TAHIR SULTAN and 9 others vs GOVERNMENT OF THE PUNJAB and another
The petitioners, ad hoc appointees in the Labour Department, challenged their removal from service ordered by the Governor of Punjab under Section 11-A of the Punjab Civil Servants Act, 1974, as amended by the Civil Servants (Amendment) Ordinance, 1978. The Punjab Service Tribunal had previously upheld their removal, finding their initial appointments were irregular, lacked Public Service Commission approval, and were secured through political pressure. The Supreme Court examined whether the Governor's power under the amended Section 11-A was validly exercised. The Court held that the power of removal under Section 11-A is broad, exercisable without impediment regarding terms and conditions, and is subject only to the temporal condition that the appointment occurred between January 1, 1972, and July 5, 1977. The Court affirmed that such removal is based on the subjective satisfaction of the Governor and, in the absence of proven mala fides, is presumed to be in the public interest, even if not explicitly stated in the notification. Consequently, the petitions were dismissed.
- Is the Governor's power to remove civil servants under Section 11-A of the Punjab Civil Servants Act 1974 subject to the requirement of explicit mention of 'public interest' in the removal notification?
- Does the burden of proving mala fide exercise of power in the removal of a civil servant lie with the petitioner?
- Are appointments made between January 1, 1972, and July 5, 1977, subject to the removal powers granted under the Civil Servants (Amendment) Ordinance 1978?
- Section 11-A, Punjab Civil Servants Act 1974
- Civil Servants (Amendment) Ordinance 1978
ORDER
1. ' MUHAMMAD HALEEM, C J.--The petitioners, herein, are ad hoc appointees as Labour Officers or Assistant Directors, in the Labour Department as from the year 1972. Their claim is that their tenure of appointment is permanent and regular as their appointments were regularised in accordance with law then applicable.
2. ' By order dated 26th May, 1979, the Governor, Punjab, in exercise of the powers under section 11-A of the Punjab Civil Servants Act, 1974, as amended by the Civil Servants (Amendment) Ordinance, 1978, removed them from service with immediate effect. Against this order the petitioners jointly filed Writ Petition No,2999 of 1979 in the Lahore High Court on 2-6-1979, but later withdrew it and filed separate appeals before the Punjab Service Tribunal which were dismissed on 22-9-1982 by a common judgment which is impugned in these petitions.
3. ' The Tribunal in its order held: "The present cases before us are the cases of said nature, in which the Review Committee was formulated headed by Mr. M. S. Chaudhry who is now Chief Secretary of the Province and number of other senior functionaries of the Government, and after giving their full consideration they made recommendations to the Governor that the Appellants' cases fell within the four corners of appointment secured through political pressure and bypassing the rules so prevalent, they came to the conclusion that the appellants were liable to be removed from service as they were inducted into service through extraneous manner and were regularized within a short period of six months from their initial appointments as ad hoc appointees. They also came to the conclusion that according to the Service Rules, regularization of the appellants had to be approved by the Punjab Public Service Commission but the same was found wanting in their cases. It was also discovered by them that a hasty action was taken by the Minister to arrogate to themselves all the powers of Public Service Commission without waiting for its formulation."
4. ' The Tribunal further held that the Civil Servants (Amendment) Ordinance, 1978, was not ultra vires the powers of the Governor or that its effect was, in any way, taken away either by paragraph 8 of C.M.L.A. Order No,1 or the Laws (Continuance In Force) Order, 1977.
5. We have heard the learned counsel for the petitioners, but we do not consider it necessary to examine the question of their appointment on account of the exertion of political pressure in view of the scope of section 11-A of the Civil Servants (Amendment) Ordinance, 1978. It is clear that their ad hoc appointment in 1972 was irregular as it was not in accordance with any service rule and none was pointed out to us.
6. The powers exercisable under this section are without any impediment as to the terms and conditions of the civil servants and without reference to the category of employment, and the only condition laid down is that the civil servant should have been appointed or promoted between the prescribed dates, that is during the period from the first day of January, 1972 to the fifth day of July, 1977. No other consideration can be pressed against the exercise of power nor can the action of removal be treated on the touchstone of "public interest" as it is left to the subjective satisfaction of the Governor. (See Lt.-Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98).
7. Even if the notification fails to mention "public interest" it must be read into the notification as the exercise of the power is relatable to it.
8. ' In this view of the matter and in the absence of any specific allegation of mala fide exercise of power the onus of which was on the petitioners to establish, we are unable to hold that the removal of the petitioners was not in "public interest".
9. ' Accordingly, the petitions fail and are hereby dismissed.