S. ABDUL JABBAR KHAN (CHAIRMAN).--Messrs Syed Ijaz Qutab, Raja Abdul Qayyum and Sajjad Ahmad, all ex-Civil Judges, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded, Chief Secretary, Government of the Punjab, Lahore and Secretary, Government of the Punjab Service, General Administration and Information Department, Lahore, as respondents.
2. By virtue of these appeals they have prayed that the impugned order, dated 4-5-1981, passed by respondent No.1 on behalf of the Governor of the Punjab, be set ,aside as illegal and without lawful authority. It has been further prayed that the appellants be re-instated in sevice with all back benefits
3. As the facts as well as law point involved in these cases are identical in nature, we will dispose of these appeals by our this single judgment.
4. Brief facts of the case are that the appellants sat in the competitive examination of P. C. S .
(Judicial Branch) held by the Public Service Commission. All of them qualifies: and were appointed as Civil Judges in the year 1977. All of them joined P. C . S . (Judicial Branch) and served for a period of 4 years at various places. As they had to clear their departmental examination, they cleared the same but failed to secure marks in the higher-standard in one paper of Revenue Laws. Syed Ijaz Qutab failed to secure higher standard by 4 marks, Raja Abdul Qayyum by 6 marks and Sajjad Ahmad by 10 marks. In consequence thereto a notification, dated 4-5-1981, was issued by the order of the Governor of the Punjab, under the signatures of Mr. As:am Hayat Qureshi, the then Secretary (Services. General Administration and Information Department. Lahore in which it was stated that Governor of the Punjab was pleased to terminate the services of these appellants w.e.f. 30-5-1981, 5-5-1981 and 6-5-1981, respectively, under Rule 8.5 of the West Pakistan Civil Service (Judicial Branch) Rules of 1962, on account of their failure to pass examination under Rule 8.4 of the West Pakistan Civil Service (Judicial Branch) Rules, 1962.
5. The appellants aggrieved against this order filed simultaneously representations to the Governor of the Punjab as well as these appeals before this Tribunal. During the course of these appeals before this Tribunal the appellants made a prayer that as their representations are being considered by the department, the judgment in these appeals by this Tribunal be deferred. The case remained pending for a considerable time when ultimately the appellants informed the Tribunal that although the consensus of opinion of Government was overwhelming in their favour yet they have been advised to seek final order from the Tribunal on the legal issues involved in these cases.
6. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by the Representative of the Department and have perused the entire record of this case including the correspondence from time to time, on their representations by the Government.
7. Learned counsel for the appellants have submitted that the impugned order is illegal for the following reasons:-
(1) Rules for Departmental Examination of accepted candidates for the post of Subordinate Judge in the Punjab, are not applicable to the case of the appellants as they have been recruited under the P.C.S. (Judicial Branch) Rules, 1962.
(2) The conditions laid down in the P.C.S. (Judicial Branch) Rules, 1962, nowhere make it obligatory upon the appellants to clear departmental examination in higher standard as this prerequisite is only meant for confirmation and not for successful completion of probationary period.
(3) Even under the Rules, 1933, the appellants are required to clear their departmental examination in 8 chances whereas the appellants have been provided four chances for the said purpose.
(4) The appellants cleared all the papers through departmental examination by higher standard except the one in the Revenue Laws in which they have missed the target only by few marks would in no manner confer powers on the competent authority to terminate their services for good.
8. On the other hand learned District Attorney assisted by the representative of the department has submitted that Government is fully empowered to terminate the services of the appellants in case it is found that they have failed to clear their departmental examination in all the subjects in higher standard which was a condition prerequisite both for their confirmation and remaining in service. It was further submitted that under section 23 of the Punjab Civil Servants Act, 1974, the Rules of 1933, were still alive and could be invoked against the appellants whenever they failed to fulfil the prerequisites.
9. We have given our anxious thought to the arguments so advanced by the parties before us and would first of all refer to the advice of I the Law Department which is on the record on the representations so filed by the appellants before the Governor for the reasons that issue being purely legal the opinion of the department will remove lot of dust from the face of this issue.
10. The history of the cases reveals that on the representations of the appellants the Services, General Administration and Information Department, first of all referred their case to the High Court for comments /recommendations and the High Court Lahore, recommended that the appellants be given one more chance to clear the paper in which they were deficient to achieve the higher standard. After receiving the said recommendations however, the department while dealing with points raised by the appellants came to the conclusion that section 5(3) of the Punjab Civil Servants Act, 1974, only requires the completion of probationary period, passing of prescribed departmental examination and nowhere speaks of a particular standard and the only requirement for completing the probationary period was the satisfactory work and conduct during the said period. On this issue, the Department of Services General Administration and Information, Punjab, was of the opinion that the contentions so raised were forceful and found that there were absolutely no rules which require the passing of departmental examination in higher standard and the only requirement laid down under sub-rule (5) of the West Pakistan P.C.S. (Judicial Branch)
Rules was only to pass the departmental examination. The department was also of the opinion that the rules of departmental examination as framed in 1933, did not carry any reference to the passing of any examination of the higher standard. It was also conceded that according to Rules of 1933, the appellants were entitled to 8 chances and not of 4 chances. With these recommendations the case was referred to the Additional Chief Secretary for his permission to refer this case to the Law Department as well as Regulation Wing of the Services, General Administration and Information Department, for final opinion on the subject. The matter was thrashed by the Law Department as well as Regulation Wing of Services' General Administration and Information Department and it was observed as under:- ---(i) In this case section 5(3) of the P.C.S. Act, 1974, and Rule 7 of the P.C.S. (Appointment and Conditions of Service) Rules, 1974, are applicable. Provision of the W.P. Civil Service (JB) Rules, 1962 are applicable to the extent these are consistent with the provisions of the Act and Rules made thereunder.
(2) In the West Pakistan Civil Service (JB) Rules, 1962, passing of departmental examination has no concern with the successful completion of probation period. The successful completion of probation is totally dependent on the work and conduct of a member of the service and does not speak of passing any departmental examination. However, the successful completion of probation is also a prerequisite for confirmation. The maximum period of probation (original plus extended) has been prescribed in these rules as 4 years but no condition of period has been laid on confirmation and passing of departmental examination. Rather Rule 8(5) ibid leaves it open for prescribing the period and number of attempts by the Government before Government could dispense with the service of an incumbent if he fails to pass a departmental examination. There is no relation in 4 years maximum period of probation as mentioned in Rule 8(3) ibid and the maximum period for passing the departmental examination as mentioned in Rule 8(5) ibid.
(3) Departmental Examination Rules of 1933, were applicable to 'accepted candidates' for the post of sub-Judges and were applicable before they were actually appointed. These rules ceased to be applicable when the old system of nomination by the High Court before actual appointment, was abolished. Thus, it is not correct to say that the 1933 Rules are still operative for the purposes of subsection (3) of section 5 of the P.C.S. Act, 1974 or Rule 8(4) of 1962 Rules.
(4) Provision contained in subsection (3) of section 5 of the P.C.S. Act, 1974, is qualified by the word 'where' occurring in the beginning of the provision. This means that the provision conditional upon the prescription of a departmental examination. In other words the provision is not applicable in case where no departmental examination has been prescribed. In the instant case, the departmental examination Rules, 1933 were not applicable to the appointed candidates and were not the departmental examination Rules visualized by sub-rule (4) of Rule 8 of the 1962 Rules. As such the provision of section 5(3) of the P.C.S. Act 1974, cannot be invoked to deal with the case of a Civil Judge who has already been appointed and who has not qualified the departmental examination according to 1933 Rules.
(5) The termination of service of the Civil Judges concerned under Rule 8(5) of the 1962, Rules is illegal and ineffective.
After the receipt of this combined advice of the law Department as well as Regulation Wing of the Services, General Administration and Information Department, the Additional Chief Secretary, after going through the said advice being the Incharge of the Regulation Wing, sought further advice from the Law Department in order to arrive at some positive conclusion. The Law Department after taking into consideration pros and cons of these cases, re-affirmed their earlier opinion on which they have considered the impugned order as illegal and ineffective. It may be mentioned here that this process took almost about 7 months and the case remained pending with this Tribunal all this time. It was only in 1982, that the Additional Chief Secretary agreed with the opinion of the Law Department as well as Regulation Wing of the Services, General Administration and Information Department and held that it was a case of hardship which was not covered under the Rules, therefore, the same hardship should be removed by putting up a summary for the re-instatement of the appellants to the Chief Secretary, Punjab.
11. We have given our careful attention to the findings of the Law Department as well as of the Regulation Wing of the Services, General Administration and Information Department and have perused the two relevant Rules viz. Departmental Examination Rules of 1933 and Rule 8.5 of the P.C.S. Rules of 1962. The Departmental Examination Rules of 1933 were prescribed vide Home Department Notification No. 2884, dated 1-2-1933. In order to understand the special feature of this case it would be necessary to narrate the procedure of recruitment under the above-mentioned Rules of 1933. Under the Punjab Courts Act, 1918, until it was amended by the Government of Indian (Adaptation of Indian Laws) Order, 1937, Civil Judges were recruited by the Government in consultation with the High Court. When the said Judges were nominated by the High Court to a particular vacancy an approved list of the candidates was maintained. It was incumbent before their actual appointment as a Civil Judge that the said Judge should clear the departmental examination prescribed under Rules of 1933. In case the Civil Judge qualified departmental examination either by higher standard or by lower standard they were appointed as such but were later on required to qualify in higher standard by eight chances. However, we do not find any positive mention of the fact that their failure to do so, would require their termination of services because that they had been appointed once, they had to qualify the departmental examination either in lower or higher standard. However, there would be no dispute that if they have failed to qualify even in lower standard they would not have been appointed as Civil Judges.
12. On the other hand, the examination of Rule 8 of Rules of 1962, which relates to the conditions of service, we find that Rule 8 relates to the procedure of probation. It has been laid down as under:- A person appointed to the service against substantive vacancy shall remain on probation for a period of two year. In sub-rule (2) of Rule 8, it has been observed that if the work and conduct of a member of service during the period of probation has been unsatisfactory Government may, notwithstanding that the period of probation has not expired, dispense with his services. Sub-rule
(3) of Rule 8 relates to completion of period of probation by member of the service. Vide this rule, Government may subject to the provisions of sub-rule (4), confirm him in his appointment, or if his work or conduct has in the opinion of Government, not been satisfactory, dispense with his services; or extend the period of the probation by a period of not exceeding two years in all.
However, sub-rule (4) of Rule 8 speaks that no person shall be confirmed in service unless he successfully completes such training and passes such departmental examination as, may be prescribed by the Government from time to time. Similarly sub-rule (5) of Rule8 also mentions that if the member of service fails to complete successfully any training or departmental examination prescribed under sub-rule (4) within such period or in such number of attempts as may be prescribed by Government, Government may dispense with his services.(underlining is ours)
13. The analysis of Rule 8 and its sub-rules (2), (3), (4) and (5) will make two things crystal clear namely:-
(1) That passing of the departmental examination in higher standard has nowhere been laid down as condition precedent of the person remaining in service.
(2) That the period by which the examination is to be completed, has not been prescribed and same has been left open to the Government to frame Rules in that behalf.
14. In view of the above, we proceed to accept the appeals, set aside the impugned order and direct that the appellants be re-instated in service with all back benefits. However, there will be no order as to costs.
A.E.