1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 10-7-1997, whereby the writ petition filed by respondent No,1 was accepted.
2. The brief facts giving rise to the present appeal are that the Public Service Commission advertised the post of Deputy Director Youth for making selection to fill in the same. The qualification prescribed for the post was Master's degree second class, Law Graduate with five years' experience in a Government or Semi-Government Organization. Muhammad Ishaque, appellant herein, along with some others, applied for selection in response to the aforesaid advertisement. After necessary proceedings, the Public Service Commission placed the appellant, herein, at serial No,1 whereas Khurshid Aziz, respondent No,1, was placed at serial No,2 in the merit list. Khurshid Aziz, respondent, filed a writ petition in the High Court contending that the Public Service Commission without any legal justification did not count the marks awarded to him by the Subject Specialist while preparing the merit list and, thus, he was adversely affected. After necessary proceedings, the High Court accepted the writ petition filed by respondent No,1 and issued a writ of mandamus to the Public Service Commission to add the marks awarded to respondent No,1 by the Subject Specialist to his total marks. The case of the appellant and the Public Service Commission before the High Court was that as the Master Degree holders in various subjects had applied for selection, the specialists for all the candidates were not available, besides, the available specialists adopted different criterion for awarding marks and some of the candidates could not be considered by any specialists at all due to their non-availability. Thus, for facilitating the equal opportunity for competition, the Commission had unanimously decided not to include the marks awarded by the specialists to some of the candidates. It was further contended by the said respondents that it is not obligatory under the relevant rules for the Public Service Commission to associate a Subject Specialist, rather it is discretionary with the Public Service Commission to seek the assistance of a specialist or not. Thus, it was contended that no violation of the rules was committed justifying interference in exercise of writ jurisdiction.
3. We have heard the arguments and gone through the file. The learned counsel for the appellant, Ch. Muhammad Ibrahim Zia, Advocate, has strenuously argued that under sub-rule (3) of rule 10 of the Public Service Commission Procedure Rules, 1994, (hereinafter shall be called as the rules) the question of association of Subject Specialists is a discretionary matter with the Public Service Commission and, thus, no violation of any rules has been committed by excluding the marks awarded to the respondent. He has further argued that in the instant case the appellant was Post- Graduate in Commerce for which there was no Subject Specialist available at all; similarly, the specialists for some other candidates were also not available. Besides, the criteria for awarding marks by the Subject Specialists, who were present, was so inconsistent that the Public Service Commission rightly decided to exclude the marks given by the available specialists so as to meet the contingency of equal treatment to all the concerned candidates. The learned counsel has drawn our attention to the operative part of the judgment of the High Court and has contended that the judgment in self-contradictory, because it is based on different criterion. He has further maintained that he particularly took the stand before the High Court that Subject Specialist is Commerce, in which the appellant was degree holder, was not available at all and, thus, he was not awarded any marks but the High Court did not give any finding as to whether any Subject Specialist in Commerce was present at the relevant time and awarded marks to the appellant, herein, or not. He has argued that he has taken the said point in this Court and has also filed an affidavit to that effect. The learned counsel has further argued that on the one hand the High Court issued direction to the Public Service Commission to count the marks awarded by the Subject Specialist to respondent No,1 but on the other hand the High Court has observed that as there was no special qualification for filling in the post in question and different candidates had Master Degrees in different subjects, it was not possible to test them by one person; or to test the capability of the candidates by an experienced officer of the department. The learned counsel for the appellant has also contended that it was for the aforesaid reasons that the Public Service Commission was obliged to exclude the marks awarded by the Subject Specialists to some of the candidates, especially so when Subject Specialists for all the candidates were not available and some of the candidates, including the appellant, were not given any marks by the Subject Specialists at all. The learned counsel has cited a case of this Court reported as Abdul Ghaffar v.
2. Azad Government of the State of Jammu and Kashmir (PU 1986 SC (AJK) 95), in support of his contention that the Public Service is the sole Judge of the facts regarding necessity, expediency, advisability or reasonableness of its actions while judging the suitability or merits of the candidates or adding marks given to a candidate and its discretion is not open to challenge by invoking the writ jurisdiction of the High Court.
4. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for respondent No,1, has strenuously controverted the arguments advanced by the learned counsel for the appellant. He has maintained that it was not specifically pleaded in the written statement by the appellant that the Subject Specialist for the appellant was not available and, thus, he was not awarded any marks.
3. Thus, according to the contention of the learned counsel for the respondent No,1, the appellant cannot take this stand for the first time in this Court. He has argued that one Muhammad Saeed, Subject Specialist, Who was well qualified in Statistics had acted as a specialist for the appellant and has also awarded marks to him. The learned counsel has maintained that the High Court rightly held that after associating specialists in the interviews, the marks awarded by the Subject Specialist to the respondent could not be excluded while preparing the merit list. The learned counsel has further argued that the Public Service Commission, being a statutory body, was bound to comply with the relevant rules while making selection of the candidates for the post. Thus, according to the learned counsel, as the rules were violated by refusing to add the marks awarded to respondent No,1 by the specialist, the High Court was legally justified to give relief to respondent No,1 in exercise of writ jurisdiction. The learned counsel has cited following authorities in support of his contention:-- ' In a case reported as Zafarullah Khan v. Punjab Public Service Commission (1985 SCMR 1193), the petition for leave to appeal against the order of the High Court to examine the candidates again and to make fresh recommendations was refused on the ground that as the first interviews were held by the Commission which was not properly constituted, the writ was rightly issued. It was observed that there was no question of interfering in the discretion exercised by the Public Service Commission, because the question of exercising discretion was not at all involved in the case.
4. ' In the case reported as Muhammad Saleem v. Punjab Public Service Commission (1985 CLC 1544), it was observed that as the decision of the Public Service Commission refusing to allow grace marks in one or two subjects was violative of relevant rules, the notification issued by the Public Service Commission that no grace marks would be allowed violate of rules; because until and unless the relevant rules were amended, the Public Service Commission was bound to act according to rules.
5. We have given due consideration to the arguments raised at the Bar. The first question would be as to whether it is obligatory for the Public Service Commission to associate Subject Specialists or it was discretionary matter. It would be necessary to reproduce here sub-rule (3) of rule 10 of the Public Service Commission Procedure Rules, 1994:-- "10. (1).
5. (2).
(3) The Commission may at the time of interview or selection of candidates for appointment to any post, associate one or more specialists for assessing the knowledge, ability and suitability of the candidates in the relevant field."
6. It is obvious from the rule reproduced above that the Public Service Commission has a discretion to associate one or more specialists at the time of interviews for assessing the ability and suitability of the candidates. It is not mandatory to do so. It would be expedient to reproduce below the definition of 'Subject Specialist' as given in rule 2(e) of rules:-- "2. (1) In these rules, unless the context otherwise requires;--
(a) ..............................................
(b) ..............................................
7. (c)
8. (d)
(e) 'Subject Specialist' means a person who in the opinion of the Commission has acquired perfect knowledge or skill in a subject, trade, art or occupation on account of research or experience."
9. ' Thus, the Subject Specialist, as defined in rule 2, may be associated by the Commission at the time of interviews for its assistance. It is nowhere laid down in the rules that if once a Subject Specialist has been associated and he has awarded marks to one or more candidates, the said marks cannot be ignored by the Public Service Commission. In the instant case the stand of respondent No,1 in the High Court, as mentioned in paragraph 3 of the replication filed by respondent-petitioner in the High Court, was that a specialist was present for the appellant who also awarded marks to him. It was not specifically clarified in the replication as to who was the Subject Specialist for the subject of Commerce and who also awarded marks to the appellant. It would be expedient here to reproduce the relevant comments by Public Service Commission filed in the High Court to clarify its stand as to whether the Subject Specialists of all the subjects were present at the relevant time or not. Paragraph 5 and ground (f) of the parawise comments of the Public Service Commission are reproduced below:--`{{URDU TEXT}} ' Ground (t) of the comments filed by the Public Service Commission:-- {{URDU TEXT}} ' to paragraph 8 of the judgment of the High Court, it was not feasible to associate the Subject Specialists for all the candidates. Obviously in the aforesaid eventuality, how the principle of equal treatment to the candidates can be followed when the appellant was not given any marks by any specialist whereas the marks awarded by the specialist to respondent No,1 would be included in his total marks. This would be negation of the principle of providing equal opportunity to all the candidates. In these circumstances, we are of the considered view that as the matter with regard to the association of the specialists was discretionary in view of rule 10 of the rules, the marks awarded by the specialists who were available were rightly ignored for facilitating the principle of equal opportunity to the candidates. It may be observed here that we have no quarrel with the proposition that the Public Service Commission is a statutory body and if while making selection of the candidates it violates any rule on the point which adversely affects the fair selection, the High Court is legally justified to give appropriate remedy in exercise of writ jurisdiction but where the matter is one which falls within the discretion of the Public Service Commission, as association of the Subject Specialists, it cannot interfere with in exercise of writ jurisdiction, specially so when the discretion exercised advances the cause of justice.
10. ' In the light of what has been stated above, we accept the appeal and set aside the impugned judgment of the High Court. Consequently, the writ petition filed by respondent No,1 stands dismissed with no order as to the costs.
11. Appeal accepted.
12. 1997 PLC (C.S.) 366 [Karachi High Court] Before Saiyed Saeed Ashhad and Wajihuddin Ahmed, JJ Agha HAQ NAWAZ KHAN versus GOVERNMENT OF SINDH and another Constitutional Petition No, 608 of 1997, decided on 8th July, 1997. West Pakistan Board of Technical Ordinance (XXXIX of 1962)--- ----S. 14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Petitioner's appointment as Chairman of Board of Technical Education as temporary, interim or stop-gap arrangement---Replacement of petitioner after few months of his appointment by retired Education Officer on contract basis---Petitioner claimed that post of Chairman being tenure post PLC for four years his removal from such post was illegal and unwarranted--Validity---Provision relating to appointment of Chairman was applicable to such appointment on permanent basis and not to appointment made by way of temporary or stop-gap arrangement---Notification relating to petitioner's appointment clearly established that petitioner's appointment was not on permanent basis or by way of promotion from original post but same was by way of stop-gap arrangement till further orders---Authorities, thus, were not under any obligation to allow petitioner to serve on said post for specified term of four years---Impugned notification whereby petitioner's appointment as Chairman was recalled, therefore, did not suffer from any illegality or irregularity so as to require interference in Constitutional jurisdiction. Pp. 368, 369, 370, 371] A, B, C, D & Abdul Qayyum v. Government of Punjab 1975 SCMR 457: Abdul Qayyam v. Government of Punjab 1976 SCMR 48 and Alauddin v. Government of Punjab 1982 CLC 515 ref. Mrs. Surraiya Rahim for Petitioner.
13. Muhammad Sarwar Khan, Addl. A.-G., Sindh for Respondents.
14. Date of hearing: 9th May, 1997.
15. ' The petitioner has filed this petition to challenge the legality and competence of Notification No,SOI(S&GAD)-2/21/97, dated 10-3-1997, issued by the Government of Sindh, Services and General Administration Department, whereby Mr. Imam Ali Soomro, a retired officer of Education Department, in BPS-20, was re-employed on contract basis for a period of four years as Chairman, Sindh Board of Technical Education, Karachi, in place of the petitioner, who was transferred.
16. ' The brief facts of the case are that the petitioner was appointed as Chairman, Sindh Board of Technical Education, vide Notification No,SO (E-VI) 2-146/93, dated 20-8-1996 and in pursuance thereof he took over the charge as Chairman on 21-8-1996 but on 11-3-1997 the petitioner came to know vide Notification dated 10-3-1997, referred to above, that he had been transferred and a retired officer of Sindh Education Department had been re-employed on contract basis and posted as Chairman, Sindh Board of Technical Education. It has further been stated that the above action of the respondent was in contravention of the provisions of Sindh Board of Technical Education Ordinance, (hereinafter referred to as the said Ordinance) was also illegal and ab initio void, inasmuch as according to the provisions of the said Ordinance the appointment of a person as Chairman, Sindh Board of Technical Education, is to be made compulsorily for a period of four years from the date he takes over the charge of the office and removal of the incumbent of the office of the Chairman, Sindh Board of Technical Education before completion of the tenure period of four years being violative of the provisions of the above said Ordinance, as happened with the petitioner, would be absolutely illegal, ultra vires of the provisions of the said Ordinance ab initio void and the petitioner would be entitled to the reliefs prayed for by him in his petition, which are as under:-- "(a) To declare that the petitioner is entitled to hold the post of Chairman, Sindh Board of Technical Education, Karachi, for four years from the date of Notification dated 20-8-1996;
(b) to declare that the Notification dated 10-3-1997 is illegal, null and void hence has no legal effect;
(c) Cost of the petition; and
(d) Any other relief/reliefs which this Hon'ble Court may deem fit and proper under the circumstances of this case also be granted."
17. ' We have heard the arguments of Mrs. Surraiya Rahim, learned counsel for the petitioner, and Mr. Muhammad Sarwer Khan learned Additional Advocate-General, Sindh, who appeared in the Court on preadmission notice, issued to the respondents.
18. ' The main thrust of the arguments of Mrs, Surraiya Rahim has been that by provisions of the statute the post of the Chairman, Sindh Board of Technical Education is a tenure post for a period of four years from the date of taking over of the charge and once a person is appointed as Chairman, Sindh Board of Technical Education and takes over the charge thereof then he is to work as such Chairman for a period of four years and that his transfer or removal from the post of the Chairman, Sindh Board of Technical Education, for any reason, whatsoever would be in violation of the provisions of the said Ordinance, illegal ab initio void and notwithstanding any such order, the incumbent would legally be deemed to continue to work as such Chairman for the full tenure period of four years. Mrs. Surraiya Rahim has drawn out attention to section 16 of the said Ordinance, pertaining to the appointment of the Chairman and more specifically to subsection (2) of section 16, which provides that the Chairman is to hold office for a term of four years from the date of Notification of his office and entitles him to reappointment on the expiry of the term of the office. After having perused section 16 of the above said Ordinance we have no dispute with regard to the contention advanced by Mrs. Surraiya Rahim as to the post of Chairman, Sindh Board of Technical Education being a tenure post for a period of four years and further that once a person is appointed as Chairman of the Sindh Board of Technical Education in accordance with the provisions of section 16(2) of the Sindh Board of Technical Education Ordinance then such appointment shall have effect for four years and the officer concerned shall not be liable to be transferred or removed from the said post before expiry of the statutory period of four years.
19. However, the above provisions relating to appointment of the Chairman, Sindh Board of Technical Education are applicable to the appointment of Chairman, Sindh Board of Technical Education on permanent basis and not to the appointments made by way of a temporary or stop-gap arrangement, and in order to determine as to whether the above appointment was made on permanent basis or was by way of a temporary or stop-gap arrangement, reference would have to be made to language and words of the Notification appointing such Chairman. In the present case the Notification appointing the petitioner as Chairman is dated 20-8-1996 and it will be useful to reproduce the relevant portion of the Notification for the purpose of ready reference for interpretation, which is as under:-- "No, S.O(E-V02-146/93.---With the approval of competent Authority, Agha Haq Nawaz Khan, Secretary (B-19) Sindh Board of Technical Education, Karachi is hereby transferred and posted with immediate effect as Chairman (B-20) Sindh Board of Technical Education, Karachi in his own pay and scale, till further orders relieving Mr. Muhammad Sadiq Rizvi, Principal Saifee Eid-e-Zahabi Institute of Technology, Karachi of the additional charge."
20. From a bare perusal of the above notification it is absolutely clear that the appointment of the petitioner as Chairman, Sindh Board of Technical Education was not on permanent basis or by way of promotion from his original post of Secretary (B-19) to Sindh Board of Technical Education and was by way of a stop-gap arrangement till further orders. It is also pertinent to note that by virtue of the aforesaid notification, though the petitioner was posted as Chairman, Sindh Board of Technical Education yet he was not allowed the higher scale of BPS-20 of the post of Chairman and was to serve as such Chairman on his own pay and scale and, therefore, the said appointment was not to be governed by the provisions of section 16(2) of the Sindh Board of Technical Education Ordinance and the respondents were not under any compulsion or obligation to allow the petitioner to serve on the said post for a period of four years.
21. ' Mrs. Surraiya Rahim vehemently submitted that the above appointment was a permanent and full-fledged appointment as Chairman of the Sindh Board of Technical Education and it could not be said to be temporary, interim or stop gap arrangement inasmuch as a procedure had been incorporated in the above Ordinance dealing with the step gap arrangement and drew out attention to subsection (3) of section 16 of the above Ordinance, and submitted that the notification not having being specifically issued under subsection (3) of section 16 would be deemed to have been issued in exercise of the powers of section 16(2) of the said Ordinance and the above appointment was to be treated as a permanent appointment for fixed tenure of four years.
22. ' Mr. Muhammad Sarwer Khan, learned Addl. A.-G., Sindh vehemently refuted the arguments advanced by Mrs. Surraiya Rahim and submitted that the question as to whether the Notification was issued in exercise of the powers under subsection (2) or under subsection (3) of section 16 of the said Ordinance was absolutely immaterial inasmuch as the words used in the impugned notification could not assign permanency to the appointment or support the contention that the appointment was for the fixed tenure of four years and on the contrary very clearly and unequivocally envisaged that the appointment was for a temporary period till further orders and such appointment did not confer any right or entitlement on the petitioner to perform the duties as permanent Chairman of the Sindh Board of Technical Education for the statutory period of four years.
23. ' We have gone through subsection (3) of section 16 of the said Ordinance. The said subsection relates to appointment of a Chairman when the post/office of the Chairman has become vacant temporarily or otherwise, by reasons of leave, illness or other cause, for a period not exceeding one year then the controlling authority by virtue of the powers conferred by the above subsection (3) would make such arrangement for performance of the duties of the office of the Chairman as it may deem fit. The facts and circumstances of the present case are completely different from the facts and circumstances enumerated in subsection (3) of section 16 of the said Ordinance, which would have necessitated the appointment of a Chairman on temporary basis. Subsection (3) above caters for the situation where appointment of a Chairman is in existence but the post becomes vacant as the Chairman is unable to perform his duties temporarily on account of leave, illness or any other cause, whereas in the present case the situation was absolutely different as there was no permanent Chairman who was precluded from performing duties prior to the appointment of the petitioner as such Chairman. The incumbent was a part-time Chairman holding additional charge of the above post of Chairman in addition to his post of Principal, Saifee Eid-e-Zahabi Institute of Technology, Karachi. The arguments of the learned counsel for the petitioner as to whether the appointment was made under section 16(2) or 16(3) of the said Ordinance are of no assistance for resolving the above controversy. We are unable to understand as to what difference will be made if the above impugned notification is admitted to have been issued in exercise of the powers conferred by subsection (2) of section 16 of the Sindh Board of Technical Education inasmuch as we have already observed that from the language used in the impugned notification we are absolutely satisfied that it did not confer any right or entitlement on the petitioner to be appointed permanently for the period of four years and his transfer or recall from the said post before the expiry of the statutory period of four years was not in violation or contrary to any provision of the said Ordinance and the same does not require to be interfered with.
24. ' Mrs. Surraiya Rahim in support of her contention that in accordance with the provisions of subsection (2) of section 16 an order of appointment would necessarily be operative for a period of four years and would confer a right and entitlement on the petitioner to continue to serve on the said post of Chairman for a period of four years and that the use of the words "officiating"; "on deputation" and liable to "termination" used in the notification appointing a person to a post having statutory tenure would not have any effect on the true nature of appointment and the term of office fixed by the statute could not be limited or curtailed, relied on the following cases:--
(1) Abdul Qayyum v. Government of Punjab (1975 SCMR 457),
(2) Abdul Qayyam v. Government of Punjab (1976 SCMR 48) and
(3) Alauddin v. Government of Punjab (1982 CLC 515).
25. We are in respectable agreement with the observations made and views expressed in the afore- cited cases and are entirely in agreement that where a statute fixes tenure in respect of a post then appointment under such provision for a period less than the statutory tenure cannot be made by the Government but this relates to appointments made on permanent basis and not to an appointment made by way of interim or stop-gap arrangement, such as in this case, where the petitioner, being the Secretary of Sindh Board of Technical Education in BPS-19 was transferred and posted as Chairman of the Sindh Board of Technical Education on his own pay and scale and till further orders. The case law relied upon the learned counsel for the petitioner is of no help to the petitioner inasmuch as in all the above three cited cases the issue which required determination was whether transfer or removal of a person appointed on permanent basis to a post having a fixed tenure before expiry of fixed tenure would be proper and valid and it was held that the incumbent could not be transferred or recalled from the post before expiry of the statutory period.
26. The facts of this case are absolutely different and the principle enunciated in the above cases is not applicable to this case.
27. The petitioner has failed to satisfy us that the impugned notification suffers from any illegality or irregularity so as to require interference and his petition is without any substance. Accordingly it stands dismissed in limine.