1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑In this case, the appellant was directly recruited as Assistant Director, Food in N.P.S. 17, by the order of the Government of the Punjab dated 5‑1‑1976 (actually joined on 7‑1‑1976), in relaxation of rule 3 of the West Pakistan Food Department (Gazetted Posts) of Recruitment Rules, 1963 and rule 5 of the Punjab Public Service Commission (Functions) Rules, 1974. The relevant provision in rule S read with item No. 3 in Appendix `A' (item G) to the said Rules is as under: ‑ "Seventy‑five per cent. by selection on merit from the regional sub‑cadre of District Food Controllers/Rationing Controllers, Storage and Enfor cement Officers and Assistant Controllers of Inspection with 7 years experience as such and twenty‑five per cent. by selection on merits from among Statistical Officers, Establishment Officers and Assistant Accounts Officers with 7 years experience as such." Rule 12 of 1963 Rules provided for relaxation in the following terms: ‑ "

12. Relaxation.‑Any of these rules may, for reasons to be recorded in writing, be relaxed in individual cases, if Government is satisfied that a strict application of the rule would cause undue hardship to the individual concerned Provided that wherever such relaxation involves a question on which consultation with the Commission is mandatory, the Commission shall be consulted before the relaxation is made." The provision in rule 5 of the Punjab Public Service Commission (Func tions) Rules, 1974 was as below:‑ "

5. Notwithstanding anything contained in rule 3, the Governor may, in the public interest, specified posts which may be filled, without reference to the Commission, by persons possessing such qualifica tions and experience and in such manner as he may determine." On 8th of August, 1977, the Martial Law Administrator, Zone 'A' issued Martial Law Instruction No. 21, according to which all such appointments be treated as ad hoc and cases of such appointees be scrutinised to judge their suitability for further retention in service. The case of the appellant to determine his suitability for appointment in the Department was also referred to the Punjab Public Service Commission who made the following recommendations vide their letter dated 31st August, 1977, in respect of the appellant: ‑ "So far as Mr. Tapir Mahmood Malik, Assistant Director, Food is concerned the Commission found him ineligible from the point of view of existing rules which bar such direct recruitment. However, for the purposes of basic qualifications the case laid down for District Food Controller have been taken into account in order to assess the candidate's suitability or otherwise and he was found suitable." The Government, however, did not choose to accept the latter part of the recommendation. It was held that the appellant being ineligible for appoint ment to the post of Assistant Director, Food, was not entitled to be retained in service and his appointment order dated 5‑1‑1976 was thus illegal. Same was accordingly cancelled and appellant's service were terminated with imme diate effect.

2. The appellant filed an appeal before this Tribunal but he was advised to have a recourse to the departmental remedy, in the first instance, as required by proviso (a) to rule 4 of the Punjab Service Tribunals Act, 1974. The appellant made a representation to the Department which was rejected on 15‑1‑1980 with the following observations: ‑ "It is regretted that your request for reinstatement in service in NPS 16 cannot be acceded to. You were appointed directly as Assistant Director (Food) on 7‑1‑1976 in relaxation of rules and the post of Assistant Director (Food) could not be filled by direct recruitment but was to be filled by promotion. The Punjab Public Service Commis sion was not consulted for your suitability as District Food Controller‑NPS 16 post. The question of your re‑instatement in NPS 16, therefore, does not arise." Consequently the present appeal was filed before this Tribunal on 13‑2‑1980. 3 The appellant, in the first instance, has contended that his appoint ment, to the post of Assistant Director, Food has been made by the Govern ment, who themselves being the rule‑making authority had the power to make the appointment by relaxing/modifying the rules. The appellant vigorously assailed the findings of the Public Service Commission as to the ineligibility of appellant to be appointed as such. It was contended that no limitation was discoverable from any rule or any other provision of law on the power of the Chief Minister to make appointment in relaxation of the relevant rules. In this behalf the learned counsel appearing for the appellant, also referred to the clarification dated 10‑10‑1977, issued by the Services and General Administration Department, Government of Punjab, which was to the follow ing effect: "There appears to be some misunderstanding of Martial Law Instruction regarding ad hoc appointments. Had the intention been to declare all appointments in relaxation of rules as cancelled. the instructions would have said as and the matter would have ended. The real intention was that while relaxation permitted under rules for procedures and systems was accepted as valid having been given under the powers vested in the competent authority it had now to be seen whether the candidates appointed in relaxation of the rules were suitable for the jobs in respect of educational qualifications, age, experience‑irrespective of the appointment. All Secretaries should note." It was thus submitted on behalf of the appellant that the Public Service Commission misconceived the issue while holding the appellant ineligible to be appointed to the post of Assistant Director, Food. The Public Service Commission, in fact, failed to address themselves to the crucial issue as to whether the Chief Minister had the power to relax the rules. As a matter of fact there was nothing in the advice to rebut the contention of the appel lant. It was rather submitted that the order in the circumstances was penal in substance and. appellant was entitled to a show‑cause notice before his removal from service. Lastly, it is submitted that the appellant, in any case, was considered fit by the Public Service Commission to hold the post of District Food Controller and he ought to have been absorbed as such. With these submissions the appellant prays for the acceptance of his appeal.

4. The Departmental Representative on the other hand, argued that the appellant was appointed on 5‑1‑1976 in utter disregard of the relevant provisions of rules. He further submitted that it was not a case of relaxa tion‑but total absence of rule authorising the appointment. According to the Departmental Representative, the relaxation presupposed the existence of power to make the appointment. No doubt the rule‑making authority had the power to pass an executive order which could have the effect of rule but same, according to the test laid down by the Supreme Court of Pakistan in various authorities, had to be of general application and any order passed to favour an individual could not be equated with a rule. It was thus con tended that there was no rule which authorised the appointment in question. It was rather submitted that the appointment was the result of political contrivance and was aptly covered by the provisions of MLI No.

21. It was also pointed out that even the terms of appointment of the appellant made it terminable at any time with one month's notice without assigning any reason, or on payment of one month's salary in lieu thereof. Thus, according to the department the termination of the service of the appellant was unexceptionable and at the most he was entitled to one month's salary in lieu of notice.

5. After hearing both the parties and going through the record, we find that admittedly 1963 Rules did not authorise the appointment of the appellant to the post of Assistant Director (Food). No rule authorising the appointment was cited before us. Thus, it was a case of complete absence of authority to make the appointment in question. Since the appointment of the appel lant as Assistant Director, Food was not supported by any rule or an provision of law, the appointment was rightly revoked by the com petent authority. The question of relaxation would only arise in a situation where the appointment as such was permissible under the relevant rules. The distinction has to be kept in view as to the total lack of authority to make the appointment and to relax the requirements governing the appointment in question. In other words the power to relax could be exercised only if the appointment to a post was otherwise permissible. In this case it was common case that direct appointment to the office of the Assistant Director, Food was not provided for under any provision contained in the rules. As such, the Chief Minister, though purported to relax the provisions of 1963 Rules, could not appropriate to himself the power to change the funda mentals of the rules. It was particularly so as the order of appointment of the appellant did not accord to the test laid down in the judgment of the Supreme Court reported in P L D 1971 S C 846, as the order had no general application. Furthermore, the proviso to rule 12 of the 1963 Rules, relating to relaxation, prescribed consultation with the Public Service Commission as a condition precedent when such a consultation was necessary. To over come this requirement the Chief Minister in exercise of the power under rule 5 of 1974 Rules, took the case out of the purview of the Public Service Commission. But here too the rules invested this power with the Governor whose consent has not been obtained at any stage. It is well‑settled principle of interpretation of Statutes that if a power had been conferred on a public functionary, it had to be exercised by that functionary alone. May be that under the Constitutional scheme existing at the relevant time, the Governor was bound by the advice of the Chief Minister, but the fact remained that the relaxation ‑in terms of rule 5 of the Punjab Public Service Commission (Func tions) Rules 1974, could be allowed by the Governor only. This view gets further support from the fact that vide section 6 of the Punjab Public Service Commission Act, 1974, it is the Governor as distinct from Government, who has been nominated as the rule‑making authority. The distinction between the `Governor' and the "Government" is clearly discernible from the respective definitions of both the terms as contained in the 1974 Act. Thus, the so‑called relaxation was not permissible and was also legally defective. In this view of the matter also, the advice of the Public Service Commission was assail able. As regards show‑cause notice, we do not accept the contention of the appellant that it was a penal order. In fact according to his term of appoint ment his services were terminable at any time with one month's notice or pay in lieu thereof.

6. But otherwise, we feel inclined to hold that the purpose of Martial Law Instruction No. 21 was to scrutinise the suitability of the appointees. The Commission rightly observed that the appellant was eligible and suitable for a grade 16 post to which, if approved by the Chief Minister, the appoint ment could have been unexceptionable. The perusal of the record revealed that the reference by the department to the Commission also required the service of the Public Service Commission as to whether the appellant was a suitable/fit person for appointment in the Department. It was in this context that the Commission tendered their advice. From the rele vant rules, it appears that the highest post to which direct recruitment could be made by the order of Government, was that of the District Food Con troller. We accordingly find force in the contention of the appellant that his case for the post of the District Food Controller, as recommended by the Public Service Commission, should have been considered favourably. We accordingly direct the Department to consider the case of the appellant for appointment as District Food Controller to which post he had been held suitable by the Public Service Commission. The appeal is disposed of with the observations above. Appeal disposed of.