' On 14-9-1964, Mushtaq Ahmad joined as Instructor, Government Commercial Training Institute, Bahawalpur. His qualifications are M.A. (Economics), M.A (Urdu) and M.Ed. Technical (Business). He was required to clear competitive test and was to appear for interview. He was successful in both.
2. On 20-10-1964, notification for his appointment was issued. It was a stop-gap arrangement for six months or till the appointment of a person selected by the West Pakistan Public Service Commission. The appointment was extended from time to time. This was in accordance with S&GA Department's letter No. SO.VII-10-561, dated 15-8-1963.
3. While he remained in service, he crossed the efficiency bar w.e.f. 14-9-1970 vide notification, dated 20-10-1971.
4. During his tenure of service, he was given adverse reports for the years 1965 and 1966 which were not communicated to him.
5. In the year 1966, action was taken against the petitioner under the Efficiency and Discipline Rules, 1960, by the Director, Technical Education, as an Authorised Officer. The enquiry was conducted by the Principal, Government Polytechnic Institute. The enquiry concluded in favour of the petitioner.
He was exonerated.
6. According to the Government instructions contained in letter No. S(R)-11-554-9/64, S.O.X.III, dated 14-5-1962, the uncommunicated adverse reports prior to 1968 were to be read with other record of the reported officer. As the petitioner had unblemished record, the two adverse reports were also declared as satisfactory by the Director, Technical Education, Punjab. However, entry to that effect was not made in the reports.
7. On 7-8-1973, Government of the Punjab issued a notification according to which a person holding a gazetted post in the Education Department and who had continuously served since or before 1st September, 1972 and whose appointment to such service or post has not been regularised shall with effect from the date of the notification be deemed to have been appointed regularly to such service or post provided he fulfilled the following two conditions:-
(1) such person possesses the qualifications prescribed for such service or post, as the case may be, such person has, in the opinion of the Punjab Public Service Commission, a satisfactory record of service.
8. In pursuance of the abovementioned notification petitioner's case was submitted to the Public Service Commission. The Commission turned down the case of the petitioner observing thereby that the service record of the petitioner was unsatisfactory. According to the petitioner the basis of this decision/opinion was the adverse reports for the years 1965 and 1966 which, as a matter of fact, had been declared to be satisfactory by the Director, Technical Education, Punjab. As a result of the opinion of the Public Service Commission, the Secretary, Education Department terminated the services of the petitioner vide notification, dated 3-12-1975.
9. The petitioner filed an appeal with the Minister (Education), Punjab, against the decision of the Secretary. The Minister called for comments. On receipt of the comments the Department's notification, dated 3-12-1975 was held in abeyance vide letter, dated 5-1-1976.
10. Fresh comments were called for and the Director, Technical Education, Punjab, in his comments recommended the expunction of un communicated adverse remarks and submitted the case to the Public Service Commission for reconsideration. Nevertheless, the appeal before the Minister was kept pending. While the matter was pending at that stage the petitioner to his utter surprise received intimation that he had been relieved of his duties w.e.f. 31-8-1977.
11. Petitioner filed an appeal against the said order with Martial Law Administrator, Punjab. On appeal, the Martial Law Authorities called for comments from respondent No.
1. Petitioner was verbally informed of the comments. The petitioner filed rejoinder to the comments.
He also prayed that his service record shall also be sent for and perused.
12. The Martial Law Authorities observed that the case of the petitioner deserved to be reconsidered.
13. The Secretary Education instead of sending a proposal as suggested by the Martial Law Authorities submitted the case to the Public Service Commission with the simple observation that the adverse remarks taken into consideration by the Public Service Commission were never communicated to the petitioner. The case was again turned down by the Public Service Commission because the Commission was of the view that no new ground was available for reconsideration.
14. Petitioner again approached the Headquarter Martial Law Administrator Punjab. He submitted that as matter of fact the Secretary Education was required to send a formal proposal to the Public Service Commission which was not done. He simply resubmitted the case and the same was turned down. He prayed that if the case was to be sent to the Public Service Commission, the petitioner should have been reinstated and the case should have then been forwarded through the SGA & I Department as required by the Punjab Rules of Business, 1974. This should have been done after expunction of the adverse remarks as recommended by the Director, Technical Education, Punjab.
15. Thereafter, respondent No. 1 submitted summary of the case of the petitioner dissenting with the advice of the Public Service Commission to the SGA & I Department under Punjab Rules of Business, 1974. Summary was submitted twice to the Governor/Martial Law Administrator Punjab, Lahore, for favour of over-ruling the advice of the Public Service Commission.
16. The Governor/Martial Law Administrator Punjab declined to do so. The petitioner was informed of this vide letter, dated 4-9-1979. The petitioner again approached the Martial Law Administrator Punjab by means of application, dated 5-9-1979, on the ground that the reference/summary submitted by respondent No. 1 did not contain full relevant facts. The Deputy Secretary, Headquarter Martial Law Administrator Punjab thereupon sent for the original summary from respondent No. 1 alongwith the order passed by the Governor of the Punjab.
17. In the meanwhile, Deputy Secretary, Headquarter Martial Law Administrator who was dealing with the case of the petitioner was transferred. His successor sent the case to the Administrative Vigilance Commission. The petitioner was advised to go to the Service Tribunal.
18. Petitioner then preferred an appeal to the Punjab Service Tribunal. It was heard on 27-4-1980 and 8-6-1980. Judgment was reserved. The petitioner came to know of the decision of his appeal on 31-1-1981 when he applied for certified copy of the judgment. The decision was against the petitioner.
19. Against the order of the Service Tribunal, the petitioner filed Petition for Special Leave to Appeal before the Supreme Court of Pakistan which is pending adjudication. Nevertheless, he invoked the Constitution jurisdiction of this Court under Article 199 of the Islamic Republic of Pakistan, and filed the present petition against the Government of Punjab through Secretary, Education Department, Government of Punjab, Lahore; The Director, Technical Education, Punjab, Lahore; The Punjab Public Service Commission through its Secretary and Punjab Service Tribunal, Lahore, through its Registrar. The prayer in this petition is "that the orders/actions passed/taken by the respondents resulting in termination of petitioner's services and relieving him of his duties with effect from 31-8- 1977, be declared illegal, without jurisdiction, void ab initio, without lawful authority and as such of no legal effect."
20. On 22-4-1981, when the petition came up for hearing before me, I called for report and comments from respondent No.
1. Those were submitted. The petition was admitted to regular hearing on 20-5-1981. Learned counsel for the petitioner filed rejoinder to the report.
21. On 22nd June, 1981, the Assistant Advocate-General raised a preliminary objection about the maintainability of this petition on the ground that the petitioner has already challenged the order of the Service Tribunal before the Supreme Court of Pakistan where Petition for Special Leave to Appeal was pending. He, therefore, requested that either this petition be dismissed or it be adjourned sine die till the Petition for Special Leave to appeal is decided by the Supreme Court.
22. On the said date, preliminary arguments were heard on this point. Counsel for the petitioner joined issue and submitted that this fact has been duly disclosed in this petition and the mere fact that his petition for Special Leave to appeal is pending in the Supreme Court did not debar the petitioner from invoking constitutional jurisdiction of this Court. Learned counsel further submitted that the question involved in this petition is different than the matter pending before the Supreme Court of Pakistan.
23. The parties were allowed to argue this point at length at the time of final hearing of the petition.
24. Thereafter, some other development took place. I think it is necessary to refer to that as well. On 6th July, 1981, when the Assistant Advocate-General appeared, he submitted that in case the petitioner was to make a fresh representation to the Secretary Education, his case is likely to be reconsidered and it is quite possible that he may get the relief which he prayed from this Court.
However, the Law Officer submitted that he was not in a position to give any guarantee to the petitioner about his success.
25. On 30-9-1981, case was partly heard. I observed that the petitioner's case deserved to be examined by the Secretary Education himself because injustice had been done to him. Thereafter, the petitioner approached the Secretary Education. The Assistant Advocate-General who appeared number of times after that submitted that the matter was still under consideration. Many adjournments were sought by the learned Law Officer on the ground that the matter was being examined.
26. On 20th October, 1982, I directed the Secretary, Public Service Commission to depute an official well conversant with the facts of the case to appear in Court. On 21st December, 1982, Advocate- General appeared. He submitted that the matter was still under consideration with the Secretary Education. Finally on 16th March, 1983 the Advocate-General submitted that the matter was sent to the Public Service Commission who have stuck to their previous decision. The result being that the petitioner remained from where he started.
27. On 27th April, 1983, Additional Advocate-General appeared alongwith officials from the respondents' offices. He submitted that the matter now stands finally concluded and there is no chance of amicable settlement.
28. On 10th October, 1983, when the case came up before me, I gave option to the parties to file written arguments. Written arguments were submitted on behalf of the petitioner but the Assistant Advocate-General did not file any written arguments. He felt contended with the comments and report submitted in compliance with my order, dated 22nd April, 1981.
29. Learned counsel for the petitioner contended that the case of the petitioner was submitted to the Public Service Commission many times. Nevertheless, on all the occasions the Public Service Commission failed to take the relevant facts into consideration, with the result that the advice of the Public Service Commission stood vitiated and the Commission, as such, acted without lawful authority.
30. Learned counsel then drew my attention to letter No. SO(TE)15-79/78(P-II), dated 18th September, 1982, from the Government of the Punjab, Education Department addressed to the Secretary, Punjab Public Service Commission, Lahore, whereby it is observed as follows:-- "The High Court, Lahore seized of the writ petition of the officer desires to the department to take a final decision observing that some hardship has been caused to the officer who became overall for joining Government service on regular basis after 18 years of ad hoc service. The matter was placed before the Governor/M.L.A. of the Punjab again who was pleased to hold that ad hoc appointments should not be extended and the incumbents so appointed should be relieved on the expiry of the period of ad hoc appointment. He has also held that view of the Commission in regard to re-assessing the suitability of the officer Mr. Mushtaq Ahmad in the light of SGA&I Department's instructions for not considering the adverse remarks prior to 1968 may be sought as we have to give a firm reply to the Court."
31. In this very sequence learned counsel contended that the Public Service Commisssion ignored the relevant rules governing the adverse entries in the A.C.Rs. of the petitioner.
32. Great stress was laid on the fact that adverse entries were of no importance because, in the first instance, those had not been communicated to the petitioner; secondly, by operation of law as well as by a specific order of the Director, Technical Education those stood expunged. It was argued that as such the opinion of the Public Service Commission was not binding on the Government. The respondent No. 1, should have ignored the opinion and decided the case of the petitioner while taking into consideration the period of service put in by him and his service record.
' In support of his contentions, learned counsel relied on Muhammad Zaman Khan v. Government of Punjab etc. 1981 PLC (C.S.) 434 wherein it has been observed as under:-- "In view of there being no unsatisfactory record of service subsisting the Commission acted without lawful authority in recalling its advice and ignoring to take note of its own failing in contributing to the non-communication of the adverse remarks to the petitioner and of the fact that there was nothing left in the record of the petitioner which may be said to be unsatisfactory."
' Another case was cited by the learned counsel for the petitioner. That was of Dr. Umar Ali v. N- W.F.Province and 2 others 1984 PLC (C.S.) 1569 wherein it has been laid down:-- "The functions of the Commission are to conduct tests and examinations for recruitment to such services and posts in connection with the affairs of the province as may be prescribed. Its authority as regards terms and conditions of service of such persons can only be advisory. Consequently, orders made or actions done by the Public Service Commission would not be immune from interference in constitutional jurisdiction if it could be shown that they were made or done without lawful authority and jurisdiction."
' Last of all reliance was placed on Atta Ullah Mehr v. Punjab Government 1983 CLC 2903.
33. A few other grounds were also taken by the learned counsel for the petitioner, like the one that the appeal was still pending with the Minister when his services were terminated and that the case of the petitioner had been dealt with in an indiscriminate manner because a colleague of the petitioner by the name of Muhammad Yaqub Shirazi whose case was at par with the petitioner was retained in service. In that case the Public Service Commission took a different view of the matter. It was also alleged that the termination of the petitioner was contrary to section 10 of the Civil Servants Rules, 1974.
34. For the foregoing submissions learned counsel contended that the order, dated 29-8-1977, whereby the petitioner's services had been terminated, being based on the advice of the Public Service Commission is not tenable. He submitted that as a result of this the petitioner would be deemed to be regularly appointed vide notification, dated 7-8-1973.
35. The learned Assistant Advocate-General who appeared on behalf of the respondents could not advance any effective argument. He half-heartedly contended that as the Public Service Commission's advice is against the petitioner, Government was left with no option but to stick to its previous decision whereby the services of the petitioner had been terminated.
36. I would, first of all, like to deal with the preliminary objection taken by the learned Law Officer with regard to the maintainability of this petition pending decision by the Supreme Court on the Petition for Special Leave to Appeal. This can be disposed of by observing that the objection is without any substance. The matter before the Supreme Court of Pakistan is against the order of Service Tribunal whereby the petitioner's appeal was dismissed. The Service Tribunal was not competent to go into the question whether the Public Service Commission acted in accordance with law in tendering advice to the Government. That is the matter which is exclusively within the scope of judicial review of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan.
37. I now proceed to deal with the merits of this petition.
'So, far as the merits are concerned, I have no hesitation in observing that the petitioner has a very good case. Right from the day he joined service till the time of his termination, he served according to the best of his capacity and ability. He was penalised for no fault of his. The law, the rules and the practice require that the adverse reports must be communicated to the official concerned. This was never done. When the proper occasion came, the officer concerned cleared the petitioner of the adverse reports. So, if at all, there was any stigma that stood completely washed out. I fail to understand what was the other factor which prevailed with the Public Service Commission t repeatedly turn down the case of the petitioner when he was given clearance. Public Service Commission was expected to examine and then re-examine the case of the petitioner with an open mind. They are expected to know what is the legal implication of those adverse remarks/ reports which were never communicated to the official concerned and which stood expunged.
38. I am, therefore, clear in my mind that the advice given by the Public Service Commission was without lawful authority. As held in the case of Dr. Umar Ali v. N.-W.F.Province and two others (supra) their advice is subject to judicial review by this Court in the Constitutional jurisdiction .
39. I, therefore, declare the same to be without lawful authority and as such of no legal effect. As a result of this the notification, dated 29-8-1977 (Annexure 'F' to the writ petition) whereby the petitioner was relieved of his duties w.e.f. 31-8-1977 is also held to be without lawful authority and as such of no legal effect.
The petition is accepted. The petitioner is entitled to the costs of this petition from respondent No. 3.