MUHAMMAD ZAMAN KHAN Versus

The petitioner, an Agricultural Assistant in the Agriculture Depart ment of the Punjab Government has challenged by this petition under Article 201 of the Interim Constitution, an order of the Government of Punjab dated 20th August, 1972, whereby he was informed that the Public Service Commission even on a reconsideration of his case has not approved him for appointment as Senior Instructor because of the unsatisfactory record.

2. The brief facts of the case are that the petitioner joined service as a temporary Agricultural Assistant in the year 1967 and was working on that post when an advertisement appeared in the newspapers seeking applications for posts of Senior Instructors, Agriculture Training Institute in the same Department. The petitioner applied for the post and was interviewed by the Public Service Commission (hereinafter referred to as the Commission) and in the recommendation that was made by the Commission on 9th February, 1972 he was assigned No. 1 in the order of merit whip one Muhammad Aslam Sadiq was placed at No. 3. The former's District was given as Bahawalnagar in Zone No. 4 and the latter's District was Lyallpur in Zone No. 3. On 8th March 1972 the Commission recalled its recommendation earlier communicated to the Government in respect of this post and while taking exception to the handling of the case by the Government Department declared him, on the basis of the examination of the character roll, unsuitable for appoint ment to the post of Senior Instructor in the Agriculture Training Institute. The petitioner was communicated the adverse remarks record ed in his character roll for the year 1969 and 1970 on 9th March, 1972 whereupon he represented to the Competent Authority against the remarks and the Competent Authority by an order dated 13th July, 1972 expung ed these remarks. The petitioner thereupon moved the Government for getting the advice of the Commission reconsidered in view of these develop ments. The case was referred to the Commission but the Commission refused to take into account the expunction to the adverse remarks and adhered in its revised view with regard of the petitioner. In spite of the fact that the petitioner's appointment had received the assent of the Governor it could not be given effect to in view of the revised advice of the Commission and the petitioner was informed accordingly. It is in these circumstances, that the petitioner has challenged the legality of the revised recommendations of the Commission and the decision of the Provincial Government on the basis thereof.

3. The petitioner for his case has mainly relied on the decision a W. P. No. 1791‑S/69 Ali Gul v. The Public Service Commission, decided on 10th November 1970. It has also been urged that the adverse reports having been expunged could not at all be made the basis of a decision.

4. The decision in Ali Gul's case is not fully applicable to the case in hand because in that case rules of recruitment provided a competi tive examination and any other mode of selection which detracted from such a competitive selection was bled to be not quite in accordance with law. In the present case such a comprehensive competitive examination is not envisaged and the normal method of selection adopt ed was that of examining the academic qualification, interviewing the candidates and examining the service records. Therefore, the examination of the character roll with a view to determine the quality of service rendered in a particular post of Department would have been relevant for judging the comparative suitability of the petitioner for it would have provided an objective assessment so far as the commission is concerned. I

5. The petition must succeed for certain other reasons. The most important of such reasons is the fact that as the documents of the Commission themselves show the character roll of the petitioner had been received there in May, 1971 and was available in the Commission till 8th March, 1972, when it was sent back. The recommendations for tae post were made on 9th February, 1972 and if the Commission did not care to look into this character roll at the relevant time or in any case before making the recommendations it was no fault of the petitioner or of the Provincial Government. Besides, the recommendations made on 9th Feb ruary, 197' were unconditional and without any reservation with regard to examination of the character roll. It was in the following words :‑

"Out of the candidates interviewed the Commission considered the following candidates suitable and recommended them for appoint ment to the above posts of Senior Instructors in PAS (I) (Junior Trade Scale).

Name of the candidate with father's name

Order of merit

District and Zone

Mr. Muhammad Zaman s/o

Muhammad Khan

Bahawalnagar/4

Mr. Muhammad Aslam Sadiq s/o

Ch. Ali Muhammad Shaigufta

Lyallpur/3."

The only reservation made in the letter was "the candidates recom mended above for appointment have not been medically examined and the recommendations of the Commission in their favour as subject to their passing such medical test as may be required under the rules."

One would be justified in assuming on the basis of this recom mendation and the fact that the character roll of the petitioner was available with the Commission at the relevant time and much before it that the Commission had given a final opinion about the suitability of the petitioner and unless something new was brought to that notice there was hardly any justification for interfering with such a recommendation.

8. The subsequent communication dated 8th March, 1972 providing the basis for the impugned order is to the following effect:

With reference to the correspondence resting with this Commission s Letter No. RAI‑PSC‑72/747‑RA, dated 9th February, 1972 and subsequent telephonic discussion with Section Officer (AEII) of your Department, on the subject noted above, I am directed to say that the Commission, after perusal of the Char acter Roll of Mr. Muhammad Zaman son of Mr. Muhammad Khan, recommended at merit No. 1 in this Commission's letter under reference, consider him unsuitable for appoint ment to the above post of Senior Instructor in the Agriculture Training Institute on the basis of unsatisfactory record of service. I am to invite your attention to this fact for neces sary action.

The character roll of Mr. Muhammad Zaman received with Memo. No. 1940, dated the 13th May 1971, from the Soil Fertility Officer, Punjab Agricultural Research Institute, Lyallpur, is also attached for reference. It may kindly be transmitted to the Soil Fertility Officer, PARI Lyallpur when done with.

An acknowledgement of this letter and the character roll is requested."

As a fact it is not denied that the adverse remarks recorded against the petitioner for the years 1969‑70 were for the first time communi cated to him after the receipt of the character roll from the Commission and the fact that it had been lying with the Commission for quite some time was also a reason for the delay in communicating these adverse remarks in time. The petitioner was therefore afforded an opportunity of challenging tae correctness of these adverse remark and they were expunged in due course by the competent authority. It was after expunction of such remarks that the Commission was called upon to reconsider its advice and apart from those adverse remarks none else existed on record. It appears from their letter in response to such a request for reconsideration that the Commission refused to go into this question. Their final letter dated 11th August, 1972 on the subject is as follows: ‑

"With reference to the correspondence resting with your Letter No. S.O.A.E.II‑I‑4/67, dated 18th July, 1972 on the subject not ed above I am directed to state that the Punjab Public Service Commission have considered the proposal contained in your Letter No. S.O.A.E.II‑1‑4/67, dated 15th June, 1972 along with the amended character roll of Mr. Muhammad Zaman received with your letter under reference, and they observe that Mr. Zaman was interviewed along with certain other candidates in January 1972, in connection with the recruit ment to the post of Senior Instructors noted above and his name was recommended along with another candidate in the Commission's Letter No. RAI‑PSC‑72/447/RA, dated 9th Feb ruary, 1972. Subsequently, however, the Commission persued his character roll in February 1972, and since the character roll contained several entries the Commission decided to reconsider the recommendation already made in his favour in their earlier letter dated 9th February 1972. In the meantime the then S.O. (AEII) of your Department was specifically asked over telephone by the Assistant Secretary of the Commission on 24th February, 1972, not to take further action on the advice of the Commission contained in their Letter No. R.A.I PSC‑72/447‑RA, dated 9th February, 1972 till a revised decision of the Commission regarding Mr. Muhammad Zaman was communicated to your Department. Instead of waiting, your Department sent the case to the Governor on 26th February 1972, on the basis of the previous advice of the Commission. Your Department did not inform the Governor that the advice had been suspended by the Commission. After perusal of his character roll, the revised decision of the Commission was communicated to your Department in this Commission's Letter No. RAI‑PSC‑72/1143‑RA, dated 8th March,1972 wherein it was intimated that the Commission after perusal of the character roll of Mr. Muhammad Zaman considered him unsuitable for appointment to the post of Senior Instructor in the Agriculture Training Institute on the basis of unsatis factory record of his service and your attention to this fact was invited for necessary action.

On receipt of written advice of the Commission it was the duty of your Department to withdraw the case from the Governor but your Department refrained from doing so. It, on the other hand, set about altering the character roll of the candidate. It expunged various remarks. The Governor agreed to the appointment on 31st May, 1972 without being informed at the intervening events.

In the above circumstance and after considering all the relevant dates and incidents and the manner and timing of expunction of the adverse remarks, the Commission do not agree with the view expressed in your Letter No. S.O.A.E‑11‑1/67. dated 15th June. 1972 and reiterated their advice contained to their Letter No. RAI‑RSC‑72/1143‑RA, dated 8th March, 1972.

The character roll of Mr. Muhammad Zaman received with your letter under reference as well as his confidential report for the year 1971 received from the Soil Fertility Officer. Punjab Agriculture Research Institute, Lyallpur, with his Memo. No. 972, dated 9th March 1972, are returned herewith.

An acknowledgement of this letter and its enclosures is requested."

7. There are, in the proceedings brought before the Court by this petition, three legal defects in the impugned order which is the end result of the recommendations of the Commission: ‑

(1) The Commission already possessed of the character roll and making the recommendation on 9th February 1972 in favour of the petitioner without any reservation. Whatsoever and lost power of recall or locus poenitentiae unless the factual basis reconsidering a revision had been satisfactorily made out.

(2) The Commission should have reasonably satisfied itself that the entries in the character roll on which the recall of an advice duly tendered was necessitated was itself prima facie a record which can in the circumstances of the case be justifiably utilized for that purpose.

(3) The Commissions itself being a statutory functionary could not ignore to take into account the statutory orders passed by the other similar functionaries else it would be committing as inroad on the functioning of other authorities.

8. The contents of the letter of the Commission addressed to the Government on 9th February 1972, are so explicit and without reservation that one cannot but gain the impression that it was the considered recom mendation of the Commission which could not be interfered with but for good cause and for material defect in the same. The reason given for recalling the advice in so far as the petitioner is concerned, is wholly untenable. The only ground disclosed is that the Commission happened to examine the character roll of the petitioner subsequent to the making of the recommendation. In the first place, if there had been an omission to examine the record which was so germane or relevant to the decision then a note should have been recorded that the decision communicated or the recommendation made were tentative subject to the examination of the record of service of the petitioner. No, such reservation having been made or condition indicated and the service record being already in the office of the Commission the reason given out for altering a formal advice duly communicated does not hold good.

9. It is true that the character roll of the petitioner for the years 1969 and 1970 contained certain adverse entries. A perusal of the record would have shown to the Commission giving effect to it that there was no note of the fact recorded that any of these adverse remarks had been ever communicated to the petitioner. In the absence of satisfaction on this score the Commission should not have accepted these remarks on their face value because neither was their recording complete nor final without such communication. It was the duty of the Commission to satisfy itself about the observance of the rules for recording and communicating the remarks because it was taking serious step of recalling its recommendations already made to the Government.

10. The Commission being itself a statutory functionary must act within the limits of its authority and permit other similar functionaries to act within their limits. While within the limits of its authority it had full power to function it cannot transgress over statutory authority of any one else. The competent authority in the case of the petitioner duly seized of the representation against the adverse remarks thought it fit to expunge the remarks from confidential report of the petitioner for the years 1969 and 1970. These are the only adverse reports which were there on the record. The Commission has in refusing to take into account such expunction of the remarks and giving effect to it transgressed over the statutory functions of some other authority i.e. a delegate of the Governor, the competent authority and has taken upon itself to judge whether the expunction was proper or not. Such an attitude of the Commission is clear from the following observations made in the letter reproduced above

"In the above circumstances and after considering all the relevant dates and incidence and the manner and timing and expunction of the adverse remarks the Commission do not agree with the view expressed in your letter."

The factual absurdity with which we are confronted by this attitude of the Commission is that while in law there is no adverse report on the confidential record of the petitioner, the Commission'; recommendation states that it considers him unsuitable for appointment to account of "unsatisfactory record oaf service". In view of there being no unsatisfactory record of service subsisting the Commissioner acted without lawful authority in recalling its advice and ignoring to take note of its own failing in contributing to the non‑communication of the adverse remarks to the petitioner and of the fact that there was nothing left in the record of the petitioner which may be said to be unsatisfactory.

11, In view of the above discussion, the petition is allowed with costs against the Commission (respondent No. 2) and its recommend ations dated 8‑3‑1972 are declared to be without lawful authority and of no legal effect. The result would be that the recommendation made by the Commission on 9‑2‑1972 would stand for the consideration of the Governor.

Petition allowed.