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Petitioner: DR. HABIBUR RAHMAN VS Respondent: THE WEST PAKISTAN PUBLIC SERVICE COMMIS SION, JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Hamoodur Rahman, Sajjad Ahmad Jan, Anwar-ul-Haq Title:DR. HABIBUR RAHMAN vs THE WEST PAKISTAN PUBLIC SERVICE COMMIS SION,
JUDGMENT
Reported As: PLD 1973 Supreme Court 144 Result: Appeals dismissed Judgment JUDGMENT ANWARUL HAQ, J.-This JUDGMENT will dispose of Civil Appeals Nos. 131 and 132 of 1972, which have been brought by special leave against orders made by a Division Bench of the Lahore High Court in Writ Petitions bearing Nos. 955-S and 1409-S of 1968. The appellant in both cases is Dr. Habib-ur--- Rahman, who was aggrieved by certain recommendations made on two occasions by the West Pakistan Public Service Commission, and action taken thereon by the Provincial Government, for appointment to posts of Professors of Surgery. By means of an advertisement issued on the 19th January 1965, the West Pakistan Public Service Commission invited applications for two posts of Professors of Surgery for Medical Colleges in West Pakistan. Subsequently, a third post was added, and it was indicated that two of the posts were permanent, whereas the third was likely to become permanent. Dr. Habibur Rahman as well as the three respondents, in Civil Appeal No. 131/70, namely, Dr. Ismail A. Agjee (respondent No. 3), Dr. Fazal Elahi (respondent No. 4) and Dr. S. A. R. Gardezi (respondent No. 5), were among the candidates, who were interviewed by the Public Service Commission on the 28th and the 29th of April 1965, but the recommendations were not sent to the Provincial Government until the 9th January 1967; when the names of the three respondents were recommended. On coming to know that his name was not included in the recommendations, the appellant made a representation to the Governor of West Pakistan on the 21st January 1967, but did not receive any reply thereto. On the 18th May 1967, he instituted Writ Petition No. 746 of 1967 In the High Court at Lahore under Article 98 of the 1962-- Constitution to challenge the validity of the recommendations made by the West Pakistan Public
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Service Commission, but withdrew the same on the 22nd May 1967. The order made on that date by a Division Bench of the High Court simply states that .- "The learned counsel requests for leave to withdraw this writ petition. Dismissed as withdrawn." It was stated at the Bar that tile appellant withdrew that petition as it was pointed out that it was premature owing to the fact that no appointments had yet been made by the Provincial Government, although the recommendations had been approved by the Governor on 7-5-67. While the question of appointments on the basis of the advertisement of the 19th January 1965, and the interviews held in pursuance thereto in April of that year was still pending finalization, the Public Service Commission advertised three more posts of Professors of Surgery on the 19th of January 1967. The appellant did not apply on this occasion. Interviews were held on the 23rd May 1967, but the Public Service Commission did not find any candidate suitable for appointment. As a result a fresh advertisement was put out on the 8th June 1967, and the number of posts was raised to five. The posts were stated to be temporary but likely to become permanent. This time the appellant applied for these posts along with respondents 3 to 7 in C. A. No. 132 of 1970, namely, Dr. Rashid Ahmad Qureshi (respondent No. 3), Dr. Mohammad Aslam Elahi (respondent No. 4), Dr. Nazir B. Sheikh (respondent No. 6), Dr. Zafar Haider (respondent No 5), and Dr. Ijaz Ahsan (respondent No. 7). The interviews were held by the Public Service Commission on the 26th May 1968, and respondents Nos. 3 to 7 were selected for appointment. Once again, the appellant made a representation to the Governor of West Pakistan on the 7th June 1968, but with no success. It is stated that letters of appointment were issued to the respondents on the 28th August 1968. After participating in the interviews held on the 26th May 1968, in connection with the advertisement dated 8th June 1967, for five temporary pasts, the appellant instituted Writ Petition No. 955-S of 1968 on the 11th June 1968, challenging, in the first instance, only the recommendation made by the Public Service Commission In respect of Dr. Agjee. As already stated, the appointment of this candidate had been delayed owing to certain enquiries being conducted against him, and he had not been appointed by the time the second writ petition was filed by the appellant. The other two candidates selected as a result of the first interviews held in 1965, namely, Dr. Fazal Elahi and Dr. Gardezi, were impleaded as respondents by means of an application presented on the 14th October 1968, but no relief was sought against them. Although the method adopted by the Public Service Commission for evaluating the merit of the candidates was challenged in this petition, yet the main attack was against the eligibility for appointment of Dr. Agjee in terms of Article 175 (1) of the 1962-Constitution on the ground that he was not a citizen of Pakistan. The third writ petition bearing No. 1409-S of 1968, which has given rise to Civil Appeal No. 132 of 1970, was filed by the appellant on the 28th August 1968, to challenge the validity of recommendations made by the Public Service Commission on the basis of interviews held on the 26th May 1968, as a result of which five appointments were made in August 1968. Both the petitions (955-S and 1409-S of 1968) were consolidated by the High Court for hearing along with two other petitions bearing Nos. 1408-S and 1565-S of 1968 filed by other unsuccessful candidates. Apart from the question of eligibility of Dr. Agjee for appointment, which was raised only in Writ Petition No. 955-S/68, the other contentions were common in all the four cases. It was contended that the Public Service Commission had acted without lawful authority in departing from the instructions of the Government relating to the method of evaluation of the merit of the respective candidates for appointment to "high technical posts". It was also submitted that the Constitution of the Commission was vitiated on account of the participation in the interviews of two departmental advisers who were biased against the appellant. As regards the eligibility of Dr. Agjee, the High Court has taken the view that Article 175(1) of the 1962-Constitution was not applicable to his case, which was covered by clause (2) of the said Article for the reason that Dr. Agjee was already in the service of Pakistan when he applied for this
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appointment. The High Court has further observed that, in any case, under Article 179 of the same Constitution a non-citizen could be appointed to a temporary post. The High Court has also repelled the contention that the Commission had departed from instructions given by Govern--ment regarding evaluation of the merit of the candidates because the posts of Professors of Surgery were not "high technical posts", and even if it be assumed that the posts fell in this category, the method of evaluation adopted was not improper. The High Court has further expressed the view that in any event the instructions sought to be relied upon by the appellant were merely directions for the internal and indoor Management of the Commission and no person had any vested right in such instructions. Leave to appeal was granted in these cases to examine the contentions that the High Court had misinterpreted the provisions of Articles 175 and 179 of the 1962-Constitution and had also fallen into error in taking the view that the instructions issued by the Government from time to time for recruitment to high technical posts were not binding on the Public Service Commission, although there was an express provision in this behalf in Article 186(2) of the said Constitution. It was noted that another question calling for examination in these cases was whether petitions of this kind were at all maintainable under Article 98 of the former Constitution to challenge the advice and/or recommendations tendered by the Public Service Commis--sion to the Provincial Government even though no appointment had been made in pursuance of those recommendations. On behalf of the respondents in C. A. No. 131, two preliminary objections have been raised, namely :- (a) that the appellant having unconditionally withdrawn his first wait petition bearing No. 746 of 1967, and having participated, without protest, in the subsequent selection held as a result of the Commission's advertisement dated the 8th of June 1967, for five temporary posts, he must be deemed to have waived his grievances in respect of the recommendation; made by the Commission as a result of interviews held on the 28th and the 29th of April 1965, for three posts; and (b) that in any case the second writ petition bearing No. 955-S of 1968 suffered from serious laches inasmuch as It was instituted more than three years after the interviews held and more than a year after the Commission had made its recommendations in January 1967 and the Government had appointed Dr. Fazal Elahi and Dr. Gardezi in May 1967. We consider that there is force in these objections. Even if we accept the explanation offered for the withdrawal of the first Writ Petition bearing No. 746 of 1967, we find that as far as Dr. Agjee was concerned, the situation was unchanged at the time Writ Petition No. 955-S/68 was instituted on the 11 June 1968. It has already been stated that by that date only the other two respondents had been appointed, whereas Dr. Agjee's appointment had been held in abeyance. Such being the case it appears to us that the appellant instituted the second writ petition only after he had unsuccessfully competed in the second selection held by the Pubic Service Commission for five posts advertised by it in June 1967. By participating in this selection without protest of any kind, the appellant must be deemed to have waived his rights and grievances in respect of the first selection held by the Commission in 1965. It is significant that in Writ Petition No. 955-S of 1968, as originally instituted, only Dr. Agjee was cited as a respondent from among the successful candidates, and the names of Dr. Fazal Elahi and Dr. Gardezi were added much later only for the reason that the method of selection adopted by the Commission was also being challenged, but no relief was sought against them. In these circumstances, we are inclined to hold that this writ petition was not maintain--able as the appellant had treated the matter of the first selection as past and closed by unconditionally taking part in the second selection. The three respondents in C. A. No. 131 of 1970 were not candidates at the second selection. It is also obvious that the writ petition instituted on the 11 of June 1968, suffered from serious laches. The impugned inter--views were held as long ago as the 28th and 29 April 1965, and the recommendations had also been made on the 9 January 1967. Two appointments had also beenth th th th
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finalised in May 1967. There was, therefore, no satisfactory explanation for not invoking the writ jurisdiction of the High Court until the 11 June 1968. As far as Dr. Agjee was concerned, the petition remained premature in the same manner as was the earlier Writ Petition No. 746 of 1967. The conclusion is therefore inescapable that the appellant was compelled to file this writ petition only after he was unsuccessful in the second selection held in 1968. The writ petition was, therefore, likely to be defeated on the ground of laches as well. Coming now to the contentions raised on behalf of the appellant, we shall first take up the question of eligibility of Dr. Agjee for appointment as a Professor of Surgery. It is admitted that at the relevant time he was not a citizen of Pakistan, being a national of South Africa. He had, however, been serving as Assistant Professor of Surgery at the King, Edward Medical College. Lahore, since 8-11- 1955, and had even been promoted to the rank of Professor of Surgery at the Nishter Medical College, Multan, with effect from 21-4-62, the appoint--ment being renewed every six months. Article 175 of the 1962-Constitution, which governs the matter of eligibility, is in the following terms:- "175.-(1) A person who is not a citizen of Pakistan shall not, except as provided in clause (2) of this Article, be eligible to hold any office in the service of Pakistan. (2) A person who, immediately before the commencing day, was in the service of Pakistan shall not be disqualified from continuing in the service of Pakistan by reason only that he is not a citizen of Pakistan." The submission made on behalf of the appellant Is that although Dr. Agjee was in the service of Pakistan at the time he applied for the post of Professor of Surgery, the appointment being by direct fresh recruitment, it could not be deemed to be in continuation of his previous service, and therefore, the exemption spelt out in clause (2) of the Article would not be available in his case. It is argued that the continuance in service contemplated by the said clause must be limited to the particular post or service held by a non-citizen immediately before the commencing day. A reference to the plain language of clause (2) of Article 175 of the Constitution is enough to show that it is not susceptible to the interpretation and limitations canvassed on behalf of the appellant. The High Court has rightly pointed out that the term "service of Pakistan", as defined in Article 242 of the Constitution, does not refer to any particular post or service, but means any service, post or office in connection with the affairs of the Centre or of a Province, and accordingly being in the service of Pakistan and continuing in that service has reference not to the particular post held by a non-citizen before the commencing day, but to his general capacity as a servant of the Government of the Centre or of a Province. The intention of clause (2) of the Article clearly appears to us to be to permit non-citizens to continue in the service of Pakistan if they were in that service before the commencing day, irrespec--tive of the post or service occupied by them before or after the commencing day. To put it differently, the meaning and scope of the phrase "continuing in the service of Pakistan" as occurring in the said clause cannot be artificially limited to continuing in the same post or service as occupied before the commencing day. We consider, therefore, that Dr. Agjee, being a person in the service of Pakistan before the commencing day, was eligible to apply for the post of Professor of Surgery and to be appointed thereto even after the commencing day. The learned Judges in the High Court have observed in the concluding portion of para. 6 of the judgment under appeal, that they do not wish to express any opinion regarding the eligibility of Dr. Agjee for permanent appointment because no appointment order has yet been issued in his favour and it was not certain in which capacity tire Governor would appoint him, although they had no doubt on the point. We feel that the circumspection was unnecessary as clause (2) of Article 175 C would apply equally to temporary and permanent appointments of persons who were already in the service of Pakistan. (a) What is the constitutional and statutory authority of the letters, and the instructions contained therein, which are being invoked on behalf of the appellantth
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(b) Do these letters/instructions at all apply to recruitment to the posts in question; and (c) If so, have they been infringed in any manner by the Commission while assessing the merit of the candidates interviewed by it on the 28th and 29th of April 1965, and again on the 26th of May 1968. . It appears that the Provincial Government, in consultation with the Public Service Commission, has been issuing instructions from time to time to regulate the award of marks to candidates recruited for various posts and services solely on the basis of oral interview as distinguished from a written competitive examination and interview. At least six such letters were placed on the record issued respectively on the 17 of March 1964, 24 of September 1964, 26 of October 1965, 1 of November 1965, 15 of September 1967, and the 7 of October 1967, In an attempt to show that according to these Instructions the Public Service Commission was under a statutory duty to award marks, in the case of recruitment to high technical posts, only on the basis of post-academic and professional record of the candidates, irrespective of their academic performance up to and including the basic professional qualification required for these posts. The precise grievance of the appellant was that by departing from these instructions the Public Service Commission had accorded undue weightage to the under-graduate academic record of the respondents, to the serious prejudice of the appellant who claimed a better post academic and professional record. While dealing with these contentions the High Court has, as already stated, taken the view that the letters relied upon by the appellant were merely directions for the internal and indoor Management of the Commission and no person had a vested right in such instruc--tions. We find that the view taken by the High Court cannot be supported. Article 178 of the 1962- Constitution contemplates in clause (1), that appointments to an All-Pakistan Service or to a civil service of the Centre, or to a civil post in connection with the affairs of the Centre, shall be made by the President or a person authorised by him in this behalf. And similar appoint--ments in the Province shall be made by the Governor of the Province or a person authorised by him. Clause (2) of this Article lays down that "Subject to this Constitution and law, the terms and conditions of service of persons serving in a civil capacity in the service of Pakistan . . . . . . . . Shall be" prescribed, in the case of the Centre, by the President or a person t authorised by him, and in the case of the services and posts in the Province by the Provincial Governor or a person authorised by him. This power to make rules with regard to the Provincial Services has to be exercise,; in accordance with the manner laid , down in clause (2) of Article 186 of the same Constitution, which enjoins that:- "Except to the extent that the Governor of a Province, after, consulting the Public Service Commission of the Province, may provide otherwise by Order, the Governor shall, in relation to the civil services of the Province and civil posts connected with the affairs of the Province, consult the Commission with respect to, "the matters enumerated in clauses (a) to (f). Clause (a) is relevant in the present context, namely, "matters relating to qualifications for, and methods of recruitment to, services and posts." A scrutiny of the relevant files produced by the Provincial Government, leaves no doubt that the letters in question were issued by the Provincial Government after consultation with the Public Service Commission. The subject mentioned in these letters was "Recruitment Rules to various posts", or "Recruitment Rules for various services/posts allocation of marks for academic/service records and for viva voce in initial recruit--ment cases". The intention of the Provincial Government was, therefore, clearly to prescribe recruitment rules in sufficiently precise and yet general terms, so as to form part of recruitment rules applicable to various posts and services for initial recruitments made on the basis of an oral interview alone. There is, therefore, no reason to think that the letters were not in the nature of rules made under the rule-making power conferred on the Provincial Governor in terms of Article 178 and Article 186 of the 1962-Constitution.th th th st th th
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It has already been held by this Court in Pakistan v. Shiekh Abdul Hamid (PLD 1961 SC1 05), Province of West Pakistan v. Din Mohammad (PLD 1964 SC 21), Govt. Of West Pakistan v. Dr. A. A. Aziz (PLD 1966 SC 188), that service rules could be framed by issuing memoranda or letters. These cases lay down the principle that although a rule requires to be expressed with precision and yet to possess generality so as to be capable of application to a large number of cases, and ordinarily it is necessary also that the making and promulgation of a rule should be attended by certain formalities, for example publication in a Government Gazette, yet instructions embodied in departmental memoranda can operate as rules if they possess these characteristics. It has further been held that if a rule is capable of amendment, it could best amended by the competent authority by means of an Instruction embodied in a circular or memorandum. Nothing has been said at the Bar to persuade us to modify the view taken in these cases. We, therefore, consider that the instructions embodied in the letters relied upon by the appellant are in the nature of rules made by the Governor of West Pakistan acting under Article 178 read with Article 186(2) of the 1962- Constitution. It would not, therefore, be correct to regard these letters as being only in the nature of instructions for the internal and indoor management of the Public Service Commission. On behalf of one of the respondents, Mr. A. S. Salam drew our attention to the decision of this Court in Government of West Pakistan v. Nasir M. Khan (PLD 1965 SC 106), in support of his contention that letters issued by executive authorities regarding service matters like the grant of increment etc. Could not take the place of properly framed rules. A reference to the facts of that case would show that the Court was dealing with certain letters issued by the Finance Secretary to the Provincial Govern went in reply to certain queries raised by the Accountant-General, Punjab, inn the matter of fixation of salaries in the revised pay scales. It wag, in this context that it was held that letters issued by the executive authorities could not take the place of properly framed rules, and they could not override and general rules of the service that had relevance. These observations are, in fact, in conformity with the view taken by this Court in the case of Sh. Abdul Hamid in which it was observed that:- "Office instructions being manifold in their scope and designed and expressed to be used as guidance for the conduct of the affairs of each department, it should be plain that on such instructions no legal right can be founded." Such departmental instructions were clearly distinguished: from those which could amount to a rule by virtue of their, precision on the one hand and general application on theother. An interesting argument was raised by the learned Assistant Advocate-General, Punjab, for calling into question the validity and binding effect of the instructions embodied in these letters, by contending that as under Clause (1)(a) of Article 186 of the 1962 Conatitution it was the function of the Provincial Public Service Commission to "conduct tests and examinations for the selection of suitable persons for appointment to the civil services of the Province concerned and civil posts connected with the affairs of the Province", the Provincial Governor or Government could not regulate the system of awarding of marks at any examination, whether oral or written, held by the Commission for the purpose of making recruitment to a civil post or service of the Province.. The argument is clearly unacceptable, firstly, for the reason that-- it is hardly open to the Provincial Government to repudiate the validity of its own instructions; and, secondly. The clause relied upon by the learned Assistant Advocate-General clearly deals, with the conduct of tests and examinations and not with matters relating to qualifications for and methods of recruitment to services and posts. The latter subject, as already pointed out by us, is mentioned in sub-clause (a) of clause (2) of the same Article. There is a clear and substantial distinction between prescribing qualifications for and methods of recruitment to services and posts, and conducting tests and examinations for the selection of suitable persons for appointment. There is no doubt that the Constitution prescribes consultation with the Public Service Commission in the matter of framing
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qualifications for and methods of recruitment to services and posts, but the rule--making power is vested in. The Provincial Governor and the Public Service Commission is only assigned an advisory role. However, with regard to the conduct of tests and examinations, the matter is placed exclusively within the ambit of the Public Service Commission. The distinction between these two matters becomes abundantly clear when a reference is made to the rules regulating recruitment to the…
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