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Petitioner: NADEEM ASGHAR NADEEM VS Respondent: PROVINCE OF THE PUNJABHonorable Justice Syed Mansoor Ali ShahMuhammad Aslam Rizvi,Shan Gul
2016 P L C (C.S.) 155
[Lahore High Court]
Before Syed Mansoor Ali Shah, J
NADEEM ASGHAR NADEEM and others
Versus
PROVINCE OF THE PUNJAB and others
W.P.No.26696 of 2014, heard on 6th May, 2015.
(a) Constitution of Pakistan---
----Art. 10A---Right to fair trial---Civil rights---Obligations---Nature and ambit of right to fair trial under Art.10A of the Constitution---"Determination of civil rights and obligations of a person through fair trial and due process" was a fundamental right---Civil rights were the rights guaranteed by the Constitution and the legislation---"Obligations" may refer to anything that a person was bound to do or forbear from doing, whether such duty was imposed by law, contract, promise, social relations, courtesy, kindness or morality and anything that an individual was required to do because of a promise, vow, oath, contract, or law; and it referred to a legal or moral duty that an individual could be forced to perform or penalized for neglecting to perform---Right of one person was an obligation of the other, and vice versa and such mutually corresponding and symbiotic relationship between civil rights and obligations, expanded the proportions and broadened the amplitude of Art.10A of the Constitution and placed it as one of the most robust, dynamic and an evergreen Fundamental Right that was not frozen in time or moored to serve only the age old vested rights---Article 10A of the Constitution was a Constitutional right, hence it was open and all embracing and was there to include all kinds of rights and obligations that emerged from the Constitution, legislation, law, contract, promise, social relations, courtesy, kindness or morality---Article 10A of the Constitution could not be put in shackles and in fact went beyond vested rights---Article 10A of the Constitution therefore, dealt with rights and duties, which if violated could result in loss of some personal benefit or advantage or curtail a privilege or liberty or franchise.
Warid Telecom (Pvt.) Ltd. and 4 others v. Pakistan Telecommunication Authority through Chairman 2015 SCMR 338; Suo Motu action regarding allegation of business deal between Malik Riaz Hussain and Dr. Arsalan Iftikhar attempting to influence the judicial process PLD 2012 SC 664; Babar Hussain Shah and another v. Mujeed Ahmed Khan and another 2012 SCMR 1235; Suo Motu Case No.4 of 2010 PLD 2012 SC 553; Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Shabbir Ahmed v. Kiran Khursheed and 8 others 2012 CLC 1236; The most common legal application of the term civil rights involves the rights guaranteed to U.S. citizens and residents by legislation and by the Constitution, Free Dictionary, <URL:www.thefreedictionary.com>.; Black's Law Dictionary, 9th Ed. p.1179 and Mian Fazal Din v. Lahore Improvement Trust, Lahore, and others PLD 1969 SC 223 rel.
(b) Fundamental rights---
----"Civil rights", meaning of---Civil rights were rights guaranteed by the Constitution and Legislation.
The most common legal application of the term civil rights involves the rights guaranteed to U.S. citizens and residents by legislation and by the Constitution, Free Dictionary. <URL:www.thefreedictionary.com>. rel.
(c) Words and phrases---
----"Obligations", meaning of---Obligations may refer to anything that a person was bound to do or forbear from doing, whether the duty was imposed by law, contract, promise, social relations, courtesy, kindness or morality and anything that an individual was required to do because of a promise, vow, oath, contract, or law; and it referred to a legal or moral duty that an individual could be forced to perform or penalized for neglecting to perform.
Black's Law Dictionary. 9th Ed. p.1179 rel.
(d) Punjab Civil Servants Act (VIII of 1974)---
----Ss. 10(1)(i), 5, 4 & 6---Punjab Judicial Service Rules, 1974, R.7A---Constitution of Pakistan, Arts.10A, 4, 9, 14 & 25---Constitutional petition---Civil service---Judicial Officers---Probation---Termination of service during the initial or extended period of probation---Constitutionality of termination of service without notice under S.10(1)(i) of the Punjab Civil Servants Act, 1974---Petitioners were appointed as Civil Judges-cum-Judicial Magistrates, subject to probation and their services were terminated thereafter, under S.10(1)(i) of the Punjab Civil Servants Act, 1974 without notice and without disclosing of reasons---Petitioners challenged the vires of S.10(1)(i) of the Punjab Civil Servants Act, 1974 on the ground that same was unconstitutional in view of Art.10A of the Constitution---Held, that, in the present case, Ss.4, 5 & 6 of the Punjab Civil Servants Act, 1974, conferred a right to confirmation, once the judicial officer successfully completed his period of probation and also conferred an obligation on the authority to confirm the appointment of the officer if the probationer successfully completed the period of probation---Probationer was also under an obligation to meet the requirements of R.7A of Punjab Judicial Service Rules, 1974 and had a corresponding right to confirmation subject to his fulfilling such obligations---Probationer, in effect, already stood appointed but had to undergo the process of confirmation and therefore, the right of confirmation of a probationer or the obligation of the authority to confirm the probationer, if he successfully completed the period of probation, or vice versa, were covered under Art.10A of the Constitution and such rights and obligations had to be determined through a fair trial and due process---One of the requirements for confirmation after period of probation were given under R.7A(a) of the Punjab Judicial Service Rules, 1974, wherein "performance evaluation" was subjective and relied on sources other than the result of the Departmental Examination and the Course and Training scorecard and if the information or evidence collected was adverse to the interest of the judicial officer, natural justice and the strength of the settled jurisprudence required that the judicial officer be put on notice and be heard after an adequate disclosure of the adverse material and information was made available to such judicial officer---Said well-established principle stood Constitutionalized as a fundamental right under Art.10A of the Constitution, and fair trial and due process required that adequate disclosure was made and the probationer was put on notice and even otherwise, right to life which included right to livelihood and right to dignity of a person under Art.14 of the Constitution also stood behind Art.10A and that S.10(1)(i) of the Punjab Civil Servants Act, 1974, therefore, offended Art.10A of the Constitution in such respect---Termination simplicter was termination from service when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment was ad hoc and dependent on certain conditions or if the post itself was abolished and such like termination was not punitive or penalizing in nature and it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer; which under the law was referred to as a "discharge" from service---Probationer, in such a case, therefore need not be put on notice if the termination was actually a discharge from service or was termination simpliciter as no useful purpose could be served by issuing any such notice as the authority had already granted the probationer an opportunity of appearing before the authority in the departmental examination and also in the course and training conducted by the authority---High Court observed that in such a case of termination simpliciter, the competent authority was under no obligation to issue notice before termination of service and S.10(1)(i) of the Punjab Civil Servants Act, 1974 was applicable in such a case; however probationer under Art.10A of the Constitution was, free to challenge the legality of the termination order or the merits of the departmental examination or the transparency of the departmental training in a court of competent jurisdiction, if he so desired, on grounds other than the ground of failure to issue notice---Where termination carried allegations of misconduct, inefficiency and corruption, the civil servant was entitled to a notice to defend himself and also to an adequate disclosure of the evidence against him and if such adverse information and material had weighed on the mind of the authority and had been the dominant reason behind the order of termination, withholding of any such allegation or avoiding to disclose any reason for termination, in order to bypass the requirement of notice by opting for termination simpliciter was offensive to Art.10A of the Constitution and the option of termination simpliciter was available with the authority only when the termination according to the service record of the civil servant, was not based on any allegations of misconduct, inefficiency or corruption against a civil servant---While S.10(1)(i) of the Punjab Civil Servants Act, 1974 was unconstitutional in some situations, it was constitutionally permissible in others, and hence in such a situation, the Constitutionality of the said section could be saved if the same was read down, instead of being struck down---High Court, therefore, held that in the light of Art.10A of the Constitution read with Arts.4, 9, 14 & 25 of the Constitution, S.10(1)(i) of the Punjab Civil Servants Act, 1974 was read down, to the extent, that firstly in cases where termination of a probationer was on the grounds of misconduct, inefficiency, corruption, etc. prior notice was mandatory and was required to be issued to the probationer; and that secondly where the probationer had failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer could be terminated without notice, but any such termination order must carry reasons for termination; and thirdly that; in case the probationer had passed the eligibility criteria and had been found liable for misconduct, inefficiency or corruption, the competent authority did not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order---Constitutional petitions were allowed, accordingly.
Asif Saeed v. Registrar, Lahore High Court and others PLD 1999 Lah. 350; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Pakistan Peoples Party v. Government of Punjab and others PLD 2014 Lah. 330; Muhammad Ashraf Tiwana and others v. Pakistan and others 2013 SCMR 1159; National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another PLD 2014 SC 283; Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others 2012 PTD 1815; Bilal Akbar Bhatti v. Election Tribunal, Multan and 15 others PLD 2015 Lah. 272; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Imtiaz Ahmad Kaifi v. Government of Punjab and others PLD 2013 Lah. 598; Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences Jamshoro and others 2014 SCMR 1236; State of M.P. v. Rakesh Kohli and another 2013 SCMR 34; Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another 2012 SCMR 1235; Federation of Pakistan v. Riaz Ali Khan PLD 1958 (W.P.) Lah. 22; Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and others PLD 2010 SC 483; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2003 PLC (C.S.) 1421 and Liaqat Ali Shahid, Ex-Civil Judge, Bhalwal v. Government of the Punjab through Chief Secretary, Punjab, Lahore 1999 PLC (C.S.) 334 ref.
Mrs. Abida Parveen Channar v. High Court of Sindh 2011 PLC (C.S.) 836 rel.
(e) Civil service---
----Termination from service---Probationer---Requirement of notice prior to terminating the services of a probationer---Termination simplicter---Scope---Services of a probationer could be terminated without notice, in case of termination simpliciter but where there were allegations of misconduct or inefficiency levelled against the probationer, in such an eventuality, it was mandatory that the officer was put on notice and if there were allegations of inefficiency, misconduct or corruption, a probationer was required to be served with a notice, with the rationale being that any termination in the nature of dismissal or removal carried a stigma, hence the civil servant should be granted an opportunity to defend and wash away any slur and taint alleged against such a civil servant.
Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Muhammad Amjad v. The Chief Engineer, WAPDA and another 1998 PSC 337; Ch. Muhammad Hussain Naqshbandi v. Government of the Punjab and others 2004 SCMR 44; Muhammad Iqbal Khan Niazi v. Lahore High Court, Lahore through Registrar 2003 PLC (C.S.) 285 and Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275 rel.
(f) Constitution of Pakistan---
----Art. 14---Inviolability of dignity of man, etc.---Civil service---Termination from service---Reasons for termination---Every termination order must carry reasons and this was equally applicable to the case of termination simpliciter and there was no plausible explanation why a public authority must shy away from giving reasons for termination---To withhold reasons for termination of a civil servant generated a host of adverse assumptions against the character of a civil servant which had a bearing on his reputation and goodwill and failure of disclosing or intentional withholding of reasons was, therefore, below the dignity of any white collared officer and offended Art.14 of the Constitution.
(g) Civil service---
----Termination simpliciter---Concept---Concept of termination simpliciter as opposed to a termination carrying a stigma---"Termination simpliciter" meant termination without any ceremony or termination in a summary manner and such a termination from service was when a probationer failed to meet the eligibility requirements of the post set by the employer like a departmental examination or in service training or if the appointment is ad hoc and dependent on certain conditions or if the post itself is abolished---Such like termination was not punitive or penalizing in nature and more importantly, it did not cast any allegation or affect the professional reputation of the officer or the future prospects of employment of the probationer and in such cases, probationer therefore need not be put on notice if the termination is actually a discharge from service or was termination simpliciter.
National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another PLD 2014 SC 283 rel.
(h) Interpretation of statutes---
----Purposive or contextual construction---Reading down of statute---Concept and scope---Where literal construction or plain meaning caused hardship, futility, absurdity or uncertainty, the purposive or contextual construction was to be preferred to arrive at a more just, reasonable and sensible result---Every law was designed to further the ends of justice and not to frustrate it on mere technicalities and though the function of the courts was only to expound the law and not to legislate, nonetheless the Legislature could not be asked to sit to resolve the difficulties in the implementation of its intention and the spirit of the law and in such circumstances, it was the duty of the court to mould or creatively interpret the legislation by liberally interpreting the statute---Statutes must be interpreted to advance the cause of statute and not to defeat it and if certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional; the court would lean in favour of the former construction---For upholding any provision, if it could be saved by reading it down, it should be done, unless plain words were so clear as to be in defiance of the Constitution---Such interpretations spring out because of the concern of courts to always let legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation and words were not static but dynamic and this infused fertility in the field of interpretation---Principle of reading down, however, could not be available, where the plain and literal meaning from a bare reading of any impugned provision clearly showed it conferred arbitrary, uncanalised or unbridled power---Reading down the meanings of words with loose lexical amplitude was permissible as part of the judicial process and to sustain a law by interpretation was the rule---Courts could and must interpret words and read their meanings so that public good was promoted and power misuse was interdicted.
Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Indus Jute Mills Ltd. v. Federation of Pakistan 2009 PTD 1473; Interpretation of Taxing Statutes by Mittal; Maharao Saheb Shri Bhim Singhji and others v. Union of India and others AIR 1981 SC 234; Muhammad Umer Rathore v. Federation of Pakistan PLD 2009 Lah. 268; Federal Steam Navigation Co. Ltd. and another v. Department of Trade and Industry (1974) 2 All E R 97; Delhi Transporate Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101; Sunil Batra v. Delhi Administration and others AIR 1978 SC 1675 and Jagdish Pandey v. The Chancellor, University of Bihar and others AIR 1968 SC 353 rel.
Muhammad Aslam Rizvi and Mushtaq Ahmed Mohal for Petitioners.
Azhar Iqbal, Muzammal Akhtar Shabbir, Muqtedir Akhtar and Ch. Muhammad Shahid Iqbal for Petitioners (in connected writ petitions).
Shan Gul, Addl. A.-G. Punjab and Barrister Qasim Ali Chowhan, Asstt. A.-G. Punjab for Respondents.
Junaid Jabbar Khan Amicus Curiae.
Assisted by Qaisar Abbas and Mohsin Mumtaz, Research Associates and Civil Judges, Lahore High Court Research Centre (LHCRC).
Date of hearing: 6th May, 2015.
JUDGMENT
SYED MANSOOR ALI SHAH, J.--- Petitioners have challenged the constitutionality of section 10(1)(i) of the Punjab Civil Servants Act, 1974 ("Act") as being ultra vires Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution").
2. Brief facts leading to the above challenge are that petitioners were appointed as Civil Judges-cum-Judicial Magistrates vide Notification dated 23.06.2010 and posted as Civil Judges-cum-Judicial Magistrates against existing vacancies vide Notification dated 30.06.2010. The appointment of the petitioners was subject to confirmation in terms of Rule 7A of the Punjab Judicial Service Rules, 1994 ("Judicial Rules") which required that the candidates complete initial or extended period of probation satisfactorily on the basis of (a) Performance Evaluation made by the Departmental Confirmation Committee; (b) attend and successfully qualify such Course and Training as may be determined by the High Court and (c) pass Departmental Examination under the Punjab Civil Judges Departmental Examination Rules, 1991.
3. It is submitted that the petitioners successfully completed the Course and Training and passed the Departmental Examination, however, just a day before the expiry of the probationary period of four years, the services of the petitioners were terminated, without notice and without furnishing any reason, under section 10(1)(i) of the Act, vide Notification dated 04.07.2014.
4. Petitioners, through the instant petition, have laid challenge to the constitutionality of section 10(1)(i) of the Act, which deprives the petitioners of an opportunity of prior notice and reason for the termination of their services. It has been argued that the impugned section is ultra vires the Constitution as it deprives the petitioners their right to due process and fair trial under Articles 4 and 10A of the Constitution besides being discriminatory and as such violative of Article 25. They submit that if section 10(1)(i) of the Act is declared unconstitutional they will have an opportunity to approach the Lahore High Court on the administrative side for the reconsideration of their case, hence the instant challenge is not an academic exercise, as future remedies of the petitioners, are dependent on the fate of this petition. Petitioners, have reiterated that they are not challenging the Notification, where under their services have been terminated by the Lahore High Court, as they are aware that writ is not maintainable against the High Court in the light of Asif Saeed v. Registrar, Lahore High Court and others (PLD 1999 Lahore 350) and Muhammad Iqbal and others v. Lahore High Court through Registrar and others (2010 SCMR 632). They submit that they will pursue the same administratively once the fate of section 10 (1)(i) of the Act is determined.
5. It is argued that the petitioners were appointed as Civil Judges-cum-Judicial Magistrates against substantive vacant posts, however, their appointment was subject to probation. They, therefore, do not have a vested right to be appointed to the post, but have the vested right to be appointed to the post, if they successfully complete the period of probation. They further argued that the petitioners were entitled to know the reasons behind the opinion formed against them during the period of probation and in case the opinion was adverse, they had the right to be put to notice, so that they could explain and defend themselves, before they be deprived of their confirmation to a substantive vacant post. It is submitted that there has been no adverse comment against the petitioners, as none has been communicated to them during the course of their service, therefore, they are doubly curious regarding the reasons for their termination. They are, therefore, aggrieved of section 10 (1) (i) of the Act, which provides that the services of civil servant may be terminated without notice, during the period of his probation.
6. It is emphasized that, as far as petitioner No.2 is concerned, Certification of Appreciation dated 18.11.2013 has been issued by the District and Sessions Judge, Sahiwal which states as follows:---
"I have the honour to submit that Miss Bushra Farid, learned Civil Judge was posted at Sahiwal on 17.07.2013. At present she is exclusively dealing with cases of family nature and performing upto the level of satisfaction without any complaint with regard to her integrity."
7. It is submitted that the petitioners served as Civil Judges-cum-Judicial Magistrates for a period of almost four years (extended period of probation) therefore their services could not be terminated without notice. They submitted that section 10(1)(i) of the Act deprives the petitioner of the right to notice, hearing and reasons and therefore offends Article 10A of the Constitution. Reliance is placed on Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697), Pakistan Peoples Party v. Government of Punjab and others (PLD 2014 Lahore 330), Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159), National Bank of Pakistan and 117 others v. SAF Textile Mills Ltd. and another (PLD 2014 SC 283), Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others (2012 PTD 1815), Bilal Akbar Bhatti v. Election Tribunal, Multan and 15 others (PLD 2015 Lahore 272), Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 SC 324), Imtiaz Ahmad Kaifi v. Government of Punjab and others (PLD 2013 Lahore 598), Engineer Majeed Ahmed Memon v. Liaquat University of Medical and Health Sciences Jamshoro and others (2014 SCMR 1236), State of M.P. v. Rakesh Kohli and another (2013 SCMR 34), Arshad Mehmood v. Commissioner/ Delimitation Authority, Gujranwala and others (PLD 2014 Lahore 221) and Babar Hussain Shah and another v. Mujeeb Ahmed Khan and another (2012 SCMR 1235).
8. Learned Additional Advocate General, Punjab along with Assistant Advocate General, Punjab, who are also on notice…
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