SAYED ZAHID HUSSAIN, J.-- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 letter dated 27.8.2005 whereby the petitioner was called upon to appear in the "suitability test" has been assailed, In the connected petitions i.e. W.P. No. 15863/05, W.P. No. 15875/05, W.P. No. 15891/05, W.P. No. 15975/05, W.P. No. 16628/05, W.P. No. 16629/05, W.P. No. 17719/05, W.P. No. 17720/05, W.P. No. 17721/05, W.P. No. 17722/05, W.P. No. 17723/05, W.P. No. 17725/05 and W.P.
No. 17727/05 similar controversy and questions arise. With the concurrence of the learned counsel for the parties all these petitions have been heard together and shall stand disposed of through this common judgment.
2. Pursuant to an advertisement published in the national press the petitioner applied for the post of Lady Reservation Clerk (BS-8) in the Pakistan Railways alongwith others. Vide fetter dated 24.1.2004 she was asked to appear in'a written test to be held on 15.2.2004. After having cleared the same she was called for interview vide letter dated 6.3.2004 and also directed to bring original documents to be provided at the time of interview. She was then offered the appointment as Lady Reservation C|ej;k through letter dated 15.4.2004.'Thereafter she was asked to attend adours T-7 (C). On 26.6.2004 the petitioner alongwith 11 others was declared to have qualified the J-7 (C) course. SJne had been performing her duty ever since her selection and appointment, It was letter dated 27.8.2005 which was received by her notifying that she was to appear for a "suitability test" to be held on 18.9.2005.
Assailing the same it is contended* by the learned counsel that the selection and appointment having been made pursuant to an advertisement and completion of procedural formalities she cannot now be asked to appear for a "suitability test" which is unwarranted by law. He has made reference to Pakistan through the Secretary Ministry of Finance vs. Muhammad Himayatullah Farukhi (PLD 1969 S.C 407) and Chairman, Selection Committee/Principal, King Edward Medical Collage, Lahore and 2 others vs. Wasif Zamir Ahmad and another (1997 SCMR 15).
3. Mr. Abbas Mirza the Director Legal Affairs Pakistan Railways has objected to the maintainability of the petition before this Court in view of provisions of Article^^ of the Constitution of Islamic Republic of Pakistan, 1973. It is contended that the petitioner and others were being asked to appear in the "suitability test" pursuant to the decision of the Railway Board dated 3.6.2005 and that section 6 of The Civil Servants Act, 1973 empowered the respondents to take such steps. According to him the petitioner was deemed to be on probation and could be asked to appear in any such test.
4. The decision of the Railway Board dated 3.6.2005 pursuant to which the petitioner has been asked to appear in the "suitability test" reads as follows:- "It has been decided that the examination/test of all the personnel appointed during the year 2003 and 2004 be taken immediately after the conclusion of their training. They will continue to remain on probation till their suifability/merif is determined, In order to ensflfe transparency, it has been further decided as under:-
(i) s Examination/test may be conducted after completion of training of one year simultaneously of all the persons appointed during the period of two years at the respective Division.
(ii) Question Papers already set at Headquarters, will be Faxed to invigilating staff on the day of the examination at each Division.
(iii) Marking of answer sheets will be made on the same day in the presence of representative from the Vigilance Directorate; Answer sheets, after marking will be deposited immediately with the concerned Divisional Superintendent who will send the same to Headquarters for their record.
2. The result of the examination will help determine the suitability/merit of the appointees and their further retention in service (Underlined by me due to its relevance).
Paragraph No. 2 above will show beyond doubt that the object of such test was to "help determine" the' suitability/merit of the appointees and their further retention in service, It is the quite obvious that suitability and fitness to hold the post by the petitioner was the purpose of such a "suitability test", In such context it is to be seen whether provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 get attracted to oust the jurisdiction of this Court in such a matter, It may be observed that an appeal before the Service Tribunal Act 1973 lies only in matte falling within the jurisdiction of Service Tribunal. Clause (b) of proviso to section 4(1) of the Act excludes the jurisdiction of the fitness or otherwise of a person to hold a particular post which reads like this:- "(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or- otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade."
In Muhammad Anis and others vs. Abdul Haseeb and others (PLD 1994 S.C 539) a distinction was drawn between "eligibility" and "fitness" in the context of provisions of The Civil Servants Tribunals Act'1973, in order to determine whether such a matter fell within the jurisdiction of the Service Tribunal, It was observed that "Clause (b) of the proviso to above subsection (1) of section 4 of the Act lays down that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade." It was thus held that "the question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned and, therefore, the Tribunal has jurisdiction, and whereas the question of fitness is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or of a Court and therefore, the Tribunal has no jurisdiction on the question of fitness." In Dr. Bashir Ahmad vs. Province of Punjab and others (1992 PLC (C.S) 306) a similar provision of The Punjab Service Tribunals Act 1974 was considered by a learned Division Bench of this Court and it was observed that "the legality of the process of determining the question of his fitness to hold or to be appointed to that post shall have necessarily to be examined, therefore, under the said proviso (b) to section 4 of the Punjab Service Tribunals Act, 1974 the Service Tribunal has no jurisdiction as no appeal? Thereto on that question." By taking such view writ jur .On under Article 199 of the Constitution of Islamic Rep of Pakistan, 1973 was exercised by the learned Divi? ,ench in that case.
The position here is quite akin to th jve statement of law inasmuch as the petitioner has b<- sked to appear in the "suitability test" by which a deter n 4 (1) of The Service Tribunal Act, 1973 and thus provisions of Article 212 of the Constitution of Islamic ' jfie of Pakistan, 1973 as to ouster of jurisdiction of t ,Court are not attracted. The objection to the maint /lity of the petition thus is untenable and is repelle
5. It has ' noted above as to how the appointment of the p ler was processed and had taken place, It is evident' the material on the record that the vacancies were r .Ised, test and interview was held whereafter the s on was completed and appointment was made, It w? Through following a set procedure in an open competiti' ough transparent manner. All this shows that suitability ,ie petitioner for the job applied for was determined ,gh the prescribed manner. After such selection s' as issued letter of appointment and she joined, In ? ,pects it was fait accompli. There is no dearth of autho: as to the implications of principle of locus Poenitentiae and its effect. Reference in this context may be made to Director-General, Ordnance Services, General Headquarters, Rawalpindi vs. Muhammad Abdul Latif (2003 SCMR 410) wherein it was observed that "There is no cavil with the proposition that "principle of locus Poenitentiae is available to the Government or relevant authorities and further authority which is competent to make 'order has power to undo it, but such order cannot be withdrawn or rescinded once it has taken legal effect and created certain rights in favour of any individual", It is also well established that what cannot be done directly cannot be done through indirect means or indirectly. The purpose of the "suitability test" "was to -"help determine the suitability/merit of the appointees and their further retention in service", It could be used as an instrument and weapon to remove any employees and such a test merely a ruse to achieve that end. But under the law no such power rests with the respondents after that the appointment was complete and had taken effect.
6. Section 6 of The Civil Servants Act. 1973 is sought to be invoked by the respohdents to derive authority and power for holding a "suitability test", In order to examine how for the respondents are justified to invoke the said provision the same is reproduced hereunder> "8. Probation: (1) An initial appointment to a service or post referred to in Section 5, not being an ad hoc appointment, shall be on probation as may be prescribed.
(2) Appointment of a civil servant by promotion or transfer to a service or post may also be made on probation as may be prescribed.
(3) Where, in respect of any service or post, the satisfactory completion of probation includes the passing of a prescribed examination, test or course or successful completion of any training, a person, appointed on probation to such service or post who, before the expiry of the original or extended period of his probation, has failed to pass such examination or test or to "successfully complete course or the training shall, except as may be prescribed otherwise,
(a) If he was appointed to such service or post by initial recruitment, be discharged; or , '
(b) If he was appointed to such service or post by promotion or transfer, be reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharged.
Provided that, in the case of initial appointment to a service or post, a civil servant shall not be deemed to have completed his period of probation satisfactorily until his character and antecedents have been verified as satisfactory in the opinion of the appointing authority".
As per subsection (1) of section 6 an dppointrjient to the service is deemed to be on probation whereas under subsection (3) the test or examination to be passed by an employee is the one envisaged by the rules. Before the "examination, test or course or successful completion of any training" precedes the word "prescribed" which in view of clause (f) of section 2 means prescribed by rules. No such rule has been brought to my notice which could be invoked for justifying such "suitability test", In case the respondents wanted to satisfy about the suitability and fitness of the petitioner for the post she was selected and was held by her, " her performance could be considered and adjudged during the period of probation but direction for undergoing a "suitability test" pursuant to an administrative or executive order of the Railway Board is not warranted.
Needless to reiterate that all actions of the statutory functionaries are required to have the backing of a contemporaneous law/rule on the subject. As observed above, no such existing and extant rule has been invoked or brought to my notice which could authorize and enable the respondents to justify such a "suitability test', In the presence of the law governing their conditions of service, which empowers the authorities to take action on the ground of misconduct etc. The exercise of holding "suitability test" is not only futile but also wastage of resources, It therefore, cannot be countenanced.
7. It may be observed that the implications of such a test may have several anomalies/consequence inasmuch as that those employees who were recruited in the in the past, by following the prescribed procedure may become victim of personal whims of present day authority. Likewise those who are being employed today may have to face similar repercussions with the change of regime/management in future, In this way such an exercise will never end. The employee will thus remain under a continuous strain and uncertainty, which can never be the object of any law or principles of good governance.
Perhaps all such implications had not been explored before prescribing "suitability test".
Thus, on consideration of the matter from all possible angles the conclusion I am persuaded to reach is that the direction to the petitioner to appear in the "suitability test" is wholly unjustified and unwarranted by law. The petition is accepted accordingly with no order as to costs. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.