML&C Group. The work and conduct of the Deputationists was further scrutinized and discussed in the Regional Directors and Senior Officers Conference held in the Deptt: on 8-9 December , 2009 and the following 12 of ficers were finally considered fit for absorption:- [there then followed a Table which need not be reproduced]" Learned counsel submitted that it was on the foregoing basis that the absorption of the contesting respondents was recommended. This led finally to the issuance of the order/notification dated 11.06.2010, already referred to above. Learned counsel emphasized that the matter had throughout been dealt with in accordance with law and, in particular , the ML&C Group OM. Learned counsel placed strong reliance on a judgment of this Court reported as Fida Hussain Shah and others v. Government of Sindh and others 2017 SCMR 798 ("Fida Hussain Shah case"). 5. Learned counsel for some of the other contesting respondents (Nos. 7, 8, 9, 12, 13 and 15) adopted the submissions made and emphasized that there was no illegality in the absorption, whether as claimed or otherwise. Certain decisions of this Court were relied upon. Learned counsel submitted that In re: Criminal Original Petition No. 89 of 2011 2013 SCMR 1752 (relied upon for the appellant) had no application to the facts and circumstances of the case at hand. Learned counsel for respondent Nos. 6, 10 and 11 also submitted that the entire matter had been dealt with in accordance with law. Reliance was placed in particular on the Fida Hussain Shah case. Learned counsel for respondent Nos. 16 to 18 reiterated that the Office Memorandums had the force of law. Reference was made to various paragraphs of the ML&C Group OM and to certain rules in the APT Rules. Learned counsel for the respondent No. 4 adopted the submissions already made, and also referred to some decisions of this Court. Finally , the learned AAG submitted that the appeal was barred by limitation and also adopted the submissions made earlier . 6. We have heard learned counsel as above, and considered the record and case law relied upon. This appeal involves some interesting points with regard to the relationship of the Office Memorandums by which Occupational Groups have been created with the 1973 Act and the rules framed in terms thereof, and the arrangement of the foregoing within the framework of Article 240 of the Constitution, which is the bedrock on which rests the entire structure of the services, both of the Federation and the Provinces.7. The administrative changes that were brought about shortly after the coming into force of the present Constitution (the commencing day of which was 14.08.1973) resulted in the abolition of the services into which, up to that time, the service of the Federation (or Centre) was classified, and their replacement with what were called "new occupational groups". The first such Group to be constituted was the Audit and Accounts Group (now renamed, as noted above, as the Pakistan Audit and Accounts Service), which was created by an Office Memorandum dated 23.01.1974. Thereafter , other Occupational Groups were successively constituted, with the ML&C Group coming into existence as a result of the ML&C Group OM on 11.05.1975. It appears that at present there are 16 Occupational Groups into which the service of the Federation is divided, including the two All-Pakistan Services (as per the 2015 edition of the ESTACODE). Although the creation of the Occupational Groups was suppose dly a break with the past there was, as will become apparent, nonetheless a certain underlying continuity . The roots of the structural arrangement of the service of the Federation, and in particular its division or classification into various services or groups (howsoever called), lie deep in the past. In our view, it is not possible to understand the present arrangement without taking into account the trajectory along which previous constitutional arrangements have travelled. This is so because Article 240 is not a tabula rasa that sprang
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into existence for the first time in the constitutional journey of this country . It is linked intimately with that which has gone before. In order therefore to properly understand, on the constitutional and legal plane, the issues that arise in the present appeal we must undertake, even if only briefly , a tour of previous constitutional arrangements. 8. The journey must begin exactly 100 years ago, in 1919. At that time, India was constitutionally governed by the Government of India Act, 1915 ("1915 Act"), an Act of the Imperial Parliament. The eponymously named Act of 1919 ("1919 Act") made several important changes to the 1915 Act (the legislation being consolidated in 1924). The 1919 Act is of course well known (if not to all and sundry , then at least to constitutional lawyers, history buffs and students of a certain age) for introducing the system of "dyarchy" into the governance of India. Our interest however , lies elsewhere: in Part VII-A (comprising of ss. 96B to 96E) that was adde d by the 1919 Act. Section 96B, as presently relevant, provided as follows in its subsections (2) and (4): "(2) The Secretary of State in Council may make rules for regulating the classifica tion of the civil services in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and conduct. Such rules may, to such extent and in respect of such matters as may be prescribed, delegate the power of making rules to the Governor-General in Council or to local Governments, or authorise the Indian Legislature or local Legislatures to make laws regulating the public services:... (4) For the removal of doubts it is hereby declared that all rules or other provision s in operation at the time of the passing of this Act, whether made by the Secretary of State in Council or by any other authority , relating to the civil service of the Crown in India, were duly made in accordance with the powers in that behalf, and are confirmed, but any such rules or provisions may be revoked, varied or added to by rules or laws made under this section." The foregoing provisions placed the classification of services in India, their recrui tment, the conditions of service and allied matters on the constitutional plane. (We may note in passing that the Indian Civil Service had already been separately provided for in Part VIII of the 1915 Act.) This section was the genesis of all that followed, and in that sense can be regarded as the const itutional progenitor of Article 240. It will be seen from subsection (2) that the power conferred on the Secretary of State in Council was all encompassing. Not even the Governor-General in Council, and certainly not the Indian legislatures constituted under the Gover nment of India Acts, had any competence with regard to what might be compendiously called the terms and conditions of the civil service, until and unless the Secretary of State in Council delegated the power to the former or authorized the latter to exercise such legislative competence. Subsection (4) provided constitutional cover for all rules etc hitherto made. In exercise of the power conferred by s. 96B the Secretary of State in Council framed the Civil Servants (Classification, Control and Appeal) Rules, 1930. It appears that no legislative competence was conferred on any Indian legislature. The aforesaid rules classified the civil services of India into the various categories as therein specified. 9. The next stage was reached in the Government of India Act, 1935 ("1935 Act"), which continued up to Independence and of course served as the first constitution for each of the Dominions of Pakistan and India. It will be convenient to set out its relevant provisions, along with those contained in the 1956 Constitution, the 1962 Constitution and the Interim Constitution of 1972 in tabular form. The table is set out in the Annex to this judgment, to which reference may be made. 10. It will be seen that the 1935 Act made two significant changes. Firstly , it empowered the Governor-General to make the rules as regards the terms and conditions of service. Secondly , it empowered the Indian legislatures created by the 1935 Act also to have legislative competence in this regard. The rule making power of the Governor General was subject to any law so made. However , it is important to keep in mind that the said power of the Governor General was a direct, and independent, grant on the constitutional plane, i.e., it was not dependent on any Act of the Indian legislature. Furthermore, the power conferred on the Governor General was mandatory , as evidenced by use of the word "shall": he had to make the relevant rules (or, what amounted to the same thing, allow existing rules to continue). The law making competence of the Indian legislature was only enabling ("may"). In the event, it appears that no law was made by any Indian legislature in this regard. 11. When the provisions of the 1956 Constitution, the 1962 Constitution and the Interim Constitution are compared with the 1935 Act, it will be seen that the same pattern was followed. The rule making power of the President,
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which was cast in mandatory terms, was a direct and independent grant on the constitutional plane. It was subject to any law made by the relevant legislatu re, but the competence of the latter was only enabling. Again, it appears that no such law was enacted. Thus, the entire matter continued to be dealt with, as it had from 1930 onwards under s. 96B of the 1915 and 1919 Acts, by rules made by what may be regarded as the Executive branch. The Legislative branch, though empowered since 1935, remained (or perhaps was kept) quiescent throughout. 12. This brings us to the present Constitution, and Articles 240 and 241, which as presently relevant provide as follows: "240. Appointments to service of Pakistan and conditions of service. 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 the services of the Federation, posts in connection with the affairs of the Federation and All- Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament);... 241. Existing rules, etc., to continue. Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government...." It will be seen that compared with what had gone before Article 240 has been cast in a crucially different form. The rule making power , as conferred on the Executive branch (i.e., the President) as a direct and independent grant on the constitutional plane, has been done away with altogether . Now the power to make appointments and settle the terms and conditions of persons in the service of the Federation has been conferred solely and exclusively on the Legislative branch, which must ("shall") act in this regard. Furthermore, although all rules and orders made under previous constitutional dispensations (as were not inconsistent with the Constitution) were continued in terms of Article 241, that situation was to remain in place only till such time that a law was not made under Article 240. And, while the Federal Government could amend such rules and orders, it could not make new ones. The Executive branch was bereft of power in this regard. 13. Whatever may have been the scope of Article 241, it had a very short run indeed. For, the very next day after the commencing day of the Constitution, the Civil Servants Ordinance, 1973 ("Ordinance") was promulgated on 15.08.1973. Thus, a law in terms of Article 240 was put in place in the shortest possible time. (The Ordinance was replaced about a month later by the 1973 Act.) Section 25 of the Ordinance (replicated in the 1973 Act) provided as follows: "25. Rules.- (1) The President or any person authorized 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 Ordinance. (2) 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 Ordinance shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Ordinance, be deemed to be rules made under this Ordinance." Subsection (1) empowered the President or any person authorized by him (i.e., the Executive branch) to make rules for carrying out the purposes of the Ordinance (latterly the 1973 Act). However , it is important to keep in mind that this was not the independent and direct constitutional grant of old; it was merely a delegation of power conferred by the legislature as permitted by Article 240 ("by or under"). Subsection (2) continued such rules, orders or directions made under previous dispensations as were not inconsistent with the Ordinance (since they would otherwise have fallen by the way by reason of Article 241). Interestingly , regardless of their previous provenance even as orders or instructions, they were all deemed to be "rules" under the Ordinance.14. The comparative and historical exercise just carried out highlights both the continuity that Articles 240 and 241 have with the past and the changes brought about by them. This sets the stage for considering the Occupational Groups and the Office Memorandums whereby they were constituted. Although the classification of the service of the Federation (or Centre or India) into different types of "services" was abolished, the Occupational Groups that almost immediately replaced them were, structurally and functionally , not an altogether new and different species. The earlier classification, which was perhaps much more rigid and stratified, was loosened but the overall shape maintained a continuity . The Ordinance and the 1973 Act spoke in large measure in generalities, providing for much of the
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detailed structure of the terms and conditions to be determined as "prescribed", i.e., as established in the exercise of the rule making power under s. 25. Many rules (including in particular the APT Rules) were (and continue to be) framed under and with specific reference to s. 25. However , at the same time, the service continued to be divided into different categories, now called the Occupational Groups. These were created by Office Memorandums issued by the Establishment Division essentially over the period 1974 to 1976 (although it seems that the Railways (Commercial & Transportation) Group was created as recently as 12.10.2012). All the Office Memorandums provide in relation to each Group (as does paragraph 2 of the ML&C Group OM) that the Group "will function within the following broad framework of rules and procedure". Now, it was common ground before us that these Office Memorandums had the force of law. The question however is: what is the legal source of the power whereby , or in terms whereof, these Office Memorandums have been issued? This question is of central importance to deciding this appeal since it will be recalled that one basic objection taken by the appellant to the ML&C Group OM is that it is (in relevant part) inconsistent with the 1973 Act and the rules framed thereunder and must therefore yield to, and before, the latter . 15. Keeping the foregoing analysis in mind it is our view that the legal source for the issuance of the Office Memorandums can only be the 1973 Act itself. Thus, the legal power whereby the Office Memorandums have been issued is nothing other than an aspect (and exercise) of the rule making power conferred in terms of s. 25(1). The reason is that, as shown above, the present Constitution has removed entirely the earlier direct and independent grant of rule making power on the Executive branch. On the constitutional plane there is now only one repository of the power in relation to the appointment and the terms and conditions of service of civil servants, and that is the legislature. It would therefore be incorrect to posit that, notwithstanding…
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