P L D 1985 Lahore 394 (PLP)

(h) Punjab Civil Service (Judicial Branch) Rules, 1962

Art. 5-Punjab Civil Servants Act (VIII of 1974), S. 4-Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, r. 16-Punjab Public Service Commission Ordinance (11 of 1978) S. 7-Punjab Public Service Commission (Functions) Rules, 1974, r. 7 (b) Provisional Constitution Order (1 of 1981), Art. 9-Recruitment to posts of Civil Judges - Petitioner qualifying prescribed competitive examination and recommended for appointment by Public Service Commission but government/appointing authority refusing to appoint petitioner for his past affiliation to a political party Refusal of government, held, not warranted by law thus illegal Government directed to appoint petitioner as civil judge on basis of his result in competitive examination. Link Bashir Ahmed Ansari and Munir Bashir Ansari for Petitioner. Dr. G. S. Khan for Respondent. Date of hearing : 23rd April, 1985. JUDGMENT To fill 67 temporary posts of Civil Judges (formerly P. C. S. Judicial Branch) in the Province of Punjab, a public notice was got published by the Punjab Public Service Commission, Lahore in the daily Pakistan Times in its issue dated 1-6-1982, inviting applications from candidates fulfilling the . requisite qualifications. The posts were, of course, to be filled as a result of competitive examination to be held by the Punjab Public Service Commission, on whose recommendations the appointing authority, viz. the Government of Punjab was to make appointments.

2. The petitioner Mr. Mazhar Hussain who is a practising Advocate at Rawalpindi and is holder of a degree of M. A. LL. B., and was .otherwise also qualified to appear at the competitive examination, submitted his application on the prescribed form to the Punjab Public Service Commission in response to the aforementioned public notice. His candidature was accepted by the Commission and he was therefore, asked to appear at the competitive examination and was allotted Roll No.

412. The petitioner thus appeared at the competitive examination, His name figured in the list of 82 candidates who were declared successful in the written examination. The list was published in the Press on 10-5-1983. Subsequently the petitioner appeared at the psychological test on 21-7-1983 and for viva voce test on 31-7-1983. The combined result of the written examination, psychological and viva voce tests was published by the Commission in the daily Press on 1-9-1983. The list of successful candidates contained the names of 66 persons. Petitioner's name also appeared in the said list and he secured 44th position. He was asked to appear before the Standing Medical Board at Holy Family Hospital, Rawalpindi, on 23-10-1983, for his medical examination. He was examined by the Medical Board on the aforesaid date and declared medically fit.

3. Appointments of the candidates as Civil Judges were made by the Government of Punjab vide. its notification No. 1-12-80-SOS (IV) Vol. II, dated 1-12-1983. Through this notification, 64 persons were appointed as Civil Judges. The name of the petitioner did not figure in this notification. He made enquiries which revealed that due to his alleged affiliations with a political party he was not considered suitable for appointment as a Civil Judge: 4: The action of the Government whereby the petitioner has not been appointed as Civil Judge despite of his having secured 44th position in the competitive examination held by the Punjab Public Service Commission, has been assailed by the petitioner through the present constitutional petition.

5. It has been urged that the petitioner qualified in every respect for appointment as Civil Judge and- according to the result compiled by the Public Service Commission, he secured 44th position amongst 66 successful candidates for 67 vacancies. He was recommended by the Punjab Public Service Commission for appointment as Civil Judge. He also was declared medically fit by the Standing Medical Board: He was, therefore, entitled to be appointed against the available vacancy. The act of the respondent Government in not appointing him as a Civil Judge was discriminatory, mala fide and nugatory, vis-a-vis the very purpose behind holding of competitive examination. It has been maintained that the respondent was obliged to appoint all persons who were declared fit for appointment and recommended as such by the Punjab Public Service Commission.

6. Government of the Punjab in the para-wise comments submitted that the petitioner was not appointed as a Civil Judge because due to strong political affiliations he was not considered fit/suited for a sensitive judicial assignment and that it was not obligatory upon the Government, the appointing authority to appoint the petitioner as a Civil Judge because he had qualified the competitive examination. In spite of the result of the competitive examination conducted by the Punjab Public Service Commission, the discretion of the appointing authority still remains available to, determine the suitability of the candidates for a particular post.

7. It transpires from the considered analysis of the facts detailed above, that the points for determination involved in the instant constitutional petition are : (a) whether the Government as appointing authority is under obligation to appoint a candidate who has qualified the competitive examination conducted by the Punjab Public Service Commission, has attained such a merit as a result of the competitive examination which entitles him to the appointment and has also been found suitable for appointment and recommended as such by the Punjab Public Service Commission ; (b) if not, whether the respondent is legally justified in not appointing the petitioner as Civil Judge in spite of the fact that he secured 44th position as a result of competitive examination conducted by the Punjab Public Service Commission for appointment to 67 posts of Civil Judges, has been declared medically fit and has also been recommended by the Commission for appointment.

8. The Punjab Civil Servants Act (VIII of 1974), was passed by the Provincial Assembly of the Punjab to regulate by law, the appointment to, and the terms and conditions of the services of the Province of the Punjab, and to provide for matters connected therewith or ancillary thereto. Section 4 ibid provides that appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf. The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, have been made pursuant to the provisions of section 23 of the Punjab Civil Servants Act, 1974. Part III of these Rules relates to the initial appointment. Rule 16 ibid provides that initial appointment to the posts in grade 16 and above, except those which under the Punjab Public Service Commission (Functions) Rules, 1974, do not fall within the purview of the Commission or which are specified to be filed without reference to the Commission, shall be made on the basis of examination or test conducted by the Punjab Public Service Commission. The post of Civil Judge obvious has not been taken away from the purview of the Commission under the Punjab Public Service Commission (Functions) Rules, 1974, nor it has been specified any where that it would be filled without reference to the Commission. Thus, the posts of Civil Judges have to be filled on the basis of examination conducted by the Commission. The Punjab Public Service Commission has. been constituted under the provisions of the Punjab Public Service Commission Ordinance, 1978. Under section 7 of the Ordinance, functions of the Commission are : (a) To conduct tests, examinations or interviews for selection of suitable persons. for appointments to civil services of the Punjab and posts connected with the affairs of the Province in Grade-16 and above or equivalent posts and such other posts as may be prescribed ; (b) to advise the Governor on matters relating to qualifications for and method of recruitment to the civil services of the Province and posts connected with the affairs of the Province ; and (c) such other functions as may be prescribed. It is provided in section 8 of the Punjab Public Service Commission Ordinance, 1978, that where the Governor does not accept the advice of the Commission he shall inform the Commission accordingly. The advice referred to in section 8 supra obviously pertains to the functions 7 (b) of the Public Service Commission which is to the effect that the Commission shall advise the Governor on matters relating to qualifications for and method of recruitment to the civil services of the Province and posts connected with the affairs of the Province. Section 8. therefore, has no relevancy to the functions of the Commission pertaining to initial appointment to the civil services of the Province and the posts connected with the affairs of the Province in Grade-16 and above, for which the Commission has to conduct tests, examinations and interviews etc. Rule 20 of the Government of Punjab Rules of Business 1974, provides that the advice of the Public Service Commission shall ordinarily be accepted by the Department in all matters where it is obligatory to consult the Commission under any law or any Rules or Regulations for the time being in force. It is further provided that if it is proposed not to accept the advice of the Commission, the case shall be submitted to the Chief Minister through the Services, General Administration and Information Department, which may give an opportunity to the Public Service Commission of further ,justifying its recommendations before a final decision is taken. Where, however, the Chief Minister does not accept the advice of the Public Service Commission he shall inform the Commission accordingly. The advice referred to in rule 20 of the Government of Punjab Rules of Business 1974. perhaps also pertains to advisory functions of the Commission as provided B in section 7 (b) of the Punjab Public Service Commission Ordinance, 1978, and does not relate to the functions of the Commission pertaining to initial appointment. Recruitment to the posts of the Civil Judges in the Province of the Punjab is regulated by the Civil Service (Judicial Branch) Rules, 1962. The appointing authority as per these Rules (rule 4 ibid) is the Government. Rule 5 deals with the method of recruitment and it provides that appointments to the Service shall be made by initial recruitment on the recommendation of the Commission i. e. the Punjab Public Service Commission based on the result of a competitive examination conducted by it in the subjects specified in the appendix to these rules.

9. It appears from the close scrutiny of the relevant provisions of the Punjab Civil Servants Act 1974, the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the Punjab Public Service Commission Ordinance 1978, the Government of Punjab Rules of Business 1974 and the Punjab Civil Service (Judicial Branch) Rules, 1962, that appointment to the posts of Civil Judges is to be made by the Government on the recommendation of the Punjab Public Service Commission based on the result of a competitive examination to be conducted by the Commission in the subjects specified in the appendix to the Punjab Civil Service (Judicial Branch) Rules, C 1962. It further transpires that the appointing authority viz. the Government in the matter of appointment of Civil Judge is to act upon the advice of the Public Service Commission. Nevertheless the Government in exercise of its powers as appointing authority is empowered not to appoint a candidate as Civil Judge to spite of the recommendation of the Commission if he is not found eligible for such appointment. For this purpose recourse can be had to Part III of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which deals with initial appointment. Under rule 8 ibid, a candidate for initial appointment to a post must possess the prescribed educational qualifications and experience and also must be within the age limit as laid down for the post. Under rule 19, no person is eligible for appointment to a post unless he is a citizen of Pakistan, provided that this restriction may be relaxed by the Government in suitable cases. Similarly by virtue of rule 20, vacancies in various posts are required to be filled from persons domiciled in the Province of the Punjab. Rule 21 further provides that a candidate for appointment must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties. A candidate who after such medical examination is found not to satisfy the requirements of rule 21 cannot be appointed.

10. Affiliations to a political party is not a disqualification in accordance with the rules governing the initial appointment as contained in Part III of the Punjab Civil Servants (Appointment and Conditions of Service) D Rules, 1974. The Government as appointing authority can lawfully refuse to appoint a person to a civil post despite of the recommendation of the Public Service Commission if he suffers from any of the shortcomings provided in the rules contained in Part III of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The Government, however, cannot act arbitrarily and cannot exercise its powers as appointing authority in disregard to the provisions of the Punjab Civil Servants Act, 1974 and the Rules made thereunder viz. the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Affiliations with any political party as regard to a post to be filled as result of competitive examination has little relevancy. Affiliations of a F particular person with a political party before entry into a public service has not to be regarded as disqualification because the moment he enters the public service he ceases to have any connection with any political party. Under the Government Servants (Conduct) Rules, 1966 (section 24) taking part in politics and elections is prohibited and this prohibition comes into G play after a person joins the public service. It has no relevancy before his entry into public service. Bringing of political influence directly or indirectly by a Government servant amounts to misconduct within the meaning of section 2 (1) (d) of the Punjab Civil Servants (Efficiency and H Discipline) Rules, 1975. These rules come into play after a person joins a civil service in the Province of the Punjab.

11. From the analysis of the relevant provisions of the law and rules governing the services in the Province it becomes evident that affiliations with a political party prior to entry into a Government service is not all disqualification and on this ground a person cannot be refused appointment if otherwise he has qualified the prescribed competitive examination and has been recommended by the Public Service Commission for appointment.

12. The foregoing discussion thus leads to the conclusion that although the status of the Public Service Commission is that of a consultative or a advisory body and its recommendations being only advisory in nature ma not be acted upon by the appointing authority for lawful reasons but the appointing authority, particularly the Government being a juristic person i under an obligation to act in accordance with law and relevant rules. deliberate or flagrant disregard of the law and the relevant rules would attract the power of judicial review vesting in the superior Courts. Under article 9 of the Provisional Constitution Order, 1981 as also under Article 4 of the Constitution of Pakistan, 1973, every act of the Government is required to be exercised lawfully and every individual has to be dealt with in accordance with law, as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.

13. In the circumstances of the present case, as observed above, refusal of the respondent-Government to appoint the petitioner as Civil Judge in spite of his having qualified the prescribed competitive examination and having been recommended for appointment by the Public Service Commission, is not warranted by the Punjab Civil Servants Act, 1974 and the relevant rules made thereunder. Such refusal is, therefore, unlawful and the`' impugned action of the Government in this behalf has to be regarded as without lawful authority and of no legal effect. It is ordered accordingly and the writ petition is thus allowed. The respondent-Government is directed to appoint the petitioner as Civil Judge on the basis of the result of his competitive examination. There shall, however, be no order as to costs. M. Y. H.????????? Petition accepted. (h) Punjab Civil Service (Judicial Branch) Rules, 1962

Art. 5-Punjab Civil Servants Act (VIII of 1974), S. 4-Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, r. 16-Punjab Public Service Commission Ordinance (11 of 1978) S. 7-Punjab Public Service Commission (Functions) Rules, 1974, r. 7 (b) Provisional Constitution Order (1 of 1981), Art. 9-Recruitment to posts of Civil Judges - Petitioner qualifying prescribed competitive examination and recommended for appointment by Public Service Commission but government/appointing authority refusing to appoint petitioner for his past affiliation to a political party Refusal of government, held, not warranted by law thus illegal Government directed to appoint petitioner as civil judge on basis of his result in competitive examination. Bashir Ahmed Ansari and Munir Bashir Ansari for Petitioner. Dr. G. S. Khan for Respondent. Date of hearing : 23rd April, 1985. JUDGMENT To fill 67 temporary posts of Civil Judges (formerly P. C. S. Judicial Branch) in the Province of Punjab, a public notice was got published by the Punjab Public Service Commission, Lahore in the daily Pakistan Times in its issue dated 1-6-1982, inviting applications from candidates fulfilling the . requisite qualifications. The posts were, of course, to be filled as a result of competitive examination to be held by the Punjab Public Service Commission, on whose recommendations the appointing authority, viz. the Government of Punjab was to make appointments.

2. The petitioner Mr. Mazhar Hussain who is a practising Advocate at Rawalpindi and is holder of a degree of M. A. LL. B., and was .otherwise also qualified to appear at the competitive examination, submitted his application on the prescribed form to the Punjab Public Service Commission in response to the aforementioned public notice. His candidature was accepted by the Commission and he was therefore, asked to appear at the competitive examination and was allotted Roll No.

412. The petitioner thus appeared at the competitive examination, His name figured in the list of 82 candidates who were declared successful in the written examination. The list was published in the Press on 10-5-1983. Subsequently the petitioner appeared at the psychological test on 21-7-1983 and for viva voce test on 31-7-1983. The combined result of the written examination, psychological and viva voce tests was published by the Commission in the daily Press on 1-9-1983. The list of successful candidates contained the names of 66 persons. Petitioner's name also appeared in the said list and he secured 44th position. He was asked to appear before the Standing Medical Board at Holy Family Hospital, Rawalpindi, on 23-10-1983, for his medical examination. He was examined by the Medical Board on the aforesaid date and declared medically fit.

3. Appointments of the candidates as Civil Judges were made by the Government of Punjab vide. its notification No. 1-12-80-SOS (IV) Vol. II, dated 1-12-1983. Through this notification, 64 persons were appointed as Civil Judges. The name of the petitioner did not figure in this notification. He made enquiries which revealed that due to his alleged affiliations with a political party he was not considered suitable for appointment as a Civil Judge: 4: The action of the Government whereby the petitioner has not been appointed as Civil Judge despite of his having secured 44th position in the competitive examination held by the Punjab Public Service Commission, has been assailed by the petitioner through the present constitutional petition.

5. It has been urged that the petitioner qualified in every respect for appointment as Civil Judge and- according to the result compiled by the Public Service Commission, he secured 44th position amongst 66 successful candidates for 67 vacancies. He was recommended by the Punjab Public Service Commission for appointment as Civil Judge. He also was declared medically fit by the Standing Medical Board: He was, therefore, entitled to be appointed against the available vacancy. The act of the respondent Government in not appointing him as a Civil Judge was discriminatory, mala fide and nugatory, vis-a-vis the very purpose behind holding of competitive examination. It has been maintained that the respondent was obliged to appoint all persons who were declared fit for appointment and recommended as such by the Punjab Public Service Commission.

6. Government of the Punjab in the para-wise comments submitted that the petitioner was not appointed as a Civil Judge because due to strong political affiliations he was not considered fit/suited for a sensitive judicial assignment and that it was not obligatory upon the Government, the appointing authority to appoint the petitioner as a Civil Judge because he had qualified the competitive examination. In spite of the result of the competitive examination conducted by the Punjab Public Service Commission, the discretion of the appointing authority still remains available to, determine the suitability of the candidates for a particular post.

7. It transpires from the considered analysis of the facts detailed above, that the points for determination involved in the instant constitutional petition are : (a) whether the Government as appointing authority is under obligation to appoint a candidate who has qualified the competitive examination conducted by the Punjab Public Service Commission, has attained such a merit as a result of the competitive examination which entitles him to the appointment and has also been found suitable for appointment and recommended as such by the Punjab Public Service Commission ; (b) if not, whether the respondent is legally justified in not appointing the petitioner as Civil Judge in spite of the fact that he secured 44th position as a result of competitive examination conducted by the Punjab Public Service Commission for appointment to 67 posts of Civil Judges, has been declared medically fit and has also been recommended by the Commission for appointment.

8. The Punjab Civil Servants Act (VIII of 1974), was passed by the Provincial Assembly of the Punjab to regulate by law, the appointment to, and the terms and conditions of the services of the Province of the Punjab, and to provide for matters connected therewith or ancillary thereto. Section 4 ibid provides that appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf. The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, have been made pursuant to the provisions of section 23 of the Punjab Civil Servants Act, 1974. Part III of these Rules relates to the initial appointment. Rule 16 ibid provides that initial appointment to the posts in grade 16 and above, except those which under the Punjab Public Service Commission (Functions) Rules, 1974, do not fall within the purview of the Commission or which are specified to be filed without reference to the Commission, shall be made on the basis of examination or test conducted by the Punjab Public Service Commission. The post of Civil Judge obvious has not been taken away from the purview of the Commission under the Punjab Public Service Commission (Functions) Rules, 1974, nor it has been specified any where that it would be filled without reference to the Commission. Thus, the posts of Civil Judges have to be filled on the basis of examination conducted by the Commission. The Punjab Public Service Commission has. been constituted under the provisions of the Punjab Public Service Commission Ordinance, 1978. Under section 7 of the Ordinance, functions of the Commission are : (a) To conduct tests, examinations or interviews for selection of suitable persons. for appointments to civil services of the Punjab and posts connected with the affairs of the Province in Grade-16 and above or equivalent posts and such other posts as may be prescribed ; (b) to advise the Governor on matters relating to qualifications for and method of recruitment to the civil services of the Province and posts connected with the affairs of the Province ; and (c) such other functions as may be prescribed. It is provided in section 8 of the Punjab Public Service Commission Ordinance, 1978, that where the Governor does not accept the advice of the Commission he shall inform the Commission accordingly. The advice referred to in section 8 supra obviously pertains to the functions 7 (b) of the Public Service Commission which is to the effect that the Commission shall advise the Governor on matters relating to qualifications for and method of recruitment to the civil services of the Province and posts connected with the affairs of the Province. Section 8. therefore, has no relevancy to the functions of the Commission pertaining to initial appointment to the civil services of the Province and the posts connected with the affairs of the Province in Grade-16 and above, for which the Commission has to conduct tests, examinations and interviews etc. Rule 20 of the Government of Punjab Rules of Business 1974, provides that the advice of the Public Service Commission shall ordinarily be accepted by the Department in all matters where it is obligatory to consult the Commission under any law or any Rules or Regulations for the time being in force. It is further provided that if it is proposed not to accept the advice of the Commission, the case shall be submitted to the Chief Minister through the Services, General Administration and Information Department, which may give an opportunity to the Public Service Commission of further ,justifying its recommendations before a final decision is taken. Where, however, the Chief Minister does not accept the advice of the Public Service Commission he shall inform the Commission accordingly. The advice referred to in rule 20 of the Government of Punjab Rules of Business 1974. perhaps also pertains to advisory functions of the Commission as provided B in section 7 (b) of the Punjab Public Service Commission Ordinance, 1978, and does not relate to the functions of the Commission pertaining to initial appointment. Recruitment to the posts of the Civil Judges in the Province of the Punjab is regulated by the Civil Service (Judicial Branch) Rules, 1962. The appointing authority as per these Rules (rule 4 ibid) is the Government. Rule 5 deals with the method of recruitment and it provides that appointments to the Service shall be made by initial recruitment on the recommendation of the Commission i. e. the Punjab Public Service Commission based on the result of a competitive examination conducted by it in the subjects specified in the appendix to these rules.

9. It appears from the close scrutiny of the relevant provisions of the Punjab Civil Servants Act 1974, the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the Punjab Public Service Commission Ordinance 1978, the Government of Punjab Rules of Business 1974 and the Punjab Civil Service (Judicial Branch) Rules, 1962, that appointment to the posts of Civil Judges is to be made by the Government on the recommendation of the Punjab Public Service Commission based on the result of a competitive examination to be conducted by the Commission in the subjects specified in the appendix to the Punjab Civil Service (Judicial Branch) Rules, C 1962. It further transpires that the appointing authority viz. the Government in the matter of appointment of Civil Judge is to act upon the advice of the Public Service Commission. Nevertheless the Government in exercise of its powers as appointing authority is empowered not to appoint a candidate as Civil Judge to spite of the recommendation of the Commission if he is not found eligible for such appointment. For this purpose recourse can be had to Part III of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which deals with initial appointment. Under rule 8 ibid, a candidate for initial appointment to a post must possess the prescribed educational qualifications and experience and also must be within the age limit as laid down for the post. Under rule 19, no person is eligible for appointment to a post unless he is a citizen of Pakistan, provided that this restriction may be relaxed by the Government in suitable cases. Similarly by virtue of rule 20, vacancies in various posts are required to be filled from persons domiciled in the Province of the Punjab. Rule 21 further provides that a candidate for appointment must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties. A candidate who after such medical examination is found not to satisfy the requirements of rule 21 cannot be appointed.

10. Affiliations to a political party is not a disqualification in accordance with the rules governing the initial appointment as contained in Part III of the Punjab Civil Servants (Appointment and Conditions of Service) D Rules, 1974. The Government as appointing authority can lawfully refuse to appoint a person to a civil post despite of the recommendation of the Public Service Commission if he suffers from any of the shortcomings provided in the rules contained in Part III of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The Government, however, cannot act arbitrarily and cannot exercise its powers as appointing authority in disregard to the provisions of the Punjab Civil Servants Act, 1974 and the Rules made thereunder viz. the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Affiliations with any political party as regard to a post to be filled as result of competitive examination has little relevancy. Affiliations of a F particular person with a political party before entry into a public service has not to be regarded as disqualification because the moment he enters the public service he ceases to have any connection with any political party. Under the Government Servants (Conduct) Rules, 1966 (section 24) taking part in politics and elections is prohibited and this prohibition comes into G play after a person joins the public service. It has no relevancy before his entry into public service. Bringing of political influence directly or indirectly by a Government servant amounts to misconduct within the meaning of section 2 (1) (d) of the Punjab Civil Servants (Efficiency and H Discipline) Rules, 1975. These rules come into play after a person joins a civil service in the Province of the Punjab.

11. From the analysis of the relevant provisions of the law and rules governing the services in the Province it becomes evident that affiliations with a political party prior to entry into a Government service is not all disqualification and on this ground a person cannot be refused appointment if otherwise he has qualified the prescribed competitive examination and has been recommended by the Public Service Commission for appointment.

12. The foregoing discussion thus leads to the conclusion that although the status of the Public Service Commission is that of a consultative or a advisory body and its recommendations being only advisory in nature ma not be acted upon by the appointing authority for lawful reasons but the appointing authority, particularly the Government being a juristic person i under an obligation to act in accordance with law and relevant rules. deliberate or flagrant disregard of the law and the relevant rules would attract the power of judicial review vesting in the superior Courts. Under article 9 of the Provisional Constitution Order, 1981 as also under Article 4 of the Constitution of Pakistan, 1973, every act of the Government is required to be exercised lawfully and every individual has to be dealt with in accordance with law, as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.

13. In the circumstances of the present case, as observed above, refusal of the respondent-Government to appoint the petitioner as Civil Judge in spite of his having qualified the prescribed competitive examination and having been recommended for appointment by the Public Service Commission, is not warranted by the Punjab Civil Servants Act, 1974 and the relevant rules made thereunder. Such refusal is, therefore, unlawful and the`' impugned action of the Government in this behalf has to be regarded as without lawful authority and of no legal effect. It is ordered accordingly and the writ petition is thus allowed. The respondent-Government is directed to appoint the petitioner as Civil Judge on the basis of the result of his competitive examination. There shall, however, be no order as to costs. M. Y. H.????????? Petition accepted. Bashir Ahmed Ansari and Munir Bashir Ansari for Petitioner. Dr. G. S. Khan for Respondent. Date of hearing : 23rd April, 1985. To fill 67 temporary posts of Civil Judges (formerly P. C. S. Judicial Branch) in the Province of Punjab, a public notice was got published by the Punjab Public Service Commission, Lahore in the daily Pakistan Times in its issue dated 1-6-1982, inviting applications from candidates fulfilling the . requisite qualifications. The posts were, of course, to be filled as a result of competitive examination to be held by the Punjab Public Service Commission, on whose recommendations the appointing authority, viz. the Government of Punjab was to make appointments.

2. The petitioner Mr. Mazhar Hussain who is a practising Advocate at Rawalpindi and is holder of a degree of M. A. LL. B., and was .otherwise also qualified to appear at the competitive examination, submitted his application on the prescribed form to the Punjab Public Service Commission in response to the aforementioned public notice. His candidature was accepted by the Commission and he was therefore, asked to appear at the competitive examination and was allotted Roll No.

412. The petitioner thus appeared at the competitive examination, His name figured in the list of 82 candidates who were declared successful in the written examination. The list was published in the Press on 10-5-1983. Subsequently the petitioner appeared at the psychological test on 21-7-1983 and for viva voce test on 31-7-1983. The combined result of the written examination, psychological and viva voce tests was published by the Commission in the daily Press on 1-9-1983. The list of successful candidates contained the names of 66 persons. Petitioner's name also appeared in the said list and he secured 44th position. He was asked to appear before the Standing Medical Board at Holy Family Hospital, Rawalpindi, on 23-10-1983, for his medical examination. He was examined by the Medical Board on the aforesaid date and declared medically fit.

3. Appointments of the candidates as Civil Judges were made by the Government of Punjab vide. its notification No. 1-12-80-SOS (IV) Vol. II, dated 1-12-1983. Through this notification, 64 persons were appointed as Civil Judges. The name of the petitioner did not figure in this notification. He made enquiries which revealed that due to his alleged affiliations with a political party he was not considered suitable for appointment as a Civil Judge: 4: The action of the Government whereby the petitioner has not been appointed as Civil Judge despite of his having secured 44th position in the competitive examination held by the Punjab Public Service Commission, has been assailed by the petitioner through the present constitutional petition.

5. It has been urged that the petitioner qualified in every respect for appointment as Civil Judge and- according to the result compiled by the Public Service Commission, he secured 44th position amongst 66 successful candidates for 67 vacancies. He was recommended by the Punjab Public Service Commission for appointment as Civil Judge. He also was declared medically fit by the Standing Medical Board: He was, therefore, entitled to be appointed against the available vacancy. The act of the respondent Government in not appointing him as a Civil Judge was discriminatory, mala fide and nugatory, vis-a-vis the very purpose behind holding of competitive examination. It has been maintained that the respondent was obliged to appoint all persons who were declared fit for appointment and recommended as such by the Punjab Public Service Commission.

6. Government of the Punjab in the para-wise comments submitted that the petitioner was not appointed as a Civil Judge because due to strong political affiliations he was not considered fit/suited for a sensitive judicial assignment and that it was not obligatory upon the Government, the appointing authority to appoint the petitioner as a Civil Judge because he had qualified the competitive examination. In spite of the result of the competitive examination conducted by the Punjab Public Service Commission, the discretion of the appointing authority still remains available to, determine the suitability of the candidates for a particular post.

7. It transpires from the considered analysis of the facts detailed above, that the points for determination involved in the instant constitutional petition are : (a) whether the Government as appointing authority is under obligation to appoint a candidate who has qualified the competitive examination conducted by the Punjab Public Service Commission, has attained such a merit as a result of the competitive examination which entitles him to the appointment and has also been found suitable for appointment and recommended as such by the Punjab Public Service Commission ; (b) if not, whether the respondent is legally justified in not appointing the petitioner as Civil Judge in spite of the fact that he secured 44th position as a result of competitive examination conducted by the Punjab Public Service Commission for appointment to 67 posts of Civil Judges, has been declared medically fit and has also been recommended by the Commission for appointment.

8. The Punjab Civil Servants Act (VIII of 1974), was passed by the Provincial Assembly of the Punjab to regulate by law, the appointment to, and the terms and conditions of the services of the Province of the Punjab, and to provide for matters connected therewith or ancillary thereto. Section 4 ibid provides that appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf. The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, have been made pursuant to the provisions of section 23 of the Punjab Civil Servants Act, 1974. Part III of these Rules relates to the initial appointment. Rule 16 ibid provides that initial appointment to the posts in grade 16 and above, except those which under the Punjab Public Service Commission (Functions) Rules, 1974, do not fall within the purview of the Commission or which are specified to be filed without reference to the Commission, shall be made on the basis of examination or test conducted by the Punjab Public Service Commission. The post of Civil Judge obvious has not been taken away from the purview of the Commission under the Punjab Public Service Commission (Functions) Rules, 1974, nor it has been specified any where that it would be filled without reference to the Commission. Thus, the posts of Civil Judges have to be filled on the basis of examination conducted by the Commission. The Punjab Public Service Commission has. been constituted under the provisions of the Punjab Public Service Commission Ordinance, 1978. Under section 7 of the Ordinance, functions of the Commission are : (a) To conduct tests, examinations or interviews for selection of suitable persons. for appointments to civil services of the Punjab and posts connected with the affairs of the Province in Grade-16 and above or equivalent posts and such other posts as may be prescribed ; (b) to advise the Governor on matters relating to qualifications for and method of recruitment to the civil services of the Province and posts connected with the affairs of the Province ; and (c) such other functions as may be prescribed. It is provided in section 8 of the Punjab Public Service Commission Ordinance, 1978, that where the Governor does not accept the advice of the Commission he shall inform the Commission accordingly. The advice referred to in section 8 supra obviously pertains to the functions 7 (b) of the Public Service Commission which is to the effect that the Commission shall advise the Governor on matters relating to qualifications for and method of recruitment to the civil services of the Province and posts connected with the affairs of the Province. Section 8. therefore, has no relevancy to the functions of the Commission pertaining to initial appointment to the civil services of the Province and the posts connected with the affairs of the Province in Grade-16 and above, for which the Commission has to conduct tests, examinations and interviews etc. Rule 20 of the Government of Punjab Rules of Business 1974, provides that the advice of the Public Service Commission shall ordinarily be accepted by the Department in all matters where it is obligatory to consult the Commission under any law or any Rules or Regulations for the time being in force. It is further provided that if it is proposed not to accept the advice of the Commission, the case shall be submitted to the Chief Minister through the Services, General Administration and Information Department, which may give an opportunity to the Public Service Commission of further ,justifying its recommendations before a final decision is taken. Where, however, the Chief Minister does not accept the advice of the Public Service Commission he shall inform the Commission accordingly. The advice referred to in rule 20 of the Government of Punjab Rules of Business 1974. perhaps also pertains to advisory functions of the Commission as provided B in section 7 (b) of the Punjab Public Service Commission Ordinance, 1978, and does not relate to the functions of the Commission pertaining to initial appointment. Recruitment to the posts of the Civil Judges in the Province of the Punjab is regulated by the Civil Service (Judicial Branch) Rules, 1962. The appointing authority as per these Rules (rule 4 ibid) is the Government. Rule 5 deals with the method of recruitment and it provides that appointments to the Service shall be made by initial recruitment on the recommendation of the Commission i. e. the Punjab Public Service Commission based on the result of a competitive examination conducted by it in the subjects specified in the appendix to these rules.

9. It appears from the close scrutiny of the relevant provisions of the Punjab Civil Servants Act 1974, the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the Punjab Public Service Commission Ordinance 1978, the Government of Punjab Rules of Business 1974 and the Punjab Civil Service (Judicial Branch) Rules, 1962, that appointment to the posts of Civil Judges is to be made by the Government on the recommendation of the Punjab Public Service Commission based on the result of a competitive examination to be conducted by the Commission in the subjects specified in the appendix to the Punjab Civil Service (Judicial Branch) Rules, C 1962. It further transpires that the appointing authority viz. the Government in the matter of appointment of Civil Judge is to act upon the advice of the Public Service Commission. Nevertheless the Government in exercise of its powers as appointing authority is empowered not to appoint a candidate as Civil Judge to spite of the recommendation of the Commission if he is not found eligible for such appointment. For this purpose recourse can be had to Part III of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, which deals with initial appointment. Under rule 8 ibid, a candidate for initial appointment to a post must possess the prescribed educational qualifications and experience and also must be within the age limit as laid down for the post. Under rule 19, no person is eligible for appointment to a post unless he is a citizen of Pakistan, provided that this restriction may be relaxed by the Government in suitable cases. Similarly by virtue of rule 20, vacancies in various posts are required to be filled from persons domiciled in the Province of the Punjab. Rule 21 further provides that a candidate for appointment must be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties. A candidate who after such medical examination is found not to satisfy the requirements of rule 21 cannot be appointed.

10. Affiliations to a political party is not a disqualification in accordance with the rules governing the initial appointment as contained in Part III of the Punjab Civil Servants (Appointment and Conditions of Service) D Rules, 1974. The Government as appointing authority can lawfully refuse to appoint a person to a civil post despite of the recommendation of the Public Service Commission if he suffers from any of the shortcomings provided in the rules contained in Part III of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. The Government, however, cannot act arbitrarily and cannot exercise its powers as appointing authority in disregard to the provisions of the Punjab Civil Servants Act, 1974 and the Rules made thereunder viz. the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Affiliations with any political party as regard to a post to be filled as result of competitive examination has little relevancy. Affiliations of a F particular person with a political party before entry into a public service has not to be regarded as disqualification because the moment he enters the public service he ceases to have any connection with any political party. Under the Government Servants (Conduct) Rules, 1966 (section 24) taking part in politics and elections is prohibited and this prohibition comes into G play after a person joins the public service. It has no relevancy before his entry into public service. Bringing of political influence directly or indirectly by a Government servant amounts to misconduct within the meaning of section 2 (1) (d) of the Punjab Civil Servants (Efficiency and H Discipline) Rules, 1975. These rules come into play after a person joins a civil service in the Province of the Punjab.

11. From the analysis of the relevant provisions of the law and rules governing the services in the Province it becomes evident that affiliations with a political party prior to entry into a Government service is not all disqualification and on this ground a person cannot be refused appointment if otherwise he has qualified the prescribed competitive examination and has been recommended by the Public Service Commission for appointment.

12. The foregoing discussion thus leads to the conclusion that although the status of the Public Service Commission is that of a consultative or a advisory body and its recommendations being only advisory in nature ma not be acted upon by the appointing authority for lawful reasons but the appointing authority, particularly the Government being a juristic person i under an obligation to act in accordance with law and relevant rules. deliberate or flagrant disregard of the law and the relevant rules would attract the power of judicial review vesting in the superior Courts. Under article 9 of the Provisional Constitution Order, 1981 as also under Article 4 of the Constitution of Pakistan, 1973, every act of the Government is required to be exercised lawfully and every individual has to be dealt with in accordance with law, as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.

13. In the circumstances of the present case, as observed above, refusal of the respondent-Government to appoint the petitioner as Civil Judge in spite of his having qualified the prescribed competitive examination and having been recommended for appointment by the Public Service Commission, is not warranted by the Punjab Civil Servants Act, 1974 and the relevant rules made thereunder. Such refusal is, therefore, unlawful and the`' impugned action of the Government in this behalf has to be regarded as without lawful authority and of no legal effect. It is ordered accordingly and the writ petition is thus allowed. The respondent-Government is directed to appoint the petitioner as Civil Judge on the basis of the result of his competitive examination. There shall, however, be no order as to costs. M. Y. H.????????? Petition accepted.