P L D 1971 Supreme Court 846 (PLP)

"(1) No person shall be appointed to a post in the Service by initial recruitment unless he holds - (a) a Degree in Mechanical or Agriculture Engineering from a recognised University ; or (b) a Degree In Agriculture with a diploma in Agriculture Engineering acquired after at least one year's academic study from a recognised University or Institute or equivalent quali fications. (2) No person, not already in Government service, shall be appointed 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." It is true that the appellants, at the time of their interview by the Public Service Commission, did not possess either of the qualifications prescribed in the said rule

7. But the relevant Government .file which has been produced before us by the learned Assistant Advocate-General reveals that the selection of A the candidates by the Public Service Commission for training and eventual appointment as Assistant Agricultural Engineers was authorised by the Governor's own order, dated the 1st June 1965. This order relating to appointment of 46 Assistant Agricul tural Engineers was made in exceptional circumstances. The Government launched a scheme called "Development of land and provision of machinery for augmenting water supply in West Pakistan-Training of Assistant Agricultural Engineers". The Director, Agricultural Engineering, in his letter to the Agriculture Secretary, dated the 6th May 1965, initiated this scheme whereunder 46 graduates in B. Sc. (Agriculture) were to be selected for appointment as Assistant Agricultural Engineers after their successful completion of 2 years' diploma course at the Lyallpur Agricultural University. The Director discussed the scheme with the West Pakistan Public Service Commission and recommended for selection of the candidates by the Public Service Commission by interview. It was stated in the Director's letter of the 6th May 1965, that this scheme was being suggested as persons possessing the qualifications mentioned in rule 7 of the Recruitment Rules were not available. In view of the urgency of the matter, the Director requested the Government to approve the scheme without delay. Thereafter, the scheme was examined in the Agriculture Department by various officers at different levels. It appears that there was a difference of opinion among these officers with regard to the implementation of the scheme. Ultimately, the matter came up before the Agriculture Secretary who, having considered the various aspects of the scheme, proposed that 46 candidates should be selected by the Public Service Commission by interview for training and appointment as Assistant Agricultural Engineers; that each selected candidate was to execute a bond for Rs. 12,000 undertaking to serve the Government for a period of 5 years at least as Assistant Agricultural Engineer and that each selected candidate would get a stipend of Rs. 150 p. m. during the period of training. This proposal of the Secretary was approved by the Governor in writing on the 1st June 1965. Thereafter, a formal letter being letter No. Vill (68).6.5/5. O. A. Vlf, dated the 26th June 1965, was sent by the Government to the West Pakistan Public Service Commission in terms of the order approved by the Governor. After narrating the difficulty in getting candidates having the requisite qualifications prescribed in rule 7 of the Recruitment Rules, it was stated in the letter that the selection of trainees for appointment as Assistant Agricultural Engineers was decided upon by the Governor to overcome that difficulty. The terms and conditions of the proposal approved by the Gavernor were reiterated in the letter to the Public Service Commission, and these were as follows: "The Governor of West Pakistan has accordingly approved the following proposals (1) The West Pakistan Public Service Commission may select 46 candidates who are at least B. So. (Agri.) IInd Div., for training as Assistant Agri. Engineers in connection with Government's expanded programme of land and water development. The selection may be made by interview only to expedite matters. The selected candidates will have to execute a bond of Rs. 12,000 that they will serve the Agri. Depart ment for a period of 5 years at least and that if he fails to do so they will have to forego the aforesaid sum. (2) The candidates selected by the Commission will undergo a course at the Agricultural University, Lyallpur, for 2 years. (3) The selected candidates will be given a stipend of Rs. 150 p. m. during the period of training at the University. They will pay their tuition fees out of this stipend. (4) The successful -trainees will be on probation for one year. (5) The quota for. the various Zones will be in accordance with the S. & GA's instructions contained in their letter No. S. O. XVIII-3 (6)/62, dated 19-5-1964. The matter was discussed with your predecessor by the Director, Agricultural Engineering, Lyallpur, and it was kindly agreed that the selection of candidates will be made by interview only. A requisition form for the selection of the 46 candidates for training at the Agricultural University at Lyalipur for appointment as Asstt. Agricultural Engineers is accordingly enclosed for necessary action." In pursuance of that letter, the Public Service Commission made the advertisement on the 23rd July 1965 and selected the appellants amongst others. After the selection of the candidates in terms of its advertisement, the Public Service Commissioner raised the question that while it was competent to select candidates for appointment as Assistant Agricultural Engineers in accordance with the Recruitment Rules, it was not Its function to select candi dates for receiving training and completing the diploma course in the Agricultural University at Lyallpur. However, the merit list containing the names of 63 candidates was sent by the Public Service Commission to the Agriculture Secretary at his request. It was from this list that the Agriculture Secretary picked up the 46 candidates including the appellants in order of merit. On these facts, it cannot be said that the selection of the appellants for training was not made by the Public Service Commission. However, the learned Judges of the High Court took the view that as regards appointment of the appellants to the Agriculture Engineering Service (Class II), rule 7 of the Recruitment Rules held the field and, as such, the appellants could not be selected for such appointment as they did not possess either of the qualifica tions prescribed in that rule. In taking this view, the learned Judges did not take notice of the events which had preceded the Government's requisition to the Public Service Commission for selection of 46 candidates for training and their eventual appoint ment as Assistant Agricultural Engineers. It is admitted on behalf of the Government that the Governor did, in fact, approve the proposal for selection of 46 candidates for training and their eventual appointment as Assistant Agricultural Engineers in the exigencies of the circumstances. Thus, the order of the Governor dated the 1st June 1965, by which he approved the method of E selection of candidates for appointment as Assistant Agriculture Engineers after their successful completion of the training, is an order having the statutory force. Clause (2) of Article 178 of the 1962-Constitution empowers the Governor to make rules relating to recruitment to civil service and civil posts in connection with the affairs of the Province. This clause does not provide that the recruitment rules are to be made in any particular manner, nor does it require previous publication of the rules .in the official Gazette. That being so, the Governor' order, dated the 1st June 1965 prescribing the special method for appointment of 46 candi dates to the posts of Assistant Agricultural Engineers was as opera tive as the Recruitment Rules themselves made by the Governor on the 18th June 1963. By the Governor's aforesaid order, the earlier Recruitment Rules shall be deemed to have been modifi ed so far as recruitment to the 46 posts of Assistant Agricultural Engineers was concerned. In other words, the departure made by the Governor's order of the 1st June, 1965 as regards selection for training and eventual appointment as Assistant Agricultural Engineers amounted to a special rule of recruitment governing these 46 posts only in order to implement the scheme called "Development of land and provision of machinery for augmenting water supply in West Pakistan". The view as above was taken by the High Court of West Pakistan, Lahore in the case of the Province of the Punjab v. Ch. Nazir Hussain (P L D 1956 Lah. 556) as armed by this Court in its decision reported in P L D 1960 S C

130. There are also other decisions of this Court to support the view that the order of the Governor, dated the 1st June 1965, has all the characteristics of statutory rules. These are cases of Pakistan v. Abduct Hamid (P L D 1961 S C 105) and The Province of West Pakistan v. Din Muhammad (PLD1964SC 21). Both these decisions were later cited with approval by this Court in the case of Muhammad Naseem Ahmad v. Azra Feroz Bakht (PLD1968SC37). The appellants having been selected for training and appointment in accordance with the aforesaid order of the Governor, they are entitled to be appointed as Assistant Agricultural Engineers, they having successfully completed the diploma course in the meantime. C It therefore follows as a corollary that they cannot be required to appear again before the Public Service Commission for selection for appointment to the said posts. (Incidentally it may be pointed out that the appellants, all of whom are graduates in Agriculture having obtained diploma from the Lyallpur Agricultural University have become qualified for appointment to those posts even under rule 7 of the Recruitment Rules.) The advertisement made by the Public Service Commission in pursuance of the Government's request specifically provided for "selection of 46 candidates for training and eventual appointment as Assistant Agricultural Engineers in West Pakistan Agriculture Engineering Service (Class II)". The advertisement further provided that "on their successful completion (of the training) they will be appointed as Assistant Agricultural Engineers in the scale of Rs. 350-35-525/40-925 p. m. and will be required to serve the Government for at least five years. The candidates who fail to obtain the diploma will be debarred from appointment " In the offer made by the Government in its letter, dated the 8th August 1966, it was stated "You have been selected for two years' diploma course at the West Pakistan Agricultural University, Lyallpur for appointment as Assistant Agricultural Engineer in the Agriculture Department on your successfully passing the course . . . ." This offer was duly accepted by the appellants. The appel lants executed bonds stipulating that they would pursue studies at the Agricultural University and qualify for the West Pakistan Agricultural Engineering Service (Class II) and render service to the Government on their successful completion of the course for the minimum period of 5 years. Ft appears from all these docu ments that the Government offered in unmistakable terms to appoint the appellants as Assistant Agricultural Engineers on their successful completion of the diploma course and this offer was accepted by the appellants. In their judgment, the learned Judges of the High Court referred to the Agriculture Secretary's letter, dated the 26th January, 1966, to the Public Service Commission. From the said letter, the learned Judges quoted the following " . . . . . in view of the hitch in procedural matters. I have, therefore decided that the trainees may be sent to the West Pakistan Agricultural University for taking up the course and appear for interviews before the West Pakistan Public Service Commission after they have successfully completed the course." The apparent purpose of this quotation was to show that the Agriculture Secretary had decided that the trainees would be required to appear again before the Public Service Commission even after their successful completion of the diploma course. This letter had the effect of modifying the Governor's order, dated the 1st June 1965 by the Agriculture Secretary which he was not competent to do. Apart from this the thing conveyed by the above letter was a matter between the Agriculture Secretary and the Public Service Commission, but it was not communicated to the appellants. There is nothing in the record to show that, before the acceptance of the offer, the appellants were, at any stage, informed that they would be required to appear before the Public Service Commission once again after the successful completion of the diploma course. It appears from the Department file that the Director of Agricultural Engineering, in his- letter No. 6076/6 111, dated the 16th October 1965 Informed the Government that it would be necessary to inform the selected candidates that they would bs required to appear before the Public Service Commission after the completion of their training. In spite of this suggestion by the Director of Agricultural Engineering, no such information was given to the appellants at any time before their acceptance of the offer. Thus the appellants always remained in a sense of security that on the successful completion of the diploma course they would be eventually appointed as Assistant Agricultural Engineers. The offer of the Government and its acceptance by the appellants consti tuted a valid agreement and the Governor's order dated the Ist July 1965 provided the authority for such an agreement. This agree ment is capable of being enforced in law. The Government was both competent and obliged to implement that agreement. When the Governor's order, dated the 1st July 1965, provided a special authority for recruitment to the 46 posts of Assistant Agricultural Engineers, rule 7 of the Recruitment Rules was not applicable in this case. The. learned Judges appear to have taken the view that the Government could not give any undertaking contrary to the Recruitment Rules and held that the undertaking on which the appellants relied could not be enforced. This view does not appear to be correct inasmuch as the undertaking given by the Govern ment to appoint the appellants as Assistant Agricultural Engineers on their successful completion of the diploma course, as already stated, had the Governor's order, dated the 1st June, 1965 as its authority. The case of Rederiaktiebolaget Amphitrite v. The King((1921) 3 K B 500 ) relied on by the learned Judges of the High Court in support of their contention that the agreement could not be enforced in law, does not, therefore apply in this case. This cited case was distinguished in a later case, namely, Robertson v. Minister of Pensions ((1948) 2 A I R 767). The later case rather supports the view that the Undertaking of the Government in the present case is enforceable in law. It is true that in the letter of offer the following condition was inserted as condition No.2 : "The West Pakistan Government in the Agriculture Depart ment do not accept the liability to provide you a job after successful completion of study in the West Pakistan Agricultural University at Lyallpur." This condition cannot be read in isolation; it should be read in conjunction with the preamble of the letter of offer. The preamble leaves no room for doubt that the offer was made for the appel lants' selection for the 2 years' diploma course and for their eventual appointment as Assistant Agricultural Engineers on their successful completion of that course. This was also expressly stated in the advertisement made by the Public Service Commis sion. When the condition No. 2 is read with the preamble of the letter of offer, it means that the condition No. 2 was to be operative if the posts are abolished or reduced for any valid reason or not otherwise available, say, on account of abolition of the department itself, but this did not give the Government an absolute choice to appoint or not to appoint the appellants even if they succeeded in obtaining diploma. In this connection, it may be pointed out that all the appel lants were Government servants before they accepted the offer. Of them as many as 21 had to resign their jobs in order to join the diploma course. The training received by them is not likely to be of any utility to them inasmuch as the diploma obtained by them will not enable them to secure any job m any department other than the Agriculture Department itself. Thus, the appellants will be seriously prejudiced unless they are appointed to the posts offered to them. In the result, I would allow this appeal, set aside the judg ment of the High Court and give a declaration that the appellants have satisfied the terms and conditions laid down by the Govern ment for their appointment as Assistant Agricultural Engineers and are, therefore, entitled to be appointed as such and that they are not required to appear again before the Public Service Commis sion for fresh interview for selection for such appointments. In the circumstances of the case, I would leave the parties to bear their own costs. MUHAMMAD YAQuB ALI, J.-I agree. WAHEEDUDDIN AHMAD, J.-- I agree. K. B. A Appeal accepted.