P L D 1984 Supreme Court 354 (PLP)

MUHAMMAD HALEEM, C. J.-This appeal, by special leave, arises from the judgment dated 30-3-1978 of the High Court of Baluchistan, Quetta, by which R. S. A. No. 17 of 1972 was dismissed with costs. The respondent herein was selected for training as an Apprentice (Driller) in the Geological Survey of Pakistan on 29th of January 1960, which was to last for a period of two years. Besides this stipulation, there were other terms and conditions incorporated in the office memorandum of the same date issued on behalf of the Deputy Director-General, Government of Pakistan, Bureau of Mineral Recources (Geological Survey Wing). On completion of his training, subject to the stipulations in office order dated 27th of February, 1962, he was appointed temporarily as an Assistant Drilling Engineer I Gazetted Class II) with effect from 25th of February, 1962, until further orders. This appointment was subject to the approval of the Federal Public Service Commission. Here it will be relevant to reproduce this order as the decision of this case turns on its interpretation; "On their successful completion of training in drilling, the following; Apprentices have been appointed a3 Assistant Drilling Engineer (Gazetted Class II) temporarily in the scale of Rs. 250-750 in the Geological Survey Wing of Bureau of Mineral Resources with effect from 21-2-1962 until further order

1. Mr. S. A. N. Alvi.

2. Mr. S. Sabahat Hussain.

3. Mr. Tawakkul Hussain.

4. Mr. Sulaiman Ahmad Khan.

5. Mr. G. M. Butt.

6. Mr. Fasibuddin.

7. M. Kazim Ali.

8. Mr. Shafiq M. Naqvi ?

9. Mr. M. Z. Makhdoomi.

10. Mr. Ali Kausar.

11. Mr. A. K. M. Sarwar Jehan.

12. Mr. M. M. Qureshi.

13. Mr. Qaiser Hussain. (Sa.) N. M. Khan, Deputy Director-General. Copy to; (1) The Accountant-General, Pakistan Revenues, Islamabad. The assumption of charge reports of these persons will be forwarded in due course. These appointments have been made on ad hoc basis with the approval of F. P. S. C. vide F. P. S. C. letter No. F. IV/19/61-5, dated 2-12-1961. (2) The Treasury Officer, Quetta. (3) D. P. M. G., B. M. R., Geological Survey, Quetta. (4) Personal Files. (5) Bill Section. (6) Mr. -- His appointment is subject to approval by F. P. S: C. or replacement if choice of the Commission did not fall on him," His case was referred to Federal Public Service Commission, and in the examination held in 1966, he appeared, but was not found fit for being selected for the post of Assistant Drilling Engineer. Accordingly, through another office memorandum dated 17th of September, 1966, he was informed that his services would be terminated with effect from the forenoon of 2nd of October 1966. The respondent thereupon instituted a civil suit on 26th of September, 1966, and prayed therein that the office memorandum dated 17th of September, 1966, was illegal and of no effect and that it did not affect his continuity in service. This suit was principally resisted on the ground that his appointment was subject to the approval of the Federal Public Service Commission and that as he was not found fit his services were being dispensed with. The trial Court dismissed the suit on 17th of June, 1971 holding that his appointment was conditional as being subject to the approval of the Federal Public Service Commission. But on appeal, the District Judge on 17-5-1972 set aside the dismissal of the suit, as he did not agree with the opinion of the trial Court and held that the opinion of the Federal Public Service Commission rendered under Article 185 of the 1962 Constitution was directory and that it was open to the Government to disregard it. He next concluded that the stipulation in the office memorandum, therefore, could not be considered adversely against the appellant as the department itself had recommended to the Government for his absorption against the departmental quota. Having said so he further held that his case was covered by the decision of this Court in Abdul Majid Shaikh v. Mushafee Ahmad, Section Officer and another PLD1965SC208, and that he was entitled to the constitutional protection provided by Article 177(1)(b) of the 1962 Constitution. He, accordingly, decreed the suit. In the further appeal to the High Court, a learned Single Judge held firstly, that as the service of the respondent was to last `until further orders', therefore, despite the stipulation as to the approval of the Federal Public Service Commission, it could not be dispensed with "without show-cause notice and without going through the procedure prescribed by the Government of West Pakistan (Efficiency and Discipline) Rules, 1960, because to all intents and purposes the respondent was holding a civil post in connection with the affairs of the Centre." Secondly, as the respondent was employed temporarily on 22nd of February, 1962, before the promulgation of 1962 Constitution, Article 181 of the 1956 Constitution provided guarantee against dismissal, removal or reduction in rank, which guarantee was preserved by Article 234 of the Constitution, arid, therefore, his services could not be dispensed with without complying with the provisions of Article 177 (1)(b) of the 1962 Constitution. In holding so, the learned Judge relied on Abdul Majid Shaikh's case. Thirdly, that while rejecting the contention of the respondent that as he was absorbed against 40 per cent. departmental quota his case could not be referred to the Federal Public Service Commission for approval, the learned Judge held that his appointment as Assistant Drilling Engineer was a fresh appointment and that his case could be referred to the Federal Public Service Commission. But as to whether the Government was bound to accept the opinion of the Federal Public Service Commission it does not appear so from Article 185 of the 1962 Constitution and it could be disregarded. Concluding, the learned single Judge held further that the stipulations in the office memorandum, accordingly, could not be considered adversely against the respondent as his case was recommended for his absorption against the departmental quota. As to the directory value of the opinion rendered by the Federal Public Service Commission, the learned Judge observed : "However, if the case is so referred the advice of the Commission would be only directory or obligatory. It will be open to the department concerned not to follow such advice if it is not the interest of the department As we have already seen the intention of legislature in establishing Public Service Commission was to create a body to advise the Government and not override the decisions of the Government. Primarily it is the function of the concerned department to select a person best suited to its requirements and they are themselves best Judges of their interest. It cannot therefore be said that such a decision should be subordinated to the decision of the Public Service Commission as the Commission is not supposed to know better than the department whether or not a particular person is suitable for requirements of that department. It is in these circumstances that advice of the Public Service Commission on such matter is to be regarded only directory and not binding." Leave to appeal was granted to consider the following questions; (i) Whether in the context of the temporary nature of the employment until further orders, and being further subject "to approval of Federal Public Service Commission or replacement if the choice of the Commission did not fall on him", his employment was correctly construed as being amenable to the constitutional guarantee ; (ii) as to whether the case of the respondent was covered by Article 179 of the 1962 Constitution when his appointment was temporary and on an ad hoc basis ; (iii) as to whether the judgment in Dr. M. S. Qureshi v. West Pakistan Government, P L D 1966 Lab. 825 was misread ; and (iv) as to whether the view of the learned Judge about the powers of the Federal Public Service Commission was legally valid. At the outset, we may refer to the Establishment Manual, Volume III, page 47 subsection C(7). This refers to the Establishment Division's Office Memorandum No. 3/3/50-E. VII dated the 4th June, 1960, which reads; "In supersession of the Establishment Division Office Memorandum No: 10/3/50-SEII, dated the 13th June, 1950 (Annexure), Government have been pleased to decide that the advice of the Central Public Service Commission in a case referred to .it shall be accepted by the Ministry/Division/Department concerned, subject to the provisions of paragraph 2 below.

2. Where a referring Ministry, Division or Department disagrees with the advice given, it shall communicate the reasons for disagreement to the Commission, and after the Commission has expressed its further views in the matter, the case will be submitted for decision to the President through the Establishment Division." In principle, from the above it appears that the Government had bound itself to accept the opinion of the Federal Public Service Commission and in case of disagreement the decision had to be that of the President. Here sub-pare. (2) of the memorandum had no application as the department itself had left his further retention in service to the opinion of the Federal Public Service Commission, which may or may not have found him fit for retention, This condition had to be fulfilled before the contract of employment could be regarded as having been completed. In this connection the following observations of this Court in Federation of Pakistan v. Raja Muhammad Afzal Khan P L D 1959 S C (Pak.) 258, apply with full force :- "As we have said before, there is, no duty upon the employer to give such an employee, whose employment 'is merely tentative until the contract is -completed by satisfaction of all the necessary conditions, an opportunity to clear his character while continuing in such tentative employment. Having received information upon which the employer can reasonably rely, to the effect that the intending employee is unsuitable for the employment in question, the employer may immediately refuse to go on with the contract and thus bring it to an end. It is not necessary in such a case that there should be any direct or indirect rescission of the contract because the contract was never completed. It fell through for lack of satisfaction of a primary and precedent condition. Even less is it necessary to use such an expression as that employed by the Government viz. "terminate the service". In fact there was no service in accordance with the contract? but merely service in advance of completion of the contract for which it would have been sufficient in law if payment had been made ad valorem. On this view, it was quite necessary to give any notice in compliance with the contract, and in our opinion the reference to notice in the Government letter is otiose and the direction for payment of 15 days' salary in lieu of notice must be deemed, in all the circumstances, to be a payment made ex gratis. This payment is not referable to any legal obligation arising out of the offer of service, for as has been seen, a condition to this , effect was omitted from the offer." What is of significance is that the employment was incomplete till the stipulation was fultilled as to the respondent suitability to continue in service,' in which case the constitutional guarantee was not available to the respondent. Again in Muhammad Siddfq Javaid Chaudhry V. Government of West Pakistan P L D 1974 S C 393, it was held: "A probationer is a person who is taken in service subject to the condition that it will attain a sure footing only it during the period that he is on probation he shows that he is a fit person to be retained in service, and if the service of probationer is terminated on the ground of unsatisfactory work that will not amount to dismissal or removal from service, such termination will be in terms of the contract or the rules made by the Government." In other words the successful completion of probationary service was) regarded as a sine qua non to the completion of the contract of employment. In Pakistan (Punjab Province) v. Riaz Ali Khan? 1982 S C M R 770, Muhammad Siddiq Javaid Chaudhry's case was followed as also in that case a similar question arose for decision. The learned Judge in the High Court mainly relied on Abdul Majid Sheikh's case for holding that the respondent was entitled to the protection of constitutional guarantee, but while doing so he laid undue emphasis on the words "until further orders", which as would appear from Abdul Majid Shaikh's case were grounded on the quality of his employment and other factors which are not present in the instant case as the contract of employment is conditional to his selection for continuing in service. The words "until further orders" are to be read in a restricted sense, that is, to ensure till his suitability was determined. Again the learned Judge in the High Court was not right in holding that the criterion for continuing in service was the opinion of the department as to his suitability to continue in service and not the directory opinion of the Federal Public Service Commission as the department had by incorporating a stipulation in the order left it to the Federal Public Service Commission to determine his suitability in terms of the memorandum referred to above which the department was bound to accept. For all these reasons, the learned Judge in the High Court was in error in holding that before terminating the employment of the respondent, he was entitled to the protection of the constitutional guarantee provided by Article 177(1)(6) of the 1962 Constitution. The trial Court, in our view, correctly construed the stipulation in the office order and dismissed the suit. Accordingly, we would set aside the impugned orders and restore the judgment of the trial Court and allow the appeal, but with no order as to costs. M. z. M.? Appeal allowed.