Nazir Ahmad Kasana petitioner, who is Soil Fertility Officer in Ayub Agricultural Research Institute, Faisalabad, by this writ petition called in question the validity of the order passed by the President of Pakistan, as referred to in Establishment Division's U.O. 15(3)/82-CP, dated 21-3-1984, Overruling the recommendation of respondent No, 3 (Federal Public Service Commission, hereinafter referred to as the Commission) regarding his appointment as Rice Commissioner in respondent No, 2 (Food and Agriculture Division, Government of Pakistan, hereinafter called the Agriculture Division) and prayed for a direction to Agriculture Division as also to respondent No, 1 (Establishment Division, Government of Pakistan, hereinafter referred to as the Establishment Division) for appointing him as Rice Commissioner (Grade-20) in the former.
2. The brief facts leading up to this writ petition are that the Commission, vide its advertisement in Daily 'Pakistan Times', Lahore, dated 15-11-1981, invited applications for filling up the posts of Cotton/Rice/Sugarcane Commissioner in the Agricultural Division. Since the Commission could not find a suitable person for the post of Rice Commissioner, it readvertised the.same in Daily 'Pakistan Times' dated 12-9-1982, but this time too it could not select any suitable candidate for the post which had to be readvertised for the third time in the year, 1983. This time the post was advertised on All Pakistan basis for selection on merits. The petitioner applied for the post and ultimately he was recommended therefor by the Commission vide its letter, dated 13-8-1983. On the basis of these recommendations, the Agriculture Division vide letter, dated 20-9-1983, sent up the case of the petitioner to the Establishment Division for seeking approval of the President of Pakistan to his appointment as Rice Commissioner but the latter, while forwarding the summary to the President, suggested that either the petitioner should be appointed on probation for a specific period and his confirmation should depend upon the successful completion of his probation, or the post should be readvertised with the hope that some younger and brighter person might come forward for the post. Out of these two alternatives, they themselves favoured the second one and the President approved it. It is the validity of this order which has been challenged, inter alia, on the grounds:--
(i) that the established rules and practice have not been followed inasmuch as the reasons for disagreeing with the recommendations of the Commission have not been communicated to it to enable it to justify its recommendations nor the matter has been re-referred to the President for reconsideration;
(ii) that the petitioner acquired right for the appointment to the post of Rice Commissioner on the recommendation of the Commission which has been denied to him arbitrarily;
(iii) that the action of Establishment Division is mala fide because they wanted to accommodate a particular youngster who had gone abroad and might return with requisite qualifications for the post;
(iv) that the recommendations a, the Commission are legally binding on the President;
(v) that the post was advertised thrice and the petitioner turned out to be the only suitable candidate for the post as per recommendation of the Commission; (vi)that the procedure for appointment of an officer as contained in the Rules of Business was not followed; and
(vii) that the representation made by the petitioner was erroneously turned down vide order, dated 24-10-1985.
3. Originally the Agriculture Division and Establishment Division submitted their joint written statement signed by a Deputy Secretary of the former, while the Commission filed its written statement separately, but later, under the directions of this Court, they i,e, both the Divisions have submitted their separate written statements. Establishment Division has also brought on the record the copy of the summary submitted by its Secretary, the note of C.S.O. to the President and the order of the President, dated 17-3-1984.
4. It is an admitted position in the written statements of all the respondents that the post of Rice Commissioner (BPS-20) was advertised by the Commission thrice, first under the Punjab quota, then under Balochistan quota, and finally under merit quota on All Pakistan Basis and on the third occasion, out of 13 candidates, 8 were called for interview and out of them the petitioner obtained the first position. However, it was alleged that on the pursuation of departmental representative, the Commission suggested for downgrading the post from Grade-20 to Grade-19 and recommended for awarding six advance increments to the petitioner subject to the usual conditions, including the one that there was nothing so damaging in his character rolls so as to adversely affect his suitability. It was also conceded that Agriculture Division did not agree with the suggestion of the Commission for downgrading the post and granting six advance increments to the petitioner, and requested it for recommending him for Grade-20 post of Rice Commissioner to which it agreed. Agriculture Division accordingly drew up summary and requested the Establishment Division for obtaining the approval of the President to the appointment of the petitioner as Rice Commissioner (Grade-20) as recommended by the Commission but the President, agreeing with the views of Establishment Division, which was not willing to support the proposal, was pleased to turn down the recommendation of the Commission and directed for the re-advertisement of post for attracting some younger and brighter incumbent. Both the Divisions denied the allegations of mala fides and nonobservance of rules on the subject and asserted that the President was competent to disagree with the recommendation of the Commission on the advice of Establishment Division and he correctly over-ruled the same.
5. The Commission in its comments, apart from relating certain admitted facts (as stated above), took up the position that after selecting the petitioner as a suitable candidate for the post, it first recommended for its down gradation on the persuasion of departmental representative of Agriculture Division but on the receipt of reference from this Division it agreed to the appointment of the petitioner to the concerned post as originally advertised in Grade-20, for which it gave valid reasons. It, however, complained that the procedure for the rejection of its advice, as outlined in Establishment Division O.M. No, 3/3/550-E-VII, dated 4-6-1960, was not followed by both the Divisions and this fact was specifically pointed out to them but nothing was heard from them. It was asserted that the petitioner was recommended for the post due to his better performance in the interview after advertising the post thrice.
6. The learned counsel for the petitioner, during the course of his arguments, has reiterated certain grounds embodied in the writ petition and almost reproduced above and in support of his contention that the President was bound to act upon the recommendation of the Commission and in passing the impugned order he was misled by the Establishment Division on account of their mala fides to accommodate their own "younger and brighter" man, has placed reliance on Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151; Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 and The Punjab Public Service Commission v. Ali Gul Khan and 4 others 1976 SCM R 212.
7. As against various contentions raised on behalf of the petitioner, the main argument of the learned Standing counsel for the Federal Government representing respondents Nos, 1 and 2 was that the President of Pakistan being the appointing authority in relation to a Grade-20 post, like the one in question, in terms of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, was not bound by the recommendations of the Commission for the appointment of the petitioner to the post of Rice commissioner, which were essentially of advisory nature and under section 8 of the Federal Public Service Commission Ordinance, 1977 he chose not to accept the same and rightly overruled them. In his view, the Establishment Division had no mala fides against the petitioner, nor it was interested in any particular, person, nor it did anything unusual in submitting summary to the President and expressing its views on the matter as under the Rules of Business it was bound to do so, nor it was necessary for it to consult the Commission in terms of its OM. No, 3/3/59-E-VII, dated 4-6-1960, before submitting such summary. He also relied on Dr. Habib-ur- Rehman v. West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144.
8. From the controversy between the petitioner and the Establishment Division and difference of opinion amongst the respondents themselves, the following two main questions arise for determination:-
(i) What was the role of Establishment Division in this case and did it play its role justly and lawfully?
(ii) What was the nature of the recommendations of the Commission and to what extent the same were binding on' various authorities, including the President?
9. Now I proceed to consider the first question. It is an admitted position that the post of Rice Commissioner is a Grade-20 post of Agriculture Division and it has been making serious efforts eversince 1981 to fill it up through the Commission which, in turn, has been making consistent endeavours to find out a suitable incumbent therefor. For that purpose the post was advertised thrice and during the third and the final test the petitioner was picked up as the best out of the available candidates. He was; however, not considered fit for Grade-20 post and the Commission, while forwarding its recommendations to the Agriculture Division in its letter, dated 20-6-1983, proposed that the post of Rice Commissioner should be downgraded from Grade-20 to Grade-19 and he should be appointed to the downgraded post with six advance increments. Agriculture Division did not agree with the suggestion of the Commission so far it related to the downgradation of the post and grant of six advance increments and making a back reference, requested it for reconsideration of this aspect of the matter for the reason that the post stood sanctioned in Grade-20 and the petitioner prima facie fulfilled the qualifications prescribed for the post. The Commission accordingly reviewed the matter and vide its letter, dated 11-8-1983, recommended the petitioner for appointment to Grade-20 post of Rice Commissioner, inter alia, for the following reasons:-
(a) The Commission's nominee had been recommended advance increments in Grade-19 i,e, Rs,2,850 p.m. while the minimum of Grade-20- is Rs,2,600 p.m.
(h) the Commission's nominee has been holding Grade-18 post since 12-31970 till today. His present pay is Rs,2,600 p.m.
(c) His two Conferers, Wheat/Sugar Commissioner, have been nominated by the Commission in Grade-20.
(d) This recruitment had already twice failed in the past.
(e) He fulfils the advertised conditions for the Grade-20 post of Rice Commissioner.
The Commission also clarified that it had asked for downgrading the post on the suggestion of Dr. Muhammad Amir, Secretary, Agriculture Research Division, the departmental representative, made during the interviews.
10.It may be mentioned here that the Commission in its earlier letter, dated 20-6-1983, while recommending the petitioner after down-grading the post of Rice Commissioner, in para. 8 thereof, had deserved that:- "The Commission's recommendations are subject to the condition that there was nothing so damaging in the Character Rolls of the candidates in Government Service so as to adversely affect their suitability for the posts. Only such cases may be referred to the Commission for advice where dossiers of the Commission's nominees contain positively adverse remarks."
11. It appears that, like certain other instructions contained in the said letter, those contained in para. 8 ibid were also of general nature, usually forming part of every recommendation for Commission's nominee. Establishment Division taking a cue from the said observations, proceeded to scrutinize the service record of the petitioner and bringing out certain adverse entries in his character rolls, opposed his appointment to Grade-20 post of Rice Commission when an Additional Secretary of Agriculture Division in the summary, dated 20-9-1983, drawn up by him for it, requested for its (Esta.) approval to the petitioner's appointment to the post on the basis of Commission's recommendations. To be a little more precise, an Additional Secretary of the Establishment Division, vide his letter, dated 1-10-1983, addressed to his counterpart in the Agriculture Division, in response to his summary, dated 20-9-1983, observed that:- "Federal Public Service Commission has recommended Ch. Nazir Ahmad Kasana for appointment as Rice Commissioner subject to the condition that there is nothing so damaging in the Character Rolls of the candidate as to adversely affect his suitability for the post. Scrutiny of the Character Rolls of Ch. Nazir Ahmad Kasana reveals that his reports for the years 1959 and 1960 contained adverse remarks. His record from 1970 onwards varies between Good and Average with frequent advisory/adverse remarks in the pen-pictures. In view of his record, Ch. Nazir Ahmad Kasana does not appear to be a suitable choice against such a senior post as Rice Commissioner.
It appears from the letter of FPSC that none of the candidates appearing before the Commission for this post was considered suitable for appointment in Grade-20. As such, the Commission had recommended Ch, Nazir Ahmad Kasana for appointment against a Grade-19 post and the departmental representative had concurred with this recommendation. It was only on the persuasion of the Ministry of Food and Agriculture that the Commission expressed their willingness to the appointment of Ch. Nazir Ahmad Kasana against a Grade-20 post.
We would request for your views on the suitability of this candidate in the light of the position indicated above."
12. In response to the above letter, the Additional Secretary of Agriculture Division in his letter, dated 15-10-1983, explaining the position taken up by the departmental representative in the interviews conducted by the Commission, stated that:-- "The departmental representative, who attended the interviews in the FPSC, reported that the Commission were inclined to select Ch. Nazir Ahmad Kasana as Rice Commissioner, Grade-20, but for his own opposition on the grounds that the officer was working as a Grade-18 officer in the Provincial Government and it would not be desirable to give him a jump to Grade-20. On the basis of the comments given by the departmental representative, the FPSC decided to recommend Ch. Kasana for appointment as Rice Commissioner in Grade-19 with six advance increments. You will kindly also appreciate that this recommendation was made by the Commission because the officer otherwise fulfilled the academic qualifications and experience prescribed for the post and had not the departmental representative opposed they were inclined to recommend him for appointment in Grade-20."
13. He further stated that:-- "We examined the recommendation of the Commission and felt that because the officer had been found suitable for appointment to the post, it would be more appropriate to appoint him to Grade- 20, instead of Grade-19 with six advance increments not only because he would be getting more pay in Grade-19 than the initial start of Grade-20 but also because the importance of the rice crop in the economy of the country did not warrant the downgradation of the post, suggested earlier by the FPSC only and lowering the status would have impaired the ability of the Rice Commissioner to provide a dynamic push to the programmes for maximising the production of this mcrop. It was on these considerations that the FPSC were requested to reconsider the case. In this connection, FPSC's letter, dated 8-10-1983 attached with our summary may kindly be seen."
14. With regard to the certain adverse entries in the service record of the petitioner, he observed that:- "The observations of the Establishment Division concerning the confidential reports of Ch. Kasana are correct. A perusal of the confidential reports would, however, show that the adverse or average entries do not relate to the professional qualities expected of him as Rice Commissioner. The officer fulfils the educational qualifications and experience prescribed for the post of Rice Commissioner, as confirmed by the FPSC, and the deficiencies pointed out in the reports are not in our opinion, likely to affect the performance of his duties in this post. Moreover, the orders, dated 29-1-1983, conveying Government displeasure to him have since been withdrawn by the Provincial Government vide Provincial Agriculture Department's letter No, SOA(B)2-40/77, dated the 25th July, 1983,(copy enclosed). As such we feel that much weightage should not be given to adverse entries which are 22-23 years old and are not likely to influence his performance as Rice Commissioner."
15. Finally he urged that:- We urgently need an officer to monitor the rice crop. Since Ch. Kasana fulfils the educational qualifications and experience and the Commission were earlier willing to nominate him for this post and have, on reconsideration for the reasons stated above, agreed to nominate him for appointment to the Grade-20 post, the Establishment Division are requested kindly to reconsider the proposal and agree to the appointment of Ch. Kasana as Rice Commissioner in BPS-20."
16. There was no further correspondence between the two Divisions until the Agriculture Division on 2-2-1984 drew up Summary for the President in the following terms: "A post of Rice Commissioner (Grade-20) exists in the Food and Agriculture Division. The post was advertised and the Federal Public Service Commission have recommended Ch. Nazir Ahmad Kasana, presently working as Soil Fertility Officer in the Ayub Agricultural Research Institute at Faisalabad, for appointment to the post of Rice Commissioner. The Ministry endorses the recommendation of the Commission.
The following documents pertaining to Ch. Nazir Ahmad Kasana are attached:-
(i) FPSC's letters recommending Ch. Nazir Ahmad Kasana for appointment as Rice Commissioner.
(ii) Application of Ch. Nazir Ahmad Kasana together with its enclosures (in original).
(iii) C.R. Dossier of Ch. Nazir Ahmad Kasana (containing pages 1-136) alongwith his ICP Chart.
(iv) A copy of notified Recruitment Rules for the post.
Approval of the President to the appointment of Ch. Nazir Ahmad Kasana as Rice Commissioner (BPS-20) in this Division is solicited.
Minister for Food, Agriculture and Cooperatives has seen and approved.
Sd/- Secretary, 2-2-1984.
COS to the President through Establishment Division.
17. It appears that on 3-3-1984 Establishment Division, instead of or in addition to forwarding the aforesaid Summary for the President (as this aspect has not been clarified in the comments) forwarded the case to the President in the following terms:- ESTABLISHMENT DIVISION
5. Ch. Nazir Ahmad Kasana, the nominee of the Commission, is presently serving as Soil Fertility Officer, Faisalabad, which is a post in pay scale BPS-18. The Officer's record is somewhat mixed. His reports for the year 1959 and 1960 contained adverse remarks. His performance from 1964 to 1969 has been rated as good but his subsequent record fluctuates between good and average with advisory or adverse remarks now and then. Government's displeasure was conveyed to him in January 1983 for "inefficiency and slackness in introducing relevant record before the Departmental Accounts Committee". The Commission had initially recommended him for appointment in Grade- 19 but later agreed to his appointment in Grade-20 on a reference by the Ministry.
6. Although the Ministry of Food and Agriculture agree with our observations about this officer's record, they have recommended his appointment as they need an officer urgently to monitor the rice crop and he fulfils the educational qualifications and experience.
7. The Establishment Division do not feel in a position to support the appointment of an officer with such record to a senior post two steps higher than his present assignment. This leaves us with the following alternatives:-
(a) Ch. Nazir Ahmad Kasana may be appointed on probation and a special report be obtained on his performance prior to termination of his probationary period; or
(b) the Commission may be asked to re-advertise the post with curtailed length of experience to enable younger and brighter candidates with higher qualifications to apply.
8. The Establishment Division would suggest the adoption of alternative (b) above.
9. President's approval is solicited to the proposal contained in para. 8.
Sd/- Establishment Secretary.
COS to the President 10.Based on his record of service, Ch. Nazir Ahmad Kasana is not fit for a double jump promotion.
The post may be re-advertised by re-adjusting qualifications to create more candidates.
Sd/- COS to the President 15-3-1984.
President
11. Para. 10 above is approved.
Sd/- President.
17-3-1984.
12. The Ministry may be advised to take action as approved by the President. FPSC may also be informed by the Ministry.
Sd/- Establishment Secretary.
18. This decision was conveyed to the Agriculture Division, vide U.O. dated 21-3-1984 and the Commission was informed about the rejection of their recommendations by a letter, dated 4-4- 1984. Having come to know about this decision, the petitioner addressed the appeal, dated 13-4- 1985 to the Commission which in its letter, dated 19-5-1985, addressed to the Agriculture Division, inviting its attention to Establishment Division's 0M3/3/59-E-VII, dated 4-6-1960, pointed out that the procedure laid down therein for the rejection of the advice of the Commission had not been followed. It also forwarded the appeal of the petitioner to the Establishment Division. No one knows what happened to this appeal. However, the petitioner filed this writ petition on 12-4-1986.
19. The above resume embodies in some details the part played by the respondents in petitioner's proposed recruitment to the post of Rice Commissioner in Grade-20 and his ultimate failure. In this process Agriculture Division and the Commission figured directly because the post to be filled in belonged to the former and the selection of its incumbent was the job of the latter. After some controversy between them about the status of the post, both of them eventually agreed that the petitioner should be appointed as a Rice Commissioner in Grade-20 but their joint proposal continued to be opposed, tooth and nail, by the Establishment Division from start to finish and ultimately succeeded in getting the same rejected from the President. Now I proceed to examine as to how far the role played by the Establishment Division in this matter was justified on legal plan?
20. Under the Rules of Business, 1973, the Establishment Division plays a decisive role in most of the service matters. Its powers, duties and functions are more particularly specified in Rule 11 read with Item 12 of Schedule II appended to the aforesaid Rules. Under Rule 11 no Division of the Federal Government, without previous consultation with the Establishment Division, can issue or authorise to issue any order, other than an order in pursuance of any general or special delegation made by it, which involves--
(a) .................
(b) ..............................
(c) initial appointments, other than those made through the Federal Public Service Commission, in the Federal Secretariat and Attached Departments;
(d) ....................................
(e) ................................
(f) the selection of an officer serving in connection with the affairs of a Province for appointment in the Federal Secretariat or an Attached Department, except for appointment in the Intelligence Bureau.
(g) ..........................
(h) .................................
(i) ...................
21. In Item 12 of the Second Schedule appended to the 1973 Rules the Establishment Division in terms of allocation of business of the Federal Secretariat, as contemplated by Rules 3(3) of the said Rules, can inter alia formulate Occupational Groups in public service and regulate all matters of general applicability to such groups including recruitments, verification of character and antecedents, conduct and discipline, terms and conditions of service etc.
22. Under rule 15(g) read with item 5(b) of Schedule V-A of the said Rules, Establishment Division is to submit a case of non-acceptance of the advice of the Commission to the Prime Minister for approval.
23. Judged in the light of possibly relevant portions of rules 11, 15(g) lead with Schedule II and Schedule V-A, ibid one does not fail to find that the case in hand does not fall under any of these provisions. To be a little more precise, rule 11(c) relates to initial appointments, other than those made through the Commission, while rule 11(f) deals with selection of Provincial employees for appointment in Federal Secretariat and Attached Departments. It implies a process other than through initial appointment, i,e, by transfer. So both the clauses are not relevant. The petitioner does not fall under any occupation group, so Schedule II is also not relevant. Likewise, there being no controversy between the Commission and the Administrative Division (Agriculture), the occasion for the rejection of Commission's advice by the Prime Minister/President obviously did not arise, particularly when the scrutiny of petitioner's character rolls was not within the competence of the Establishment Division. So it does not come into picture in this case at any stage and in any capacity and Agriculture Division made a mistake in referring the matter to it. I shall presently show how this reference was misconceived.
24. In this connection Establishment Division, OM No, 3/3/59, dated 4-6-1960, which has heavily been relied upon by the petitioner's counsel as well as by the Commission but has been brushed aside by the learned Standing Counsel, needs to be considered. It is in the following terms:- "Procedure for rejection of the advice of the F.P.S.C.
In supersession of the Cabinet Secretariat (Establishment Branch) Office Memorandum No, 10/3/50-SEII, dated the 13th June, 1950, on the subject of the Convention regarding acceptance of the advice of the Federal Public Service Commission, the Government have been pleased to decide that the advice of the Federal Public Service Commission in a case referred to it, shall be accepted by the Ministry/Division/Department concerned, subject to the provisions of para. 2, below.
(2) Where a referring Ministry, Division or Department disagrees with the advice given, it shall communicate the reasons for disagreement to the Commission, and after the Commission has expressed its further views in the matter, the case will be submitted for decision to the President through the Establishment Division."
Para. 2 thereof contemplates disagreement of referring Ministry, Division or Department with the advice of the Commission and submission of the case to the President for decision through the Establishment Division after providing an opportunity to the Commission to further express its views. In this case, there was eventually no disagreement between the referring Division i,e, Agriculture Division and the Commission and there was no occasion to submit the case to the President for decision through the Establishment Division. The Establishment Division itself created a controversy and aggravated it. It was not competent to create a disagreement, dispute or controversy between itself and referring Division supported by the Commission and then to take the matter to the President, without affording the Commission an opportunity to express its views on the adverse entries in the character rolls of the petitioner, a power or authority which it (Commission) had reserved to itself in para. 8 of its letter, dated 20-6-1983, addressed to the Agriculture Division, recommending the petitioner for the post. Thus the Establishment Division violated its own policy decision contained in the said O.M. by bypassing the Commission unauthorisedly.
25. However, the case was to be submitted to the President for his formal approval to the appointment of the petitioner to the concerned post because under rule 6 of the Civil Service (Appointment, Promotion and Transfer) Rules, 1976, the Prime Minister (President in this case) as at the relevant time there was no office of Prime Minister was the appointing authority for a Grade-20 post and it could be done by the Agriculture Division either directly, or through the Establishment Division if at all rule 11(f) of the Rules of Business, 1973, had any relevancy, though, in my opinion it had none. This being so, if the Establishment Division had not come into picture, it would not have raised the controversy about the suitability of the petitioner to the appointment of the post of Rice Commissioner and there would have been no occasion for the President to turn down the genuine request of Agriculture Division duly supported by the expert advice of the Commission regarding the recruitment of the petitioner.
26. Assuming for the sake of arguments that the reference to the President was to be routed through the Establishment Division, even then there was little justification for it to oppose the proposal of the Agriculture Division duly supported by Commission. It was the Agriculture Division which had been asked by the Commission, vide its letter dated 20-6-1983, in paragraph No, 8 thereof as reproduced above, to scrutinise the character roll of the petitioner and if it found anything positively adverse therein, then to refer back the matter to it (Commission) for its advice, and not the Establishment Division. Nor under the Rules of Business 1973, it had any authority to suo motu scrutinise the service record of the petitioner and to join issues with the Agriculture Division on that account and to ultimately get its genuine request rejected from the President.
27. Before proceeding further, here I may say a few words about the procedure adopted by the Commission about the scrutiny of petitioner's character roll. The Commission, as held by the Honourable Supreme Court in Ali Gul Khan's case 1976 SCMR 212, had the authority and competence to examine the character rolls of in-service candidates to judge their suitability for the post they were competing. In fact, it was a sine qua non for the fair assessment of the fitness of such a candidate for a particular post. Therefore, it was necessary for the Commission to have carefully examined the character rolls of the petitioner itself instead of leaving this important work to be done by the referring Division as it did in para. 8 of its letter, dated 20-6-1983. This delegation, rather abdication of its functions was uncalled for and in fact it was the root cause of this controversy. The Agriculture Division, to which this job of scrutiny was entrusted with a clear direction to refer back the matter for its advice if anything positively adverse was found, did not say anything in that regard, perhaps for the reason that they did not find anything positively adverse.
However, taking a cue from this delegation, the Establishment Division took upon itself, either under some misconception about its authority or for some extraneous reason, the duty of examining the petitioner's A.C.Rs, and after digging out some old adverse entries, entered into correspondence with the Agriculture Division and despite their best efforts to convince them about the innocuousness of those entries, took the matter to the President and got their request turned down, without consulting the Commission which later went on lamenting and even now before this Court continues to protest for having been ignored.
28.Now I take up the question of mala fides of the Establishment Division as agitated by the petitioner. The allegations of the petitioner in the writ petition are that this Division was interested in some 'younger and brighter' favourite of its own for accommodating him against the post of Rice Commissioner and for that reason it went on opposing the appointment of the petitioner to the post from the very inception and ultimately got his nomination rejected from the President by suppressing and distorting certain important facts, and magnifying and highlighting certain unimportant facts. The petitioner and his counsel have not been able to pinpoint any such younger and brighter person but the manner the Establishment Division dealt with this case, gives reasons to believe that the assertions of the petitioner in that respect are not altogether unfounded. This Division itself dug out some old adverse entries from the service record of the petitioner after summoning it from the Provincial Government to judge his suitability for the post, despite the fact that it had never been asked to do so, nor as already indicated, it was within its competence. The service record of the petitioner, particularly the character rolls, should have been summoned, perused and scrutinised in the first instance by the Commission itself to assess his fitness for the job and it should not have delegated its own function to be performed by C someone else but, if at all, for certain reasons it chose to do so, it was for the Agriculture Division to have gone through it and if they found anything positively adverse affecting his suitability for the post, they should have referred the matter back to the Commission which had the authority to decide the matter finally.
29. In any case, it was not done and the Establishment Division, acting suo motu, proceeded to scrutinise the character rolls of the petitioner and bringing out certain adverse entries, triggered off the controversy. As already referred to above, the Agriculture Division tried to convince it that the petitioner was a suitable person for the job and he was acceptable to them and in that context they advanced good reasons to meet all the objections one by one, including those concerning the down-gradation of the post and ultimate retention of its original status, but it (Establishment) did not listen to them, and without affording the Commission the opportunity to state its position about the service record of the petitioner, submitted the case to the President after suppressing certain important facts and magnifying certain unimportant ones. For instance, in its note or summary, dated 3-34984, as reproduced above, it did not fully incorporate the views of Agriculture Division with regard to the adverse entries in the character rolls of the petitioner. In the letter, dated 18-10- 1983, in paragraph No, 4 thereof, the Additional Secretary of Agriculture Division had specifically pointed out that Provincial Government in the Agricultural Department, vide its letter No, SOA(b)-40/77, dated 25-7-1988 (copy enclosed) had withdrawn its displeasure conveyed to the petitioner vide its order, dated 29-1-1983, and even enclosed its copy but the Establishment Division, in the opening paragraph of its note submitted to the President, did not mention this fact, rather, highlighted it as an instance by saying that Government's displeasure was conveyed to him in January, 1983 for "inefficiency and slackness" in introducing relevant record before the "Departmental Accounts Committee". This was an obvious misstatement of facts on the part of the Secretary Establishment. Similarly, an impression was given to the President that the Commission, which had initially recommended for the down-gradation of the post from Grade-20 to Grade-19 and later happened to revise its advice, had done so on the persuasion of respondent No, 2 and not on merits, while this was not the factual position. Agriculture Division had given cogent reasons for not accepting the proposal of the Commission in that respect and the latter had for valid reasons revised its recommendations. Their view point on this aspect should have been embodied in the note but it (Establishment Division) omitted to do so for the reasons best known to it. Likewise, the views of Agriculture Division about the suitability of the petitioner for the job were not incorporated in the note in their true perspective and an impression was given to the President that they were in hurry in recruiting the petitioner in order to monitor the rice crop, merely on the basis of his qualifications and experience. In the end, the Establishment Division, after suggesting two alternatives to the President, hurried to favour the one which suggested rejection of the proposal of the referring Division and, in turn, entailed implied rejection of the recommendation or advice of the Commission as a routine affair. The proposal of the Establishment Division was supported by COS to the President in his note, dated 15-3-1984, mainly on the misconceived notion that the petitioner was getting 'double jump promotion' and the President was pleased to approve the proposal of his COS by simply saying "Para. 10 above is approved".
29. The recommendations of the Commission---A prestigious examining body, having statutory existence, with an exceptionally good record of long experience, impartiality and ability in selecting responsible functionaries for public service of the Federation, could not and should not have been so lightly ignored and rejected even by the President. Despite his discretion under section 8 of the Federal Public Service Commission Ordinance, 1977, and his very high position in the official hierarchy he, as a public functionary of a Muslim State, where, under the ground norm of Shariah now legally enforceable, even a lowest can ask the highest to account for his acts and doings, was under an implied obligation to take an independent and judicious decision after due application of mind, on the case of the petitioner, whose career was involved. More so when the recommendations of the Commission, which are conventionally and traditionally honoured unless there is something glaringly perverse, were at stake. He was not expected to readily accept what was being suggested to him by his COS and the Establishment Division, and had he turned a few pages back, he would not have failed to find that he was being misled. It was not a case of 'double jump promotion', as termed by the C.O.S. at the behest of Establishment Division, because it was not a matter of promotion. It was a clear case of initial recruitment and the petitioner had successfully competed for the post as an ordinary candidate, like others, on the basis of his qualifications and experience, and not on the basis of his past service in the Provincial Agriculture Department. Even a person having a much lower status could successfully compete and could his nomination be rejected merely because he would get manifold jumps? Certainly not. The perusal of service record of the petitioner by the Commission was relevant only to have a glimpse at his past as to how he had been faring previously. It was only an aid to the Commission for forming an opinion. There could be candidates having no previous service record but it did not mean that they were not eligible to compete or they could be ignored only for that reason. In fact, it was the departmental representative in the Commission, who, because of some, extraneous consideration, put the Commission on the wrong track by suggesting down gradation of the post to Grade-19 and grant of six advance increments, without considering the fact that petitioner's financial benefits would exceed than what he would get as a Grade-20 officer. When this incongruity was pointed out to the Commission, it hurriedly retraced its steps and agreed to retain the original status of the post for the petitioner. When the matter reached the Establishment Division, they reopened this chapter on the ground of petitioner's adverse entries and despite frantic efforts of the referring Division to save the situation, got their boat scuttled at the highest level by diverting the course of events into a wrong channel. Their main aim appeared to be that a Grade-18 employee of the Provincial Government should not get a Grade-20 post in Federal Government and they succeeded in their mission.
30. It has been argued that due to paucity of time and heavy pre-occupations the President was not expected to write a detailed order for rejecting the recommendation of the Commission and signification of his approval to the suggestion made by his CSO was enough to satisfy the requirements of the application of his mind. This is true that he had many heavy calls on his precious time but 'uneasy lies the head which wears the crown' and despite all these adds he had to find time for dealing with such like cases in order to take an independent decision, ignoring all what his advisers and aides had suggested, by the due application of his mind and giving valid reasons for the conclusion reached, particularly while rejecting the advice or recommendation of the Commission.
31. It is, therefore, obvious that whatever was being done by the Establishment Division was not in public interest more so when the Commission after persistent efforts spreading over three years had, with great difficulty, found the petitioner as a suitable candidate for the job, having requisite qualifications and experience and who was readily accepted by the concerned Division which was to avail of his services and had been looking for a person for many years. By the act of the Establishment Division the entire work done, energy spent and time consumed by the concerned agencies was wasted and they were again left in lurch to grope in the dark to find out a younger and brighter incumbent and that too after the readjustment of qualifications and experience as directed by the President on the suggestion of CSO. All that was done by the Establishment Division had the semblance of mala fides which in terms of Federation of Pakistan v. Saeed Ahmad Khan and others PLD 1974 SC 151 "literally means `in bad faith' and an action taken in bad faith is usually an action taken maliciously, that is to say, an action done out of personal motive either to hurt a person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purpose not authorised by law under which the action is taken, or action taken in fraud of law is also mala fide". At least what was done by the Establishment Division was not free from bias.
32. In view of the above, in answering the first question I am inclined to hold that in the first instance Establishment Division had no role in this matter and it happened to play a part on account of reference made to it by the Agriculture Division under a mistaken belief that the reference to the President was to be routed through it. But, if at all, it had some role to play in that context, it did not play it justly, either due to lack of proper care and caution, which itself reflected lack of good faith, or for some extraneous consideration, and misleading the President, got the impugned order passed from him which is not sustainable at law. Since there was no difference of opinion between the Agriculture Division and the Commission, in fact, no reference of the kind made by the Establishment Division to the President was necessary and all this was done without lawful authority and with a bias.
33. Now I take up the second question regarding the nature of the recommendations made by the Commission and their binding force on various authorities, including the President.
Federal/Central or Provincial Public Service Commissions were for the first time ushered in the official set up in India as a constitutional body by the Government of India Act, 1935, with a view to induct into public service talented persons on merits and to exclude the possibility of various kinds of favouritism and underhand means employed by diferent pressure groups in that field. In other words, these bodies were to assist the Federal Government and the Provincial Governments in inducting suitable persons into public service for efficiently running the affairs of the State in , various fields. They also had to perform certain advisory functions counselling the Federal and the Provincial Governments in the matters relating to method of recruitment, promotions, transfer and disciplinary action etc. Sections 264 to 268 of the said Act deal with the Public Service Commissions, their composition, powers and functions. In the Constitution of Islamic Republic of Pakistan, 1956, these institutions were not only retained but their status was improved. For instance, the removal of a member of a Public Service Commission from office was made difficult by bringing it at par with that of the Judge of a High Court. Articles 184 to 190 of this Constitution dealt with these institutions. Similarly, in the Constitution of Islamic Republic of Pakistan, 1962, these august bodies, having their own importance, were given due place and their composition, terms and conditions of office, powers and functions and other related matters were embodied in Articles 182 to 190. However, in the Constitution of 1973 the status of these institutions was, for the reasons best known to its framers, lowered or reduced in the sense that under Article 242 thereof they were made statutory bodies instead of Constitutional ones because their very existence, duties, functions were made dependent upon law to be enacted by the appropriate legislatures. In the opinion of a commentator, the use of word 'may' in Article 242 indicated that it was not even necessary to set up Commissions. With all respect to the all concerned, it was a retrograde step, out of tune with the fast progressing world and rapidly developing such like institutions in the democrtatic societies in the advanced countries.
33-A. Anyhow, pursuant to Article 242 of the 1973 Constitution, the President promulgated an Ordinance known as Federal Public Service Commission Ordinance, 1977, setting up a Public Service Commission for the Federation. The Provincial Governments following suit also promulgated Ordinances establishing their respective Public Service Commissions. The said Ordinance, besides spelling out the constitution of the Commission, also provided for the terms of the office of its members and Chairman, duties and functions of the Commission, after leaving certain incidental and ancillary matters to be taken care of by the Regulations to be framed by the President and the rules to be framed by the Federal Government. It is sections 7 and 8 of this Ordinance which are relevant for the purposes of answering the question in hand. Section 7 lays down that the functions of the Commission shall be--
(a) to conduct tests and examinations for the recruitment of persons to all Pakistan service, civil service of the Federation and such posts in connection with the affairs of the Federation as may be prescribed by rules made under section 10; and
(b) to advise the President on matters relating to the qualifications and method for recruitment to the service and posts referred to in clause (a) and any other matter which the President may refer to the Commission. Section 8 provides that where the President does not accept the advice of the Commission, he shall inform the Commission accordingly.
34. These provisions of law leave no room for doubt that the recommendations of the Commission are only advisory in nature and the President, as appointing authority in connection with the post of Rice Commissioner (Grade-20), could reject such recommendations. In Dr. Habib-ur-Rehman's case PLD 1973 SC 144, while interpreting the similar provisions of the 1962 Constitution, the Honourable Supreme Court was pleased to observe that the recommendations of the Commission were of advisory nature and it was open to the appointing authority not to accept them. In this authority the maintainability of writ petition on this point was also doubted but it was also observed "that all statutory bodies and functionaries are under an obligation to act in accordance with the law and relevant rules, and a deliberate or flagrant disregard thereof would render their acts without lawful authority so as to attract the power of judicial review vesting in the superior Courts. Though in view of the provisions of section 8 of Federal Public Service Commission Ordinance, 1977, the President was competent to reject the advice of the Commission but in this case there could be a greater possibility of his not adopting that course if the advice of the Commission and the views of Agriculture Division had been placed before him in their true perspective, more so when the advice of the Commission in view of its status, knowledge, reputation, experience and expertise is generally and conventionally accepted by the Federal Government. It was so directed by the Establishment Division themselves in para. 1 of their O.M.3/3/59-E-VII, dated 4-6-1960, reproduced above. As already discussed, when dealing with the first question, the Establishment Division did not place before the President the views of the Agriculture Division and those of the Commission correctly and while relating to the facts highlighted some of them in such a manner so as to entail the decision in a particular way as they wished. So the President was, to greater extent, misled and for that reason he did not take a decision which he would have taken if true facts had been disclosed to him. This being so, I am inclined to hold that though the recommendations of the Commission are essentially of recommendatory character and legally not binding on the President, yet in view of high status of the body making them, the same cannot be lightly ignored and for rejecting them the President or any other functionary, is bound to give valid reasons therefor, so as to avoid therein the element of arbitrariness and waywardness which vitiate even the most solemn acts of the highest functionaries. The second question is answered accordingly.
35. In view of the above, since the Establishment Division did not act in accordance with law, rather it acted without lawful authority, and while dealing with reference it deflected the course of events in such a manner that the President was ultimately misled to pass an order not sustainable at law, the writ petition is accepted and the impugned order is set aside. As the Commission, while interviewing the petitioner, did not see his character rolls to judge in depth his suitability for the post, it shall examine his service record and, if necessary, may interview him again to seek clarification of any point concerning his service matters. Thereafter it shall send its recommendations to the Agriculture Division which shall submit the case to the appointing authority for passing orders in accordance with law. Establishment Division shall pay a sum of Rs,5,000 to the petitioner as costs of the writ petition.