2006 PLP 1876 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

The facts, admitted on all sides are, that while practising law at Bahawalnagar and while also working as a Government Pleader, Abdur Rauf Anjum (hereinafter called "the respondent") got appointed as an Assistant District Attorney in B-16 on 11-1-1986 through his selection by some Selection Board and was posted to Bahawalnagar; that in his said capacity, he fell within the administrative control of the Law Department in the Government of Punjab; that the Law Minister of Punjab, at the relevant time, also happened to hail from Bahawalnagar; that sometimes in the year 1988, the respondent submitted an application to the said Law Minister stating therein that he had come to know that one post of Deputy District Attorney was lying vacant in the Law Department and that if given a chance, he would try his best to satisfy his superiors and that pursuant to the said application, the Law Secretary sent a "Summary" to 'the then Chief Minister on 10-10-1988 for appropriate orders. The said summary read as under:-- "Summary for Chief Minister Subject: Appointment as Deputy District Attorney This summary has reference to the application of Mr. Abdur Rauf Anjum, Assistant District Attorney, Bahawalnagar addressed to the Minister for Law and Parliamentary Affairs for appointment as Deputy District Attorney (Annexure "I"). The applicant is a Law Graduate of the Punjab University. (2) He was enrolled as an Advocate on 25-1-1978. He also worked as Government Pleader from 1983 to 1985 in the Court of Additional Sessions Judge, Bahawalnagar. He was appointed as Assistant District Attorney on 9-1- 1986. The applicant, thus, possesses the requisite qualifications prescribed for the post of Deputy District Attorney. His bio data is Annexure "II". (3) There is a post of Deputy District Attorney lying vacant under the administrative control of Law and Parliamentary Affairs Department w.e.f. 6-6- 1988 against which he can be appointed by the Chief Minister. (4) This summary is submitted to the Chief Minister for appropriate orders. (Sd.) Mian Muhammad Zarif Secretary Law and P.A. Department 10-10-1988 (5) Law Minister Signed. 14-10 (6) Chief Minister Approved."

2. His appointment, as a Deputy District Attorney, having been thus, approved, an offer was made to the respondent for his appointment as such. He accepted the said offer and a Notification was consequently issued by the Government of Punjab in the Law and Parliamentary Affairs Department appointing the said respondent as a Deputy District Attorney at Bahawalnagar w.e.f. 26-10-1988.

3. The Punjab Removal from Service (Special Powers), Ordinance was promulgated in the year 2000 whereafter a notice was issued by the Competent Authority to the respondent on 16-6-2001 calling upon him to show cause why one of the penalties prescribed by section 3 of the said Ordinance be not imposed on him because:-- "You were found to have been appointed or promoted on extraneous grounds in violation of law within the meaning of section 3(c) of the Punjab Removal from Service (Special Powers) Ordinance, 2000. For the said omission and commission on your part, you are liable to disciplinary action, which may involve imposition on one or more penalties prescribed in section 3 of the said Ordinance." An Inquiry Officer was simultaneously appointed to inquire into the said conduct of the respondent. Despite repeated notices, telephonic, telegraphic and otherwise, the respondent neither submitted his reply, other than some legal objections, nor did he join the enquiry proceedings. He was consequently proceeded against ex parte whereafter it was found and reported that the respondent had manoeuvred his said appointment as a Deputy District Attorney in violation of law and for extraneous reasons and it had resultantly been recommended that he be demoted to the rank of an Assistant District Attorney, a post held by the respondent prior to his appointment in question.

4. A final show-cause notice was then issued to the respondent. He submitted a detailed reply to the same on 26-6-2001. The Competent Authority considered the said reply; provided an opportunity of personal hearing to the respondent and passed the following order on 31-7-2001: "Reduced to the rank of Assistant District Attorney where he was at the time of illegal promotion as Deputy District Attorney."

5. After exhausting the departmental remedy, the respondent approached the Punjab Service Tribunal with an appeal under section 4 of the Punjab Service Tribunals Act of 1974. It was pleaded by the respondent before the learned Tribunal:-- (a) that the non-participation of the respondent in the inquiry proceedings was beyond his control because, at the relevant time, he was working with NAB who were not permitting him to leave work and in the circumstances, the enquiry in question, held in his absence, was of no legal effect; (b) that the Chief Minister had powers under Rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 to order appointments, in relaxation of all rules and that no exception could thus, be taken to his appointment having been so made by the Chief Minister; and finally, (c) that the impugned order of the competent authority reverting him back as an Assistant District Attorney was void ab initio, as his r appointment as a D.D.A. was not by way of promotion but was by way of direct appointment to the said post and he could, consequently, not be put back as an A.D.A.

6. The learned Tribunal allowed the said appeal through its judgment, dated 18-12-2002. The operative part of the said judgment is as under: "... therefore, the inquiry conducted is without participation of appellant. His participation was beyond his control. Appellant was appointed as direct Deputy District Attorney, hence the impugned order for his reversion to his previous post as Assistant District Attorney is not on legal footings. (5) With all these discussions appeal is accepted and the impugned order and rejection of appeal are set aside." (underlining is ours)

7. Hence this petition by the competent authority.

8. Notice was issued in this petition to the respondent who is present and has been heard, in person, at some length. The learned Advocate-General for Punjab and Mr. Imtiaz Ahmed Ch. Advocate Supreme Court have been heard for the petitioners and we have also perused the record in the light of the submissions made before us.

9. The facts which had led to the disciplinary proceedings against the respondent and which have been noticed above, in detail, were not in dispute then and are not in dispute even now. Mere non-participation of a person in the enquiry proceedings could not, under all circumstance, be declared to have amounted to violation of the principle of natural justice and consequently fatal to the punitive action unless it could be shown that some prejudice had thereby been caused to the person so condemned. In the present case, as has been mentioned above, the facts were not in dispute. Therefore, this was not a situation where it could be found that any prejudice had been caused to the respondent in the matter of his defence due to the inquiry proceedings having been taken against him ex parte and we hold accordingly.

10. In any case, it is on record that several opportunities had been offered to the respondent to defend himself against the allegations levelled against him and he did not even find it convenient to answer the initial show-cause notice beyond the legal objections taken by him. It was never his case that it was again the NAB authorities which had commanded him not even to send a reply to the initial notice dated 30-4-2001 which had been issued to him by the Law Secretary being the competent authority under the said Ordinance of 2000. It is also on record that the respondent did file a detailed reply to the final show-cause notice before the competent authority had decided to punish him and he had even been allowed an opportunity of being heard in person.

11. Looked at, from whatever angle, the respondent was in the circumstances, not entitled to any relief or benefit on account of his mere non-participation in the enquiry proceedings in question.

12. According to the Rules regulating the appointment of District Law Officers, 50% of the available posts of Deputy District Attorneys were required to be filled through promotion, on seniority-cum-fitness basis, from amongst the A.D.As. with a minimum of three years' service as such while not more than 50% of the said posts were to be filled by initial recruitment. It may be added that since the D.D.As. fell in BS-17, therefore, the law required that appointments to the said posts, by initial recruitment, could be made only on selection by the public Service Commission after issuance of a public notice inviting all those eligible, to compete for the same.

13. As per the record, the respondent, at the relevant time, stood at Serial No.383 in the seniority list of A.D.As. with 382 A.D.As. above him and did not even have the requisite three years' service as an A.D.A. which could have qualified him for promotion to the post of a D.D.A. Therefore, there was no question of the respondent having secured the said post of D.D.A. by way of promotion. In any case, as the respondent never claimed to have been appointed as a D.D.A. through promotion, therefore, this aspect of the matter does not warrant any further discussion or comments.

14. His claim, however, was and still is that he had been appointed as a Deputy District Attorney by initial recruitment and since no such available post had ever been advertised and since he was also not reaching the said post via the legally prescribed route of Public Service Commission, therefore, his case was that the Chief Minister, had made his said appointment by relaxing all rules governing the subject and that the C.M. had done; so under Rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules of 1974.

15. This contention of the respondent is not sustainable for more than one reasons. Firstly, because the summary sent to the Chief Minister which has been reproduced above, in toto, did not contain even a mention that the appointment of the respondent as a D.D.A. was being sought in violation of the law and the rules regulating such an appointment or that any rules or any provision of law were required to be relaxed for the purpose. Nor did the Chief Minister make any mention of approving the said appointment in relaxation of any rules etc. Secondly, the Chief Minister was blessed with the authority to relax any such rules only in cases of hardship and for "special reasons" justifying the same. As would be evident again from the said summary, no reason, leave alone any special reason, had been stated which could have permitted the Chief Minister to adopt such an extraordinary course by him. What was stated in the summary in question was that the respondent was an Advocate. So are hundreds and thousands of others in the Province. It was also said that he had been a Government Pleader. There are tens of such Government Pleaders and what was so special about it'? It was also reported to the C.M. that he had more than two years experience as an A.D.A. It is not the respondent's case that he was the only A.D.A. in the Province who had worked as such for over two years. It may be added that in October, 1988 when the respondent's appointment in question was made, there was 404 A.D.As. working in Punjab out of whom 382 were senior to him, obviously, having experience much more than the experience possessed by the respondent.

16. Having thus, examined all aspects of the validity of the respondent's alleged direct appointment as a D.D.A. we find that the same could not be sustained on any basis or hypothesis.

17. Our conclusions, therefore, are: (a) that the respondent had not been appointed as a D.D.A. by way of promotion because it was his own case that he had not been so appointed in the said manner and even the learned Tribunal had found it so; (b) that the obvious and inevitable consequence of the same was that on his appointment as a D.D.A., he had ceased to have any lien on his earlier held post of A.D.A. (c) that the respondent's direct recruitment as a D.D.A. could not be sustained as the same was in violation of law, the rules and the law governing the subject; that the Chief Minister had never been informed that the proposed appointment of the respondent as a D.D.A. was in breach of the rules and the legal requirements which required relaxation of the same by him; that the Chief Minister did not pass any order relaxing the said rules and the law before or while approving the said appointment and further that, in any case, the Chief Minister could not have relaxed any such rules etc. because no special reasons existed justifying the same; and (d) that the respondent's appointment to' the post of D.D.A. was thus, illegal and of no legal effect.

18. In view of these conclusions, we got confronted with a further question i.e. whether, in the said situation, the respondent could continue as an Assistant District Attorney and we issued a further notice to the respondent in the said connection.

19. He submitted that since his appointment as an A.D.A. had not been found to be invalid, therefore, he could, validly, continue as such.

20. As has been noticed above, the respondent's own claim which was even endorsed by the learned Tribunal, was, that his appointment as a D.D.A. was a case of initial recruitment. It flows therefrom that the moment he accepted the offer for his appointment as such, he ceased to have any lien on the post earlier held by him and if his appointment as a D.D.A. was found illegal then nothing remained for him on which he could fall back. His retention, in service as an A.D.A. could have been an option only if his appointment as a D.D.A. was a result of his promotion to the said post which was neither his case nor even established or deducible from the record.

21. There is yet another aspect of the matter which engaged our further attention i.e. whether, if not in law, then at least in equity and by way of invoking our constitutional powers to do complete justice, we could permit the respondent to continue as an A.D.A. after his appointment as a D.D.A. had been found to be illegal, in violation of law and for extraneous reasons.

22. The respondent secured an illegal gain in question only because he was posted in a District to which the Minister incharge belonged. And in manoeuvring the said appointment, he showed contempt not only to the law but also to the rights of 382 of his colleagues who stood ahead of him in the queue with much longer service. Not just that, by his said conduct, he also caused injustice to hundreds of others who could have been much better qualified than him and who would have been better entitled to the said post of D.D.A. if the same had been thrown open to the public to be filled in through a fair, just and transparent selection by the Public Service Commission. It is a principle of dispensation of justice, too well-established by now, that the Courts of law would never show any sympathy or regard to a person who had shown no regard for others; who had in fact trampled over the rights of the others and had c enjoyed robbing the same. It may be added that bringing extraneous influence on a Minister, on a Chief Minister or on any Government Officer, amounted to "misconduct" as defined by rule 2(d) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 which rules were applicable to the respondent at the relevant time and that by securing the said appointment in the manner in question, the respondent was guilty of having mis-conducted himself as a civil servant which had made him liable for punishment and which punishment could have meant even his dismissal from the post of an A.D.A. even if he had been found entitled to retain the said post of A.D.A.;

23. In view of what has been noticed and found above, this petition is converted into an appeal which is allowed as a result whereof it is declared that the appointment of the respondent as a Deputy District Attorney was illegal and of no legal effect having been made and secured in violation of law and for extraneous reasons. Consequently, the impugned judgment of the Punjab Service Tribunal dated 18-12-2002 passed in Appeal No.75 of 2002 is set aside. It is further declared that in view of the respondent's own plea of having been appointed as a D.D.A. by way of initial recruitment and in view of the law, as mentioned above, he could not have continued as an Assistant District Attorney. Therefore, in discharge of the obligations cast on us by Article 187 of the Constitution, we modify the order of the Authority/the Secretary Law, dated 31-7-2001 to the extent that since the respondent could not be reduced to the rank of an Assistant District Attorney, therefore, he would not be so reduced in rank with the result that he would cease to be a civil servant with immediate effect.

24. No orders as to costs.

25. But before we part with this judgment, we feel compelled to make a mention of the anguish caused to us by the manner in which the respondent had manoeuvred the post in question of the Deputy District Attorney and the manner in which the concerned authorities had dolled out the same to him. We are further pained to notice that menace of seeking appointments to posts in the public service through such-like dishonest, clandestine and unfair methods, was growing by the day and was attaining alarming proportions and it is time we took stock of the situation before it was too late.

26. It is our misfortune that when we are looking for individuals to serve our own-selves, we search for the best of doctors, the best of architects, the best of lawyers, the best of engineers, the best of cooks, the best of butlers and so on but when it comes to selecting similar individuals to serve the public, we get swayed by nepotism, by petty personal interests and by other similar ulterior and extraneous considerations and settle for the ones not worthy of serving the public in the requisite manner. We need to remind ourselves that choosing persons for public service was not just providing a job and the consequent livelihood to the one in need but was a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public. The individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer. Therefore, we must keep it in mind that not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had right to be served by the best. It is also blatant violation of the rights of those who may be available and whose rights to the said posts are denied to them by appointing unqualified or even less qualified persons to such posts. Such a practice and conduct is highly unjust and spreads a message from ones in authority that might was right and not vice versa which message gets gradually permeated to the very gross root level leading ultimately to a society having no respect for law, justice and fair play. And it is the said evil norms which ultimately lead to anarchic and chaotic situations in the society. It is about time we suppressed such-like evils tendencies and eliminated them before the same eliminated us all.

27. Send copies of this judgment to Chief Secretary of Punjab and to the Secretary of the Government of Punjab in the Law Department for their information and for compliance of the same. M.H./C-17/SC Appeal allowed.