GOVT. OF PUNJA Versus MUHAMMAD SARFRAZ

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted under Article 212(3) of the Constitution, to examine the following questions of law, arising in this appeal:‑

(1) Whether the respondent was appointed as a civil servant, after the expiry of the first period of temporary appointment for six months?

(2) In case the answer to the first question is in the negative, whether the so‑called "appointment" (under section 9(3) of Cr.P. C. and/or section 6 of West Pakistan Civil Courts Ordinance) of the respondent as Additional District and Sessions Judge would cure the lacuna and clothe the respondent with status of a civil servant?

(3) What is the effect of the notifications under the said two provisions of the law?

(4) Did the respondent continue to work as Additional District and Sessions Judge after the expiry of ad hoc and temporary appointment without formal extension of the period; if so with what authority and effect? and

(5) All the other questions connected with and arising out of the foregoing questions."

The facts forming the background of the case are that the respondent Sufi Malik Muhammad Sarfraz, received on 25th June, 1977, an appointment order, the relevant portion of which reads as hereunder: ‑

"No.C.I.14‑1/77

GOVERNMENT OF THE PUNJAB

Services, General Administration and Information Department

(Section CI)

The 25th June, 1977.

The Governor of the Punjab has been pleased to relax the provisions of Rule 22 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 in favour of the following persons in connection with their appointment as Additional District and Sessions Judges:

(1) ..............

(2) Sufi Malik Muhammad Sarfraz, Additional Public Prosecutor.

Lyallpur.

(3)

(4)

(5)

(6)

(7) ..................

2.The Governor of the Punjab is further pleased to approve appointment of the above named persons on ad hoc basis for a period of six months as Additional District & Sessions Judges in the province of Punjab."

By a letter dated 19th of December, 1977, the respondent alongwith 18 others, was required to appear before the Chairman, Punjab Public Service Commission on 26th of December, 1977 at 9.00 a.m. for interview.

On the 28th of February, 1978, appeared yet another notification, the relevant portions of which are reproduced hereunder:‑

"Government of the Punjab

Home Department

Dated: Lahore, the 28th February, 1978.

NOTIFICATION

No.8(3)SO(B&C)/70: In exercise of the powers conferred on him by subsection (3) of section 9 of the Code of Criminal Procedure, 1898, the Governor of the Punjab is pleased .to appoint the following officers to be Additional Sessions Judges within the limits of the Sessions Division mentioned against their names from the dates they took over charge:‑

Sr. No. Name of the officer Sessions Division

1 . .... .............................................................. ...

2 . ......................................................................... .... ...

3. ......................................................................... .... ...

4. ......................................................................... .... ...

5. ......................................................................... .... ...

6, ......................................................................... .... ...

7. Sufi Malik Muhammad Sarfraz. ................. Gujranwala

8. ......................................................................... .... ...

9.

10.

11.

12. .... ............................................................ ...

NO.8(3)SO(B&C)

70. In exercise of the powers conferred by section 6 of the West Pakistan Civil Courts Ordinance, 1962, as applicable to the Province of the Punjab, the Governor of the Punjab is pleased to appoint the following officers to be Additional District Judges of the Civil Districts shown against their names, from the dates they took over charge:‑

Sr.No. Name of officer Civil District

1, ... ...

2. ... ...

3. .... ..

4. .... ...

5. ... ...

6. .... ...

7. Sufi Malik Muhammad Sarfraz Gujranwala

8 . .... ...

9. .... ...

10. ... ...

11. .... ...

12. .... ...

On 13th of April, 1978, the respondent alongwith three others, was informed by the Services and General Administration & Information Department, in the words that follow:‑

"Subject:‑ AD HOC APPOINTMENT AS ADDITIONAL DISTRICT & SESSIONS JUDGES.

Des r Sir,

I am directed to sky that the period of your ad hoc appointment as Additional District & Sessions Judges has expired since

October, 1977. You are informed that you are no more in Government Service beyond the above date.

2. You are, however, free to apply afresh for appointment when applications are invited by the Competent Authority."

The respondent challenged the order of termination of his service by letter dated 13‑4‑1978 by a Writ Petition (Yo.5678lS of 1978) which was dismissed in limine on the ground that an appeal to the Service Tribunal was provided. He then filed an intra Court Appeal (No.65 of 1979) which too was dismissed on 24‑3‑1978. He then filed a petition for leave to appeal (C.P.L.A. No.761 of 1980) which was dismissed on 16th of December, 1980.

The respondent in the second round approached the Service Tribunal. He wanted the order dated 13‑4‑1978 to be set aside and to be reinstated in service with all the back benefits including the seniority.

The Service Tribunal held with regard to the limitation that if the impugned order itself was ab‑initio void, there was no question of running of the period of limitation. On examining the merits of the case, the Tribunal first identified the legal question arising in the appeal and formulated it in the following words:‑

"The only crucial issue in this case would 15e whether the notification of 28th February 1978 was a notification for the appointment of the appellant or as argued by the learned Assistant Advocate General :vas a procedural document simply conferring the powers on the appellant."

While interpreting the notification dated 28th of February, 1978, the Tribunal held as follows:‑

"In view of language used in this notification our interpretation would be that appellant was given a fresh lease of life after the expiry of his ad hoc period which had expired on 24th December, 1977 by appointing him afresh on regular basis by the Governor himself. The Governor was under no obligation to issue this order if he had decided not to renew the appointment of the appellant on ‑ad hoc basis and would have simply said that the appellant Chas no more in service and for the extra period for which he worked his acts were regularized and for that period he would be granted his pay and other benefits. The lack of such like order clearly manifests that the Governor in his wisdom thought it fit to appoint the appellant by a fresh notification for which he had full powers to do so. The absence of the word ad hoc in the said notification clearly leads to a conclusion that the appellant was made to be regular appointee otherwise the earlier notification with regard to the ad hoc appointment of the appellant could have been repeated."

. Another factor noted for continuing the respondent in service was described by the Tribunal in the following words:‑

"It is also useful to point out that the High Court treated the appellant as Additional District and Session Judge as on duty by the letter No.413‑GA 2‑7, dated 13‑1‑1978 and letter No.501‑G9‑A‑7, dated 19‑1‑1978 whereby the appellant was granted C.L. for one day on 10‑1‑1978 and for five days w.e.f. 8‑1‑1978 respectively by the. Chief Justice and the Judges of the Lahore High Court "

The Tribunal concluded as follows:‑

"In view of above analysis of the entire situation and the legal implication of the notification of 197 8 as interpreted by us, we are of the confirmed view that the appellant was appointed on regular basis by the notification of 1978 and could not summarily be removed from service without having a recourse to the E&D Rules of 1975. We have also looked into the record of the appellant and find no justification for the respondent to throw him out when his work was otherwise upto mark, and no complaint of any sort was within the notice of the respondents."

It granted the relief in the words that follow:‑

"In view of the above we accept the appeal, set aside the impugned order as void and without jurisdiction and direct that the appellant be reinstated in service with all back benefits. However, there will be no order as to costs."

In interpreting the notification dated 28‑2‑1978, the learned Tribunal omitted to notice three material features of it having an important bearing on the question of its meaning and effect. In the first place the notification dated 28th of February, 1978, though expressed to be the order of the Governor of the Punjab, it issued from the Home Department. The earlier order of appointment dated 25th of June, 1977 issued from the Services & General Administration Department. Article 139(3) of the Constitution provides that‑‑ "the Governor shall also make the rules for the allocation and transaction of the business of the Provincial Government". In exercise of this power, the Punjab Government has made Rules of Business of 1974. Rule ;) sub‑rule (3) of Rules of Business provides "the business shall be distributed among several Departments in the manner indicated in Schedule II." Schedule II provides in respect of Services, General Administration & Information Department at Item No.13, the following l subject exclusively allocated to that department:‑

"13. Matters connected with the recruitment, _training, pay, allowances, promotion, leave, posting and powe rs : ‑‑

(i) .........

(ii) the Provincial Civil Service (Judicial Branch);

(iii) ............

(iv) ..................... "

In the same Schedule Home Department has been entrusted at Sr. No.3 with "Administration of Justice‑‑ Constitution and organization of Courts except the High Court". In view of such an allocation of business, the Services & General Administration Department alone could notify the appointment of the respondent and the Home Department could constitute a Court of the Additional District and Sessions Judge and confer power to that effect. To interpret that the Home Department proceeded to appoint would be in breach of the Rules of Business framed under Article 139(3) of the Constitution and such an interpretation could not be approved while interpreting the notification dated 28‑2‑1978.

The second material feature of the notification dated 28‑2‑1978 not fully taken note of, is, that it confers powers ex post facto "from the dates they took over charge". The taking over of the charge in the past in the case of the respondent was under the orders of 25th of June, 1977 and not at any subsequent stage. Therefore, even this notification relates to the appointment and the taking of the charge not under it, but under a different ‑and earlier notification. If these words had been given their full meaning and effect then the consequence would be that this notification related to the powers and functions for the period that the respondent served or could serve under notification dated 25th June, 1977.

The third material feature of the notification not fully C considered, was that it was under certain laws i.e. Criminal Procedure Code and the Civil Courts Ordinance, both of which relate to the powers and jurisdiction exercisable by appointees. The question in issue was not the powers and the jurisdiction exercisable by the respondent but his appointment to the civil service and the only such appointment order in the case which happens to be under the Civil Servants Act and under the Civil Servants (Appointment and Conditions) Rules, 1974 expressly mentioned in the appointment letter is that of 25th of June, 1977 and none else.

It follows, therefore, that the first appointment of the respondent came to an end by efflux of time on the expiry of six months of his taking charge under notification dated 25‑6‑1977. The notification dated 28‑2‑1978 had not the effect of re‑appointment or D of extending the earlier appointment which had concluded by efflux of time. The effect of conferring the powers under the specified laws during the period that the respondent and others similarly situate discharged their duties had the effect of providing of a legal cover. to their functioning in the past.

It appears from the Casual Leave granted by the orders of the High Court and by the communication of the order dated 13‑4‑1978 that the respondent did not sever his connections with the post till that order was communicated to him on the 13th of April, 1978. This was an act of omission both on the part of the Government and on the part of the respondent as well. He, it appears, did not bother about the legal authority for continuing in the post even. while exercising the powers of the Additional District and Sessions Judge. It is admitted by the learned Assistant Advocate General that 17th E October is a clerical mistake and six months were over on 27th December, 1977. Such omissions and the grant of casual leave cannot have the effect of re‑instatement of respondent in service, continuing his service beyond the period which had expired by efflux of time, or of his re‑appointment on the post or of conferring any legal benefits arising by his remaining in office de facto for that period. The appeal is allowed, the order of the Service Tribunal dated 12th of April, 1982 is set aside and the appeal filer) by the respondent before the Service Tribunal is dismissed with no order as to costs.

M.B.A./G‑81/S

Appeal allowed