Writ Petitions Nos. 442/89, 445/89, 446/89, 447/89, 448/89, 449/89, 450/89, 451/89, 452/89, 453/89, 454/89, 455/89, 456/89, 457/89, 458/89, 459/89, 460/89, 461/89, 462/89, 463/89 and 464/89 are proposed to be disposed of by this single order as the questions raised in all these petitions and reliefs claimed are same.
2. The dispute in these petitions relates to the right of the Public Service Commission to hold competitive examination for the appointments to 36 posts in the Economists Group Planning and Development Division, Government of Pakistan.
3. The facts in these petitions are not disputed. A few uncontested facts are that Sohail Hanif and others, herein the petitioners, are serving as Research Officers, Planning Officers, Survey Officers in BPS 17 in Economists Group in the Planning and Development Division. Government of Pakistan, as- ad hoc appintees till the nominees from the Federal Public Service Commission are made available for appointment by the competent authority. The Federal Public Service Commission (hereinafter referred to as Commission), issued advertisement for receiving applications to judge suitability of the applicants in respect of 36 posts of Research Officers/Planning Officers, Survey Officers in the Department of Planning, hereinafter referred to as posts vide Advertisement No.F IV..
122/87-R. Amongst others, the petitioners have applied to the Commission. The tests are being conducted by the Commission for the purpose of framing its recommendation in respect of suitability of intending candidates. The petitioners lodged a representation before the Commission to the effect that no competitive test was provided in the Rules relating to Appointment Rules 1973.
It was represented that the written tests were not even provided in the instructions issued by the Commission whereby the applications from the intending candidates were called. The Commission rejected the representation and asked the petitioners to participate in the competitive test. Hence these constitutional petitions.
4. Learned counsel for the petitioners in support of the petitions raised the following points:-
(a) It was contended that the petitioners were to be inducted into service within the letter and spirit of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, wherein the method for appointment to a post by initial recruitment in respect of post in the Pay Scale No.17 is provided.
Reliance was placed on rules 3 and 10 of the said Rules. It was contended that rule 10 ibid envisages test and examination which meant he aptitude test and screening and not the written test.
According to him the combined reading of these two rules indicated that the written testswere excluded.
(b) It was suggested that the written tests were even not provided under para 20-A of the instructions issued by the Commission. According to the learned counsel for the petitioners, para 20-A had a statutory force and was mandatory in nature. The Commission had no authority to depart from para. 20-A and hold written test on the basis of a syllabus which was callously made and was beyond any proportion.
(c) Reliance was placed on the Recruitment Rules made by the Ministry of Planning and Development Division wherein the method for appointment in respect of the post is provided in detail but hither too the competitive examination is excluded. Strength was sought from the precedent cases reported as Shahzad Gul and 9 others v. Government of NWFP and another (PLD 1979 Peshawar 224) and Muhammad Zaman Khan v. Government of Punjab and others 1981 PLC
(CS) 434.
(d) It was urged that it was an established principle of interpretation that whenever something was provided in a statute it was to be done in the same manner. Any non-compliance with the condition of the statute amounted to contravent on of the statute rendering the action illegal and invalid on account of having been done without lawful authority. In this respect Umar Draz Cheema v. Nazar Muhammad and others (1980 SCMR 156), Mazhar Hussain v. Province of Punjab (PLD 1985 Lahore 394), Musaddaq Ahad Shah v. Federal Public Service Commission, Karachi (1978 SCMR 197), The Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170) and Abdul Ghaffar v. Azad Government of the State of Jammu and Kashmir and 2 others (1985 CLC 832) were pressed into service.
(e) It was finally contended that the Commission was bound by the previous practice by which the ad-hoc appointees were recommended to be appointed without taking such test. In this respect the example of Mr. Zaka Ullah Baluch was cited.
No other point was raised by the learned counsel for the petitioners: -
5. On the other hand learned Deputy Attorney-General who appeared for the respondents in pursuance of a pre-admission notice supported the action of the Commission. Parawise comments on behalf of the Commission were also furnished wherein the objections were taken to the effect that the Commission had advisory authority. It had to make recommendation in consequence of test in respect of suitability of the candidates for appointment. Till the appointment by the competent authority on the basis of recommendation of Public Service Commission applicants had no right to file any constitutional petition. The learned Deputy Attorney-General submitted that the petitioners were not competent as no applicant had a legal right to insist upon a particular method of assessment for his suitability, therefore, the petitioners had no vested legal right capable of enforcement through the jurisdiction of this Court. It was next contended that the Commission was a statutory authority deriving its powers under the Constitution. Its principal function was to conduct test and examination for recruitment of persons to All-Pakistan Service or the Civil Service of Federation and such posts in connection with the affairs of the Federation as may be prescribed by Rules made under Section 10 of Civil Servants .
(Appointment, Promotion, Transfer) Rules, 1973, reliance was placed upon Government of the Punjab and another v. Sufi Malik Muhammad Sarfraz (PLD 1988 SC 280),
6. I have heard the learned counsel for both the parties at length. The learned Deputy Attorney- General assisted the Court in pursuance of the pre--admission notice and has shown the original file relating to Mr. Baluch and others16 persons against whom the allegation was made that they were appointed otherwise than through test.
7. The questions calling for determination are:-
(i) Whether the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 exclude the right of Commission to hold competitive test in respect of recruitment to the posts?
(ii) Whether the Commission has no right to hold test under the Ordinance?
(i.e) Whether the ad-hoc appointees have any right to be regularized without the process of competitive test?
8. Now I will proceed to determine the first point. Before examining the question in legal perspective, it will be appropriate to mention the relevant applicable laws. The Civil Servants Act 1973 was promulgated to regulate the appointment of persons and provide terms and conditions of service of persons in the service of Pakistan. In exercise of powers conferred under Section 25 of the A Civil Servants Act, the Civil Servants (Appointment, Promotion and Transfer) Rules 1973 were framed by the President of Pakistan.
9. Rules 3 and 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are relevant for the purpose of examination of this controversy. These two rules are as follows:-
3. (1) Appointments to posts shall be made by any of the following methods namely:--
(a) by promotion or transfer in accordance with Part II of these rules; and
(b) by initial appointment in accordance with Part III of these rules.
(2) The methods of appointment and the qualifications and other conditions applicable to a post shall be as laid down by the Ministry of Division concerned in consultation with the Establishment Division.
10.Initial appointment to the All-Pakistan Services, the Civil Services of the Federation and posts in connection with the affairs of the Federation in basic pay scales 16 to 22 and equivalent, except those which, under the Federal Public Service Commission (Functions) Rules, 1978, do not fall within the purview of the Commission, shall be made on the basis of tests and examinations to be conducted by the Commission.
10. A plain reading of rules 3 and 10 ibid indicates two methods of appointment Le (i) appointment by promotion or transfer in accordance with part 11 of the Rules, (ii) by initial appointment in accordance with part III of the B Rules. The rule 10 ibid in an unambiguous manner prescribes that the appointment to the posts carrying basic pay scales 16 to 20 have to be made on the basis of tests and examinations to be conducted by the Commission. The Commission was given powers to perform its duties under the Federal Public Service Commission Ordinance 1977. Under Section 7 the functions of the I Commission are provided which are as follows:--
7. Functions of the Commission.--The functions of the Commission shallbe: (a)to conduct tests and examinations for recruitment of persons, other than officers of the Armed Forces of Pakistan who are appointed to such services or posts on the recommendation of the High Powered Selection Board constituted by the President for the purpose to all Pakistan services, the civil services of the Federation and such posts in connection the affair, of the federations as may be prescribed by rules made under Section 10, and
(b) to advise the President on matters relating to qualifications for, and methods of recruitment, to the services and posts referred to in clause (a), and any other matter which the President may refer to the Commission.
Explanation.--In this section "recruitment" means initial appointment otherwise than by promotion or transfer.
11. Under Section 8 of the Ordinance it was prescribed that where the President does not accept advice of the Commission he shall inform the Commission accordingly.
12. In pursuance of Section 10 of the Ordinance, the Federal Public Service Commission (Functions)
Rules 1978 were framed. In the relevant rule the definition of test is given in sub-clause (f) of rule 2 which is as follows:- Test: includes written examination, interview and viva voce.
13. Rule 3 of the Federal Public Service Commission (Functions) Rules, 1978 is as follows:- The Commission shall conduct tests and examinations for recruitment to civil posts in connection with affairs of the Federation in Basic Pay Scales 16 and above or carrying pay with the maximum of Rs.2,250 and above other than posts--
(a) specified in the Schedule to these Rules;
(b) filled by appointing a person on contract for a specified period not exceeding two years;
(c) filled on ad-hoc basis for a period of six months or less pending recruitment through the Commission Provided that the said period may be extended---
(i) for a further period of six months with the approval of the Commission if requisition for filling the post was sent to the Commission within two months of the filling of the post on ad-hoc basis and the Commission had failed to nominate a candidate; and
(ii) in any other case, by order of the President or person authorised by him in this behalf;
(d) filled by re-employing a retired officer, provided that the re-employment is made for a specified period not exceeding two years in a post not higher than the post in which the person was employed on regular basis before retirement.
13-A.It follows from rules 3 and 10 of the Rules read with section 7 of the Ordinance that appointments to the posts by initial recruitment have to be made by the process of determination of suitability by a very high forum i.e. The Commission. The objective underlying these afore-enoted laws is to induct the persons in service on the basis of merit and competitive efficiency adjudged by a very high forum in order to ensure highest standard in the Services of Pakistan. The interpretation put forth by the learned counsel for the petitioners is completely negative by a bare reading of Section 7-A of the Ordinance and the definition of test given in clause (f) of rule 2 of the Federal Public Service Commission (Functions) Rules, 1978, (hereinafter referred to as functions rules 1978), therefore, according to my view the argument that the petitioners should C be judged for their suitability on the basis of their experience, qualifications and supportive documents without recourse to written test is completely misconceived and is totally contrary to express language of Functions Rules 1978, the Section 7 of the Ordinance and Rules 3 and 10 of the Appointment Rules 1973. Therefore, the argument is repelled. I, therefore, hold that the Public Service Commission is completely justified in insisting that all the intending applicants including the present petitioners must appear in the examination which is being conducted by the Commission.
13-B. There is yet another aspect of the case which needs examination. The petitioners are still ad- hoc appointees, have no legal right per se their ad-hoc appointment to claim regularization of appointment. Under no stretch of circumstances they have a right to claim a specific method of assessm ent as I have noticed earlier that Public Service Commission is a forum of High Value to report in respect of the suitability of intending applicants. It has an advisory jurisdiction. The prerogative of the appointment squarely lies with the competent D authority who has been given the option to differ with the findings of the Commission subject to the condition that it may inform the Commission itself, if it differs within the framework of Section 8. The only prerogative of the Commission is to test the suitability -of the candidate for framing recommendation to competent authority. This question was examined in Dr. Habib-ur-Rehman's v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144). In this case one Dr. Habib-ur-Rehman's challenged the recommendation made by the West Pakistan Public Service Commission and action taken by the Provincial Government for appointment to the post of professor of Surgery. The challenge was based upon the grievance of the petitioner that instructions issued by the Public Service Commission considered at the time of interview were made the basis of recommendation.
As a matter of fact the instructions issued by the Commission at the time of inviting applications must have been considered for the purpose of framing the recommendation. Repelling the argument, the Supreme Court observed as follows:- "While considering the question whether relevant rules/instructions have been infringed in any manner in the matter of assessing the respective merits of the competing candidates, it has to be borne in mind that the reference must be to instructions current at the time the interviews are held by the Public Service Commission. An attempt was made during the course of arguments at the Bar to assert that the instructions applicable should be those which were in force at the time the posts were advertised. This position cannot be accepted, as it is difficult to hold that candidates applying for recruitment by interview have any vested right in the method of assessing their merit.
Accordingly, we intend to examine this aspect of the case with reference to the instructions which were in force at the time the two interviews were held."
13-C. Guided by enunciation of law by the Supreme Court, I am clear in my mind that the petitioners, intending applicants, have no legal right to question the right of Commission in holding examination as a method for judging suitability of the petitioners.
14. Reverting to the next question that only test relating to screening experience and qualifications is concerned, I find no material to support this interpretation. Section 7 of the Ordinance lays emphasis upon the conduct of test F and examination, the definition of test given in the Functions Rules 1978 says "the test includes written examinations interview and viva voce".
15. The definition of test and competitive examination as given in the Black's Law Dictionary (Fifth Edition) is as follows: Test: To bring one to a trial and examination, or to ascertain the truth or the quality or fitness of a thing ....a Criterion, gauge, standard, or norm ....
Competitive civil service examinationExamination which conforms to measure standards which are sufficiently objective to be capable of being challenged and reviewed by other examiners of equal ability and it, experience. Such exam. May be open in which case all may take it or may be promotional in which case only those in service may compete against others in service."
15. A reference to plain reading of Section 7 and rule 2 makes it clear that the Commission has been given the task of judging the suitability of the G intending candidates and emphasis has been placed upon the words "test" and "examination". Very plainly test and examination means the standard or a gauge whereby the intending applicants have to be scrutinized. No interpretation placing curb on the Commission to judge the candidates can be canvassed in the context of insistence upon a specific method of tests. The precedent authorities quoted by the learned counsel for the petitioners are not relevant to the questions involved in these petitions and proceed on distinguishable facts. Despite my finding that the applicants have no right to challenge the right of Commission to hold test, it is necessary to lay down that the Commission is a statutory authority and has to conduct its functions in accordance with the law. If the Commission travels beyond the statutory authority or performs any act which is incontravention of the H laws it is subject to the jurisdiction of this Court under Article 190 of the Constitution of Islamic Republic of Pakistan.
16. For whatever has been stated above, I have come to the conclusion that these petitions are without any merits, therefore, these are dismissed in limine.