1976 PLP 212 (SCMR)

DORAB PATEL, J.‑‑The Punjab Public Service Commission has filed this appeal against the judgment of a Division Bench of the Lahore High Court by which the learned Judges of the Division Bench allowed the first respondent's Constitutional petition against the appellant. I shall refer to the appellant as the Commission, and as the facts are not in dispute, 'I would refer to theca very briefly. The first respondent was appointed a Prosecuting Sub‑Inspector on 2‑7‑1962 and a few days later he had an unfortunate incident. He was appearing in a case in the Court of Mr. Aamil Hussain, Magistrate, and was found by the Sessions Judge examining a witness before the Reader of the Magistrate instead of the Magistrate. The result was that an adverse entry was made against his character roll, which, according to him was made mala fide. Be that asp it may, a few years later, he decided to appear in the examinations of the P. C. S. (Judicial Branch). The examination was hold in 1969, and according to the first respondent, the second respondent, who was then a Member of the Commission, had illegally tried to prevent him from appearing. However, the second respondent was unsuccessful in his attempts to prevent the first respondent from sitting for this examination. The first respondent sat for the examinations, and it is not disputed that the marks obtained by him in the written papers were sufficient to entitle him to be appointed if he was considered suitable for judicial service. Brit there was also a viva voce test and the minimum qualification for selection to judicial service was 30 marks in this test. As the first respondent had obtained 30 marks in the viva voce test, he considered himself entitled to appointment. As he did not hear from the Commission about the results of the examinations, he made inquiries and learnt that the Commission had sent for his character roll which contained an adverse entry on account of the July 1962 incident. But, according to the first respondent, this adverse entry was not justified, and further the Commission had acted illegally in holding it against him without giving him a chance to show that the adverse entry was not justified. On this and other allegations of mala fides he filed a Constitutional petition in the High Court against the appellant and the other respondents, and he sought an order from the High Court that the Commission could not disqualify hire and that it should be directed "to send his name according to the order of merits for consideration to the Government of West Pakistan". The appellant and the respondents contested the petition and it transpir ed that the first respondent bad two adverse entries in his character roll, therefore, the Commission had reduced the marks obtained by him in the viva voce examination by five. The result was that the first respondent automati cally stood disqualified from being recommended by the Commission. Accord ingly, his case, in arguments before the High Court, was that one of the two adverse entries against him bad been withdrawn. This was confirmed before us both by Mr. Sirajul Hag and Sts. Niaz Ahmad, Assistant Advocate General. Then, as to the other adverse entry about the incident of July 1962 in which the first respondent had been caught recording evidence before the Reader of the Magistrate, as this incident had taken place within a few days of the first respondent's appointment, his plea was that according to the relevant instructions, which had the force of Rules, no adverse entry could have been made against him in the first three months of his appoint ment, therefore, this adverse entry was illegal. Here again both Moulvi Sirajul Hag and Sh. Riaz Ahmad conceded that this adverse entry was contrary to the relevant instructions. The result was that there was no adverse entry at all in the first respondent's character roll, and we were informed cleat he had, therefore, been appointed to the P.C.S (Judicial Branch). And presumably as he has obtained the relief sought in the petition, he has not appeared in this appeal. Reverting, however, to the judgment of the High Court, the learned Judges did not examine tire first respondent's plea about the adverse entries on the ground that they had to be examined by the Provincial Government and not by the Commission. The learned Judges also rejected the allegations of mala fide on which the petition was based. However, they accepted the first respondent's contention that the Commission's action in sending for the first respondent's character roll was ultra vires of its powers under Article 186 of the 1962 Constitution. They also held that the Commission's function was only to conduct examinations and to recommend candidates on the basis of the examination results. And, as a corollary to this finding, they further held that the question of the suitability of a candidate for appointment was in the sole discretion of the Government. Accordingly, they allowed the petition and held that the Commission's action in reducing the marks obtained by the first respondent in the viva voce test from 30 to 25 on the basis of his character roll was without lawful authority. The Commission filed a petition for leave against this judgment which was, admitted to consider whether the Commission, in conducting competi tive examination, was entitled to rely on the character rolls of Government Servant candidates. Leave was also given to consider whether the Govern ment "was empowered apart from the Commission to consider the suitability of a. candidate seeking employment in Government service'". Accordingly, in the events that happened, the Punjab Government was order ed tar be impleaded as a respondent in the appeal and was represented before by Sh. Riaz Ahmad, Assistant Advocate‑General. According to the High Court, the only duty cast upon the Commission under Article 186 of the 1962 Constitution was to hold competitive examinations and to forward the names of successful candidates to the Government solely on the basis of the examination results. As according to Mr. Sirajul Haq and Sh. Riaz Ahmad, this view is based on a misconstruction of the Article, it is necessary to examine the Article. It reads :‑‑‑ 186.-‑( 1 ) The functions of a provincial Public Service Commission shall bee‑‑‑ (a) to conduct tests and examinations for the selection of suitable persons for appointment to the civil services of the Province con cerned and civil posts connected with the affairs of the Province ; (b) to advise the Governor of the Province on any matter on which the Commission is consulted under clause (2) of this Article or which is referred to the Commission by the Governor ; and (c) such other functions as may be prescribed by law. (2) Except to the extent that the Governor of a Province, after con sulting the Public Service Commission of the Province, may provide otherwise by Order, the Governor shall, in relation to tire civil services of the Province and civil posts connected with the affairs of the province, consult the Commission with respect to

(a) matters relating to qualifications for, and methods of recruitment to, services and posts ; (b) the principles ors which appointments and promotions should be made ; (c) the principles on which persons belonging to one service should be transferred to another : (d) matters affecting terms and conditions of service and proposals adversely affecting pension rights ; (e) disciplinary matters ; and (f) the retirement of a person under paragraph (a), of clause (4) of Article 178; Provided that any Order providing for exception to the requirement of consultation with the Provincial Public Service Commission on the matter specified in paragraph (f) shall provide for consultation on that matter with such authority as may be specified in that Order." As rightly held by the High Court, the question was of the construction only of clause (a) of Sub‑Article (1) of the Article. What was the precise obliga tion imposed on the Commission by this clause? As it expressly imposed on Public Service Commissions an obligation to hold examinations "for the selection of suitable persons for appointment to the Civil Service . . . . " the learned counsel laid stress on the word 'suitable' which preceded the word "persons" in the clause. Redundancy is not to be lightly attributed to the Legislature and the word 'suitable' was used in order to make it clear that the functions of Public Service Commissions were not confined to the holding of examinations and that these functions included the selection of persons suitable for appointments. But suitability for appoint ment to any responsible post, whether is Government service or in private service, cannot be decided without reference to the character of the con-candidates. And at the highest, examinations, howsoever well conducted, can only be limited tests for assessing the character of the candidates. Further, as the question before the Court was of the suitability of candidates in Government service there could not have been a better method for assessing their character, and, therefore, their suitability for appointment to judicial service than their character rolls. In this view of the matter, the Commission was entitled to examine the first respondent's character roll, and it is difficult to see how it could have discharged its Constitutional` obligation under the clause without examining the said ' respondent's, character roll. The learned Judges of the High Court took a contrary view on account of rules 5(1) and 7(2) of the West Pakistan Civil Service (Judicial Branch) Rules, 1962. There Rules were promulgated by the Governor of West Pakistan on the 5th April 1962, and I will refer to them as the Rules. Rule 5(1) on which the High Court placed great stress read :‑-- "

5. Method of recruitment.‑..(1) Appointments to the service shall be wade by initial recruitment on the recommendations of the Commission based on the result of a competitive examination conducted by it in the subjects specified in the Appendix to these rules." 'The High Court held that the Commission could only forward to the Government the results of the examination held by it because of the word "based on the results of a competitive examination". The word 'based' was construed to mean exclusively based, but even if that be the literal construction of the word, it would be inconsistent with the obligation cast upon the Commission under Article 186(1)(a) to hold examinations "for the selection of suitable persons for appointment . . . . .". The High Court took the contrary view, because it held that the Government and the Government alone could reject a candidate, who had been successful in the examinations, on the ground that he was unsuitable for appointment. With respect, this conclusion is contrary to the plain languag6 of rule 5(l) which prescribed in terms that appointments "shall be made . . . . . on the recom mendations of the Commission". The word 'shall' here is mandatory, and this means that the Government was bound by the Commission's recommendations. Therefore, if the Commission also could not, for example, reject a candidate on the ground that he was lacking in integrity, there would have been no way of preventing his appointment, and whatever be the object of the Rules they were not framed in order to permit the recruitment of undesirable persons to judicial service. Additionally, the construction placed upon rule 5(1) by the High Court is difficult to reconcile with rule 7(2) which read :‑

"7.‑-‑42) No person, not already in Government service, shall be ap pointed to the service unless he produces a certificate of character from the principal academic officer of the academic institution last attended, and also certificates of character from two other responsible persons, not being his relatives, who are well acquainted with his character and antecedents." As appointments bad to be made on the Commission's recommendations, on the plain language of rule 5(1), the good character certificates required to be produced by candidates under rule 7(2) had to be produced before the Commission. But this sub‑rule would not have been framed, if the Commission's only function had been to forward .to the Government the results of the examinations held by it. It is thus clear that the Rules were not free from ambiguity therefore, as submitted by Moulvi Sirajul Haq, the practice of Public Service Commissions of the Province was relevant for resolving these ambiguities. Public Service Commissions in the Provinces of the sub‑continent were set up under the Government of India Act, 1935, and it was not a confidence that these Commissions were set up by the Constitutional enactment which introduced provincial autonomy. The relevant provisions were contained in Chapter III of the Government of India Act, 1935 and section 266(1) read : ‑‑ . "266 --‑(1) It shall be the duty of the Federal and the Provincial Public Service Commissions to conduct examinations for appointments, to the services of the Federation and the services of the Provinces respectively." Although section 266(1) did not, in terms, impose on Public Service Commis sions an obligation to select suitable candidates for appointments to the services, Chapter II contained special provisions about the appointment of the Chairman and the Members of the Public Service Commissions and about the terms of their employment. Thus the Chairman of the Federal Public Service Commission, on ceasing to hold his office was not eligible for any other appointment "under: the Crown in India'". Similarly the Chairman of a Provincial Public Service Commission was only eligible for appointment "as Chairman or a Member of the Federal Commission''. The object of these and other provisions in section 265 was to ensure that the Commis sions would discharge their high responsibilities without succumbing to political pressure or: influence, and, as submitted by the learned counsel, Parliament would not have inserted these provisions in the Government of India Act itself, if it had intended merely to set up a glorified board of examiners. The Commissions were set up in order to select suitable candidates for the services, and that was also the practice it the Province after the Introduction of Provincial autonomy. As the Provinces of the Punjab and N: W. F. P. had a joint Public Service Commission, Moulvi Sirajul Haq referred us to the minutes of the meetings of this Public Service Commission dated 21‑12‑1937 and 22‑11‑1938. The first minute in B‑FilE‑40/1937 read :‑ "That no reference need be called for regarding a Government Servant's character and suitability for a post, if the post for which he has applied is in his own department. The confidential record of such a candidate should, however, be obtained from his Head of Department." According to the second minute in B‑File‑203/1938, candidates for the posts advertised by the Commission were required to produce good character certificates. The minute then stated :‑-- "Not all candidates always sand all the three certificates with their applications. At present those who have not submitted all the certificates are asked to make good the deficiency. This entails lot of work on the office. Most of these candidates are often already in Government employment. If they are summoned for interview, their character rolls are invariably sent for. As these character rolls contain all information about the capability etc. of persons con cerned, office submits for consideration whether it will not be better, to avoid extra work, to discontinue the practice of writing to this class of candidates to complete their applications if they are not already complete." Thus the practice of examining character rolls was in force at the date of the minute, and, further as to the directive contained in it, both the learned counsel assured us that it had been implemented. In this connection Moulvi Sirajul Haq also produced before us Government of West Pakistan instruction in letter No. SOIV (S & GAD) 16‑14/64. dated 7th October 1967. These instructions were issued in order to eliminate delays in the appointments made through Public Service Commissions, and it is cleat from paragraph 5 of these instructions that the practice by the Commission of examining the character rolls of Government servant candidates was in force and was recognised and approved by the Government of West Pakistan. Therefore, when the Rules were promulgated in 1962, there had been for at least a quarter of a century a practice by Public Service Commission to examine the character rolls of Government servant candidates, and as submitted by Moulvi Sirajul Haq this practice throws light on the ambiguity in the Rules. In all the circumstances discussed. I am not able to agree with the construction placed on rule 5 (1) by the High Court, and the Commission's powers cannot be curtailed to the mere holding of examinations. The High Court was, however, disturbed by the delay in then production of character rolls before the Commission. With great respect, this was not a circumstance relevant to the construction of the Rules, nor could it relieve the Commission of its obligations under Article 186(1)(a). Another circumstance on which the learned Judges relied was the syllabus for the examination in which the first respondent had been success ful. They observed in this connection :‑‑ "The subjects of examination prescribed by the rules do not either expressly or by necessary implication include the examination of the character‑roll of candidates in Government service, by the Commis sion, much less making it the sole deciding factor, such as to over ride even the result of the examination prescribed by law as the basis for recruitment." The absence of a reference to the character rolls of candidates in the syllabus was, therefore, treated by the learned Judges as a circumstances which led to the inference that the Commission was not competent under Article 186(1)(a) to examine the character rolls of candidates. But as the syllabus of an examination can only specify what is to be tested in that examination, the syllabus of the examination, for which the first respondent sat, would be relevant to the construction of the Commission's duties and obligations only on the assumption that these duties and obligations we limited to the holding of examinations. However, as that was the very, point for determination in the case, in my humble opinion, the inference drawn by the learned Judges was not justified, because it begged the question, and this apart from the fact that the scope of Article 186(1)(a) could not be curtailed by the syllabi of examinations. Finally the learned Judges also relied on rule 7(2) of the Rules. Rule 7(2) imposed an obligation to produce good character certificates, but as that obligation was, in terms, imposed only on candidates who were not Government servant candidates, the learned Judges took this omission to mean that the rule did not permit the Commission to inspect the character rolls of Government servant candidates. Now the minutes of the joint public service Commission of the Punjab and N: W. F. P. and the Government of West Pakistan instructions contained in letter No. SOIV (S & GAD) 16‑14/64, dated 7th October 1967, to which I referred earlier, are sufficient to establish that the practice of the Commission had been, for more than a generation, to examine the character rolls of Government servant candidates. Not only was this in consonance with section 266(1) of the Government of India Act, 1935, but this precaution of verifying the character of a candidate before; appointing him to a post involving responsi bility or trust is a universal practice not confined to Government servants. A departure from such a practice should not be presumed lightly, and there was nothing in the Rules to warrant such a presumption. On the ether hand, it is difficult to see how the Commission could have discharged its duties under rule 5(2) without examining the character rolls .of Government servant candidates. I am, therefore; not able to agree with the view taken by the High Court. In the result the appeal is allowed to the extent stated herein but without any order as to costs. Appeal allowed.