Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NAZIR AHMAD KASANA VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN
1990 P L C (C
1990 P L C (C.S.) 573
[Lahore High Court]
Before Abdul Majeed Tiwana, J
NAZIR AHMAD KASANA
Versus ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Establishment
Division, Government of Pakistan, Rawalpindi and 2 others
Writ Petition No. 169 of 1986, decided on 27th March, 1990.
(a) Rules of Business, 1973--
---Rr. 3(3), 11, 12 & 15, Sched. II, item 12 & Sched. 5-A--Allocation of business of Federal Secretariat--Role of Establishment Division stated.
In Item 12 of the Second Schedule appended to the 1973 Rules the Establishment Division in terms of allocation of business of the Federal Secretariat, as contemplated by Rules 3(3) of the said Rules, can inter alia formulate Occupational Groups in public service and regulate all matters of general applicability to such groups including recruitments, verification of character and antecedents, conduct and discipline, terms and conditions of service etc.
Under rule 15(g) read with item 5(b) of Schedule V-A of the said Rules, Establishment Division is to submit a case of non-acceptance of the advice of the Commission to the Prime Minister for approval.
Judged in the light of possibly relevant portions of rules 11, 15(g) read with Schedules II and Schedule V-A, ibid one does not fail to find that the case in hand does not fall under any of these provisions. To be a little more precise, rule 11(c) relates to initial appointments, other than those made through the Commission, while rule 11(f) deals with selection of Provincial employees for appointment in Federal Secretariat and Attached Departments. It implies a process other than through initial appointment, i.e. by transfer. So both the clauses are not relevant.
(b) Civil Service (Appointment Promotion and Transfer) Rules, 1976--
---R. 6---Establishment Division O.M. No. 3/3/59, dated 4-6-1960---Constitution of Pakistan (1973), Art. 199---Procedure for rejection of advice of Federal Public Service Commission---Referring Division i.e. Agricultural Division and Federal Public Service Commission agreed to the appointment of petitioner in Grade-20 Establishment Division through which recommendation was routed to President suggested rejection of Federal Public Service Commission nominee and secured order of rejection by the President---Effect---There being no disagreement between the referring Division i.e., Agricultural Division and the Federal Public Service Commission, there was no occasion to submit the case to President through Establishment Division---Establishment Division was not competent to create a disagreement, dispute or controversy between itself and referring division supported by the Public Service Commission and then take the matter to President, without affording the Commission an opportunity to express its views on the matter---Establishment Division thus violated its own policy decision contained in the O.M. dated 4-6-1960 by bypassing the Commission unauthorisedly---Agricultural Division could directly or through Establishment Division seek the approval of President to the nominee of Public Service Commission---President's rejection of recommendation of Public Service Commission was occasioned by the unauthorised advice of the Establishment Division---Action taken by Establishment Division in colourable exercise of powers was thus not sustainable and was set aside by the High Court in Constitutional jurisdiction as mala fide.
(c) Civil service-
--- Annual Confidential Reports of civil servant---Federal Public Service Commission, while recommending an in-service candidate's suitability to a post could itself scrutinise the Annual Confidential Reports of a civil servant or get the same scrutinised by the referring Division---Establishment Division cannot suo motu scrutinise the past record of a civil servant recommended by the Public Service Commission and mislead the President in securing an unauthorised order.
(d) Federal Public Service Commission (XLV of 1977)-
---S. 8---Recommendations of Public Service Commission---President's discretion to reject---Essentials---Person recommended by Public Service Commission was although in service, recommendation by the Commission did not amount to a "double jump promotion" but was an initial appointment.
The recommendations of the Commission---A prestigious examining body, having statutory existence, with an exceptionally good record of long experience, impartiality and ability in selecting responsible functionaries for public service of the Federation, could not and should not have been so lightly ignored and rejected even by the President. Despite his discretion under section 8 of the Federal Public Service Commission Ordinance, 1977, and his very high position in the official hierarchy he, as a public functionary of a Muslim State, where, under the ground norm of Shariah now legally enforceable, even the lowest can ask the highest to account for his acts and doings, was under an implied obligation to take an independent and judicious decision after due application of mind, on the case of the petitioner, whose career was involved. More, so when the recommendations of the Commission, which are conventionally and traditionally honoured unless there is something glaringly perverse, were at stake. He was not expected to readily accept what was being suggested to him by his C.O.S. and the Establishment Division, and had he turned a few pages back, he would not have failed to find that he was being misled. It was not a case of `double jump promotion', as termed by the C.O.S. at the behest of Establishment Division, because it was not a matter of promotion. It was a clear case of initial recruitment and the petitioner had successfully competed for the post 4s an ordinary candidate, like others, on the basis of his qualifications and experience, and not on the basis of his past service in the Provincial Agriculture Department. Even a person having a much lower status could successfully compete and could his nomination be rejected merely because he would get manifold jumps? Certainly not.
It has been suggested that due to paucity of time and heavy pre?occupations the President was not expected to write a detailed order for rejecting the recommendation of the Commission and signification of his approval to the suggestion made by his C.O.S. was enough to satisfy the requirements of the application of his mind. This is true that he had many heavy calls on his precious time but 'uneasy lies the head which wears the crown' and despite all these adds he had to find time for dealing with such like cases in order to take an independent decision, ignoring all what his advisers and aides had suggested, by the due application of his mind and giving valid reasons for the conclusion reached, particularly while rejecting the advice or recommendation of the Commission.
(e) Mala fides-
---Action taken in colourable exercise of powers or for collateral purpose not authorised by law under which the action a taken, or action taken in fraud of law is mala fide.
Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 SC 151; Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4
others P L D 1973 SC 144; Punjab Public Service Commission v. Ali Gul Khan and 4 others 1976 S C M R 212 ref.
(f) Government of India Act, 1935--
---Ss. 264 to 268---Constitution of Pakistan (1956), Arts. 184 to 190---Constitution of Pakistan (1962), Arts. 182 to 190---Constitution of Pakistan (1973), Art. 242--?Functions assigned to Public Service Commission under various Constitutions of Pakistan--Object, purpose and roll of Public Service Commission from Government of India Ad, 1935 to Constitution of Pakistan (1973) traced, illustrated and commented upon.
(g) Constitution of Pakistan (1973)--
---Art. 242---Federal Public Service Commission Ordinance (XLV of 1977), Ss. 7 & 8---Object, scope and import of Federal Public Service Commission Ordinance, 1977 stated.
Pursuant to Article 242 of the 1973 Constitution, the President promulgated an Ordinance known as Federal Public Service Commission Ordinance, 1977, setting up a Public Service Commission for the Federation. The Provincial Governments following suit also promulgated Ordinances establishing their respective Public Service Commissions. The said Ordinance, besides spelling out the constitution of the Commission, also provided for the terms of the office of its members and Chairman, duties and functions of the Commission, after leaving certain incidental and ancillary matters to be taken care of by the regulations to be framed by the President and the rules to be framed by the Federal Government. It is sections 7 and 8 of this Ordinance which are relevant for the purposes of answering the question in hand. Section 7 lays down that the functions of the Commission shall be--
(a)??????? to conduct tests and examinations for the recruitment of persons ............?????????? to all Pakistan service, civil service of the Federation and such posts in connection with the affairs of the Federation as may be prescribed by rules made under section 10; and
(b)??????? to advise the President on matters relating to the qualifications and method for recruitment to the service and posts referred to in clause (a) and any other matter which the President may refer to the Commission. Section 8 provides that where the President does not accept the advice of the Commission, he shall inform the Commission accordingly.
These provisions of law leave no room for doubt that the recommendations of the Commission are only advisory in nature and the President, as appointing authority in connection with the post of Rice Commissioner (Grade-20), could reject such recommendations.
Although the recommendations of the Commission are essentially of recommendatory character and legally not binding on the President, yet in view of high status of the body making them, the same cannot be lightly ignored and for rejecting them the President or any other functionary, is bound to give valid reasons therefore, so as to avoid therein the elements of arbitrariness and waywardness which vitiate even the most solemn acts of the highest functionaries.
(h) Civil Servants (Appointment, Promotion and Transfer) Rules, 1976--
---R. 6---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction, exercise of---Petitioner having been recommended by Public Service Commission, Establishment Division did not act in accordance with law by recommending to the President to reject such recommendation---Establishment Division acted without lawful authority and while dealing with reference deflected the course of events in such a manner that President was ultimately misled to pass an order not sustainable in law---High Court in Constitutional `jurisdiction set aside President's order rejecting recommendation of Public Service Commission but as the Commission while interviewing the petitioner, did not see his character roll to judge in depth his suitability for the post, it was directed.to examine petitioner's service record, and if necessary could interview him again to seek clarification of any point concerning his service matters and then sent: his case to the referring Division for onward reference to appointing authority.
Tariq Javed for Petitioner.
Abdul Baseer Oureshi, Dy. A.-G. for Respondents.
Date of hearing: 17th February, 1990.
JUDGMENT
Nazir Ahmad Kasana petitioner, who is Soil Fertility Officer in Ayub Agricultural Research Institute, Faisalabad, by this writ petition called in question the validity of the order passed by the President of Pakistan, as referred to in Establishment Division's U.O. 15(3)/82-CP, dated 21-3-1984, overruling the recommendation of respondent No. 3 (Federal Public Service Commission, hereinafter referred to as the Commission) regarding his appointment as Rice Commissioner in respondent No. 2 (Food and Agriculture Division, Government of Pakistan, hereinafter called the Agriculture Division) and prayed for a direction to Agriculture Division as also to respondent No.1? (Establishment Division, Government of Pakistan, hereinafter referred to as the Establishment Division) for appointing him as Rice Commissioner (Grade-20) in the former.
2. The brief facts leading up to this writ petition are that the Commission, vide its advertisement in Daily `Pakistan Times', Lahore, dated 15-11-1981, invited applications for rifling up the posts of Cotton/Rice/Sugarcane Commissioner in the Agricultural Division. Since the Commission could not find a suitable person for the post of Rice Commissioner, it re-advertised the-same in Daily `Pakistan Times' dated 12-9-1982, but this time too it could not select any suitable candidate for the post which had to be re-advertised for the third time in the year, 1983. This time the post was advertised on All Pakistan basis for selection on merits. The petitioner applied for the post and ultimately he was recommended therefore by the Commission vide its, letter, dated 13-8-1983. On the basis of these recommendations, the Agriculture Division vide letter, dated 20-9-1983, sent up the case of the petitioner to the Establishment Division for seeking approval of the Resident of Pakistan to his appointment as Rice Commissioner but the latter, while forwarding the summary to the President, suggested that either the petitioner should be appointed on probation for a specific period and his confirmation should depend upon the successful completion of his probation, or the post should be re-advertised with the hope that some younger and brighter person might come forward for the post. Out of these two alternatives, they themselves favoured the second one and the President approved it. It is the validity of this order which has been challenged, inter alia, on the grounds:--
(i)???????? that the established rules and practice have not been followed inasmuch as the reasons for disagreeing with the recommendations of the Commission have not been communicated to it to enable it to justify its recommendations nor the matter has been re-referred to the President for reconsideration;
(ii)??????? that the petitioner acquired right for the appointment to the post of Rice Commissioner on the recommendation of the Commission which has been denied to him arbitrarily;
(iii)?????? that the action of Establishment Division is mala fide because they wanted to accommodate a particular youngster who had gone abroad and might return with requisite qualifications for the post;
(iv)?????? that the recommendations o: the Commission are legally binding on the ??????????? President;
(v)??????? that the post was advertised thrice and the petitioner turned out to be the only suitable candidate for the post as per recommendation of the Commission;
?(vi)????? that the procedure for appointment of an officer as contained in the ??????????? Rules of Business was not followed; and
(vii) that the representation made by the petitioner was erroneously turned down vide order, dated 24-10-1985.
3. Originally the Agriculture Division and Establishment Division submitted their joint written statement signed by a Deputy Secretary of the former, while the Commission filed its written statement separately, but later, under the directions of this Court, they i.e. both the Divisions have submitted their separate written statements. Establishment Division has also brought on the record the copy of the summary submitted by its Secretary, the note of C.S.O. to the President and the order of the President,, dated 17-3-1984.
4. It is an admitted position in the written statements of all the respondents that the post of Rice Commissioner (BPS-20) was advertised by the Commission thrice, first under the Punjab quota, then under Balochistan quota, and finally under merit quota on All Pakistan Basis and on the third occasion, out of 13 candidates, 8 were called for interview and out of them the petitioner obtained the first position. However, it was alleged that on the pursuation of departmental representative, the Commission suggested for downgrading the post from Grade?20 to Grade-19 and recommended for awarding six advance incremessnts to the petitioner subject to the usual conditions, including the one that there was nothing so damaging in his character rolls so as to adversely affect his suitability.
It was also conceded that Agriculture Division did not agree with the suggestion of the Commission for downgrading the post and granting six advance increments to the petitioner, and requested it for recommending him for Grade-20 post of Rice Commissioner to which it agreed. Agriculture Division accordingly drew up summary and requested the Establishment Division for obtaining the approval of the President to the appointment of the petitioner as Rice Commissioner (Grade?20) as recommended by the Commission but the President, agreeing with the views of Establishment Division, which was not willing to support the proposal, was pleased to turn down the recommendation of the Commission and directed for the re-advertisement of post for attracting some younger and brighter incumbent. Both the Divisions denied the allegations of mala fides and non?observance of rules on the subject and asserted that the President was competent to disagree with the recommendation of the Commission on the advice of Establishment Division and he correctly over-ruled the same.
5. The Commission in its comments, apart from relating certain admitted facts (as stated above), took up the position that after selecting the petitioner as a
suitable candidate for the post, it first recommended for its down gradation on the persuasion of departmental representative of Agriculture Division but on the receipt of reference from this Division it agreed to the appointment of the petitioner to the concerned post as originally advertised in Grade-20, for which it gave valid reasons. It, however, complained that the procedure for the rejection of its advice, as outlined in Establishment Division O.M. No. 3/3/550-E-VII, dated 4-6-1960, was not followed by both the Divisions and this fact was specifically pointed out to them but nothing was heard from them. It was asserted that the petitioner was recommended for the post due to his better performance in the interview after advertising the post thrice.
6. The learned counsel for the petitioner, during the course of his arguments, has reiterated certain grounds embodied in the writ petition and almost reproduced above and in support of his contention that the President was bound to act upon the recommendation of the Commission and in passing the impugned order he was misled by the Establishment Division on account of their mala fides to accommodate their own "younger and brighter" man, has placed reliance on Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 SC 151; Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others P L D 1973 SC 144 and The Punjab Public Service Commission v. Ali Gul Khan and 4 others 1976 S C M R 212.
7. As against various contentions raised on behalf of the petitioner, the main argument of the learned Standing Counsel for the Federal Government representing respondents Nos. 1 and 2 was that the President of Pakistan being the appointing authority in relation to a Grade-20 post, like the one in question, in terms of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, was not bound by the recommendations of the Commission for the appointment of the petitioner to the post of Rice Commissioner, which were essentially of advisory nature and under section 8 of the Federal Public Service Commission Ordinance, 1977 he chose not to accept the same and rightly overruled them. In his view, the Establishment Division had no mala fides against the petitioner, nor it was interested in any particular person, nor it did anything unusual in submitting summary to the President and expressing its views on the matter as under the Rules of Business it was bound to do so, nor it was necessary for it to consult the Commission in terms of its OM. No. 3/3/59-E-VII, dated 4-6-1960, before submitting such summary. He also relied on Dr. Habib-ur-?Rehman v. WestPakistan Public Service Commission, Lahore and 4 others P L D 1973 S C 144.
8. From the controversy between the petitioner and the Establishment Division and difference of opinion amongst the respondents themselves, the following two main questions arise for determination:-
(i) What was the role of Establishment Division in this case and did it play its role justly and lawfully?
(ii)??????? What was the nature of the recommendations of the Commission and to what extent the same were binding on'various authorities, including the President?
9. Now I proceed to consider the first question. It is an admitted position that the post of Rice Commissioner is a Grade-20 post of Agriculture Division and it has been making serious efforts exercise 1981 to fill it up through the Commission which, in turn, has been making consistent endeavours to find out a suitable incumbent therefore. For that purpose the post was advertised thrice and during the third and the final test the petitioner was picked up as the best out of the available candidates. He was; however, not considered fit for Grade-20 post and the Commission, while forwarding its recommendations to the Agriculture Division in its letter, dated 20-6-1983, proposed that the post of Rice Commissioner should be downgraded from Grade-20 to Grade-19 and he should be appointed to the downgraded post with six advance increments. Agriculture Division did not agree with the suggestion of the Commission so far it related to the down gradation of the post and grant of six advance increments and making a back reference, requested it for reconsideration of this aspect of the matter for the reason that the post stood sanctioned in Grade-20 and the petitioner prima facie fulfilled the qualifications prescribed for the post. The Commission accordingly reviewed the matter and vide its letter, dated 11-8-1983, recommended the petitioner for appointment to Grade-20 post of Rice Commissioner, inter alia, for the following reasons:-
(a)??????? The Commission's nominee had been recommended advance increments in Grade-19 i.e. Rs.2,850 p.m. while the minimum of Grade-20- is Rs.2,600 p.m.
(b)??????? the Commission's nominee has been holding Grade-18 post since 12-3? ??????????? 1970 till today. His present pay is Rs.2,600 p.m.
(c)??????? His two Conferrers, Wheat/Sugar Commissioner, have been nominated ??????????? by the Commission in Grade-20.
(d)??????? This recruitment had already twice failed in the past.
(e)??????? He fulfils the advertised conditions for the Grade-20 post of Rice ?? ???????? Commissioner.
The Commission also clarified that it had asked for downgrading the post on the suggestion of Dr. Muhammad Amir, Secretary, Agriculture Research Division, the departmental representative, made during the interviews.
10. It may be mentioned here that the Commission in its earlier letter, dated 20-6-1983, while recommending the petitioner after down-grading the post of Rice Commissioner, in para.8 thereof, had deserved that:-
"The Commission's recommendations are subject to the condition that there was nothing so damaging in the Character Rolls of the candidates in Government Service so as to adversely affect their suitability for the posts. Only such cases may be referred to the Commission for advice where dossiers of the Commission's nominees contain positively adverse remarks."
11. It appears that, like certain other instructions contained in the said letter, those contained in para.8 ibid were also of general nature, usually forming part of every recommendation for Commission's nominee. Establishment Division taking a cue from the said observations, proceeded to scrutinize the service record of the petitioner and bringing out certain adverse entries in his character rolls, opposed his appointment to Grade-20 post of Rice Commission when an Additional Secretary of Agriculture Division in the summary, dated 20-9-1983, drawn up by him for it, requested for its (Esta.) approval to the petitioner's appointment to the post on the basis of Commission's recommendations. To be a little more precise, an Additional Secretary of the Establishment Division, vide his letter, dated 1-10-1983, addressed to his counterpart in the Agriculture Division, in response to his summary, dated 20-9-1983, observed that:-
"Federal Public Service Commission has recommended Ch. Nazir Ahmad Kasana for appointment as Rice Commissioner subject to the condition that there is nothing so damaging in the Character Rolls of the candidate as to adversely affect his suitability for the post. Scrutiny of the Character Rolls of Ch. Nazir Ahmad Kasana reveals that his reports for the years 1959 and 1960 contained adverse…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.