SHAHID JAMIL KHAN, J. This judgment addresses the issues, surfaced after withdrawal of recommendation, by Punjab Public Service Commission ("PPSC"), for appointments of petitioners, when those were acted upon by issuing appointment letters.
So appointed, the petitioners were terminated as a consequence. They claim themselves to be civil servants and seek treatment in accordance with the relevant law and procedure. Conversely, the respondents have raised objection on maintainability of these petitions, in view of bar under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), necessary corollary of which is that petitioners are civil servant, and arguing in same breath that the appointments were temporary, therefore, could be terminated, in absence of a notice and without following any procedure. It is, however, not disputed that cause of termination is the withdrawal of recommendations and not terms and conditions of service or disciplinary matter.
2. The pleadings and arguments have raised following legal issues: - i) After issuance of appointment letters, whether petitioners are Civil Servants', if so, whether they could be terminated without a notice, in absence of procedure. ii) For bar of jurisdiction, under Article 212, is it sufficient that petitioners are Civil Servants or the reasons for termination should relate to 'terms and conditions' of service? iii) Whether Punjab Service Tribunal ("PST") can adjudicate on the reasons, leading to withdrawal of recommendations by PPSC? iv) Whether, PPSC became "functus officio' after issuance or implementation on the recommendations for appointments? (Kashif Mustafa Case relied upon by petitioners)
3. Background and facts, relevant to the lis are: The petitioners, in this and connected petitions, were appointed as Deputy Accountants (BS-16), in Finance Department, however, were-terminated on withdrawal of recommendation by PPSC. The termination is challenged along with the withdrawal of recommendations. Contents of one of the impugned termination order dated 09.04.2021 are reproduced:- "ORDER IT(FD)(ESTT-II)10-1/2020 (New Recruitments) In pursuance to the letter of Punjab Public Service Commission bearing No.ESTT-I/2019-PPSC/405, dated 07.04.2021, wherein PPSC has withdrawn for all intents and purposes, the paper / test / selection process, completed against the post of Deputy Accountant (BS-16), Finance Department, the services of Chand lqbal D/o Muhammad Iqbal, recruited as Deputy Accountant (BS-16) vide this Inspectorate Orders bearing No.IT-FD(Estt-II)10-1/2020(PF-183) dated 01 .12 .2020 are, hereby, terminated with immediate effect.
Punjab Public Service Commission has further conveyed that the test/paper against the said post shall be conducted afresh in due course of time of the existing candidates only and no fresh advertisement shall be given for recruitment against this post and the existing candidates shall not be required to either again remit admission fee or submit on-line admission form.'
[emphasis supplied] It is apprised by learned AAG, assisted by Deputy Secretary, PPSC, that on receiving information about leakage of question papers and its use by the candidates, matter was referred to Anti- Corruption Establishment ("ACE"). On ACE's report, the recommendations were withheld; where recruitment process was not completed, however, recommendations already sent for the posts of Deputy Accountant, Finance Department were withdrawn, by invoking Regulation 63 of PPSC Regulations, 2016, which is reproduced:- "63. If any error or omission is detected in the eligibility of a candidate or result or merit list at any stage even after its dispatch to the Department concerned, the recommendation(s) made on the basis of such a mistake/error shall be withdrawn to review by the Commission and duly rectified."
[emphasis supplied] The letter of withdrawal dated 28.01.2021, by PPSC is also reproduced:- "2. It is stated that in pursuance of findings of Anti-Corruption Establishment, based upon the investigation conducted by it, against leakage of Punjab Public Service Commission's papers, the Punjab Public Service Commission while exercising its powers under Regulation No.63 of PPSC's Regulation, 2016, hereby withdraws for review the recommendations for the post of Deputy Accountant (BS-16) which were conveyed vide letter No.PSC-RA-I/2020/30 dated 09-09-2020.
Further process in the matter shall be shared after review/rectification by the Punjab Public Service Commission under the Regulation ibid."
[emphasis supplied] On being confronted to show, from record, that any of the error or omission, relating to the petitioners' eligibility, result or in preparation of the merit list, was identified. Learned AAG read a letter by ACE addressed to Chief Secretary Punjab, which is reproduced for reference: - "One of the accused Mr. Ghazanfar Khan admitted that he passed the written examination under Roll No.22018 after having question paper beforehand from Mr. Usman a private person after paying Rs.250,000/-. He also confessed that Mr. Usman sold this paper to many other candidates including his real brother Arshed Ahmad son of Ahmed Khan (Arshed Ahmad) who passed this examination and now working in District Accounts Office, Jhang."
[emphasis supplied] On a specific question it is not denied that the impugned action of withdrawal is based on statement of Ghazanfar Khan, a candidate at Roll No.22018 and accused before ACE. He admitted, in his statement, to be a beneficiary along with another (Arshed Ahmad), who is now working in District Accounts Office, Jhang. For other candidates, his statement of selling question papers by one Muhammad Usman is relied upon. On this material/evidence, DG ACE recommended for action against the petitioners in following words: - "5. On the basis of role of different culprits, evidence gathered during investigation so far as perusal of WhatsApp groups chat history of the culprits and candidates for the posts, it is recommended that the examinations conducted by the PPSC against the posts mentioned in Annex-B, where Candidates have not joined their duties, may be cancelled. It is also recommended that a reference may be sent to the Finance Department for the post of Deputy Accountant BS-16 for taking necessary action as the recruitment process has been completed and candidates have joined their duties."
[emphasis supplied]'
4. After withdrawal of recommendations on 28.01.2021, the matter was placed before Full Commission of PPSC, which was reviewed and decided vide letter dated 07.04.2021 addressed to the Additional Chief Secretary and Finance Secretary, Government of the Punjab, Lahore. Relevant part of the decision is reproduced: "8. The final meeting of the Full Commission of PPSC was held on 17.03.2021 at 11:30 am, for review of the decision taken on 28.01.2021 about putting on hold the recruitment/appointment process against above said 12 papers/posts. After detailed discussion on the report submitted by the Anti- Corruption Establishment Punjab, in form of a 'Note for Chief Secretary' along with annexure, the Full Commission observed that the Anti-Corruption Establishment and the corroborating circumstances, endorsed by the internal probe at PPSC level, established the leakage of papers against 12 posts, and keeping these papers intact would tantamount to compromising the fair play, meritocracy and transparency of the Punjab Public Service Commission, therefore, giving due consideration to Regulation No.63 of PPSC's Regulations-2016, the Full Commission of PPSC unanimously decided as under:-
(a) withdraw, for all intents and purposes the papers/tests/selection processes, completed/under going, against the following posts: - i. Deputy Accountant (BS-16), Finance Department. ..................
9. In view of the foregoing, the decision of the Full Commission of Punjab Public Service Commission, taken or, 17.03.2021, is conveyed accordingly."
[emphasis supplied]
5. The issue wise findings, in backdrop of the facts are as under; 1) 'Civil Servant', under Section 2(1)(b) of Punjab Civil Servants Act, 1974 ("Act of 1974"), means a "member of civil service of the province or who holds a civil post" but does not include persons; on deputation, employed on contract or a worker/workman. Civil post can be permanent or temporary; permanent post is sanctioned without limit of time [5.2(1)(f] also called sanctioned post and temporary post is a post other than a permanent post [S.2(1)(k)].
There is no confirmation for an appointment against a temporary post [S.6(4)]. An ad hoc appointment [Section 2(1)(a)] though against a permanent post, is temporary in nature. A duly qualified person is appointed, otherwise than recruitment in accordance with the prescribed method. The temporary employment is liable to termination on thirty days' notice or pay in lieu thereof [S.10(3)].
Appointment of the petitioners was initial, against permanent posts of Deputy Accountants (BS-16) in Finance Department, made through a prescribed method of recruitment. Under Section 5(1), initial appointment, against a permanent post, is to be on probation for such period as may be prescribed. Relevant clauses from one of the appointment letters dated 01.12.2020, is reproduced for facility:- "iii. You will remain on probation for two years, extendable for another two years if not terminated by the Competent Authority. However, on successful completion of period of probation, your service will be considered for confirmation. iv. Your services are liable to termination without assigning any reason or serving any notice during the period of probation.'
[emphasis supplied]
6. Since petitioners were appointed initially against permanent/sanctioned posts through prescribed procedure, therefore, are Civil Servants on probation. Service of a probationer civil servant is dealt with under Section 5 of the Act of 1974. Provisions, relevant to this case, are reproduced: - .
"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) ...
(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."
[emphasis supplied] The person, initially appointed as probationer can be discharged under subsection (3) (a), if he does not successfully complete the probation, including passing of a prescribed examination. It is important to note that word 'discharge' is used instead of termination.
On satisfactory completion of probation, the Probationer becomes eligible for confirmation, in accordance with the prescribed rules [S.8(1)]. Rule 7 of The Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 ("Rules of 1974"), provides procedure for confirmation of a probationer: "7. (1) A person appointed to a post in a grade against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise; provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all. ... ...
(2). No person shall be confirmed in a post unless he has successfully completed such training and passed such departmental examination as may be prescribed.
(3) ... ...
(4) Subject to the provisions of sub-rule (2) above, if no orders have been made by the day an which the maximum period of probation expires, the probationer shall be deemed to have been confirmed in his appointment from the date on which the period of probation was last extended or may be deemed to have been so extended. ... ...
(5) A probationer, who has satisfactorily completed his period of probation against a substantive vacancy, shall be confirmed w4 effect from the date of his continuous appointment in such a vacancy: ... ...."
[emphasis supplied] A right to be confirmed is created, when a probationer successfully completes his probation period, as phrase "shall be confirmed" is used under the Rule 7(5) read with the Section 8(1).
The termination of service for all kind of appointments is dealt with under Section 10 of the Act of 1974. The provisions relating to termination a probationer civil servant are reproduced:- "10. Termination of service.---(1) The service of a civil servant may be terminated without notice--
(i) during the initial or extended period of his probation" .... .....
(2) In the event of a post being abolished or number of post in a cadre or [service] being reduced the services of the most junior person in such cadre or [service] shall be terminated.
(3) Notwithstanding the provisions of subsection (I) but subject to the provisions of subsection (2), the service of a civil servant in temporary employment or appointed on ad hoc basis shall be liable to termination on thirty days' notice or pay in lieu thereof.'
[emphasis supplied] Though under Section 10(1)(i), ibid, a Probationer can be terminated without notice, yet non- obstante provisions of subsection (3), require termination on 30 days' notice or pay in lieu thereof.
If, after appointment, the permanent post is abolished or posts are reduced, services of the most junior persons (civil servants) shall be terminated without notice.
In this Court's opinion; notice envisaged under Section 10(1)(i) is Show-Cause Notice, confronting with the reasons for termination and consequent proposed action of termination from service.
Whereas, the notice under Section 10(3) is an "Intimation Notice", informing that the service would no more be required, after the date specified therein or from the date of such notice with one month's pay in lieu of intimation notice. Purpose of intimation notice appears to save the civil servant from a surprise, which might harm him psychologically or socially.
If petitioners' case is examined under the provisions, discussed above, it is established that petitioners are civil servants on probation. They are not discharged under Section 5(3)(a) for not passing examination or failing to successfully complete course or training nor are they terminated under Section 10(3) on 30 days' notice or pay in lieu thereof. Petitioners' termination is on withdrawal of recommendation by PPSC on the apprehension of using unfair means during recruitment examination, which carries a stigma.
If no stigma of misconduct, inefficiency or corruption is attached with the termination of a probationer's service then it is a "termination simplicitor", therefore, no Show-Cause Notice and subsequent procedure is required. [2016 PLC (C.S.) 155 Nadeem Asghar Nadeem and others v.
Province of the Punjab and others], [2004 SCMR 44 Ch. Muhammad Hussain Naqshbandi v.
Government of the Punjab and others], [1990 SCMR 1510 Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others] and [PLD 1974 SC 393 Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan].
However, if stigma is attached to termination, Show-Cause Notice and proceeding thereafter are necessary, as is deducible from the judgments, ibid. In Nadeem Asghar Nadeem's case August Supreme Court examined the issue on touchstone of Article 10A of the Constitution, as vires of Section 10(1)(i) of the Act of 1974 were assailed. Hon'ble Court opted to read down the provision and held:- "29. For the above reasons it is held as follows:- A. In the light of Article 10A read with Articles 4, 9, 14 and 25 of the Constitution, section 10(1)(i) of the Punjab Civil Servants Act, 1974 is read down, to the extent, that in cases where termination of a probationer is on the grounds of misconduct, inefficiency, corruption, etc prior notice is mandatory and is required to be issued to the probationer.
B. Where the probationer has failed to meet the eligibility requirements of a departmental examination or in service training course, the probationer can be terminated without notice, but any such termination order must carry reasons for termination.
C. In case the probationer has passed eligibility criteria and has been found liable for misconduct, inefficiency or corruption, the competent authority does not have a choice to opt for termination simpliciter by withholding the real reason for termination and must issue a reasoned termination order.
Petitioners' termination is not simplicitor, due to withdrawal of recommendations on the allegation of using unfair means during recruitment examination, therefore, answer to the first proposition is; "after issuance of appointment letters, the petitioners are 'Civil Servants', they could not be terminated without a show cause notice and in absence of due process/procedure".
7. The next legal proposition, as noted in paragraph No.2, supra, relates to bar of jurisdiction under the Article 212. Jurisdiction of the Court under Article 199 of the Constitution, is ousted, when matter relates to "terms and conditions", including "Disciplinary Matters". Relevant provisions of the Article 212 of the Constitution are reproduced:- "212. (1) Notwithstanding anything hereinabove contained the appropriate Legislature 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 Pakistan, including disciplinary matters;
(2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (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; other than an appeal pending before the Supreme Court, shall abate on such establishment: [emphasis supplied] In this case, petitioners have been terminated for a fault on the part of PPSC, during conduct of recruitment examination, which was prior to the issuance of appointment letter, therefore, cannot be construed to have any relation with the terms and conditions of petitioners' service. Nor the fault or consequent withdrawal by PPSC accrued during service after appointment letter, therefore, the disciplinary Matters, if any, has no nexus with the service.
Under Section 4(1)(b) of Punjab Service Tribunals Act, 1974, appeal against the impugned termination order does not lie before the Service Tribunal. As the termination is on withdrawal of recommendation by PPSC, therefore, squarely falls within the phrase "fitness or otherwise of a person". Relevant provision is reproduced hereunder:- "4(1)(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 grade; and"
[emphasis supplied]
8. The view, ibid, is fortified by August Supreme Court's judgment in Dr. Ahmad Salmon Waris, Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others (PLD 1997 Supreme Court 382), relevant part of which is reproduced hereunder: - "For attracting the aforesaid bar in exercise of jurisdiction under Article 199 of the Constitution by the High Courts, it is to be first shown that the petitioner is a civil servant and that the dispute relates to the terms and conditions of his service, unless the aforesaid two conditions co-exist, the provisions relating to the ouster of jurisdiction will not be attracted. Reference in this regard may be made to the recent decision reported in 1991 SCM R 1041 (I.A. Sherwani and others v. The Government of Pakistan through Secretary, Finance Division and others), wherein the question of ouster of jurisdiction of the Courts, under Article 212 of the Constitution of the Islamic Republic of Pakistan came up for consideration, which has been answered as under:- From the above-quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of Section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact."
[emphasis supplied] The judgment, ibid, in Dr. Ahmad Salmon Waris' case was relied upon by learned Balochistan High Court in Abdul Khaliq Mandokhel and 2 others v. Chairman. Balochistan Public Service Commission and another (2016 PLC (C. S.) 1184) to hold that selection/recommendation by Balochistan Public Service Commission (BPSC) cannot be brought under challenge before Service Tribunal.
Since the termination in question does not involve terms and conditions of service after appointment as Deputy Accountants (BS-16) nor disciplinary proceeding during this service is in question, therefore, it can safely be held that "bar of jurisdiction, under the Article 212, is not attracted merely because petitioners are civil servants".
In this backdrop, the third proposition, supra, is also answered that Punjab Service Tribunal does not have jurisdiction to entertain petitioners' appeal against impugned termination orders, being passed on withdrawal of recommendations by PPSC. Hence, this Court has jurisdiction under Article 199 of the Constitution to entertain and decide the issue.
9. After holding that impugned termination orders could not be passed in absence of show-cause notice and due process, challenge to withdrawal of, recommendations by PPSC is also examined.
The law dealing with the proposition is scrutinized; Public Service Commission, Federal or Provincial, is constituted on command of the Constitution in its Article 242, which is reproduced:- "242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province may, by law provide for the establishment and constitution of a Public Service Commission.
(1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President [on the advice of the Prime Minister.] (1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister.
(2) A Public Service Commission shall perform such functions as may be prescribed by law.'
[emphasis supplied] This Article is placed in Chapter 1, titled 'Services', of Part XII of the Constitution. Article 240 of this Chapter, envisages that appointment and conditions of service of the person in 'Service of Pakistan', shall be determined by respective legislature of the Federation or Provinces. Service of Pakistan, as defined under Article 260(1), means any service, post or office in connection with affairs of the Federation or of a province. The Province of Punjab has established the Public Service Commission through Punjab Public Service Commission Ordinance, 1978 ("PPSC Ordinance").
Functions of PPSC are prescribed under its Section 7, which appear to be advisory, however, if advice is not accepted, PPSC is required to be informed accordingly (Section 8). Primary function is to conduct test and examination for recruitment. Both the Sections are reproduced:-
7. Functions of Commission.- The functions of the Commission shall be-
(a) to conduct tests and examination for recruitment to-
(i) such Provincial services and posts connected with the affairs of the Province, as may be prescribed; and
(ii) such posts in or under a Corporation or other body or organization set up by Government under" any law, as may be prescribed;
(b) to advise the Government on such matters as may be prescribed, relating to the terms and conditions of service of persons who are members of a Provincial service or hold posts in connection with the affairs of the Province; and
(c) such other functions as may be prescribed.
8. Commission to be informed when its advice is not accepted.-- Where the Governor does not accept the advice of the Commission he shall inform the Commission accordingly.
Rules and Regulations are made under Section 10:-
10. Rules and Regulations.- (1) The Government may, by notification in the official Gazette, make rules for carrying out the purpose of this Ordinance.
(2) Subject to the provisions of this Ordinance and the rules the Commission may make regulations for carrying out the purposes of this Ordinance and the rules.
[emphasis supplied] Punjab Public Service Commission Regulations, 2016, are made under this Section to carry out the purpose of PPSC Ordinance. Its Regulation No.25 deals with the situation, inter alia, where a candidate obtains support for the candidature through any means i.e., not permissible under the law [Regulation 25(d)] or uses unfair means in the Written Test or Examination [Regulation 25(i)].
Such candidate, if found guilty, may be disqualified, as a candidate or debarred from an examination. Regulation 25 is reproduced:-
25. A candidate may be disqualified and/or debarred from any examination, test or interview for any post held or to be held by the Punjab Public Service commission in future, who is found guilty in any one of the following: a. Furnished any false or incorrect information to gain undue advantage b. Suppresses material information. c. Canvasses or attempts to influence the Members of the Commission, the Officers and Officials of the Commission, Advisors, Departmental Representatives, Examiners, Supervisors Invigilators and any other person who have been called to assist the Commission in interview or written test/examination. d. Attempts to obtain support for his/her candidature through any means. e. Submits forged certificates/documents. f. Tempers with the entries in his/her age and academic certificates or other documents. g. Is found guilty of misconduct during examination/test/interview. h. Fails to observe the instructions issued by the Commission. i. Uses unfair means in the Written rest/Written Examination. j. Is guilty of impersonation at any stage or in any form. k. Is in possession of weapon/arms, mobile phone or electronic device except those permitted at the time of written Examination/Test or Interviews.
1. In addition, the commission may initiate criminal proceedings against any such candidate under the relevant law.
[emphasis supplied] None of the petitioners' have been disqualified nor were they debarred from the examination under Regulation No.25. More importantly, none of them is found guilty under any clause from a to 1 of the Regulation, No.25. under its clause I, criminal proceedings can be initiated, in addition, against a candidate if found guilty. PPSC, in this case, had sent the case to ACE, for investigation, without resorting to its own proceedings to hold the petitioners as guilty. Anti-Corruption Establishment is meant to interrogate in matters relating to corruption within a department and has no authority, under the law to advise for withdrawal of recommendation for recruitment. PPSC cannot blindly act upon such advice, without employing its own procedure under the regulations. Both the advice dated 23.01.2021 by ACE and consequent action of the PPSC, on advice, is therefore, declared without lawful authority.
Regulation 25 disqualifies the candidate or debar him from any examination, whereas, Regulation 26 envisages cancellation of candidature, during the selection process or after sending the recommendations and authorizes to withdraw recommendations, if any of the conditions of eligibility are found deficient. Petitioners' eligibility was not a reason for impugned termination or withdrawal of recommendations, which means petitioners' case does not fall under Regulation 26, which is also reproduced:-
26. If at any stage, i.e., during the process of selection or even after the recommendations have been sent to the concerned Department, a person has been found to be deficient in any of the conditionalities of eligibility, his or her candidature shall be cancelled and recommendations (if sent) withdrawn.
[emphasis supplied] Petitioners' case is claimed, by PPSC, to have been dealt under Regulation 26, which, from bare reading, shows that it deals with "error or omission" in eligibility, result or merit. Regulation 63 is again reproduced to see if it applies to petitioners' case:-
63. If any error or omission is detected in the eligibility of a candidate or result or U list at any stage even after its dispatch to the Departmental concerned, the recommendation(s) made on the basis of such a mistake/error shall be withdrawn for review by the Commission and duly rectified.'
[emphasis supplied] Reason for withdrawal is neither an error or omission, but is an apprehension of using unfair means, which are admittedly not probed or inquired by PPSC, under Regulation 25, to hold candidates guilty. Review by the Commission (PPSC) cannot be a substitute for the probe or inquiry, as required under Regulation 25 to hold a candidate guilty of using unfair means under its clause (i).
The Commission, while passing the order after review, has not given any finding of fact about use of unfair means, but has imply endorsed the recommendation by ACE and that too without identifying mistake or error requiring rectification. The ACE, as Preamble of Punjab Anti-Corruption Establishment Ordinance of 1961 shows, is a special agency, established for investigation of offences relating to corruption by public servants and for holding preliminary inquiry against such servants.
It appears that case was referred to ACE, after a news publication, for identifying the culprits (public servants) in the ranks and files of PPSC, who could be instrumental for any leakage of the question papers, however, the petitioners were made scapegoats, instead. Despite a query, the court was not informed about any action against any employee of PPSC. Even, the advice for withdrawal of recommendations by the ACE is beyond its statutory mandate, therefore, lacks any legal force.
Hence, impugned withdrawal of recommendations for appointment of the petitioners is not covered either under Regulations 26 or 63, therefore, are declared without lawful authority.
10. After holding the withdrawal of recommendations as without lawful authority, the question whether PPSC became functus officio, after implementation of recommendations, becomes an academic exercise, but it would be relevant to have an overview of the judgments on the issue, in backdrop of the facts of this case.
In Dr. Iftikhar Ahmed Baig v. Province of Punjab (2001 YLR 1368) learned Single Bench of. this Court interpreted, the then, Regulation 43 of Punjab Public Service Commission Regulation, 1998, which is pad materia to the existing Regulation 63. The recommendations for appointment against the post of Professor of Education (BS-20) were withdrawn for an error in eligibility, as the recommended candidate did not have six research papers published in a recognized journal. The withdrawal was after issuance of appointment letter, therefore, it was held that a decisive step had been taken, therefore, under the general principle of locus poenitentiae, the Commission was debarred from withdrawing the recommendations. Relevant except from the judgment is reproduced:- "5. Regulation 43 of the. Punjab Public Service Commission Regulations, 1998 reads:-- If an error or omission is detected in the eligibility of a candidate, result or merit list at any stage after its dispatch to the Department concerned, the recommendations (s) made on the basis of such a mistake/error will be corrected on the merits list withdrawn by the commission for review."
6. Regulation empowers the Commission to correct the recommendation on the merit list, which can be withdrawn by the Commission for review after its dispatch to the department concerned. In my judgment this power is available to the Commission only, by the time its recommendation has not been acted upon. If the recommendation has been acted upon, as has happened in this case, both under this Regulation as well as under the general principle of locus poenitentiae, the Commission is debarred from withdrawing_its recommendation. It may be recalled that in this case Commission made its recommendation in favour of the petitioner on 1.10.1998, which recommendation remained under consideration of the department till 16.3.1999, when the post was formally offered to the petitioner. The notification appointing the petitioner to the post was issued on 6.4.1999 and the petitioner assumed the charge of the post on 9.4.1999. From 9.4.1999 till 31.8.2000 the petitioner pert med the duties of the office, apparently to the satisfaction of e department as there is nothing on the record, indicting to the contrary. In-all the reported judgments including the two Supreme Court Judgments relied upon by Mr. Shahzad Shaukat, Advocate it is laid down that power of rescinding is available before decisive step has been taken.
Decisive step in this case was offering of the post and the appointment notification, dated 6.4.1999.
The Commission could have recalled its recommendation before 6.4.1999.
[emphasis supplied] In another judgment by learned Single Bench of this Court Raja Muhammad Ashraf v. Punjab Public Service Commission (2009 PLC (C. S.) 471), the recommendation was withdrawn for a wrong date of birth. Since the recommendation was acted upon, therefore, it was held that a valuable right accrued in favour of the petitioner, invoking the principle of locus poenitentiae.
Peshawar High Court in Muhammad Ismail v. Government of Khyber Pakhtunkhwa and others (2017 PLC (C.S.) Note 82), under similar circumstances held; "2. ....after making its final recommendations vide letter dated 15.01.2015 for appointment of the _petitioner as Principal (BPS-18) in Elementary and Secondary Education Department, the Commission had become functus officio thus having no lawful authority to take any step/action after 15.01.2015 with regard to matter of petitioner's appointment........... "
In Kashif Mustafa Case (2015 PLC (C. S.) 980), relied upon by the petitioners' side, recommendation was made by Federal Public Service Commission (FPSC) for the post of Assistant Director Investigation (BS-17), Which was withdrawn after issuance of appointment letter and joining by the petitioner- The seat was for Azad Jammu and Kashmir, whereas the petitioner was holding domicile of Lahore. Since decisive steps had been taken, therefore, by invoking principle of locus poenitentiae, withdrawal of recommendations and termination letter was held without lawful authority, by declaring that FPSC had become functus officio. Relevant excerpt from the judgment is reproduced:- "7. ....
From the above provisions, it is clear that the functions of the FPSC are limited to conduct tests and take examinations for recruitment of civil service in basic pay scales 16 and above and for advising the President on matters relating to qualifications and method of recruitment. After nominating a candidate for appointment in the service of Pakistan, the role of the FPSC comes to an end. Once the recommendation of the FPSC has been acted upon and a candidate has been notified at his position, the role of the FPSC has concluded. Thereafter the FPSC cannot withdraw its recommendation because the same has been acted upon. At best if it discovers any omission or error in the application, it can bring it to the notice of the competent authority being the appointing authority of that candidate. The FPSC also cannot issue a Notice to an appointed candidate, as to why action should not be taken against him in terms of Instruction No.23 of General Instructions for concealing the material information. It is for the competent authority to take notice of the fact and take action as per law. ...."
A window is kept open in Kashif Mustafa Case, by observing that deficiency in eligibility could be brought into the notice of Competent Authority, which may take action if permissible under the law.
11. This Court is in agreement with the observations in Kashif Mustafa Case and observes that a candidate, if found guilty on probe, under Regulation 25 and his case is sent for criminal proceedings, under Regulation 25(l) and candidate is convicted, the Competent Authority, then, may proceed accordingly, under relevant law, for removal or dismissal.
However, in this Court's opinion, PPSC does not become functus officio, in its stricto sensu, after sending the recommendations for appointment, because Regulations 26 and 63 allow withdrawal of recommendations. Both the regulations are neither read down nor held ultra wires in any of the judgments noted above. Nevertheless, after decisive step of appointment on the recommendations a right is created. Even the right, so created, is not absolute. Principle of locus poenitentiae is found embedded in Section 21 of the General Clauses Act, 1897, which authorizes an authority to amend, add, vary or rescind its order, notification etc. Locus poenitentiae means; "an opportunity to withdraw from a contract or obligation before it is completed" [Merriam Webster Dictionary]. The decisive step, in view of locus poenitentiae principle, would not allow to retain the benefit, if the order, notification or recommendation, so passed, was illegal, void or without lawful authority, as is held in judgment Higher Education, Punjab Civil Secretariat Lahore and Otters v.
Muhammad Imran and others (2019 SCMR 643). Relevant portion is reproduced:- "10. Keeping in view the above deliberation, it is noted that there is a judicial consensus on the issues in hand in terms that; I) The Authority which can pass order is entitled to vary, amend, add to or to rescind the same under section 21 of the General Clauses Act, 1897.
I) The jurisdiction to recall an earlier order is based on the Principle.
III) There is an exception to the principle of locus poenitentiae vesting power in an authority to recall its earlier order: if in pursuance of the order passed by the authority, an aggrieved person takes decisive steps, and changes his position.
III) None can retain e benefits of a withdrawn order, claiming the protection of having taken a decisive step, when the very order passed by the authority is illegal, void or without lawful authority.
In such circumstances, it would not matter, even if decisive steps have been taken by the person in pursuance of the illegal order passed by the authority. However, the pecuniary benefit accrued and already received by a person in pursuance of an illegal order passed by the competent authority cannot be recovered from him unless the benefiting order was obtained by the person through fraud, this representation or concealment of material facts."
12. In light of the answers to the legal proposition, supra, and under the facts and circumstances of this case, PPSC's letter dated 07.04.2021 for withdrawal of recommendations and consequent termination orders, impugned in this and connected petitions, are declared to have been issued/passed without lawful authority, having no legal effect on the appointments of petitioners as Deputy Accountants (BS-16).
The captioned and connected petitions (Annex-A) are allowed.
Annexure-A Sr.No.Case No.
1. W.P.25972 of 2021
2. W.P.26583 of 2021
3. W.P.26970 of 2021
4. W.P.27692 of 2021
5. W.P.28125 of 2021
6. W.P.29154 of 2021
7. W.P.29481 of 2021
8. W.P.31231 of 2021
9. W.P.38342 of 2021
10. W.P.45541 of 2021