' SHAFIUR RAHMAN, J.--- Leave to appeal was granted under Article 212(3) of the Constitution in these appeals to examine, inter alia, the following questions of law of public importance arising therein:- "(a) Whether, Hon'ble Members of the Legislative Assemblies or Ministers act within the powers and jurisdiction to get appointments made to Government offices and posts?
(b) Whether, they cannot 'interfere' with the rights of civil servants?
(c) Whether, they are bound by the procedure prescribed for, the appointment of Government servants?
(d) Whether, in the context of the present case the public representatives can be deemed to have violated the Taw of the land', through the `act/omission of a Government functionary'?
(e) Was the Tribunal correct in expressing the view that the public representatives are required to perform functions other than what they have done in this case?
(f) Whether, their conduct in the present case is 'an example of unnecessary interference in the affairs of the Government functionaries'?
(g) In case the observations and findings by the Tribunal with regard to the removal of Niaz Muhammad respondent are upheld; whether, the Tribunal was competent through the same impugned judgment to restore the order of appointment passed in his favour on 22-8-1987 as it is prima facie tainted with same infirmities which were noticed in the impugned judgment?"
2. The background in which these questions of law have arisen for decision is that in the North- West Frontier Province since 1962 or near about, it had been the practice and the policy to elicit land grants free of cost from individuals, B.D. Members or the village body of land-owners for establishment or extension of the Primary Schools at the cost of Government on the condition that the donor of the land or his nominee was recruited, if there was vacancy or as soon as one became available, as a Class IV employee. This policy or practice was somewhat formalised in a meeting presided over by the Minister few Education on 22:.9-1987. The decisions arrived at this meeting were expressed as hereunder:-- "(1) Every M.P.A. Would give a list of 2 candidates for P.T.C. Training as a special case within a week, keeping in view the merit as far as possible.
(2) Appointments to all categories of posts be made on Illaqawise (MPAs Illaqa) merit.
(3) Trained candidates be appointed on priority.
(4) All the District Education Officers and Sub-Divisional Education Officers be informed to coordinate with the Chairman District Development Advisory Committees and the M.P.As.
(5) The persons who have already been appointed as part-time Chowkidars be regularised.
However, the genuineness of their appointments be ascertained by the M.P.As. Before regularisation. The remaining posts be filled up by the persons who donated land free of cost for the school on the recommendation of the concerned M.P.As.
(6) Transfers and adjustment be made once a year on merit preferably in the month of August/September on completion of tenure and good performance. In this connection all the M.P.As. Would submit their recommendations before 15-10-1987 to the concerned officers of the Education Department.
(7) Upgradation of Government High School, Nowshera Kalan to the Higher Secondary status, Establishment of an Inter College in F.R. Bannu, Starting of Double Shifts in some Colleges, upgradation of Government High Schools, Pattan (Kohistan) Garki Kapura and Baghdada (Mardan) to Higher Secondary status be considered on priority.
(8) Cases for the purchase of land in Urban areas be examined and recommended to the Finance Department for the establishment of Educational Institutions on the recommendations of the Chairmen, District Development Advisory Committees/M.P.As.
(9) Qualification/age be relaxed in cases of far-flung areas like Kala Dhaka etc."
3. Another similar meeting was held on 14-5-1988 which confirmed the minutes of the earlier meeting, noted with satisfaction that 4,004 posts of P.T.C. And 8,877 posts of Chowkidars had been created in the Budget of 198889, existing policy with regard to the appointment of Class-IV employees was continued, and a sub-committee was appointed for examining the Court cases which were pending in respect of implementation of this policy. The Enquiry Committee found that the policy instructions had been violated in a number of cases, corrected the mistake and appointed those deserving appointment under the policy decision. This led to wide spread grievances of those whose services were terminated or so substituted. The Service Tribunal in most of the cases taking the first appointment to be unconditional and by the competent authority held that termination of it without show-cause notice and on the mere ground that it was temporary could not be defended under the service laws applicable, and, therefore, the corrective appointments that were made were set aside.
4. In order to assist the Court on the questions of law of public importance raised in these appeals we had given notice to the learned Attorney-General for Pakistan and the Advocates-General of all the Provinces. They have appeared and made their submissions on these points. We also had the benefit of hearing Mr. Zahoor Azar, the Chairman of the Federal Public Service Commission, Qazi M.
Alimullah, the Principal Secretary to the Prime Minister, Mr. K.M.A. Samdani and Mr. Alamdar Raza, Advocates, on the subject. Mr. Sardar Khan, the Advocate-General N.-W.F.P. Has provided the necessary instructions and the policy documents governing the case.
5. The first point of Constitutional importance not noted in the leave granting order but being the subject-matter of Human Right Case No, 104 of 1992, we took note of it. An interim order has already been passed in it. It requires all the appointing authorities to make the appointment after inviting applications from those eligible, deserving and desirous. It was found in that case that recruitments made without open advertisements were prima facie violative of Fundamental Right 18 and could not he countenanced. We do not want to deal with that ground in these proceedings because it is also the subject-matter of another case before another Bench.
6. What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisements, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitments had to take place. This will, however, not apply to short-term leave vacancies or to contingent employment.
7. As regards the policy of making appointments against land grants, we find that this amounts to, in fact, sale of public office for property. Not only it is against the Constitutional Law applicable to public office but is not conductive to public interest. What could be done within the framework of the law was to create a margin of preference for those who make such grants, other conditions of eligibility and suitability and fitness being equal. We, therefore, overrule this practice prospectively.
8. As regards the allocation of quota of posts to the local M.P.As. Or M.N.As. For recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all arc under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to the Ministers/MNAs/MPAs and appointments made thereunder are all illegal ah initio and have to be held so by all Courts, Tribunals and authorities.
' C.A. No, 228 of 1989
9. In Civil Appeal No, 228 of 1989, a Primary School in village Chuar Khel, Tchsil Lakki Marwat, District Bannu was established in 1963 and the land was donated by B.D. Members. Haji Muhammad, the uncle of Niaz Muhammad (respondent No, 1) was appointed Sweeper therein as a nominee of the donors. He continued in service. In his leave vacancy, on three occasions from 1-9-1985 to 21-12- 1985, 1-2-1986 to 1-5-1986 and 8-3-1987 to 14-3-1987 the respondent Niaz Muhammad was appointed to carry on his duty as a Sweeper. When Haji Muhmammad retired, Munawar Khan (appellant) was appointed by the competent authority on 8-4-1987. This appointment does not appear to suffer from any taint of a quota appointment or an appointment made under the dictates or recommendations of someone but appears to have been made by the competent authority. There is nothing to show that the vacancy was publicised and other eligibles in the locality were considered. This order was set aside and substituted by the competent authority on 22-8-1987 and reads as hereunder:-- "As ordered by the Hon. Education Minister, N.-W.F.P. And instructions issued by the District Education Officer (Male), Bannu regarding the appointment dated 22-6-1987, and ordered by the Hon. Minister for Taxation, Revenue and Excise; N.-W.F.P. Dated 19-8-1987, Mr. Niaz Muhammad son of Noor Muhammad of village Chuhar Khel is hereby appointed as a Sweeper at Government Middle School, Chuhar Khel in place of Munawar Khan whose services are terminated with effect from the date of taking over charge @ Rs,600 p.m. In the BPS-1 (600--13--840) plus usual allowances in the interest of public service."
10. Soon thereafter, on 30-8-1987 another order was passed by the competent authority as hereunder:-- "As ordered by the Hon. Education Minister, N.-W.F.P. Dated 25-8-1987 and ordered by the Hon.
Minister for Taxation, Revenue and Excise, N.-W.F.P. And instructions issued by the District Education Officer (Male), Bannu dated 29-8-1987, the service of Mr. Munawar Khan s/o Qadar Khan of village Chuhar Khel is hereby reinstated w.e.f, the date of taking over charge at Government Middle School, Chuhar Khcl and the order of appointment of Mr. Niaz Muhammad s/o Noor Muhammad Sweeper of village Chuhar Khel issued vide this Office Endst. No, 3285-93, dated 22-8-1987 is hereby terminated."
11. It was this last order which was challenged before the Service Tribunal. The Service Tribunal observed as hereunder:-- "There is a procedure prescribed for the appointment of the Government servants and everybody is to follow the same. In a way the responsibility of the public representatives is greater than others to see that the law of the land is not violated by an act/omission of a Government functionary.
M.P.As. And other public representatives are expected to initiate the developmental programmes, open schools, hospitals, arrange for the supply of water and promote the other social and health facilities etc. The present case is also an example of unnecessary interference in the affairs of the Government functionary. Therefore, we have got no other alternative but to accept the present appeal by setting aside the impugned order dated 30-8-1987 and reinstate the appellant with all back benefits from the date he was dismissed from service. Parties are, however, left to bear their own costs and file be consigned to the record room."
12. The claim made by Niaz Muhammad was based on being a nephew of Haji Muhammad and on the basis of earlier appointment in the leave vacancy of his uncle. Both these grounds are not recognised by law. The last order that was passed in his favour showed that his appointment in the leave vacancy of Haji Muhammad was extended upto 8-3-1987 and that appointment terminated on 9-3-1987. Thereafter, a proper order by the competent authority uninfluenced by anyone was passed in favour of Munawar Khan on 8-4-1987. It was an appointment against a clear vacancy. It was a regular appointment. This appointment had been interfered with subsequently, not at the instance of competent authority but under the orders of the Education Minister and such interference in order was clearly impermissible. In the circumstances, the grounds on which Niaz Muhammad claimed the appointment could not prevail and the appointment of Munawar Khan made against the post could not be set aside.
13. In the circumstances, we accept the appeal set aside the judgment of the Service Tribunal and restore the appointment of Munawar Khan on the post from 8-4-1987. The costs of the proceedings throughout will be borne by the Government as too frequent violations of the law by it is the cause of this avoidable litigation.
' C.A. No, 317 of 1989:
14. Haq Nawaz, the appellant in Civil Appeal No, 317 of 1989 had made a grant of land free of cost for construction of a School in Zair Jano, Lakki, Marwat, Bannu. He also worked as a part-time Chowkidar paid from the contingency till permanent posts of Chowkidars were created under the Budget of 1987-88. Yasin (respondent No, 1) was appointed against this post and in part of paragraph 2 and paragraph 3 of his appeal before the Service Tribunal he stated the manner in which he was appointed. It reads as hereunder:- "The minutes of the meeting dated 22-9-1987 were signed by the Director of Education (Schools)
N.-W.F.P., Peshawar, (Mr. Muhammad Idris Khan) and circulated all over in the N.-W.F.P. By the Director of Education (Schools) N.-W.F.P. Vide his circular letter No, 2575-2680, dated 29-9-1987.
(3) It was in the implementation of the above decision that the appellant was appointed as a regular Chowkidar on the recommendations of the Honourable Minister, then Khan Muhammad Akram Khan, M.P.A., in whose Illaqa the appellant hailed vide respondent No, l's Order No, 4072-78, dated 23-9-1987 Annexure A."
15. Haq Nawaz took the matter to the Civil Court and in terms of the minutes of the meeting an inquiry was held and it was found that even under the policy decision his entitlement to appointment was superior. The Government offered him to reappoint provided he withdrew his civil suit, He did so whereupon a substitutive order of appointment was passed in his favour. In respect of eleven such persons the Inquiry Officer ordered the competent authority to make their appointments in view of the merit of their claim.
16. The Service Tribunal allowed the appeal of Muhammad Yasin taking his appointment to be regular and proper though on its own finding the Tribunal had held that all such appointments made on the dictation of the Members of Provincial Assemblies were illegal. Manifestly the appointment of Muhammad Yasin (respondent No, 1) was illegal, improper, in violation of the rules void ab initio and its setting aside was in accordance with the commitment given to the Court and in recognition of the superior right of the appellant.
17. In the circumstances, the appeal is accepted the judgment of the Service Tribunal is set aside and the order of appointment of Haq Nawaz appellant is restored. The costs of the proceedings will be borne by the respondent No, 2.
' CA. No, 319 of 1989:
18. The appellant claimed to have donated land for a Primary School on 15-9-1982 for which he received the appointment as a part time Chowkidar on 1-6-1986. When in the financial year 1987- 88 permanent posts of Chowkidars were created, the respondent No, 3 Ahmad Khan was appointed a regular Chowkidar on 13-9-1987. The order of appointment of Ahmad Khan terminated the service of the appellant. The appellant represented against it. A civil suit was also filed by him.
The Government, on an inquiry into the matter found that the appointment of Ahmad Khan was against the policy decision and undertook to reappoint the appellant on his withdrawing the civil suit. In accordance with the undertaking by the order dated 20-9-1988, the appointment of the appellant was restored which was successfully challenged by the respondent No, 3 before the Service Tribunal. Hence this appeal.
19. In restoring the respondent No, 3 Ahmad Khan to the post of Chowkidar, the Tribunal did not at all examine the legality of his own appointment before restoring him to office. In paragraph 3 of the Memorandum of appeal filed by Ahmad Khan (respondent No, 3) it was clearly stated as hereunder:- "It was in the implementation of the above decision that the appellant was appointed as a regular Chowkidar on the recommendation of the Honourable Minister, then Khan Muhammad Akram Khan, M.PA., in whose Illaqa the appellant hailed vide respondent No, 1 Order No, 1380-1400, dated 13-9-1987 (Annexure A)?
20. In fact the appointment having been made on the recommendation of M.PA. And falling in the third priority, according to the policy decision itself, could not be allowed to remain intact. The first preference was to donors, the second to the part-time contingent employees and the third came the recommendees. We have already held that this category is not entitled to any protection as it is ab initio void.
21. In the circumstances, this appeal is allowed and the order of the appointment of the appellant on 20-9-1988 is restored subject to our general observations made while dealing with such observations. The judgment of the Service Tribunal is set aside. Respondent No, 2 shall be responsible for costs of the parties to the litigation throughout.
' CA. No, 320 of 1989:
22. Momin Khan, the appellant was a land-owner Who had donated his land free of cost for the purpose of Government Primary School in Jabu Khel, Lakki, District Bannu. He was appointed a part-time Chowkidar paid from the contingency in June, 1987. When the regular posts of Chowkidars were created in the Budget of 1987-88, Ali Khan (respondent No, 3) secured the appointment on the recommendation of Minister then Khan Muhammad Akram Khan, M.PA. As admitted in paragraph 3 of Memorandum of his service appeal. This led to civil litigation and to large scale protest as the policy directives had not been followed in making such appointments.
On 20-9-1988, the appellant was appointed against the post held by the respondent No, 3 (Ali Khan) on the ground that All Khan was neither the donor, nor the part-time Chowkidar to fall in the first two priority categories. This order was successfully challenged by All Khan before the Service Tribunal. The Service Tribunal without noticing that ab initio the appointment of Ali Khan was illegal restored him to office and set aside the order of appointment of Momin Khan. For reasons already given it is Ali Khan who has to yield both according to the policy letter and according to the law laid down on such appointment.
23. In the circumstances, the appeal is allowed,appointment of the appellant in substitution of Ali Khan by order dated 20-9-1988 is upheld, the judgment of the Service Tribunal is set aside. Both the parties shall have costs of the litigation throughout from respondent No, 2.
' No, 321 of 1989:
24. Sardar Khan, the father of the appellant Muhammad Said had donated land for the Primary School in village Abbas Khel Lakki, District Bannu against which Muhammad Said was appointed a part-time Chowkidar on 18-6-1984. When the posts'of permanent Chowkidars were created in the budget of 1987-88, on a telephonic instruction received from a Member of the Provincial Assembly, respondent No, 2 appointed Mir Salam Khan (respondent No, 3) against the vacancy cancelling the appointment of Muhammad Said which was made a few days earlier. On representation filed by the appellant and others similarly affected an inquiry was conducted and it was found that the appointment of Mir Salam Khan was violative of the Government Policy and was in derogation of the prior claim of the appellant. Hence, on 13-9-1987 the appellant was restored to office. This order of restoration of the appellant was successfully challenged by Mir Salam Khan before the Service Tribunal. Hence this appeal.
25. Both under the policy decisions as well as the law laid down by this Court in the matter of making such appointments the appointment of Mir Salam Khan was void ab initio and without lawful authority. Muhammad Said appellant was entitled to be appointed against the vacancy. His appointment could not be disturbed and substituted by that of Mir Salam Khan (respondent No, 3).
26. In the circumstances, the appeal is allowed with costs of both the parties against respondent No,
2. The judgment of the Service Tribunal is set aside. CA. No, 322 of 1989:
27. Haji Nasir Khan, the father of the appellant and his brother made land grant for Government Girls Primary School, Ahmed Khel, Tehsil Lakki, District Bannu in the year 1983. A certificate to the following effect was issued by the Sub-Divisional Education Officer on 8-2-1983:-- "Certified that the land provided to the Education Department, N.W.F.P. For the construction of Government Girls Primary School, Ahmad Khel, Tehsil Lukki Marwat (Bannu) free of cost and with the compromise that if and when the vacancies of Class IV create, it will be filled-up by the Owners (Haji Nasar Khan and his brother Haji Ghulam Sarwar) r/o Ahmad Khel of the abovementioned land.
(Sd.)
(MISS NOOR MOHAL BOKHARY) Sub-Divisional Education Officer, (Female) Lakki Marwat, Distt.
Bannu."
' Station: Lakki Marwat. Dated 8-2-1983.
28. It was followed by part-time appointment as a Chowkidar of the appellant on 4-9-1983. When the post of the Chowkidar was made regular and permanent in the Budget of 1987-88, the respondent No, 3 (Ghulamullah Khan) was appointed against it. The appointment order showed that the appointment was made on the recommendation of the Minister Revenue and Excise which fact was admitted by Ghulamullah Khan in para. 3 of his memorandum of appeal before the Tribunal. On a representation filed by the appellant and others similarly affected, the following findings were recorded:-- "In this office the total number of irregular appointments is 15 out of 10 aggrieved land donors have filed suits in the Civil Courts.
' Appointments against regular chowkidar posts in the following schools have been ordered by the S.D.E.O. (Female), probably under political pressure in total violation of the Government policy on the part-time/contingent paid servants serving in these schools up to 31-8-1987 i.e, immediately before the sanction of regular Chowkidar posts were land donors or in a few cases nominees of the land donors for which prima facie evidence were available on record."
' The list of irregular appointments included the one of Ghulamullah Khan's appointment who is respondent No,3. As a result of this inquiry and in the background of civil suits filed on 20-9-1988, the appointment of Ghulamullah Khan was set aside and the appellant was appointed to that post.
This was successfully challenged by Ghulamullah Khan before the Service Tribunal.
29. It is clear from the discussion of facts that the appointment of Ghulamullah Khan was ab initio void and without lawful authority for it was made neither in accordance with law nor with that of the policy. Hence, Ghulamullah Khan could not be restored to office by unsettling the appointment of the appellant.
30. In the circumstances, the appeal is accepted with costs against respondent No, 2 throughout.
The judgment of the Service Tribunal is set aside.
' C.A.No, 324 of 1989:
31. In recognition of the land grant made by the appellant he was appointed as a part-time Chowkidar in March, 1987. When the posts of permanent Chowkidars were created in the Budget of 1987-88, Shadi Khan (respondent No, 3) was appointed against that post on the recommendation of MPA/Minister. The appellant challenged that appointment by departmental representation and also by civil suit. The inquiry conducted into the matter established that Shadi Khan was neither a donor nor a part-time Chowkidar and the claim of the appellant to the post was superior under the policy decision of the Government. Hence, the appellant was appointed against the post which order was successfully challenged by Shadi Khan before the Service Tribunal.
32. On facts established it is clear that the appointment of the respondent No, 3 (Shadi Khan) was ab initio void and without lawful authority and that of appellant in accordance with law.
33. In the circumstances, the appeal is accepted, the order of the Service Tribunal impugned before us is set aside with costs throughout against respondent No, 2.
' C.A. No, 325 of 1989:
34. The appellant had donated land free of costs in Achu Khel, Tehsil Lakki, District Bannu. He was appointed part-time Chowkidar. On the recommendation of the Minister, respondent No, 3 Afsar Khan was appointed on 11-10-1987. This was challenged departmentally and by civil suit by the appellant. Ultimately the appellant succeeded by order dated 29-9-1988 in getting himself appointed on the post. This order was challenged successfully before the Service Tribunal by Afsar Khan.
35. The appellant being donor of the land and also a part-time employee was entitled to be adjusted against the permanent vacancy. Besides, the appointment of the respondent No, 3 against that post was void and without lawful authority having been made clearly and admittedly under the dictates of the Minister/MPA.
36. In the circumstances, the appeal is accepted with costs throughout against the respondent No, 1 and the judgment of the Service Tribunal is set aside and the appointment of the appellant is restored.
' C.A. No, 14 of 1991:
37. The appellant Badshah Khan had donated a piece of land for the Primary School in his village in Dir District. It measured 60 x 120 feet. He was appointed to look after the school building of Manai Tangi without pay till a post was created. When the post was in fact created, respondent No, 1 (Khanzada) was appointed as a Chowkidar vide order dated 14-5-1988. This order was kept in abeyance by another order passed on 16-10-1988. Subsequently on 3-7-1989, the appellant was reappointed on the basis of the donation of land and his prior appointment. The matter' was challenged by respondent No, 1 successfully in the Service Tribunal.
38. In his Memorandum of Appeal before the Tribunal Khanzada claimed to be resident of Manai Tangi, Tehsil Adinzai, District Dir and also claimed to have donated land for the construction of Primary School in the said village. It was his claim that in recognition of that right he had been appointed against that post. A similar right was claimed by the appellant. But, it appears that land was granted by Badshah Khan on 1-7-1987 prior to his appointment. The one made by Khanzada was on 2-4-1989 when he on the same day had received a gift of land from certain other owners. It is, therefore, clear that according to the policy quoted above, the appellant had a prior and preferential claim over Khanzada. On the principle enunciated above Badshah Khan was entitled to be appointed.
39. In the circumstances, the appeal of Badshah Khan is accepted,the judgment of the Service Tribunal is set aside and his reappointment order dated 3-7-1989 is restored with costs against respondents Nos. 1 and 2.
' CA. No, 31-P of 1990
40. The appellant claims to have made a land grant for the Primary School in village Pingal, Tehsil Timergara, District Dir whereupon he was promised appointment as a Chowkidar and in the interregnum Dost Muhammad was already holding this appointment vide order dated 23-10-1987.
On subsequent detection of this fact Dost Muhammad's appointment- was cancelled on 3-1-1988 and that of the appellant made against the regular vacancy. This brought Dost Muhammad before the Service Tribunal and the order of the appointment of the appellant was set aside.
41. Though the formal agreement to transfer the land was executed by the appellant on 2-1-1988, it appears that orally the land had been granted earlier and the construction raised thereon.
However, this is controversy of fact which had not been looked into by the Service Tribunal.
Following the principles of policy whereunder the recommendees of the Ministers and those getting fresh appointments in preference to those who make the land grants have to yield, this appeal must succeed.
42. Hence, this appeal is accepted. The judgment of the Service Tribunal is set aside and the appointment of the appellant in lieu of land grant is restored with costs throughout against respondent No, 2.
…and 3 more citing cases