The Central Public Service Commission issued what was described as a consolidated advertisement No. 15 of 1971, which was published in Pakistan Times at page 2 on 10-8-1971, for inviting applications for the post of a Deputy Director (Research) Soil Survey Project of Pakistan Food and Agriculture Division Class I. The extract of that advertisement has been filed in the form of Annex. "A" with the writ petition and reads as follows:- "Extract from Central Public Service Commission Con, solidated Advertisement No. 15 of 1971.
Published in Pakistan Times at p. 2 dated 10-8-1971.
250. F. 4/335/71-R.-Deputy Director (Research) Soil Survey Project of Pakistan Food and Agriculture Division Class I Temporary Pay Rs. 750-75-1500. Qualifications (i) Doctorate/1st Class Master's Degree in Soil Science/Agronomy/Chemistry or in Agriculture with Chemistry/Agricultural Chemistry/Soil Science or Agronomy: (it) Five years ex-Darlene in Soil laboratory-work relaxable by to years for 1st Class Master Degree-holders and by three years for Doctorate Degree---holders Age: 25-35 years Relaxable for Governments. Domicile Sind, N.W. F. P., etc. (excluding Karachi).
Women Ineligible'."
2. The petitioner filed an application and the Interviews of the respective candidates were held by the Commission in Lahore on 30-10-1971. No call was issued to the petitioner but of his own he went to the Office of the Commission In Lahore and filed an application (copy Annex. "C") submitting that he also deserved to be called for interview but his name appeared to have been omitted for some reason or the other. In the application he wrote, "I am prepared for the interview just now and awaiting your orders outside. I shall be highly grateful for allowing me a chance to appear before the Commission for interview".
3. This application also brought no fruit and the petitioner was not called for Interview. The Commission compiled its recommendations from the panel of the persons whom it interviewed.
Since the petitioner was ignored by the Commission, he has, therefore, come up in writ petition against the aforesaid proceedings and recommendations of the Commission.
4. As will be evident from the advertisement reproduced above, the age requirement of a candidate was to be between 25-35 years by the last date for filing applications i.e. 7-9-1971. The petitioner, obviously, was outside that range. There was, however a clause in the Advertisement that age-limit was relaxable in cases of Government servants. Learned counsel for the petitioner contends that his client was in Government Service on the relevant data and, therefore, he was eligible to be considered though to relax or not to relax the age was the matter for the authorities concerned. On 7-9-1971, it is a common-ground, the petitioner was a Research Fellow in the Pakistan Council of Scientific and Industrial Research Laboratories, Ferozepur Road. Lahore. Learned counsel contends that this was a Government service and, therefore, the petitioner should have been called for interview. On the other hand, the stand taken by the respondent before me is that employment with the aforesaid Council was not a Government Service and, therefore, the petitioner cannot claim benefit of the same.
5. The point which has thus cropped up is, as to whether the petitioner was on 7-9-1971 In the Government service or not. "Pakistan Council of Scientific and Industrial Research" is a Society registered in Karachi under section 3 of the Societies Registration Act XXI of 1850. It has its one branch in Lahore which is called "Pakistan Council of Scientific and Industrial Research Laboratory, Ferozepur Road, Lahore." The petitioner was a "Research Fellow" in the Lahore Branch of the aforesaid Society. The said Society is a private Society and its employees, obviously, cannot be said to be Government servants. Without intending the law to be exhaustive on the subject, the four criteria which are, generally, applied for finding out as to whether a person is a Civil Servant or not, are:-
(i) Whether the Officer is held during the pleasure of the President or a Governor within the meaning of Article 176 o. The Constitution of 1962?
(ii) Whether the appointment or dismissal is made by the President or a Governor or by a person authorised by the' within the meaning of Article 178(1)?
(i.e) Whether the rules applicable to such service are made by the President or a Governor or by a person authorised by then in this behalf under the Constitution within the meaning of Articles 174 and 178(2)?
(iv) Whether the selection of suitable persons for appoint--ment of persons in service of Pakistan can be made through the Central or Provincial Public Service Commissions under Articles 185 and 186 respectively?
6. If these four criteria are satisfied, a person will be held to hold his office in connection with the affairs of the Centre or a Province and he shall be deemed to be in the service of Pakistan. To carry on the subject a little further in the case of first category, these four criteria are usually satisfied and hence the servants will be deemed to be in the service of Pakistan. However, in the case of second category, the first to criteria are satisfied but the other to are not satisfied, hence they cannot be considered to be in service of Pakistan. An example may be cited of the Chairman of a Municipal Committee who is appointed by the Provincial Government and holds his office during the pleasure of the Provincial Government. At present his appointment is made under the West Pakistan Municipal Committees (Appointment of Members) Rules, 1960, framed tinder sections 6 and 121 of the Municipal Administration Ordinance, 1960, by the Controlling Authority. Although other terms and conditions of service are determined by the Provincial Government under section 10 of the Ordinance, yet ho will not be considered in the service of Pakistan. In the case of the third category, all the four criteria do not apply and the persons shall not be deemed to be in the service of Pakistan although the Government may be exercising considerable control over such a body. It goes without saying that the question whether a particular person is a Civil Servant also depends upon the functions which he performs. Judging the present case in the Tight of the above law, it would be quite clear that the petitioner was not a Civil Servant. The Society under consideration was not a Department of the Government but was only a private Society. The petitioner was not appointed to an office in that Society by the Government. His appointment and dismissal was not in the pleasure of the President or the Governor. His terms and conditions were not regulated by any statutory rules contemplated under Articles 174 and 178(2) of the Late Constitution of 1962, and, as such, he cannot claim for himself the status of a Civil Servant.
7. When confronted with this situation, learned counsel for the petitioner argued that the Government used to pay certain grant to the society and, as such, since the funds of the Society were made in part of the Contributions from the Government (from which the salary or stipend of the petitioner was also paid), therefore, he would be a Civil Servant. Firstly, there is no proof of any Government grant being made to the Society, concerned on the present record. Secondly, assuming with so conceding, even if there be any such grant which was being given by the Government, that would not render the employees of the Society to be employees of the Government. As already mentioned, the registered Society is not a Department of the Government and from that point of view any person who works is connection with the affairs of the society cannot be said to be employed or working in connection with the affairs of the Centre or a Province. If this contention of the learned counsel for the petitioner is accepted then it would render employees of all such like Societies or Anjamuns as Government employees.
8. Reference at this stage may be made to The Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah (PLD 1959 SC (Pak.) 210), Faiz Ahmed v. The Registrar, Co-operative Societies, West Pakistan, Lahore and another (PLD 1962 SC 313) and Zainul Abidin v. Multan Central Co-operative Bank Limited, Multan (PLD 1966 B C 443), where it was held that employees of a Co-operative Bank (which is a Society incorporated under Co-operative Societies Act II of 1912) were not Civil Servants.
Learned counsel for the petitioners argued that these plea cases of a corporate body whereas a Society under the Societies Registration Act XXI of 1860 had no corporate status. Without scrutinizing the legal basis of this submission, this plea would, in my opinion, not improve the case of the petitioner and would rather further weaken it. Moreover, it was not shown to me, with reference to any Statute or precedent that on the basis of the distinction which is sought to be put forward, an employee of such an unincorporated Society or Body would be a Civil Servant. The point raised by the learned counsel for the petitioner has not been advanced beyond the stage of just a plea and, therefore, does not stand established in any legal manner before me. This, however, is not the end of the matter and now I advert to another aspect of the case.
9. Even though the advertisement for inviting applications was issued on 10-8-1971, but it appears that the post in question was created somewhere in 1970 and much the was consume in correspondence between the Government and the Commission in finalizing the qualifications and certain other terms and conditions of the post. Anyhow during the period the matter was in this correspondence stage, the petitioner on 19-1-1971, applied to the Government for appointment on this very post. The Government on 20.7-1971, forwarded his application to the Commission stating that; "till such the as the post is advertised by the Commission and a regular incumbent provided for that post, it is requested that Dr. Munawar Hussain Chaudhary may be considered for ad hoc appointment against this post and approval of the C. P. S. C., communicated at an early date." The matter was not placed before the Commission but was disposed of at Secretary's level, who in his office-noting approved of sending a reply to the Government in the usual stereotype form of the Commission, which was signed and issued by a Deputy Director of the Commission on 6-8-1971, the relevant portion of which reads as follows:- "----------Meanwhile, Central Public Service Commission will have no objection to the ad hoc arrangements made by the Ministry/Division/Department for filling in the post(s) of Deputy Director (Research) in the Soil Survey Project of Pakistan to continue for a period of six months or till the nominees) of the Commission become(s) available whichever is earlier. Essentially, the Central Public Service Commission are not concerned with the person(s) to be appointed on ad hoc basis.
However, both in the interest of the Services and the person(s) to be appointed on ad hoc basis, the Commission would like the Ministry/Division/Department to keep in view the instructions issued vide Commissioner's Memorandum No. F. 2/S/60-R, dated the 31st May 1960 (copy overleaf).
(2) I am also to state that if the ad hoc arrangements are likely to continue beyond six months for want of availability of the Commission's nominee(s), then a further reference to the Commission will be necessary as required under para. 4(b) of the Pakistan Public Service Commission (Consultation by the Governor-General) Regulations, 1953, as amended vide Establishment Division Notification No. 10/3/59-SEII, dated the 19th May 1959, read with Establishment Division Office Memorandum No. 10/3/59-SEII, dated the 10th October 1959.
(3) With reference to para. 2 of your letter cited above, attention is invited to the last to sentences of para. 1 of this letter in view of which Commission's approval of the person to be appointed on ad hoc basis is not necessary."
10. The letter, dated 31-5-1960, referred to in the above reproduced passage reads as follows:- "The undersigned is directed to draw attention to the Establishment Division Notification No. 10/3/59-SII, dated the 19th May 1959, amending regulation 4(b) of the Pakistan Public Service Commission (Consultation by the Governor-- General) Regulations, 1953, and thereby authorising the Ministries/Division to make ad hoc appointments for six months, if the Commission are unable to recommend a candidate within 10 days. In this connection it has been found that in many cases the persons so appointed by the Ministries do not have the qualifications which the Ministries themselves specify when they send requisitions to the Commission for advertisement of the post.
When such ad hoc incumbents of the posts apply to the Commission in response to their advertisement they have to be ruled out by the Commission. The Commission are of the view that this practice of making ad hoc appointments of unqualified persons not only places the Government and the Commission in an embarrassing position but is also not quite fair to the candidate appointed on ad hoc basis.
(2) The Federal Public Service Commission would, therefore, be grateful if the Ministries etc., will kindly see that only those candidates are appointed on ad hoc basis, who possess all the qualifications laid down or proposed to be laid down by the Ministries for the posts concerned."
11. After the receipt of the above reply from the Commis--sion, the Government appointed the petitioner by means of its letter dated 17-9-1971, which reads as follows:- "No. F. 1-4/66-RSS Government of Pakistan Ministry of Agriculture and Works Food and Agriculture Division (Agriculture Wing)
Islamabad, the 17th September 1971.
MEMORANDUM Subject:-Offer of the post of Deputy Director (Research) in Soil Survey Project of Pakistan.
With reference to his application dated the 19th January 1971 for the post of Deputy Director (Research) in Soil Survey Project of Pakistan, Dr. Munawar Hussain Chaudhary, is informed that he has been selected for appointment to the post of Deputy Director (Research) in Soil Survey Project of Pakistan on the following terms and conditions:-
(i) Pay Scale Rs. 750-75-1,000 ;
(ii) Appointment will be purely temporary and on ad hoe basis for a period not exceeding 6 months; (i.e) This appointment will not confer on him any title or claim for permanent retention in Government service;
(iv) His services can be terminated by Government at any, the without assigning any reason of giving 14 days' notice or 14 days' pay in lieu of notice;
(v) He may be required to serve any where in Pakistan ;
(vi) On joining, he will be required to sign an undertaking in the prescribed form which will be supplied by the D. C., S. S. P. B.
(vii) His appointment will be subject to physical fitness certificate by s Civil Surgeon.
If the offer of the appointment, on the above-mentioned terms and conditions is acceptable, he should report for duty immediately but not later than the 30th September 1971, to the Director- General, Soil Survey Project of Pakistan, Lahore. If he fails to join by the specific date, the offer will stand cancelled.
(Sd.)
Nasim Ahmad Khan, Section Officer."
12. The petitioner joined the service on 22-9-1971. It appears that in the meantime he had filed a proper application before the Commission in response to the advertisement herein--before mentioned. He then fired another application under rule 12(D) of the "Recruitment Rules for Soil Survey Technical Posts Class I", which required that "Candidates who joined Government service after sending their applications should also obtain the permission of the Head of the Department concerned and send it to the Commission immediately thereafter." The Government forwarded the aforesaid application of the petitioner along with a teleprinter message dated 22-9-1971, indicating that the petitioner had boon appointed on ad hoc basis on the very post in question and that his age had been relaxed by the Government. A copy of that teleprinter message has been filed in the form of Annex. "B" and reads as follows:- "Teleprinter Message: From Mr. S. Farhat Hussain, Section Officer, Agridiv, Islamabad.
To Mr. I. H. Alvi, Deputy Director, Central Public Service Commission, Karachi.
No. F. 1-4/66-RSS, Dated the 21st October 1971.
Dr. Manawar Hussain Chaudhry has been appointed to the post of Deputy Director (Research), Soil Survey Project, West Wing Directorate, Lahore on ad hoc basis in consultation with the Commission with effect from 22nd September 1971 vide this Ministry's Notification No. F. 1-4/66-RSS dated the 7th October 1971. Copy endorsed to the Commission. The post has now been advertised by the Commission but Dr. Manawar Hussain has not received any Interview call probably due to his being over-aged by about one and a half years. According to Commission's Advertisement the age limit is relaxable for Government servants. Since Dr. Manawar is already a Government Servant, he is entitled to this relaxation. This Ministry agrees to relax his age by one and half years to enable him to appear in interview for this post to be held at Lahore on 30-10-1971.
Please issue the above teleprinter message.
(Sd.)
S. Farhat Hussain, Section Officer(s)
Tel. 21760.
The Incharge, Teleprinter Service, Cabinet Division, Rawalpindi."
13. The case was not placed before the Commission but was dealt with at Secretary's level who in office-noting rejected it on 22-10-1971 and a formal letter was issued by the Deputy Director of the Commission, which reads as follows:- F. 4/335/70-R Dated 28th October 1971.
To Mr. S. Farhat Hussain, Section Officer, Food & Agriculture Divisions, (Agriculture Wing).
Islamabad Subject:-Recruitment to the post of Deputy Director (Research) Soil Survey Project of Pakistan.
Sir, I am directed to refer to your teleprinter message F. 1-4/66: RSS dated the 21st October 1971, on the above subject and to say that Dr. Manawar Hussain Choudhry was overage and was not entitled to relaxation in age as he was not in Government Service on 7-9-1971, i.e., on the last date for receipt of applications. Since Dr. Choudhry was not eligible to apply on the last date for receipt of applications, it is regretted that he cannot be called for interview.
Your obedient servant, (Sd.) I. H. Alvi, Deputy Director, Central Public Service Commission
14. It is for consideration as to whether in the circumstances hereinbefore mentioned the action of the Commission In not calling the petitioner for Interview was justified or not. My view Is that In this respect the Commission has failed to exercise jurisdiction vested in it by law and as I propose to remand the case to the Commission, therefore, I will refrain from giving any express finding of my own on the merits or demerits of the petitioner and will simply point out the reasons as to why a remand in this case is necessary and for that limited purpose will show as to why the petitioner should have been called for interview. These reasons are as follows:-
(a) A recruitment to the post in question has to be made under the "Recruitment Rules for Soil Survey Technical Posts Class published by the Government of Pakistan, Ministry of Agriculture and Works (Food and Agriculture Division) Islamabad Notification No. S.R.O. 1624(K)/69, dated 31-10- 1967. According to rule 13(1) of these Rules, "the candidates for appointment to the posts must be within the age limits as has been shown in the Schedule II to these rules on the last date of receipt of applications mentioned in the advertisement for the Posts issued by the Commission". According to Schedule II, the age limit for the post in hand was, "not exceeding 35 years. Relaxable in case of Government Servants". In rule 16, however, it is laid down that: "Requirements of rules 13(1) and 15 will be relaxable on the recommendations of the Com--mission in very special cases of candidates otherwise highly qualified. Government may in consultation with the Com--mission, modify or waive all or any of the said requirements when an appointment for work of a special nature is to be made and it is not practicable to obtain suitable candidate who fulfils all the requirements of the said Rules".
This will show that even though a person may not be within the age-range mentioned in the Schedule, still the Government has the power to relax it on recommendations of the Public Service Commission in, "very special cases of candidates other--wise highly qualified." Same is the rule laid down in the rules made in connection with the Fundamental Rules in respect of Government Servants, where it is stated that a person whose age excess twenty-five years may not ordinarily be admitted into the pensionable service of the State without the sanction of the Head of the Department. (See Government of Pakistan Ministry of Finance, Compilation of the Fundamental Rules and Supplementary Rules, made by the Governor-General including orders etc, issued by the Central Government, Auditor-General etc., Volume II Appendices and Forms 1st Edition (Re-print)
(1963), page 3 which contains Appendix No. 3 on the subject). The Commission did not apply its mind to all these Rules and did not examine as to whether the petitioner was a person "otherwise highly qualified" and the matter was thrown out by the Secretary merely on a noting of subordinate officials summarily. This tantamount to failure to comprehend and exercise jurisdiction vested in the Commission by law.
(b) The Commission had in its letter dated 6-8-1971 taken up strange triangular positions. Firstly, it was stated that, "meanwhile, Central Public Service Commission will have no objection to the ad hoc arrangement made by the Ministry/Division/Department for filling in the posts) of Deputy Director (Research) in the Soil Survey project of Pakistan to continue for a period of six months or till the nominees of the Commission becomes available whichever is earlier." In the same breath in that very letter, it was written that approval of the Commission was not needed for ad hoc appointments. Still at another place, It was indicated that ad hoc appointees get employments at their own risks and mere ad hoc appointment did not confer any right on them. Be that as it may, the sentence that: "meanwhile, Central Public Service Commission will have no objection to the ad hoc arrangements . . . . . "in spite of the clogs placed here and there in various portions of the letter, dated 6-8-1971, (if if-is to be considered as a letter of the Commission), did show that the Commission had approved the waiving of age-condition vis-a-vis the petitioner (even though for ad hoc appointment). It is for consideration as to how could this recommendation be later on withdrawn, especially, when the Government on its part had already waived the age restriction of the petitioner specifically.
(c) Again, even in the Instructions issued by the Commission, which were to be read alongwith the brief advertisement, it was laid down in Condition No. 8(a) that:-- "The Commission shall consider all applications received and will If necessary interview such candidates as it considers prima facie most suitable for appointment. In each case conditions are relaxable at Commission's discretion in very special cases of candidates otherwise highly qualified."
If read along with other attending material it will show that powers to relax are both in the Government as well as the Commission. To say, therefore, that the age was not relaxable is not a quite correct appreciation of the situation and rejection of the case of the petitioner on that ground simpliciter was without lawful authority. The order passed by the Secretary shows that he and if he purported to at for the Commission as a whole in this respect, which, however, is highly doubtful -- was not aware of the power and discretion vested in the Com--mission In this behalf. Refusal to extend age on merits is one thing but refusal to consider the case at all on the ground that there is no authority, power or jurisdiction to extend age, is another thing. The present case suffers from the infirmity of the second kind which is sufficient to declared the impugned actions and proceedings as having been taken without lawful authority. The Deputy Secretary in his letter, dated 28-10-1971, had written that, "Dr. Munawar Hussain Chaudhary was overage as he was not in Government Service on 7-9-1971, I e., on the last date for receipt of applications. Since Dr. Chaudhary was not eligible to apply on the last date for receipt of applications, it is regretted that he cannot be called for Interview." This shows that the Commission was under a misconception on the point in hard. The point was not whether the petitioner was or was not in Government Service on 7-9-1971, but as to whether in view of the overall circumstances of the case, the qualifica--tions of the petitioner; earlier implied approval of the Com--mission for ad hoc appointment; and earlier relaxation of age by Government, discretion vested In the Commission by Rules and Conditions mentioned in sub-paragraphs (a) and (c) above, the Commission should recommend him or not, both on merits and for relaxation of age. This job obviously could not have been done without assessing the merits of the petitioner inter alia through an interview. The failure of the Commission, therefore to call the petitioner for an interview was without lawful authority, especially, when I have demonstrated that age-relaxation was not dependant merely on being in Government Service on 7-9-1971 but scope for relaxing It otherwise also existed there:
(d) As already indicated, reliance before me has been placed by the learned counsel for the petitioner on rule 12 ibid for the purpose of showing that It contemplates that cases of candidates who joined Government Service after filing applications with the Commission before the closing date for that purpose, can also be considered and recommended by the Commission and that they cannot be summarily thrown out on the ground of ineligibility in the circumstances as were present in the instant case. This rule reads as follows:- "12(a) A candidate must apply to the Commission on such form, on such date and in such manner and pay such fee as the Commission may prescribe.
(b) All Government servants who fulfill the conditions laid down in the rules shall be eligible for appointment if permitted to compete by their Department and offices, and shall be subjected to the provision of the Government Servants' (Application for Services and Posts) Rules, 1966.
Candidates who join Government Service after sending their applications should also obtain the permission of the Head of the Depart--ment concerned and send it to the Commission Immediately thereafter. No Government servant shall be competent to apply for appointment even if otherwise eligible, without the permission in writing of his Department/Office as the case may be, and such permission must accompany the application."
From the side of the respondents it is argued that the aim of the aforesaid rule simply is to lay down that when a person who has applied for a, post before joining Government service, joins Government service afterwards, then he to has to send another application to the Commission through his Department indicating that his Department permits him to compete for the post applied for. It is further suggested that this rule by itself does not clothe a person who was not in Government service by the closing date of filing applications with the status of a Government servant retrospectively on that date, so as to claim relaxation of age on that count. Learned counsel for the petitioner however, submits that leaving aside other cases of general type, the position where the post applied for is the same, to which a candidate has in the meantime has been appointed, though on ad hoc basis, would be different and that in such a situation, permission to compete for that post and express waiver of age-limit in that respect, will give a different colour to the whole matter, inasmuch as, advertisement does not prohibit improvement of the qualifications of a candidate between the closing date and the date of the interview by the Commission. The point is of considerable difficulty and since I am remanding the case to the Commission, it would be for the Commission to construe rule 12, keeping all these aspects in view in accordance with law and I would not like to express views one way or the other so as to effect the jurisdiction of the Commission in that behalf.
(c) For the purpose of calling for interview, as will be evident from the material reproduced above, all that the Com--mission had to consider was, as to whether the petitioner was prima facie most suitable for appointment in comparison with others. Prima facie case, needless to say, is an arguable case and not such a case which in all eventualities must be shown to succeed. In the instant case, the petitioner had filed application in the; he later on improved his status and joined Government service with the approval of the Commission and for that ad hoc appointment his age was impliedly relaxed both by the Government and that Commission. Later on, the Government expressly relaxed his age for regular appointment as welt; the power to relax the age duly vested in the Government and the Commission had to consider whether it would make recommenda--tions in that behalf of not. The sole question, in these circumstances, was of the qualifications of the petitioner on merit which again may have had a great bearing on formulating the recommendations of the Commission in all respects including age etc., when pat in competition with other rival candidates. The failure of the Commission to call the petitioner for interview so as to assess his merits in this context tantamount to failure to exercise jurisdiction and examine whether it was a fit case for recommendation or not, assuming, without conceding, and leaving the pint open that its recommendation was the last word in that respect.
15. The result is that the action of the Commission in not calling, the petitioner for interview is declared to be without lawful authority and of no legal consequence against him. The writ petition is accepted and the Commission is directed to call the petitioner for an interview and deal with his case in such manner as his qualifications and the law and rules on the subject may warrant. There shall be no order as to costs.