Police officers walk past Pakistan’s Supreme Court building, in Islamabad, Pakistan, April 6, 2022. REUTERS
ISLAMABAD:
The Supreme Court has held that the doctrine of “complete justice” is a broad and inclusive principle intended to ensure justice at all costs, so that equity is not compromised or distorted by mere technicalities.
The court stressed that justice must prevail over procedural rigidity, underlining that it is the ultimate duty of the judiciary to correct injustice and ensure that wrong orders or actions are not allowed to persist.
An eight-page judgment written by Justice Muhammad Ali Mazhar while hearing a promotion case highlighted that laws were made for man and that “man is not made for laws.” He added that a wrong order and action cannot be perpetuated and that the ultimate duty of the court is to remedy the injustice.
“Legal rules and regulations, while providing for disciplinary actions and punishments, also protect the service rights of employees and failure to comply with such laws and regulations amounts to inherent illegality and infringement of employees’ rights.”
As per the facts of the case, the respondent was appointed to the post of Chemical and Metallurgical Assistant in BPS-17 on a two-year contract vide letter dated October 10, 2009.
He was subsequently selected and recommended by the Federal Public Service Commission (FPSC) for regular appointment to the same post vide notification dated September 22, 2011.
The central issue of the case was that the respondent was assigned additional charge of a higher post, CC&M (BS-18), vide letter dated March 2, 2012 and continued to discharge those duties continuously for almost eight years until his regular promotion, effective from August 17, 2020.
He subsequently filed a departmental appeal requesting an early promotion, which was dismissed on May 26, 2021.
Subsequently, he approached the Federal Services Court (FST), which accepted the appeal and issued the impugned judgment along with certain instructions.
“Purely temporary”
A division bench of the SC noted that an interim arrangement refers to a purely temporary and makeshift appointment aimed at maintaining official functioning until a permanent or regular solution is available.
“It is mainly used as an interim measure to fill vacancies so that public services are not interrupted. The interim agreement includes the wording of the commitment as “ad hoc”, “follow-up position”, “current position” and/or “interim or additional position”.”
The court further observed that such appointments are not recognized as permanent or regular appointments within a cadre and holding such posts on a provisional basis does not confer any right to regular promotion as an acquired right in the higher grade.
He added that interim agreements should not continue for an unlimited period.
“Long ad-hoc positions, caretaker positions, current positions and/or acting or additional positions are indeed a form of exploitation which is not only heinous but terribly frustrates the spirit of the service laws, therefore, an unlimited, unlimited or infinite period does not support the philosophy of using the phrase “interim arrangement”, which is not intended to keep employees in the embers of uncertainty like a sword of Damocles.
“According to the Constitution, the State has the duty and debt to guarantee social and economic justice to guarantee transparency and equity in the structure of public service as a broader fragment of the doctrine of good governance,” the ruling notes.
The ruling further noted that under Article 3 of the Constitution, the State must ensure the elimination of all forms of exploitation and the gradual realization of fundamental principles, including “from each according to his ability to each according to his work.”
“In our view, it aims to nip oppressive or autocratic actions in the bud while ensuring fairness with non-discriminatory treatment at the grassroots level, consistent with the laws and procedures that exist to serve the ends of justice, rather than ensnaring individuals under the guise of rigid technicalities.”
The judgment noted that mischief by departmental authority, administrative bodies, government departments or public officials is often implied as abuse of power, procedural irregularities or malafide conduct including destabilization of laws and regulations through administrative or directive overreach and adventurism.
He explained that the legal maxim “A communi observantia non est recedendum” denotes a legal principle according to which when the law specifies a particular way of doing something, it must be done that way.
He added that it was a well-known code of conduct that no one should be aggrieved by the act of the court, emphasizing that for a complete sense of administration of justice, a patent and obvious error or oversight on the part of the court should be rectified and no man should suffer because of the court.
“In our opinion, this slogan should apply to the administrative actions of administrative bodies equally while they perform the functions conferred on them by laws and regulations and their decisions should be jus naturale and quantum meruit, although in accordance with the laws and regulations, but without claiming to be more knowledgeable or prudent than the laws and regulations.”
The ruling noted that the doctrine of reasonable time or reasonable time, in general, deciphers that instead of allowing an indefinite postponement for the performance or fulfillment of a duty, the act must be consummated within a fair period.
“In this case too, an interim agreement vis-à-vis an act of not appointing a person to a substantive post, whether by appointment or promotion, cannot be left unregulated, but keeping in view the doctrine of reasonable period, the task of appointment/promotion should have been completed within a reasonable period of time which may extend from three to six months to meet the demands.”
“Following this schedule religiously will not become a matter of concern or complaint if the Departmental Promotion Committee or the Central Selection Board, as the case may be, fails to confirm or update any incumbent discharging duties in a senior ad hoc/acting post, care or additional charge, then surely, the interim agreement will have come to an end, but in this case, the respondent was pending with undecided posting for at least eight years in the guise of an interim agreement in violation of appointment, promotion and transfer norms.”
The court concluded that the objective of good governance cannot be achieved through arbitrary or unreasonable exercise of discretionary powers, but only through fairness, transparency and application of reasonableness in accordance with constitutional provisions, including Articles 4 and 25.
In conclusion, the Supreme Court dismissed the government department’s petition and upheld the decision of the Federal Service Court.
