MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--The appellant has assailed the order of his removal from service, passed on 29-7-1978. The brief history of the case is that Mahmoodul Hassan, appellant was appointed as Tehsil Qazi on ad hoc basis, subject to the recommendations of Public Service Commission, vide No. Admin. 19991-99/75 dated 12-10-1975. He was relieved from the service vide impugned order No. Admin. 16772-79/78, dated 29-7-1978. The appellant appeared before the Public Service Commission but had not been approved by the Public Service Commission, After the, termination of his services, the appellant moved a writ petition, in the High Court on 14-2-1979, which was accepted by the High Court on 13-5-1979. The High Court had stucked down Section 12-A of the Civil Servants Act added to the aforesaid Act, through an Ordinance. The High Court held that the order of termination of the service of petitioner was passed in exercise of the powers, under section 12-A, therefore, the order so passed was ineffective and inoperative and that he should be deemed to have been in service, and entitled to all the emoluments. The Government non-petitioner, in that petition went in appeal, before the Supreme Court of Azad Jammu & Kashmir, with the plea that the High Court of Azad Jammu and Kashmir had no jurisdiction to issue a writ in the matter of terms and conditions of service of a Government servant, nor a law relating to the terms and conditions of service of Government Servant could be challenged before the High Court. The Supreme Court upholding the contention of the Government set aside the order of the High Court. The Court further remarked that the respondent Molvi Mahmoodul Hassan, now appellant, before us could approach the Service Tribunal, for adequate relief, if so desired by him after seeking the remedy before the appropriate departmental authority.
The Supreme Court also condoned the period of time, taken in pursuing the judicial proceedings, from the date of institution of appellant's writ petition, till the announcement of the judgment of the Supreme Court dated 6-6-1983. The appellant moved a review petition, before the Government after the judgment of the Supreme Court, on 22-6-1983. The review petition had not been decided, when the present appeal before Service Tribunal was brought on 4-9-1983. In the present appeal, before us, the counsel for the appellant has challenged the vires of the Ordinance, whereby section 12-A was added in the Civil Servants Act 1976 and prayed that order passed, in exercise of the powers, vesting in the Government. Under the aforesaid provision of law be declared void and the appellant be restored to the service.
2. The counsel for the respondent raised the objection that the appeal was time-barred. In view of the fact that judicial proceedings were also resorted to by the appellant, much after the expiry of the period of limitation, prescribed for appeal before the Tribunal. It was also pleaded by the counsel for the respondent that the law challenged by the appellant was not violative of the constitution, therefore, the appellant is not entitled to any relief. The Additional Advocate-General pleaded that Government was competent to terminate the service of the appellant, independently of the provisions of law, attacked in the appeal.
3. We have heard the arguments for the learned counsel for the parties and perused the record.
We feel that following points need determination: -
(i) Whether the appointment of the appellant was conditional and subject to the recommendations of the Public Service Commission?
(ii) Whether the appeal is time-barred?
(i.e) Whether the appeal has been preferred without waiting for 90 days from the date of submission of review petition?
(iv) Whether action taken by Government in his case of appellant vide impugned order can be justified under the provision of Public Service Ordinance?
(v) Whether the provisions of section 12-A of Azad Jammu & Kashmir Civil Servants Act 1976 are void?
(vi) Whether the limitation can be ignored if the provisions of Section 12-A are declared void?
4. The impugned order was passed on 29-7-1978. The period of limitation, prescribed for the appeal, before the Tribunal was 30 days' from the date of communication of the final order. In case of remedy, being available before any departmental authority, the appellant could avail that remedy and if any decision was not taken by the departmental authority, the appellant after waiting for 90 days, could approach this Tribunal. The appellant did not resort to the appropriate remedy before the authorities, empowered to grant relief under the service laws. He chose to avail of a remedy through writ petition, in the High Court, which was not the proper forum. The writ was instituted on 14-2-1979, which was more than 6 months, after the passing of the impunged order.
The period from the date of institution of writ petition i.e., 14-2-1979 to the date of judgment of Supreme Court i.e., 6-6-1983 is to be excluded in light of the order of Supreme Court but there is no explanation for the period, spent upto 14-2-1979. For a remedy like appeal, every day of delay is to be explained but in the memorandum of appeal, before us, there is no explanation worth the name and it appears that the appellant did not care at all for the period of limitation. In view of the provisions of Section 3, of Limitation Act. Such an, appeal is required too be rejected as being time- barred;
5. The review petition before the Government purports to have been made on 22-6-1983 and appeal before this Tribunal has been instituted on 4-9-1983. No appeal is maintainable before the Tribunal, unless a decision has been taken on the review petition, by the Government or until a period of 90 days has elapsed, since the presentation of review petition, and before the institution of appeal, in this Tribunal. The appeal is thus, not maintainable, in view of section 4, of Service Tribunal Act 1975.
6. The learned counsel for the appellant argued that provisions of section 12-A of Civil Servants Act 1976, are violative of constitution, therefore, an order passed on a void law, is also to be treated as void and that no limitation runs against such an order, for seeking any relief, before any authority. It was contended by Chaudhry Muhammad Hussain, counsel for the appellant that no rule could be framed, derogatory to the K.S.R. In view of the provisions of Article 27. He also argued that the provisions of section 12-A being discriminatory are violative of article 15 of Interim Constitution Act 1974.
7. Before examining the validity of law, we have to consider whether the impugned order could be passed by the Government, in exercise of any other powers, vesting in it. The appointment of the appellant was ordered on 12-10-1975. The order is reproduced below: Through the Public Service Commission Ordinance, it was provided that all appointments to N.P.S.-16 and N.P.S.-17, which were made without recourse to the Public Service Commission between 24th August, 1974 and date of commencement of Public Service Commission Functions Rules 1977, would be referred to the Public Service Commission, for determination of the suitability of the person, so appointed, The relevant provision of Public Service Commission Ordinance promulgated on 20--7-1978 is reproduced below:-- "8-A. --Previous appointments.-- Notwithstanding anything contained in section 7 or any law for the time being in force or an appointment Order.-
(a) all persons recruited without reference to the Commission to the posts prescribed under section 7, at any time between twenty--fourth day of August, 1974 and coming into force of the Public Service Commission (Functions) Rules framed immediately after promulgation of this Ordinance, shall be deemed to be ad hoc appointments and the post held by any such person shall be filled in accordance with the provisions of this Ordinance within such period, not exceeding six months, as may be fixed by the Government by a special or general order;
(b) all recruitments other than those mentioned in clause (a) to the posts prescribed under section 7 at any time between twenty---fourth day of August, 1974 and coming into force of the Public Service Commission (Functions) Rules framed immediately after promulgation of this Ordinance shall be referred to the Commission and if in the opinion of the Commission, a person recruited to any such post, is not fit to hold that post, he may be discharged from service; and
(c) All appointments made by promotion to posts in Grade 16 and 17 at any time between twenty- fourth day of August, 1974 and eighth day of May 1977 shall be referred to the Commission and if in the opinion of the Commission, a person so appointed is not fit to held that post, he may be reverted to the post previously held by him."
8. These provisions were repeated through the successive Ordinances from time to time. Thus, the law was in force on the day, the services of the appellant were terminated. The powers vested in the Government to dispense with the services of the appellant in case he was found unsuitable for the post, by the Public Service Commission. The case of Mr. Mahmoodul Hassan, appellant was referred to the Public Service Commission as required by the Public Service Commission Ordinance. The appointment of Mr. Mahmoodul Hassan was made subject to the C recommendations of Public Service Commission. Thus, unless approved by the Public Service Commission, his services were temporary and could be terminated, if he was not approved by the Commission. We are supported in our view by a recent decision of Supreme Court of Pakistan viz, 1986 SCMR 1583, wherein it has been held at page 1584 as under: "It is not denied that passing of the departmental examination was one of the conditions of service.
Moreover, the probationary period which was initially for two years could be extended either before or after its expiry failing which according to the rules, the service was to be treated 'until further orders'. It is also an admitted position that the probationary period was not extended, therefore, the service of the petitioner as an Inspector was 'until further orders'. The Tribunal while disposing of the contention raised by the petitioner observed as follows:- "No doubt, his probation was not extended within time, nevertheless, this fact does not absolve him from appearing in the departmental examination. In fact, when the order of termination was passed, he, in terms of his appointment order, was serving until further orders. As such, the appellant's services could be terminated at any time."
Learned counsel appearing for the petitioner could not meet the point made in the impugned order. His only contention was that the petitioner could have again appeared for passing the examination. This was for the departmental authority to permit him or withhold permission to do so."
9. The personal file of the appellant was requisitioned. On the file, there is a report from the Director Religious Affairs, dated 31-1-1979. An extract from the report appearing on page 20, of the file is reproduced below:- Another extract, from the comments, made by the Director in respect of a cutting from Daily Nawai Waqt, dated 22-8-1978 is also reproduced below:-
10. Some other material on file, also shows that the case of appellant was referred to the Public Service Commission and he was not declared suitable for the post, and in view of the provisions of Public Service Commission Ordinance, his services were liable to be terminated. The appellant has not challenged the provisions of Public Service Commission Ordinance in his present appeal, nor did he challenge the same, in the writ petition. We are aware that the plea regarding the operation of the provisions of Public Service Commission Ordinance has not been taken, specifically in the written statements, by the respondents but the Service Tribunal is a Court of Law and cannot overlook the provisions of law, like Public Service Commission Ordinance, If some officials of the Department have not supplied the sufficient information to the Additional Advocate-General, for taking this plea, this Tribunal is not precluded from considering the matter. The connivance of some Government officers, cannot limit the powers of the Tribunal and the law, which is on the statute book, is to be taken notice by us. The attention of the learned counsel for the appellant was drawn to the question that whether the service of the appellant could be terminated, under the provisions of Public Service Commission Ordinance on the face of the fact that he failed in the examination, held by the Public Service Commission. The appointment of appellant was conditional and subject to the recommendations of the Commission. Both the learned counsel for the appellant could not furnish proper reply to our observations and were contended with the argument that the impugned order had no reference to the proceeding of the Commission, nor to the aforesaid Ordinance, therefore, the action according to them could not be defended on the basis of the provisions of this Ordinance.
11. The personal file clearly shows that the case of appellant was referred to the Public Service Commission, therefore, we have to give our finding in this case, even in light of the facts, coming to our notice, from the perusal of the file because the Tribunal is essentially a Court of appeal and has to consider all the material before it. An order of subordinate authority can be defended under the provision of Order XLI, Rule 33 of C.P.C. On any ground, even other than that shown by the subordinate authority.
12. It was argued that after expiry of 6 months, from the date of appointment, a person appointed on ad hoc basis is also entitled to show-cause notice. For this authority namely; PLD 1982 (AJ&K)
SC 124 was quoted by the learned counsel for the appellant. We have gone through the aforesaid authority. It deals with a case of revision of a person, who was promoted to a post, in N.P.S.-18 but later on reverted for the lack of qualification, required for the post. The Supreme Court opined that before reversion, he was entitled to issuance of show-cause notice-The provisions of rule 13 of the Azad Jammu and Kashmir Civil Servants (Appointment and Condition of Service) Rules, 1977 were discussed by the Court in that case. The provisions of Public Service Commission Ordinance are quite different in character than the provisions of the aforesaid rules. A person found unsuitable by the Public Service Commission is not entitled to any show-cause notice because the suitability or otherwise was determined after written as well as the oral test. It was attempted to show by placing a photostat copy of a marks sheets on record that the appellant had passed the examination. The said paper is not an authentic document. It does not show that appellant had qualified the examination. Only some marks have been shown. No attempt was made to prove such a document. The photostat paper purports to bear the signature of Abdul Aziz Salaria but it does not show whether the paper was signed by him in his capacity as Vice Chancellor or the Member of Public Service Commission or a report of the Press. This paper bears no date nor it shows that it is a part of record of Public Service Commission. Apart from this, it is also to be kept in view that besides written test, the candidates are also interviewed and result depends on the total marks of the interview as well as the written examination. The perusal of the comments of Director Amuri Dinia negate the assertion that appellant had qualified the examination, held by the Public Service Commission.
13. According to the view expressed in 1986 SCMR 1583, by the Supreme Court of Pakistan (quoted hereinbefore), if an appointment is made subject to passing of any test, the appointment remains an ad hoc, even if the normal ad hoc period of probationary period had expired and service of person, so appointed can be terminated when the result of examination or test comes out. This authority applies on all fours to the present case. Thus, we hold that powers were available to the Government to dispense with the service of the appellant. The absence of reference to such powers in the impugned order and the only reference to the powers under the Civil Servants Act will not lead to the conclusion that no power vested in the Government, for taking the action in the matter of the appellant, which had been taken by it. Consequently, it is held that the order is not void, therefore, the limitation will run in respect of remedy, if sought against such an order. In view of our findings, even if we find that provision of section 12-A are violative of the constitution, it will render no help to the appellant because the appeal is otherwise time-barred.
14. As earlier pointed out, the determination of the validity of the provision of section 12-A does not affect the result of the present appeal, we deem it unnecessary to probe into the vires of the aforesaid provision of law and leave it for consideration in any other case, where it is absolutely necessary. The authorities namely PLD 1979 SC 139 and PLD 1980 (A J & K) SC 5, PLD 1985 (AJ&K)
SC 39 cited by Khawaja Muhammad Saeed, counsel for the appellant, therefore, need not be discussed, because the determination of the point, for which the authorities were cited, has been deferred. Some other authorities namely; PLD 1959 Kar. 1905; PLD 1960 Lah. 422; PLD 1956 Lah. 556 and some citations from the Islamic Jurisprudence, which were cited on 7-8-1976, by the counsel for the appellant, also need no appraisal because these are not relevant to the point in issue. These cases centre round the question of show-cause notice, for which we are of the opinion that it was not necessary after the appellant was put to test by the Public Service Commission.
15. The upshot of the above discussion is that there is no merit in this appeal and it is dismissed but we make no order as to the costs.
A. A. /45-S/Sr. A revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.