P L D 1961 (W (PLP)

FARUQUI, J.‑This is a writ petition by certain Section Officers praying for the issue of a writ of mandamus against Pakistan and the Federal Public Service Commission directing them to refrain from holding any examination or using the result of the examination already held for the purposes of determining whether they should be continued or confirmed in their office of Section Officers. 2: In August 1959, the Government of Pakistan framed a scheme known as `Section Officers Scheme' for the reorganization of the Central Secretariat and for that purpose decided that each Secretariat Branch should be reconstituted into two sections, each section to be under the charge of a Section Officer who should combine the duties then performed by the Branch Officer, the Superintendent and the dealing Assistant, and the Section Officer was to be of the rank of Under/Assistant Secretary. The scheme provided that the initial method of recruitment of Section Officers should be as under:‑ "(a) All Assistant Secretaries and Under Secretaries should be redesignated as Section Officers; (b) members of the Central Superior Services and other Class I Officers employed in the Central Secretariat, its Attached Departments and Subordinate Offices, should be eligible for appointment as Section Officers; (c) Selection for 70 % of the remaining posts should be made by the Central Board subject to the approval of the Federal Public Service Commission from amongst the following catego ries in the orders indicated below: (i) Superintendents of the Central Secretariat, (ii) Assistants, including Assistants‑in‑charge of the .Central Secretariat, (iii) Other Class II Officers serving in the Central Secre tariat and its Attached Departments and Subordinate Offices. Note: Superintendents and Assistants will be selected for appointment as Section Officers from a common seniority roster drawn up for the Secretariat as a whole. (d) the remaining 30 % of the vacancies should be filled by direct recruitment on the basis of a competitive examination to be held by the Federal Public Service Commission." This scheme is contained in the memorandum dated 5th August 1959, of the Government of Pakistan, Ministry of Interior (Establishment Division) and is produced before us marked Exh; D.

3. On 19th September 1959, the Federal Public Service Commission issued a notice to the Superintendents of various Ministries asking them to attend for the purpose of test on 27th September 1959, in connection with selection for appointment as Section Officers. This is Exh. E. The petitioners, who were at that time Superintendents, along with other Superintendents pro tested against the proposed test on the following grounds:‑ "(i) The holding of such a test and interview was against the terms and conditions of the service of Superintendents which did not provide for promotion test, (ii) All appointments from Superintendents to the post of Assistant Secretary and other Class I posts had to the past been made on the basis of confidential reports, (iii) Section Officers Scheme approved in memo. No. S. 0.1/59 dated 5‑8‑1959 (Exh. D) did not provide that promotions would be on the basis of such tests and interviews, (iv) Procedural instructions contained in letter No. 10/13/52 - S. E. II dated 9‑5‑1953, (Exh. C) prescribed a procedure for filling up of vacancies by promotion and they did not contem plate any test." A copy of this representation is produced and marked Exh. F. It appears that as a result of this representation the proposed test was not held and the Government of Pakistan by notifica tion dated 25th September 1959 made ‑an amendment to part (A) of the schedule to the Pakistan Public Service Commis sion (Consultation by the Governor‑General) Regulations, 1953, (hereinafter referred to as the Regulations) by adding the following at the end of the said schedule: "Persons to be initially recruited under the Sections Officers Scheme otherwise than by competitive examination." Section 2 of the aforesaid Regulations of 1953, so far as it is relevant to understand the purpose of this amendment, may be reproduced:‑ "

2. It shall not be necessary to consult the Commission in regard to any matter mentioned in clauses (a) and (b) of subsection (3) of section 266 of the Government of India Act, 1935, in the case of (i) the services and posts specified in the schedule to these regulations; (ii) any post appointment to which requires the specific orders of the Governor‑General under the Rules of Business." The effect of this amendment was that it was not necessary to consult the Commission in the matter of initial recruitment of persons under the Section Officers Scheme except those who were to be recruited by competitive examination as provided by clause (iv) (d) of the Scheme.

4. After the said amendment to the schedule of the Regulations of 1953, referred to above, the petitioners were appointed to the post of Section Officers on the basis of their record and without any examination which had been previously proposed. In this post they started working from 30th September 1959.

5. On 19‑7‑60 the Federal Public Service Commission as a result of the decision by the Government sent an office memorandum, Exh. H, to all the Ministries saying that the Commission will hold an examination of serving Sections Officers of the Government of Pakistan (except those exempted) on Sunday, the 11th September 1960. This may be reproduced:‑ "Subject:‑Examination of Section Officers. The Federal Public Service Commission will hold an examina tion of serving Section Officers of the Government of Pakistan (except those exempted) on Sunday, the 11th September 1960, at Rawalpindi and Karachi. The exact place of the examina tion at Rawalpindi and Karachi will be intimated later.

2. The examination will be held in the following subjects:‑ (a) Paper I (8 a.m. to 11 a.m.) Precise writing and drafting. (b) Paper II (3 p.m. to 6 p.m.) Rules of Business and Secretariat Instructions and their application to the actual work and duties of a Secretariat Officer of the level of a Section Officer.

3. The Ministries/Divisions are requested to forward to the Commission lists of Section Officers employed under them (with their places of postings) by the 1st August 1960. A copy of these lists may please be forwarded to the establishment Division also, Sd. Sardar Ahmad Deputy Secretary, Federal Public Service Commission."

6. The establishment Division then issued an office memo randum dated 25th July 1960, which is as follows:‑ "Subject: Promotion examination of serving Section Officers." The undersigned is directed to say that it has been decided to hold an examination of serving Section Officers during the month of September 1960, at two centres namely Karachi and Rawalpindi. The examination will be conducted by the Federal Public Service Commission, and the subjects will be: (a) The Rules of Business. (b) The Secretariat Instructions as modified by the Establish ment Division letter of 5th of January 1960, regarding office procedure and delegation of Administrative powers. (c) Precis and letter writing. All Officers of the All Pakistan Services and the Central Superior Services as well as all officers who were Class I Officers those Section Officers are required to take the examination who were Class II Officers before appointed to Officiate as Section Officer. Sd. Deputy Secretary."

7. The petitioners and other concerned Section Officers, who had been promoted from amongst the Superintendents, made a representation protesting against the proposed examination which was rejected on 20th September 1960. The petitioners then filed the present writ petition on 22‑2‑61.

8. It is the case of the petitioners that the Federal Public Service Commission is not entitled to hold such an examination nor is the respondent No. 1 entitled under the rules to order them to do so; that this is in contravention of the provision of Pakistan Public Service Commission (Consultation by Governor General) Regulations 1953, Exh. G, as amended by notification dated 25‑9‑59, Exh. G‑1, and instructions prescribed by the Governor‑General for regulating the procedure of Federal Public Service Commission contained in Exh. C, and the Section Officers Scheme as embodied in Exh. D, and also in violation of the rules contained in the office memorandums dated 15th March 1948, and 24th August 1949, Exhs. A & B. It is further pointed out that holding of such an examination is contrary to the terms and conditions of the service of the petitioners and other serving Section Officers who have been recruited from amongst the permanent Superintendents.

9. In the counter affidavit filed on behalf of the respondents the facts stated above have been admitted but it was contended that one of the duties of the Federal Public Service Commission is to advise the President in respect of each candidate whether his qualification is sufficient and whether he has the character and ability for the post, on which he is proposed to be appointed and that this includes the question whether a particular candidate has the necessary aptitude and suitability for the post, and for so doing the Federal Public Service Commission are competent to hold an examination for determining what their advice should be. It was further contended that the promotions already made being in a purely temporary capacity until further orders, Government could at any time terminate the appointment .and for the purpose of enabling themselves to decide which Section Officers should be made permanent or may continue. Govern ment was entitled to use any test and the examinations in question are not competitive but are held with a view to determining the efficiency, ability and general suitability of the temporarily pro moted officers. It was denied that the said examination was under the Federal Public Service Commission (Consultation by the Governor‑General) Regulations, 1953. The examination, it was asserted, was for the purpose of enabling the Commission to advise the President as to the suitability of officers already temporarily promoted to the rank of Section Officers for deter mining whether they would be retained in that capacity. It was lastly contended t hat the petitioners having been appointed in a temporary capacity, had no vested right to continue in the said appointment and further that in any case no writ of mandamus could issue against the Government. This last contention was not pressed b: fore us by Mr. Tufail Ali A. Rahman the learned Deputy Attorney‑General appearing for the respondents, but he reserved his right to raise this question if the matter went to the Supreme Court.

10. Mr. Lari, the learned Advocate for the petitioners, strongly relied on Exh. C, which contained the instruction: prescribed by the Governor‑General for regulating the procedure of the Pakistan Public Service Commission. His contention was that the case of the petitioners will be governed by clause 4 of the instructions which deals with the cases of recruitment by promotion. Clause 4 is as follows: "(4) When recruitment is to be made by promotion to any post in a service and consultation with the Commission is required, the Commission shall (i) consider the claims of the candidates nominated by the Provincial Government, or the Ministry as the case may be, and (ii) thereafter advise the Governor‑General or Provincial Government, as the case may be, in respect of each candi date nominated whether his qualifications are sufficient and whether his record proves him to have the requisite charac ter and ability for the service to which it is proposed to appoint him, and (iii) arrange the candidates in orders of preference." Mr. Lari's contention was that under this clause the Commission could not hold an examination and the only basis upon which they could tender their advice could be by examining the record of the petitioners. If clause 4 of these instructions apply to the case of the petitioners there would be considerable force in the contention of the learned counsel, but in these instructions it is expressly laid down that they are subject to any regulation made under section 266 (3) of the Government of India Act, 1935, which is more or less equivalent to Article 188 of the late Constitution. In the present case in view of the amendment of the Regulations which was brought about on 25th September 1959, and which has been referred to above it was no longer necessary to consult the Commission in respect of the initial recruitment under the Section Officers Scheme of the category of persons in which the petitioners fell. This being so, the instruc tions contained in Exh. C cannot govern the case of the peti tioners because these instructions have been made expressly subject to the Regulations. If the instructions contained in Exh. C, do not apply to the present case, and in our opinion they do not, the next question for consideration is whether the said examination is prohibited by any rule or the terms and conditions of the service of the petitioners and the further question would be that even if here is no such prohibi tion whether the Government is entitled to have the petitioners examined as proposed.

11. It may now be useful to turn to the Section Officers Scheme itself, under which the petitioners had been appointed as Section Officers. Clause 4 (e) of that Scheme provides that the selection for 70 % of the remaining posts was to be made by the Central Board subject to the approval of the Federal Public Service Commission. Inasmuch as consultation of the Federal Public Service Commission was dispensed with by the amendment of the Regulations it is this clause of the Section Officers Scheme which must govern the case. It is true that .it is not expressly provided in this Scheme or anywhere else as to the manner in which the approval of the Public Service Commission is to be obtained, but considering that there is no prohibition, express or implied, we have come to the conclusion after most anxious consideration that the holding of the proposed examination is in consonance with the Scheme and it cannot be described as unreasonable or arbitrary. Exhibit H would show that the proposed, examination was to be in precis‑writing and drafting and regarding Rules of Business and Secretariat Instructions and their application to the actual work and duties of a Secretariat Officer of the level of a Section Officer. In order to further satisfy ourselves we asked the Deputy Attorney General to produce before us that actual examination papers and he did so, and we were satisfied that the examination in question was being held in good faith "and could by no means be described as arbitrary. We took care to examine this aspect of the matter because if it had appeared to us that it was otherwise and that in the garb of seeking the approval of the Commission a competitive exami nation was being held we would have certainly interfered because that is not what the Scheme provides. The competi tive examination is restricted to the remaining 30 % of the vacan cies which were to be filled by direct recruitment. With regard to the other contention of the learned Counsel for the petitioners that the appointment of the petitioners to the post of Section Officers was merely in the nature of promotion to the post of all the Assistant Secretaries and for which no examination had ever been provided, we must point out that the Section Officers Scheme is a new scheme under which a Section Officer is to be in charge of a branch of the Secretariat and was to combine in himself the duties which were formerly performed by the Branch Officer, the Superintendent and the Dealing Assistant.. The validity of the Scheme itself has not been challenged in this writ petition and considering that the selection of the Superintendents and Assistants etc., to the post of Section Officer was expressly made subject to the approval of the Federal Public Service Com mission it cannot be said that the seeking of such approval by the Government by means of an examination, such as was proposed, is not in accordance with the Scheme or is otherwise in violation of any right of the petitioners.

12. Upon the conclusion reached by us this writ petition must fail, but before we reject the petition we must put it on record that with regard to the purpose of the examination the stand taken before us by the Government was clear and unequi vocal that the test was not in the nature of a competitive examination: and the only purpose of it was to determine the suitability of the appointed officers for the post of a Section Officer. We have no doubt that the purpose of the examination and the result thereof shall remain as has been stated above, for it must be remembered that notwithstanding the abrogation of the late Constitution the terms and conditions and privileges. if any, of all persons who immediately before the proclamation were in the service of Pakistan have been expressly. preserved under Article 6 of the Laws (Continuance in Force) Order, 1958. With these observations we dismiss this writ petition but in the circumstances make no order as to costs. K. B. A. Petition dismissed.