In this Constitutional petition, the petitioners have challenged the order dated 20.05.2022, passed by respondents No.4 and 5, whereby the appointment of the petitioners against the post of temporary Sub-Inspector (T/SI) was withdrawn/ cancelled.
2. Relevant facts are that the petitioners, who were working as Assistant Sub-Inspector (ASI), applied for the post of T/SI against service quota through Punjab Public Service Commission (PPSC) . On the recommendation of PPSC, the petitioners were appointed as T/SI on probation for the period of three years vide separate appointment orders dated 29.05.2020. However , in view of order passed by this Court in WP No.18134/2022, the record was scrutinized and it revealed that some officials including petitioners had less experie nce/length of service required to apply for the post of T/SI (service quota) through PPSC. Accordingly , respondent No.1 vide letter dated 16.05.2022 directed respondent No.3 to cancel the appointment notifications of the petitio ners. In pursuance to the said directive, the appointments of the petitioners were withdrawn/cancelled through impugned orders dated 20.05.2022, hence this constitutional petition.
3. Learned counsel for the petitioners, at the very outset, confronted that when prima-facie petitioners are civil servants and their cancellation of appointments as T/SI relates to the terms and conditions of their service, then how this constitutional petition is maintain able in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) .
4. Learned counsel for the petitioners, in response to above question of maintainability , submits that the petitioners being appointed on probation are not civil servants. He further submits that those employees who are recommended by the PPSC even if are Civil Servants, cannot approach the Service Tribunal. He placed reliance on "Dr. Ahmad Salman Waris, Assistant Professor , Services Hospital, Lahore Versus Dr. Naeem Akhtar and 5 others" (PLD 1997 Supreme Court 382). Submits that withdrawal or cancellation of appointment letters is not one of the punishment prescribed under the Punjab Civil Servants Act, 1974 or the relevant rules, therefore, Service Tribunal has no jurisdiction under Section 4 of the Punjab Service Tribunal Act, 1974. On merits, he submits that the petitioners had the required experience and length of service for appointment as T/SI and further this being a question of fitness cannot be agitated before Service Tribunal. Finally submits that the impugned orders are passed without notice and hearing to the petitioners despite specific undertaking given on behalf of the respondent-department in writ petition No.30316/2022.
5. Heard. Before touching merits of the case, this Court would like to decide threshold question of maintainability of this writ petition, on the touchstone of Article 212 of the Constitution. The record shows that the petitioners were working as ASIs who were recommended by the PPSC for the appointment against the post of T/SI on probation for period of three years. Consequently , petitioners were appointed as T/SIs vide letters dated 29.05.2020 on probation for three years. The first moot question is that whether probationary such like petitioners falls within the definition of Civil Servant.
6. In above context, it is relevant to note that the appointments for the post of Sub-Inspector are governed under Sub-Inspectors and Inspectors (Appointm ent and Conditions of Service) Rules, 2013 (Rules) . The relevant Rules 3, 4 and 5 of the Rules are re-produced hereunder for convenience:- "(3) Appointment of Sub-Inspectors.-- (1) Subject to the prior approval of the Provincial Police Officer , the appointing authority may, on the recomm endation of the Commission appoint a person as Sub-Inspector by initial recruitment or selection.
(2) Subject to the prior approval of the Regional Police Officer , the appointing authority may, on the recommendation of the departmental promotion committee, appoint as Assistant Sub-Inspector as Sub-Inspector by promotion
(4) Procedure of appointment.-- The Provincial Police Officer shall separately make a reference to the Commission to fill up the posts of Sub-Inspectors available in the following categories: a) appointment by initial recruitment; and b) appointment by selection.
5. Probation of Sub-Inspector .--- (1) A Sub Inspector appointed under Rule 4 or by promotion shall be on probation for a period of three years.
(2) A Regional Police Officer may discharge from service a Sub-Inspector appointed by initial recruitment during the period of probation if the Sub-Inspector fails to pass the prescribed examinations or tests or fails to undertake or complete the requisite training or is deemed unsuitable for service in the police.
(3) A Regional Police Officer may revert to the previous post a Sub-Inspector appointed by selection or by promotion during the period of probation if the Sub-Inspector fails to pass the prescribed examinations or tests or fails to undertake or complete the requisite training or is deemed to unsuitable for the post of Sub-Inspector .
(4) No appeal shall lie against an order passed under Sub rule (2) or (3).
7. Plain reading of Rule 3 above shows that subject to prior approval of the Provincial Police Officer (PPO), the appointing authority may on the recomme ndation of the Commission, appoint a person as Sub-Inspector by initial recruitment or selection. Under Rule 2 (b) of the Rules Commission means Punjab Public Service Commission.
Under Rule 4 of the Rules, PPO shall separately make reference to the Commi ssion to fill up the post of Sub- Inspectors available against initial recruitment and by selection. Under Rule 5 of the Rules, Sub-Inspectors appointed by initial recruitment or selection under Rule 4 of the Rules shall be on probation for period of three years.
8. Chapter II of the Punjab Civil Servants Act, 1974 (Act VIII of 1974) deals with the terms and conditions of Civil Servants. Section 5 of the Act, which is also part of the afore-said Chapter II, defines probation as under:- "5. Probation.--- (1) An initial appointment to a service or post referred to in section 4, not being an ad hoc appointment, shall be on such probation and for such period of probation as may be prescribed.
(2) Any appointment of a civil servant by promotion or transfer to a service or post may also be made on such probation and for such period of 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 the 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.
9. Section 5 of the Act VIII of 1974 manifests that an initial appointment to a service or post referred to in Section 4 (which deals with the appointment to a civil service of the Province), not being an ad hoc appointment shall be on such probation or for such period of probation as may be prescribed. Holistic, readi ng of the word "probation" under Section 5 of the Act VIII of 1974 read with Rules No.3, 4 and 5 of the Rules, leave no manner of doubt that the petitioners' appointment as T/SIs on probation under the Rules are covered within the scope of a civil service appointment under Section 4 of the Act VIII of 1974.
10. The same view that probationers are covered under the definition of civil servant under section 5 of the Act VIII of 1974 was also expressed by this Court in Arsalan Bari and others Versus Province of Punjab and others (2021 PLC (CS) 336 ), wherein it has been held as under:- "In the same sequel it is observed that once the petitioners join as Sub-Inspector they become civil servants and training course has been provided in the police rules itself. Furthermore, Section 5 of the Punjab Civil Servant Act, 1974 also provides "probation"' as under:- ............
By bare reading of above referred section, especially sub-section (3) it is established that all training courses are covered under the terms and conditions of a civil servant, which are applicable to newly recruited officers/officers even if they are on probation, hence, jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 to entertain such like petitions, is barred. The petitioners may approach the departmental hierarchy or the Punjab Service T ribunal.
It is pertinent to note that in such like situation, where the probationer was remove d from service under the Rules, not only the jurisdiction of the Service Tribunal was invoked but the probationers were also re-instated and said judgments of learned Service Tribunal were upheld by the Hon'ble Supreme Court of Pakistan in "Government of Sindh through the Advocate-General Sindh Versus Muhammad Hussain and 6 others" (2000 SCMR 75) and "Government of Sindh V ersus Ilyas Khichi ( 2003 SCMR 830 ).
11. The argument of the petitioners that against withdrawal/cancellation of appointment orders of the petitioners, the Service Tribunal will have no jurisdiction, as it is not one of the punishment prescribed under the Act VII of 1974 or Rules, is also misconceived. The withdrawal/ cancellation of appointments in pith and substance amounts to dismissal and removal from service of the petitioners. Therefore, it cannot be said that Service Tribunal will have no jurisdiction in respect of such adverse orders. Further under Section 4 of the Punjab Service Tribunals Act, 1974 (PST Act), any civil servant aggrieved by any final order in respect of any of the terms and conditions of his service can prefer an appeal to the Service Tribunal. However , under Section 4(2)(a) of the PST Act if the appeal is against an order or decision of the departmental authority imposing the departmental punishment, the appeal shall be preferred in case of dismissal or removal from service etc. to a Tribunal referred to in Section 3 (3) and in any other case under Section 4(2)(b), to Tribunal under Section 3(7) of the PST Act but if no such Tribunal is established then to Tribunal established under section 3(3) of the PST Act. This shows that in respect of all departmental punishments/penalties to a civil servant regarding terms and conditions of his services, the exclusive jurisdiction is of the Service Tribunal and bar of Article 212 of the Constitution will apply . Similarly , the Hon'ble Supreme Court of Pakistan in the case "I.A. Sharwani and others v. Government of Pakistan through Secretary , Finance Division, Islamabad and others" ( 1991 SCMR 1041 ), held that:- "We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service T ribunal".
12. The next argument of the learned counsel for the petitioners that the instant matter being relating to fitness, Service Tribunal has no jurisdiction, has also no legs to stand. Perusal of letter dated 16.05.2022 addressed by respondent No.1 to respondent No.3 shows that the petitioners' appointment orders were not cancelled because petitioners are not fit to hold the post but for lack of experience and length of service required for the post of T/SI against service quota. Therefore, there is no question of fitness of the petitioners involved and the issue whether the petitioners had required experience and length of service at relevant time, can easily be examined by the Service Tribunal.
13. Further merely because petitioners were appointed as T/SIs after recommend ation by PPSC under the rules, will not exclude them from definition of civil servant. The case of Dr. Ahmad Salman Warsi referred to by the learned counsel for the petitioners is distinguishable, as in the said case, the writ petition was filed by those candidates who were not appointed by the department, against those employees, who were appointed on the basis of recommendations by the PPSC. Indeed in said matter , the Service Tribunal had no jurisdiction as those petitioners were not civil servants and could not approach the Service Tribunal to challenge appointments of the civil servants. However , in the present case, as discussed above, the petitioners are not only civil servants but their cancellation/withdrawal of appointments also relate to the terms and conditions of their service, therefore, the Service Tribunal has jurisdiction in the matter , hence this constitutional petition is barred under Article 212 of the Constitution.
14. Mere fact that in writ petition No.303 16/2022, it was undertaken on behalf of the respondents that petitioners will be given notice and hearing before passing any adverse order may be one of the ground against the impugned orders but it will not confer jurisdiction on this Court despite bar of Article 212 of the Constitution. It is also settled law that jurisdiction on the Court or Tribunal would be conferred by law and not by consent or undertaking of the parties. In this regard, reliance is placed on "MUL TAN ELECTRIC POWER COMP ANY LTD. through Chief Executive and others V ersus MUHAMMAD 3ASHIQ and other" ( PLD 2006 SC 328 ).
15. In view of the above discussion, this constitutional petition being not maintainable is dismissed.