Tufail Ahmed VS FOP, Estab Division, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.1583 of 2021 Tufail Ahmed and another Versus Federation of Pakistan and another

Dates of Hearing: 15.06.2021, 13.09.2021, 21.09.2021, Petitioner by: Mr. Muhammad Shoaib Shaheen, Advocate, Respondents by: Mr. Qasim Wadood, learned Additional Attorney-General, Mr. Arshid Mehmood Kiani, learned Deputy Attorney-General, Raja Saim-ul-Haq Satti, Legal Advisor, Establishment Division, Mr. Haroon Rashid, Deputy Director (Legal),

F.P.S.C.,

Mr. Nasir Ali Khan, Deputy Assistant Director, F.P.S.C.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioners assail the vires of the Provincial Management Services and Provincial Civil Services Induction into Pakistan Administrative Service Rules, 2020 (“the 2020 Rules”) only to the extent whereby candidates against whom disciplinary proceedings or inquiry under the accountability laws or any criminal proceedings are pending have been made ineligible for induction into the Pakistan Administrative Service (“P.A.S.”).

2.Learned counsel for the petitioners submitted that mere pendency of an inquiry under the applicable efficiency and disciplinary rules or even the pendency of a criminal case against a candidate cannot prevent him from participating in a competitive process for induction in P.A.S.; and that this Court has held in several cases that mere pendency of an inquiry against a person does not deprive him from consideration for promotion or obtaining any other service benefit. Learned counsel for the petitioners referred to a catena of case law in support of his submissions.

3.The learned Additional Attorney-General submitted that even though the instant petition was not maintainable, this Court cannot issue any effective writ since both the petitioners were permitted to participate in the competitive process conducted by the Federal Public Service Commission (“F.P.S.C.”) but one of them failed the

examination and the other one opted not to participate in the examination. Learned Additional Attorney-General prayed for the petition to be dismissed.

4.I have heard the contentions of the learned counsel for the petitioners and the learned Additional Attorney-General and have perused the record with their able assistance.

5.Through notification dated 14.10.2020 issued by the Establishment Division in exercise of the powers conferred under Section 25(1) of the Civil Servants Act, 1973, amendments were brought about in the Civil Service of Pakistan (Composition and Cadre) Rules, 1954 (“the 1954 Rules”). By virtue of the amended Rule 7(2) of the said Rules, officers of Provincial Management Services (“P.M.S.”) or Provincial Civil Services (“P.C.S.”) recruited directly in BPS-17 through respective Public Service Commission having a minimum of twelve years” service in BPS-17 and above, who held a cadre post for a period of five years and presently holding a post in BPS-19 in the respective service on regular basis were made eligible for appointment in the P.A.S. in BPS-19 on the recommendations of the F.P.S.C. “in the prescribed manner.”

6.The F.P.S.C., in exercise of the powers conferred by Section 7-A of the Federal Public Service Commission Ordinance, 1977 read with Rule 7(2) of the 1954 Rules (as amended), made the 2020 Rules with the approval of the Federal Government. Rule 4 of the 2020 Rules sets out the eligibility criteria for appointment of officers of P.M.S. and P.C.S. in P.A.S. Rule 4(2) and (3) of the said Rules are reproduced herein below:- “(2) Only those candidates shall be eligible to apply who have a minimum blood count of seventy five percent and at least three “very good” performance evaluation reports (PERs), with no “average” PER, in the immediately preceding five years in which the application for the FPSC examination is made and it shall be the responsibility of the Provincial and Regional Governments to provide the accurate blood count and synopsis of PERs.

(3)No candidate shall be eligible for consideration under sub- rule (2) unless no penalty has been imposed on the applicant officer during the last five years nor any disciplinary proceedings under the respective efficiency and discipline rules of the Provincial and Regional Governments or any inquiry under the accountability laws or any criminal proceedings are pending or under trial against him in any court of law.”

(Emphasis added)

7.The petitioners” challenge to the eligibility criteria prescribed in the 2020 Rules is only to the extent whereby a candidate has been made ineligible on account of the pendency of disciplinary proceedings under the applicable efficiency and disciplinary rules of the Provincial and Regional Governments or an inquiry under the accountability laws or criminal proceedings or a trial before any Court of law, against him.

8.Rule 7(1) of the 2020 Rules prescribes for 100 marks for viva voce and 300 marks for the written examination to be conducted by the F.P.S.C.

9.Along with the instant writ petition, the petitioners have also filed an application for interim relief praying for inter alia provisionally allowing the petitioners to participate in the competitive process to be conducted by the F.P.S.C. for induction into P.A.S. This interim relief was not granted by this Court.

10.The written examination of the candidates was conducted by the F.P.S.C. on 12.06.2021 and 13.06.2021 as revealed through the advertisement dated 28.03.2021.

Petitioner No.2 (Imran Khan Zarkoon)

11.Petitioner No.2, belonging to the Balochistan Secretariat Services, and presently posted as Director General, Information and Public Relations, Government of Balochistan, Quetta had been able to obtain a “No Objection Certificate” from the Government of Balochistan to the effect that he was eligible to appear in the competitive examination.

12.On 04.06.2021, Mr. Haroon Rashid, Deputy Director, F.P.S.C. tendered appearance and brought on record documents showing that neither had any major or minor penalty been imposed on petitioner No.2 nor had he been convicted by any Court of law. It was also stated that no proceedings under the applicable efficiency and disciplinary rules or an inquiry under the provisions of the National Accountability Ordinance, 1999 was pending against petitioner No.2. It was clearly stated that since a “No Objection Certificate” had been issued by the Government of Balochistan in petitioner No.2”s favour, there was no impediment on him to participate in the competitive process.

13.Petitioner No.2 participated in the competitive process and was issued Roll No.19. However, he was unsuccessful in passing the said examination.

Petitioner No.1 (Tufail Ahmad)

14.Petitioner No.1 belongs to the Balochistan Civil Services (Executive), presently posted as Officer on Special Duty in the Services and General Administration Department, Government of Balochistan, Quetta.

15.Mr. Haroon Rashid, Deputy Director, F.P.S.C., who had tendered appearance before this Court on 04.06.2021, had pointed out that petitioner No.1”s application form was accompanied by a declaration to the effect that he had never been involved in any criminal / civil or disciplinary case or had been prosecuted in any criminal / civil or quasi judicial proceedings involving moral turpitude. He submitted that petitioner No.1 had not been stopped from participating in the examination.

16.Even though petitioner No.1 had not been stopped from appearing in the examination, he opted not to appear in the examination conducted by the F.P.S.C.

17.Since petitioner No.2 appeared in the examination but failed and since petitioner No.1 opted not to appear in the examination, they cannot be treated as “aggrieved persons” so as to challenge the vires of the 2020 Rules in the Constitutional jurisdiction of this Court. Assuming that this Court was to embark on a purely academic exercise and in the process strike down the vires of the 2020 Rules to the extent challenged by the petitioners, no benefit would accrue to the petitioners from such a result. Courts ought not to issue purposeless writs. Since no relief can be given to the petitioners regarding their desire to be inducted in P.A.S. in the present circumstances, further proceedings in this case would be of an academic nature and an exercise in futility. Reference in this regard may be made to the following case law:-

(i)In the case of District Bar Association, Rawalpindi Vs. Federation of Pakistan (PLD 2015 SC 401), it has been held inter alia that Courts must exercise caution against unthoughtful utilization of purely academic theories while

adjudicating upon practical issues, particularly in matters affecting governance and the running of the State.

(ii)In the case of Disciplinary Committee of University of Punjab Vs. Abdul Majid (1984 SCMR 1302), it has been held inter alia that Courts normally do not undertake a purely academic exercise but only deal with live issues.

(iii)In the case of Muhammad Ilyas Suleri v. Muhammad Naseem Khan (1993 CLC 417), it has been held inter alia that Courts should not enter into an exercise which is purely academic in nature.

(iv)In the case of Liver Brothers (Pakistan) Ltd. v. Senior Member, National Industrial Relations Commission (PLD 1986 Lahore 90), it was held inter alia that where questions raised by the parties are of purely academic interest, Courts would avoid to undertake an academic exercise.

Law to the said effect has also been laid down in the cases of Shahsawar and others Vs. The State (2000 SCMR 1331), Ardeshir Cowasjee and others Vs. Sindh Province and others (2004 CLC 1353), M. Enver Shaukat Vs. Federation of Pakistan (1981 PLC (C.S.) 15), Zafar Iqbal Vs. Province of Sindh (PLD 1973 Karachi 316), Doaba Goods Forwarding Agency Limited Vs. Province of Punjab (1971 SCMR 527) and Abdul Hameed Vs. Muhammad Shahidullah (PLD 1969 SC 535).

18.In order to obtain a relief by way of a writ of mandamus, a petitioner must satisfy the Court that he had a legal right to compel the performance of the duty and the person against whom the right was sought was under a legal obligation to perform that duty. The existence of a legal right is the foundation of a writ of mandamus and a petitioner has to be an aggrieved person. An assertion that at some point in time in the future the present petitioners may apply for induction in P.A.S. and the pendency of an inquiry of the nature specified in Rule 4(3) of the 2020 Rules may pose as an impediment in making them eligible candidates, would not, in my view, make the petitioners “aggrieved persons” to challenge the vires of the 2020 Rules.

19.In view of the above, the instant petition is dismissed as not maintainable. This Court can examine the vires of the 2020 Rules if subjected to a challenge in a petition filed by aggrieved persons. There shall be no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*