' RIAZ AHMAD KHAN, J.--- This judgment is directed to dispose of above titled writ petition as well as Writ Petition No,1021 of 2013, as common questions of law and facts are involved in these writ petitions.
2 . Brief facts of the case are that there are 63 posts of trade officers in foreign countries with whom Pakistan has commerce and trade relations as well as those countries with whom relations in respect of commerce and trade are to be developed. For posting the officers abroad, the Ministry of Commerce decided to select officers through competitive examination and interview.' These competitive examinations were to be held through Lahore University of Management Sciences
(LUMS) and the process of competitive examination started in the year 2005. On 5th of September, 2012, the Ministry of Commerce through advertisement published in the newspaper announced the selection of trade officer's position in Pakistan missions abroad. Written examination was held through LUMS. 276 candidates appeared in the written examination and out of them 206 were declared as successful. These officers were called for interview. The respondents in all the cases were selected for posting abroad, whereas the petitioners were ignored. The petitioners having no other alternate remedy filed the present petitions with the prayer that the process of selection is declared as illegal and unlawful and posting abroad of all private respondents be declared as illegal. It was further prayed that a direction be issued to the Ministry of Commerce to reselect officers in Grade 18, 19 and 20 for position as Trade Officers in Pakistani Missions Abroad.
3. Learned counsel for the petitioners submitted that the Government in the recent examinations adopted a strange formula for selection of Trade Officers. The said formula was to the following effect:--- {{TABLE}} The score of candidates for the competitive examinations held by LUMS including LT. Skills 20% Performance Evaluation Report 10% Interview 70% {{TABLE}} ' According to learned counsel for the petitioners, 70% weightage was left for interview for the only reason that the Government wanted to select officers on the basis of pick and choose by ignoring the actual merit. The process of selection was based on nepotism and favourtism. In most of the cases, the officers were not even qualified for test, but in interview were given maximum marks in order to enable them to get posting abroad. It was because of this that the result of candidates was never declared and even LUMS was asked to keep the result secret. Learned counsel submitted that it is the right of each and every participant in the examination to know about the result and the respondents had no right to keep the same secret. The allocation of 70% weightage to the interview was thus illegal. It was further submitted that the candidates could not be left to the subjective assessm ent of the officers conducting interview or the Federal Government rather there should be an objective critaria the assessment of candidates and the marks must be awarded in a transparent manner. Even in the present case, it is not known as to how the marks were awarded in interview. Learned counsel submitted that there was lack of transparency and fairness and this policy adopted by the Government was illegal and liable to be set aside.
4. On the other hand, Deputy Attorney-General assisted by learned counsel for the respondents submitted that the policy adopted by the Governmeth was approved by the Prime Minister on 1-6- 2012. Earlier written test was only eligibility test and 100% weightage was given to interview by SSB and for the first time written test is given weightage along with performance evaluation reports.
The final assessm ent is based on giving 20% weightage to written test by LUMS, 10% to performance evaluation reports and remaining 70% to the followin seven attributes:---
(i) Interpersonal Skills
(ii) Communication Skills
(iii) Market Intelligence and Research
(iv) IT skills
(v) Brand Advocacy
(vi) Conflict Resolution
(vii) Management Skills ' On the basis of above said criteria, the officers are selected. It was further submitted that the petitioners have not come to the Court with clean hands. The competitive examination was held on the basis of Government Policy and Policy cannot be challenged through writ petition. In addition to that the Policy is always given by the Government and the Court cannot substitute the Policy given by the Government. It was also submitted that the transfer and posting falls within the terms and conditions of service and the petitioners being civil servants had alternate remedy to approach F.S.T. Since there is a bar under Article 212(2) of the Constitution of Islamic Republic of Pakistan, therefore, no writ can be issued.
5. It was submitted that petitioners claim is self-contradictory, because if they had been selected, they would have had no objection to the policy, but since they could not be selected so they raised objection regarding policy and now they want that the policy should be changed. It was further added that some of the petitioners have been selected, but they filed the writ petition and challenged the policy simply because they want posting at the place of their choice, which is neither a right nor can be considered as justified. In addition to that, all the petitioners had participated in the exam as well as interview, so they are estopped to invoke the constitutional jurisdiction of this Court.
8. Mr. Abdul Aziz Uqaili, respondent in W.P. No,1213 appeared in person and adopted the arguments of learned counsel for respondents, however, added that he himself belonged to District Management Group and had a wonderful academic record; he was not involved in any malpractice and got the position on merit. He had packed up everything for Sydney, but because of writ petition, had to stay back in Pakistan.
7. Ms. Azra Jamali appeared in person. She submitted that she belonged to Secretariat Group and was posted at Montreal. She also adopted the arguments of learned counsel for respondents.
8. Learned counsel for the petitioners raised the objection that result was not disclosed, therefore, the respondents were directed to produce the result in the Court. Accordingly, the result was produced and copy of the same was provided to the petitioners. Learned counsel for the petitioners after going through the result raised some technical objections that each page of the result was not signed by all the members; in some cases, full marks were given to select persons and the object was to increase their marks in order to bring them at par with those who had obtained marks on merit.
9. I have heard learned counsel for the parties and have also perused the record.
10.
11. #TBS
12. A
13. B
14. #TBE
15. The first question which requires consideration is that whether posting abroad is a right or not?
Ordinarily, the transfer and posting cannot be claimed as a matter of right. A civil servant being aggrieved of his transfer can agitate his question of transfer before the competent forum, however, the authority to transfer lies with the competent authority and a civil servant cannot claim transfer or posting as a matter of right. The situation in the present case however, is different. The officials in the present case were required to qualify test and interview for posting abroad. As such, fitness for posting abroad was to be determined through test and interview, therefore, in the present case, posting abroad is to be considered as a right. Any eligible officer if qualifies the required test and interview and gets a position on merit, he would become entitled, of be posted abroad. However, it is to be kept in view that appointment at a particular place, is not a matter of right. Only the Government can determine as to which officer is suitable for which place. The Government for that matter has to keep in view the conditions, requirements, and importance of the post and on the other hand, suitability and competence of the officers to be posted on the said post. The Court cannot step into the shoes of the Government and determine suitability and competence of an officer for a particular post. As such, the officials who qualified the test and interview, got the right to be posted abroad, but had no right to be posted against a particular post at a particular place.
In this respect, I have sought guidance from 1994 PLC (C.S.) 43, 1991 PLC (C.S.) 374 and 1999 PLC (C.S.) 201.
16. The next question is regarding policy for posting officers abroad. Contention of the petitioners is that though apparently the Government adopted a policy regarding posting officers abroad, yet the fact is that the policy is based on malice, nepotism and favoritism. It is an established principle of law that the Court has the power to interpret the law, but has no jurisdiction to take the tale of policy-maker; Reference in this respect may be made to 2006 SCMR 1427 and PLD 2006 SC 697.
12. The Government has every right to introduce its policy and the Court cannot substitute the policy decision with its own opinion. The policy can be questioned at the touchstone of provisions of Constitution and if it is found that the policy itself is violative of any article of the Constitution or law, the same can be struck down. Even in that case, the Court would not give its own policy by substituting the one introduced by the Government.
13. In the present case, only contention of the petitioner is that since 70% weightage is given to the interview, therefore, the officials are left at the mercy of the officers conducting interview. It has further been submitted that since the interview is based on the subjective assessment of the persons conducting interview, therefore, discretion is usually used in an arbitrary manner.
14. There is no doubt that discretion must not be used in arbitrary manner. It is also correct that in interview, there is usually the subjective assessment, made by the officers conducting the interview, but now it is well settled that the subjective assessment must be based on some objective criteria, so that the element of arbitrariness and uncontrolled discretion is avoided. In the judgment reported as "2003 SCMR 291" the Hon'ble Supreme Court of Pakistan held that "The appointment is a trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee with complete transparency as per requirement of law, so that no person who is eligible to, hold such post is excluded from the process of selection and is deprived of his right of appointment in Service."
15 In the present case, the marks in interview were given on the basis of following 7 attributes:---
(i) Interpersonal Skills
(ii) Communication Skills
(iii) Market Intelligence and Research
(iv) IT skills
(v) Brand Advocacy
(vi) Conflict Resolution
(vii) Management Skills ' The result produced before the Court shows that the marks were given on the basis of these attributes, Contention of learned counsel for the petitioners in this respect is that marks are given with mala fide intention and in order to bring the officers, who had obtained lesser marks, at par with those who had obtained higher marks in the written test. This contention cannot be accepted as the same is based on the personal assessment of the learned counsel. Somebody has to be given the authority to conduct interview and award marks.
16. The authority cannot be substituted by the Court as Jong as assessment made by the officer conducting interview is not against the policy or rules. In the present case, officers conducting the interview made the assessm ent according to the objective criteria given in the policy, so the same cannot be questioned. It was the exclusive prerogative of the officers conducting interview to assess the candidates and award marks. In addition to that, the officers conducting interview belonged to different ministries and on the basis of presumptions, it cannot be said that all of them were involved. In malpractice.
17. It was also contended that the petitions are not maintainable due to bar provided by Article 212 of the Constitution. This contention is not correct for the reason that the petitioners had prayed for posting abroad on the basis of policy, which does not 'form terms and conditions of service. Since the writ petitions were not for the implementation of terms and conditions, therefore, the bar provided under Article 212 of the Constitution had no application in the present case. The writ petitions on that score were maintainable.
18. The petitioners however had themselves, appeared in the written test and also in the interview, so after appearing in the interview, they had no right to challenge the same before the Court. By their own conduct they were estopped, to challenge the process in which they had themselves participated.
19 It has also been submitted that the result was not made public, which shows that there was malice on the part of respondents. Since the result has already been declared and the same has already been provided to the petitioners, therefore, the objection is no more relevant.
20. In the above said circumstances, the writ petitions are devoid of merits and are accordingly, dismissed.
PLC (C.S.) 873 [High Court (AJ&K)] Before M. Tabassum Aftab Alvi, J ABDUL AZIZ MUGHAL versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 6 others Writ Petition No,2401 of 2012, decided on 9th January, 2013.
Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000--- ----Ss. 3, 4 & 5---Azad Jammu and Kashmir Civil Servants Act (VI of 1976), S.15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---District Accounts Officer (BPS-18)---Charge of illegal payment of mobilization advance to contractor while holding additional charge as Accounts Officer---Order of Secretary to Government suspending petitioner from service after initiating de novo inquiry proceedings against him---Petitioner's plea was that impugned proceedings and order were void as only the Controller General Accounts as competent authority, could pass such order and not the Secretary---Validity---Efficiency and discipline of a civil servant for being terms and conditions were included in S.15 of Azad Jammu and Kashmir Civil Servants Act, 1976---Impugned suspension order affected terms and conditions of petitioner's service, thus, same could be challenged before Service Tribunal, which could also decide question of eligibility , mala fide and coram non judice---High Court dismissed writ petition in limine. [pp. 875, 877, 879, 880] A, B, C, D, E & F Ghulam Niazi v. Federation of Pakistan and others PLD 2009 SC 866; Syed Muhammad Ayyub v. The Government of West Pakistan, PLD 1957 (W.P.) Lah.
487; Muhammad Iqbal v. Secretary, Ministry of Interior, Islamabad and 2 others 1993 PLC (C.S.) 1522 and Muhammad Nawaz v. Secretary'to the Government of the Punjab Agriculture Department 1981 PLC (C.S.) 194 ref. Muhammad Sadiq Khokhar v. Engineer-in-Chief, Pakistan Army, G.H.Q. And another 1981 PLC (C.S.) 123 fol. Kh. Mehmuod Ahmad v. Ministry of Education 1982 PLC (C.S.) 554; The Accountant General and others v. Zaman Hussain Khan 1993 SCR 259; Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department 1981 PLC (C.S.) 194 and Muhammad Iqbal v. Secretary, Ministry of Interior, Islamabad and 2 others 1993 PLC (C.S.) 1522 fol.
Tahir Aziz Khan, Advocate for Petitioner. Nemo for Respondents.
Date of hearing: 28th December, 2012.
' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of suspension order of petitioner dated 15-10-2012 along with order of de novo inquiry dated 30-11-2012 have been challenged for having been issued without lawful authority.
2. Precise facts giving rise to the instant writ petition are that petitioner is a permanent employee of Accounts Department of Azad Jammu and Kashmir with spotless service of 25 years who was appointed as District Accounts Officer BPS-18, of District Mirpur, Azad Kashmir. It is claimed that petitioner being District Accounts Officer, Mirpur, was given additional charge of Accounts Officer Mirpur Development Authority vide order dated 7-2-2012. It is alleged that on the basis of false and fabricated charges respondents with mala fide intention and by misuse of power unlawfully suspended petitioner from his service under section 4 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 vide impugned order dated 15-10-2012 and thereafter, pro-forma respondent No,7 was appointed to conduct formal inquiry vide even dated order. It is averred that respondent No,7 in compliance of the afore-stated illegal order issued charges and statement of allegations to petitioner vide order dated 1-11-2012. After inquiry proceedings, respondent No,7 exonerated petitioner from false and fabricated charges and recommended that he may be reinstated in service. It is further alleged that when respondents did not find favourable result of the preliminary inquiry, they in collusion with each other, in order to victimize petitioner, respondent No,2, appointed a new Inquiry Officer in order to hold de-novo inquiry vide order dated 30-11-2012. It is averred that respondent No,2 illegally in violation of relevant law while styling himself as competent authority appointed respondent No,5 as Inquiry Officer through order supra. It is further stated that under section 3 of the AJ&K Council Removal from Service (Special Powers) Act, 2000 Controller General Accounts of Azad Jammu and Kashmir was empowered to exercise the powers of competent authority. The petitioner has challenged vires of the above-mentioned orders through the instant writ petition.
3. A pre-admission notice was served upon the respondents for filing parawise comments vide order dated 22-12-2012 who despite service failed to do the needful.
4. Mr. Tahir Aziz Khan, Advocate, the learned counsel for petitioner through written arguments submitted that the impugned suspension order dated 15-10-2012 and de novo proceedings order dated 30-11-2012 were malicious and coram non judice, therefore, the same are liable to be quashed as such. The learned counsel further submitted that the concerned respondents issued the impugned orders against basic provisions of Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000. The learned counsel further submitted that although petitioner is a civil servant, however, as the impugned suspension order is not a final order on the basis of disciplinary proceedings, therefore, no remedy is available to petitioner except invoking writ jurisdiction. The learned counsel in support of his contentions referred to and relied upon the following case-law:---
(i) Ghulam Abbas Niazi v. Federation of Pakistan and others (PLD 2009 SC 866);
(ii) Syed Muhammad Ayyub v. The Government of West Pakistan (PLD 1957 (W. P.) Lah. 487);
(iii) Muhammad Iqbal v. Secretary, Ministry of Interior, Islamabad and 2 others (1993 PLC (C.S.)
1522); and
(iv) Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department, (1981 PLC (C.S.) 194).
5. After hearing the learned counsel for petitioner at great length, I have perused the contents of writ petition and examined the documents appended thereto minutely.
6. Admittedly petitioner is a civil servant performing his functions as District Accounts Officer BPS-18 who was assigned the work of Accounts Officer, Mirpur Development Authority, additionally till permanent posting of an officer in the said Development Authority, by the Accountant General of Azad Jammu and Kashmir vide office order dated 7-2-2012. The petitioner was suspended by Secretary-respondent, on the basis of charges pertaining to illegal payment of mobilization advance to the tune of Rs,300,901,727 to contractor by violating PEC rules and without checking the Admin approval of the project, plus verification of advance insurance guarantee and additional loss of Rs,4.00 million due to early encashment of investment of Rs,100.00 million with Habib Bank, Mirpur, during pendency of inquiry, vide impugned order dated 15-10-2012. It appears that pro- forma respondent No,7 was firstly appointed as Inquiry Officer to conduct preliminary inquiry vide even dated order 15-10-2012. It further reveals that in exercise of powers conferred by section 5 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 Secretary- respondent appointed respondent No,5 as Inquiry Officer for de-novo proceedings vide order dated 30-11-2012. The petitioner by considering himself aggrieved from the above-mentioned orders challenged the same through the instant writ petition. The point that whether this Court has got jurisdiction to set aside the impugned orders in exercise of writ jurisdiction or the Service Tribunal alone has jurisdiction to adjudicate upon the matter? For the purpose of terms and conditions of civil servants while exercising powers as visualized under section 47 of the Azad Jammu and Kashmir Interim Constitution Act. 1974 administrative Tribunals have been established by the Azad Jammu and Kashmir Government and Council respectively. It will be useful to reproduce the above Section to emphasize the point:--- "Administrative Courts and Tribunals.--- (1) Notwithstanding anything herein before contained, the [Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends,] may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:--
(a) matters relating to the terms and conditions of persons who are or have been in the service of [Azad Jammu and Kashmir including disciplinary matters];
(b) matters relating to claims arising from tortuous acts of [the Council or the] Government or any person in the service of [Azad Jammu and Kashmir] or of any local or other authority empowered by law to levy any tax or cess and any servant or such authority acting in the discharge of his duties as such servant; or
(c) natters relating to acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything herein before contained, where any administrative Court of Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance, grants leave to appeal."
A bare reading of section 47 (2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 reveals that where any administrative Court or Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain proceedings in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends. The terms and conditions of service of civil servants have been defined in Chapter-II of the Azad Jammu and Kashmir Civil Servants Act, 1976. Section 3 which is the first section in the Chapter lays down as follows:--- "The terms and conditions of service of civil servant shall be as provided in this Act and the rules."
7. One of the sections in Chapter-H is section 4 which relates to appointments while section 5 deals with probation. Sections 6, 7 and 8 are relating to confirmation, seniority and promotion. Section 9 deals with posting and transfer. Likewise sections 10, 1 , 12, 13 and 14 are relating to termination of service, reversion to a lower grade, retirement from service, employment after retirement and conduct of a civil servant. Another section namely section 15 deals with Efficiency and Discipline of a civil servant. As according to section 15 supra the efficiency and discipline of a civil servant are also included in the terms and conditions, therefore, I am of the considered view that impugned suspension order affects the terms and conditions of petitioner, hence, the same is amenable before the Service Tribunal. The point that whether a suspension order is covered in definition cf "final order" came under consideration before the apex Court of Pakistan in case titled Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army, G.H.Q. And another, [1981 PLC (C.S.) 123]. It was held by their lordships as under:--- "Learned Advocate-on-Record further submitted that section 4 of the Service Tribunals Act, 1973 envisages an appeal against "final order" of the Tribunal and since no final order has so far been made in the fresh enquiry, therefore, the appeal before the Tribunal will be incompetent and the writ petition in the High Court under Article 199 of the Constitution would therefore lie.
' The argument, however, is devoid of substance. The petitioner feels aggrieved from the order of his suspension and insofar as it has taken effect it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the Constitution. Non obstante clause in Article 212(2) gives it overriding effect and consistently with the principle of harmonious interpretation of the Constitution the High Court rightly dismissed the writ petition moved by the petitioner for want of jurisdiction."
' The point was also consideration by the Federal Service Tribunal in case of Kh. Mehmood Ahmad v. Ministry of Education [1982 PLC (C.S.) 554]. At page 557 of the precedent case, it was held as follows:--- "10. After hearing both the sides, the correct position regarding the nature of suspension order becomes clear from the latest judgment of the Honourable Supreme Court in Civil Petition for Special Leave to Appeal No,951 of 1976 Muhammad Sadiq Khokhar v. Engineer-in-Chief G.H.Q. Their Lordships have observed as follows:--- If .... ' The petitioner feels aggrieved from the order of his suspension and in so far as it has taken effect, it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of the Article 212 of the constitution..."
' We, therefore, hold that irrespective of any judgment issued by any Service Tribunal so far, the correct position in this respect is that after the issue of the above referred judgment of the Supreme Court, an order of suspension is a final order within the meaning of the Service Tribunal Act, and is appealable to the Service Tribunal."
8. The point with regard to "final order" in.a famous precedent of "scattered terms and conditions" was also considered by the Hon'ble Supreme Court of Azad Jammu and Kashmir in case titled The Accountant General and others v. Zaman Hussain Khan [1993 SCR 259]. At page 273 of the report, it was held by their lordships as follows:--- "I fully endorse the view that the explanation of 'departmental authority' in section 4 of the Service Tribunal Act refers to an authority competent to make an order in respect of any of the terms and conditions and does not have the effect of lying down the condition that the authority must be competent to pass the particular order from which the appeal has to be filed. The words "an order in respect of any terms and conditions" are words of liberal import and a restricted construction is not possible. It may be added that it is significant that the main section lays down that an appeal lies against a "final order" but in the explanation the reference is to "order" in contradistinction to "final order". This further clarifies that the law-maker never intended to lay down in the explanation that "final order" from which an appeal was to be filed should have been competently passed in order to qualify it to be appealable. Thus, the liberal interpretation of the term "departmental authority" would include any authority which can pass an order in respect of any terms and conditions.
9. The contention of the learned counsel for petitioner that the impugned suspension order dated 15-10-2012 was not a final order is misconceived which is hereby repelled. However, it is liable to be observed that in case of Muhammad Nawaz v. Secretary to the Government of the Punjab Agriculture Department reported in [1981 PLC (C.S.) 194] Lahore High Court and in case of Muhammad lqbal v. Secretary, Ministry of Interior, Islamabad and 2 others [1993 PLC (C.S.) 1522] Federal Service Tribunal, which were referred to and relied upon by the learned counsel for petitioner, it was held that suspension order is not a final order which view is inconsistent with the view of apex Courts, therefore, I respectfully follow the view laid down by the apex Court of Pakistan in Muhammad Sadiq Khokhar's case [1981 PLC (C.S.) 123].
10. The contention of the learned counsel for petitioner that the impugned orders are void which cannot be challenged before Service Tribunal is also devoid of force, therefore, the same is repelled. As already held that matter pertaining to suspension is included in terms and conditions of service of civil servants, therefore, the question relating to eligibility, mala fide and coram non judice can be decided by the Service Tribunal.
11. The crux of the above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed in limine. The learned counsel for petitioner has moved two applications one for constitution of larger bench and other for production of documents which are hereby rejected and consigned to record.