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Petitioner: MUNAWAR KHAN VS Respondent: NIAZ MUHAMMAD,K.MA. Samdani, Alamdar Raza, Qazi M. Alimullah, M. Afsar, M. Yusuf Khan & Abdul Ghafoor
1993 P L C (C
1993 P L C (C.S.) 797
[Supreme Court of Pakistan]
Present: Shafiur Rahman, Abdul Qadeer Chaudhry Saleem Akhtar, Saiduzzaman Siddique and Wali Muhammad Khan, JJ
Civil Appeal No. 228 of 1989
MUNAWAR KHAN
versus
NIAZ MUHAMMAD and 7 others
(On appeal from the judgment of the N.‑W.F.P. Service Tribunal, Camp at D.I. Khan, dated 12‑3‑1989 passed in Appeal No. 29 of 1988)
Civil Appeals Nos. 317 319 to 322 324 and 325 of 1989
HAQ NAWAZ
versus
MUHAMMAD YASIN and 2 others
(On appeal from the orders/judgments of the N.‑W.F.P. Service Tribunal, Camp at D.I. Khan, dated 6‑4‑1989 passed in Appeals Nos. 10/89, 162/88, 163/88, 165/88, 167/88,168(88 and 8/89 respectively).
Civil Anneal No. 319 of 1989
INAYATULLAH KHAN
versus
THE SUB‑DIVISIONAL EDUCATION OFFICER (FEMALE) LAKKI MARWAT, DISTRICT BANNU and 2 others
Civil Appeal No. 320 of 1989
MOMIN KHAN
versus
THE SUB‑DIVISIONAL EDUCATION OFFICER (FEMALE) LAKKI MARWAT, DISTRICT BANNU and 2 others
Civil Anneal No. 321 of 1989
MUHAMMAD SAID
versus
THE S.D.E.O. (FEMALES), LAM SWAT, DISTRICT BANNU and 2 others
Civil Anneal No. 322 of 1989
AIN KHAN
versus
THE S.D.E.O. (FEMALES), LAS MARWAT, DISTRICT BANNU and 2 others
Civil Appeal No. 324 of 1989
REHAN DIN
versus
THE S.D.E.O. (FEMALES), LAM MARWAT, DISTRICT BANNU and 2 others
Civil Appeal No. 325 of 1989
SAID RASUL
versus
THE SUB‑DIVISIONAL EDUCATION OFFICER (MALE) LAKKI MARWAT, DISTRICT BANNU and 2 others
Civil Appeal No. 31‑P of 1990
SALIM BACHA
versus
SUB‑DIVISIONAL EDUCATION OFFICER (MALE) TIMERGARA, DIR and 2 others
(On appeal from the judgment of the N: W.F.P. Service Tribunal, Camp at Swat, dated 9‑1‑1989 passed in Appeal No. 36 of 1988).
Civil Appeal No. 14‑P of 1991
BADSHAH KHAN
versus
KHANZADA and 2 others
(On appeal from the judgment of the N: W.F.P. Service Tribunal, Peshawar dated 1.3‑11‑1990 passed in Appeal No. 220 of 1989)
Civil Appeals Nos. 228, 317, 319 to 322, 324 and 325 of 1989 and 31‑P of 1990 and 14 of 1991, decided on 4th April, 1993.
(a) Constitution of Pakistan (1973)---
‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted to examine the questions of law of public importance viz. whether Members of the Legislative‑ Assemblies or Ministers act within the powers and jurisdiction to get appointments made to Government offices and posts; whether, they could not `interfere' with the rights of civil servants; whether, they were bound by the procedure prescribed for the appointment of Government servants; whether, in the context of the case the public representatives could be deemed to have violated the "law of the land", through the "act/omission of a Government functionary" was the Service Tribunal correct in expressing the view that the public representatives were required to perform functions other than what they had done in the case; whether, their conduct in the case was "an example of unnecessary interference in the affairs of the Government functionaries" in case the observations and findings by the Service Tribunal with regard to the removal of civil servant were upheld, whether, the Service Tribunal was competent through the same impugned judgment to restore the order of appointment passed in his favour on specified date as it was prima facie tainted with same infirmities which were noticed in the impugned judgment.
(b) Civil service‑‑‑
Appointments of both the parties contesting the appointments were wade without advertisement, publicity and information in the locality from which the recruitments were to be made‑‑‑Supreme Court in view of Constitutional requirement expected that in future, all appointments would be made after due publicity in the area from which the recruitments had to take place, except in case of short‑term leave vacancies or the contingent employment.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 27‑‑‑Policy of making appointments against land grants would amount to sale of public office for property‑‑‑Such policy was not only against the Constitutional law applicable to public office but was also not conducive to public interest‑‑‑What could be done within the frame work of the law was to create a margin of preference for those who made such grants, other conditions of eligibility, suitability and fitness being equal.
(d) Civil service‑‑‑
‑‑‑‑ Allocation of quota of posts to local M.P. As. or M. NAs. for requirement to the posts was offensive to the Constitution and the law on the subject.‑‑? Ministers, Members of National and Provincial Assemblies all were under oath to discharge their duties in accordance with the Constitution and the law‑‑? Service laws designate, in the case of all appointments, a departmental authority competent to make such appointments, whose judgment and discretion has to be exercised honestly and objectively in the public interest and could not be influenced or subordinated to the judgment of anyone else including his superior‑‑‑Allocation of quotas to the Ministers/M.NAs. or M.P.As. and appointments made there under were all illegal ab initio, and have to be held so by all Courts, Tribunals and Authorities.
(e) Civil service‑‑‑
‑‑‑‑ Appointment‑‑‑Claim of being nephew of a former employee and earlier appointment in the leave vacancy of his uncle, was not recognised by law.
Mian Shakirullah Jan, Advocate‑on‑Record for Appellants (in CAs. Nos. 228/89, 317/89, 31‑P/90 and 14/91)
Muhammad Zaman Qureshi, Advocate instructed by S. Abul Aasim Jafery, Advocate‑on‑Record (Absent) for Appellants (in CAs. Nos. 319 to 322/89 and 324, and 325/89)
K.G. Sabir, Advocate and Haji Bashir Ahmed, Advocate‑on‑Record (Absent) for Respondent No. 1 (in CA. No. 228 of 1989).
M. Sardar Khan, Advocate‑General, N.‑W.F.P: and MA. Qayyum Mazhar, Advocate‑on‑Record (Absent) for Respondents Nos. 2 to 7 (in C.A. No. 228 of 1989) for Respondents ‑Nos. 2 and 3 (in CA. No. 317), for Respondents Nos. 1 and 2 (in CAs. Nos. 319, 320, 321, 322, 324 and 325/89, 31‑P of 1990 and Respondents Nos. 2 and 3 in (CA. No. 14 of 1991).
Qazi M. Anwar Advocate, instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 1 (in CA. No. 317 of 1989, and Respondent No. 3 (in CA. No. 319, 320, 321, 322, 324, 325 of 1989).
Abdul Hamid Qureshi, Advocate‑on‑Record (Absent) for Respondent No. 3 (in CA. No. 31‑P of 1990).
S. Hamaduddin G. Khan, Advocate instructed by Haji MA. Qayyum Mazhar, Advocate‑on‑Record (Absent) for Respondent No. 1 (in CA. No. 14 of 1991).
Nemo for Respondent No. 8 (in CA. No. 228 of 1989).
Aziz A. Munshi, Attorney‑General for Pakistan; K.MA. Samdani, Sr. Advocate; Alamdar Raza, Advocate; Qazi M. Alimullah, Principal Secretary to Prime Minister; Zahoor Azam, Chairman, Federal Public Service Commission; Raja M. Afsar, Advocate‑General, Balochistan; M. Sardar Khan, Advocate General, N.‑W.F.P.; M. Yusuf Khan, Advocate for Advocate‑General, Punjab; Raja Abdul Ghafoor, Advocate for Advocate‑General, Sindh on Court Notice.
Date of hearing: 10th February, 1993.
JUDGMENT
SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted under Article 212(3) of the Constitution in these appeals to examine, inter alia, the following questions of law of public importance arising therein:‑‑
"(a) Whether, Hon'ble Members of the Legislative Assemblies or Ministers act within the powers and jurisdiction to get appointments made to Government offices and posts?
(b) Whether, they cannot `interfere' with the rights of civil servants?
(c) Whether, they are bound by the procedure prescribed for the appointment of Government servants?
(d) Whether, in the context of the present case the public representatives can be deemed to have violated the `Law of the land', through the `act/omission of a Government functionary'?
(e) Was the Tribunal correct in expressing the view that the public representatives arc required to perform functions other than what they have done in this case?
(f) Whether, their conduct in the present case is `an example of unnecessary interference in the affairs of the Government functionaries'?
(g) In case the observations and findings by the Tribunal with regard to the removal of Niaz Muhammad respondent arc upheld: whether, the Tribunal was competent through the same impugned judgment to restore the order of appointment passed in his favour on 22‑8‑1987 as it is prima facie tainted with same infirmities which were noticed in the impugned judgment?"
2. The background in which these questions of law have arisen for decision is that in the North‑West Frontier Province since 1962 or near about, it had been the practice and the policy to elicit land grants free of cost from individuals, B.D. Members or the village body of land‑owners for establishment or extension of the Primary Schools at the cost of Government on the condition that the donor of the land or his nominee was recruited if there was vacancy or as soon as one became available, as a Class IV employee. This policy or practice was somewhat formalised in a meeting presided over by the Minister for Education on 22‑9‑1987 The decisions arrived at this meeting were expressed as hereunder:‑‑
"(1) Every M.PA. would give a list of 2 candidates for P.T.C. training as a special case within a week, keeping in view the merit as far as possible.
(2) Appointments to all categories of posts be made on Illaqa-wise (MPAs Illaqa) merit.
(3) Trained candidates be appointed on priority.
(4) All the District Education Officers and Sub‑Divisional Education Officers be informed to coordinate with the Chairman District Development Advisory Committees and the M.PAs.
(5) The persons who have already been appointed as part‑time Chowkidars be regularised. However, the genuineness of their appointments be ascertained by the M.PAs. before regularisation. The remaining posts be Filled up by the persons who donated land free of cost for the school on the recommendation of the concerned M.P.As.
(6) Transfers and adjustment be made once a year on merit preferably m the month of August/September on completion of tenure and good performance. In this connection all the M.PAs. would submit their recommendations before 15‑10‑1987 to the concerned officers of the Education Department.
(7) Up-gradation of Government High School, Nowshera Kalan to the Higher Secondary status, Establishment of an Inter College in FK Bannu; Starting of Double Shifts in some Colleges, up-gradation of Government High Schools, Pattan (Kohistan) Garki Kapura and Baghdada (Mardan) to Higher Secondary status be considered on priority.
(8) Cases for the purchase of land in Urban areas be examined and recommended to the Finance Department for the establishment of Educational Institutions on the recommendations of the Chairmen, District Development Advisory Committees/M.P.As.
(9) Qualification/age be relaxed in cases of far‑flung areas like Kala Dhaka etc."
3. Another similar meeting was held on 14‑5‑1988 which confirmed the minutes of the earlier meeting, noted with satisfaction that 4004 posts of P.T.C, and 8877 posts of Chowkidars had been created in the Budget of 1988‑89, existing policy with regard to the appointment of Class‑IV employees was continued, and a sub‑committee was appointed for examining the Court cases which were pending in respect of implementation .of this policy. The Enquiry Committee found that the policy instructions had been violated in a number of cases, corrected the‑ mistake and appointed those deserving appointment under the policy decision. This led to wide spread grievances of those whose services were terminated or so substituted. The Service Tribunal in most of the cases taking the first appointment to be unconditional and by the competent authority held that termination of it without show‑cause notice and on the mere ground that it was temporary could not be defended under the service laws applicable, and, therefore, the corrective appointments that were made were set aside.
4. In order to assist the Court on the questions of law of public importance raised in these appeals we had given notice to the learned Attorney‑General for Pakistan and the Advocates‑General of all the Provinces. They have appeared and made their submissions on these points. We also had the benefit of hearing Mr. Zahoor Azar, the Chairman of the Federal Public Service Commission, Qazi M. Alimullah, the Principal Secretary to the Prime Minister, Mr. K.MA. Samdani and Mr. Alamdar Raza, Advocates, on the subject. Mr. Sardar Khan, the Advocate‑General N W.F.P. has provided the necessary instructions and the policy documents governing the case.
5. The first point of Constitutional importance not noted in the leave granting order but being the subject‑matter of Human Right Case No. 104 of 1992, we took note of it. An interim order has already been passed in it. It requires all the appointing authorities to make the appointment after inviting applications from those eligible, deserving and desirous. It was found in that case that recruitments made without open advertisements were prima facie violative of Fundamental Right 18 and could not be countenanced. We do not want to deal with that ground in these proceedings because it is also the subject‑matter of another case before another Bench.
6. What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisements, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitments had to take place. This will, however, not apply to short‑term leave vacancies or to contingent employment.
7. As regards the policy of making appointments against land grants, we find that this amounts to, in fact, sale of public office for property. Not only it is against the Constitutional Law applicable to public office but is not conductive to public interest. What could be done within the framework of the law was to create a margin of preference for those who make such grants, other conditions of eligibility and suitability and fitness being equal. We, therefore, overrule this practice prospectively.
8. As regards the allocation of quota of posts to the local M.PAs or M.NAs. for recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all arc under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to the Ministers/MNAs/MPAs and appointments made there under are all illegal ab initio and have to be held so by all Courts, Tribunals and authorities.
C.A. No. 228 of 1989
9. In Civil Appeal No. 228 of 1989, a Primary School in village Chuar Khel, Tehsil Lakki Marwat, District Bannu was established in 1963 and the land was donated by B.D. Members. Haji Muhammad, the uncle of Niaz Muhammad (respondent No. 1) was appointed Sweeper therein as a nominee of the donors. He continued in service. In his leave vacancy, on three occasions from 1‑9‑1985 to 21‑12‑1985, 1‑2‑1986 to 1‑5‑1986 and 8‑3‑1987 to 14‑3‑1987 the respondent Niaz Muhammad was appointed to carry on his duty as a Sweeper. When Haji Muhammad retired, Munawar Khan (appellant) was appointed by the competent authority on 8‑4‑1987. This appointment does not appear to suffer from any taint of a quota appointment or an appointment made under the dictates or recommendations of someone but appears to have been made by the competent authority. There is nothing to show that the vacancy was publicised and other eligible in the locality were considered. This order was set aside and substituted by the competent authority on 22‑8‑1987 and reads as hereunder:‑‑
"As ordered by the Hon. Education Minister, N: W.F.P. and instructions issued by the District Education Officer (Male), Bannu regarding the appointment dated 22‑6‑1987, and ordered by the Hon. Minister for Taxation, Revenue and Excise, N: W.F.P. dated 19‑8‑1987, Mr. Niaz Muhammad son of Noor Muhammad of village Chuhar Khel is hereby appointed as a Sweeper at Government Middle School, Chuhar Khel in place of Munawar Khan whose services are terminated with effect from the date of taking over charge @ Rs.600 p.m. in the BPS‑1 (600‑‑13‑‑840) plus usual allowances in the interest of public service:"
10. Soon thereafter, on 30‑8‑1987 another order was passed by the competent authority as hereunder:‑‑
"As ordered by the Hon. Education Minister, N.‑W.F.P. dated 25‑8‑1987 and ordered by the Hon. Minister for Taxation, Revenue and Excise, N.‑W.F.P. and instructions issued by the District Education Officer (Male), Bannu dated 29‑8‑1987, the service of Mr. Munawar Khan S/o Qadar Khan of village Chuhar Khel is hereby reinstated w.e.f. the date of taking over charge at Government Middle School, Chuhar Khel and the order of appointment of Mr. Niaz Muhammad S/o Noor Muhammad Sweeper of village Chuhar Khel issued vide this Office Endst. No. 3285‑93, dated 22‑8‑1987 is hereby terminated:"
11. It was this last order which was challenged before the Service Tribunal. The Service Tribunal observed as hereunder:‑‑
"There is a procedure prescribed for the appointment of the Government servants and everybody is to follow the same. In a way the responsibility of the public representatives is greater than others to see that the law of the land is not violated by an act/omission of a Government functionary. M.P.As. and other public representatives are expected to initiate the developmental programmes, open schools, hospitals, arrange for the supply of water and promote the other social and health facilities etc. The present case is also an example of unnecessary interference in the affairs of the Government functionary. Therefore, we have got no other alternative but to accept the present appeal by setting aside the impugned order dated 30‑8‑1987 and reinstate the appellant with all back benefits from the date he was dismissed from service. Parties are, however, left to bear their own costs and file be consigned to the record room."
12. The claim made by Niaz Muhammad was based on being a nephew of Haji Muhammad and on the basis of earlier appointment in the leave vacancy of his uncle. Both these grounds are not recognised by law. The last order that was passed in his favour showed that his appointment in the leave vacancy of Haji Muhammad was extended upto 8‑3‑1987 and that appointment terminated on 9‑3‑1987. Thereafter, a proper order by the competent authority uninfluenced by anyone was passed in favour of Munawar Khan on 8‑4‑1987. It was an appointment against a clear vacancy. It was a regular appointment. This appointment had been interfered with subsequently, not at the instance of competent authority but under the orders of the Education Minister and such interference in order was clearly impermissible. In the circumstances, the grounds on which Niaz Muhammad claimed the appointment could not prevail and the appointment of Munawar Khan made against the post could not be set aside.
13. In the circumstances, we accept the appeal set aside the judgment of the Service Tribunal and restore the appointment of Munawar Khan on the post from 8‑4‑1987. The costs of the proceedings throughout will be borne by the Government as too frequent violations of the law by it is the cause of this avoidable litigation.
C.A. No. 317 of 1989
14. Ha q Nawaz, the appellant in Civil Appeal No. 317 of 1989 had made a grant of land free of cost for construction of a School in Zair Jano, Lakki Marwat, Bannu. He also worked as a part‑time Chowkidar paid from the contingency till permanent posts of Chowkidars were created under the Budget of 1987‑88. Yasin (respondent No.' 1) was appointed against this post and in part of paragraph 2 and paragraph 3 of his appeal before the Service Tribunal he stated the manner in which he was appointed. It reads as hereunder:‑‑
"The minutes of the meeting dated 22‑9‑1987 were signed by the Director of Education (Schools) N.‑W.F.P., Peshawar, (Mr. Muhammad Idris Khan) and circulated all over in the N.‑W.F.P. by the Director of Education (Schools) N: W.F.P. vide his circular letter No. 2575‑2680, dated 29‑9‑1987.
(3) It was in the implementation of the above decision that the appellant was appointed as a regular Chowkidar on the recommendations of the Honourable Minister, then Khan Muhammad Akram Khan, M.PA., in whose Illaqa the appellant hailed vide respondent No. 1's Order No. 4072‑78, dated 23‑9‑1987 Annexure A."
15. Haq Nawaz took the matter to the ‑Civil Court and in terms of the minutes of the meeting an inquiry was held and it was found that even under the policy decision his entitlement to appointment was superior. The Government offered him to reappoint provided he withdrew his civil suit. He did so whereupon a substitutive order of appointment was passed in his favour. In respect of eleven such persons the Inquiry Officer ordered the competent authority to make their appointments in view of the merit of their claim. '
16. The Service Tribunal allowed the appeal of Muhammad Yasin taking his appointment to be regular and proper though on its own finding the Tribunal had held that all such appointments made on the dictation of the Members of Provincial Assemblies were illegal. Manifestly the appointment of Muhammad Yasin (respondent No. 1) was illegal, improper, in violation of the rules void ab initio and its setting aside was in accordance with the commitment given to the Court and in recognition of the superior right of the appellant.
17. In the circumstances, the appeal is accented the judgment of the Service Tribunal is set aside and the order of appointment of Haq Nawaz appellant is restored. The costs of the proceedings will be borne by the respondent No. 2.
C.A. No. 319 of 1989.
18. The appellant claimed to have donated land for a Primary School on 15‑9‑1982 for which he received the appointment as a part time Chowkidar on 1‑6‑1986. When in the financial year 1987‑88 permanent posts of Chowkidars were created, the respondent No. 3 Ahmad Khan was appointed a regular Chowkidar on 13‑9‑1987. The order of appointment of Ahmad Khan terminated the service of the appellant. The appellant represented against it. A civil suit was also filed by him. The Government. on an inquiry into the matter found that the appointment of Ahmad Khan was against the policy decision and undertook to reappoint the appellant on his withdrawing the civil suit. In accordance with the undertaking by the order dated .20‑9‑1988, the appointment of the appellant was restored which was successfully challenged by the respondent No. 3 before the Service Tribunal. Hence this appeal.
19. In restoring the respondent No. 3_ Ahmad Khan to the post of Chowkidar, the Tribunal did not at all examine the legality of his own appointment before restoring him to office. In paragraph 3 of the Memorandum of appeal filed by Ahmad Khan (respondent No. 3) it was clearly stated as hereunder:‑‑
"It was in the implementation of the above decision that the appellant was appointed as a regular 'Chowkidar on the recommendation of the Honourable Minister, then Khan Muhammad Akram Khan, M.P.A., in whose Illaqa the appellant hailed vide respondent No. 1 Order No. 1380‑1400, dated 13‑9‑1987 (Annexure A)."
20. In fact the appointment having been made on the recommendation of M.P.A. and falling in the third priority, according to the policy decision itself, could not be allowed to remain intact. The first preference was to donors, the second to the part‑time contingent employees and the third came the recommendees. We have already held that this category is not entitled to any protection as it is ab initio void.
21. In the circumstances, this anneal is allowed and the order of the appointment of the appellant on 20‑9‑1988 is restored subject to our general observations made while dealing with such observations. The judgment of the Service Tribunal is set aside. Respondent No. 2 shall be responsible for costs of the parties to the litigation throughout.
C.A. No. 320 of 1989
22. Momin Khan, the appellant was a land‑owner who had donated his land free of cost for the purpose of Government Primary School in Jabu Khel, Lakki District Bannu. He was appointed a part‑time Chowkidar paid from the contingency in June, 1987. When the regular posts of Chowkidars were created in the Budget of…
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