2020 PLP (C (PLC(CS))

MALIK HAQ NAWAZ, J.

Since Writ Petition No. 66/2016 and Writ Petition No. 68/2016 are arising one and same subject matter, therefore, both these petitions are being disposed off through this single judgment. However for the purpose of convenience prayers of both the writ petitions are given below. Writ Petition No. 66/2016 Prayer:- "That the selection/appointment of the respondents being in violation of the rules and recruitment plan and being tainted with favoritism is liable to be struck down by the honorable Court, furthermore, the appointments are clearly influenced by the political consideration as the chief direction of the Chief Minister for the change of scheme were not warranted by law, hence the same amounts to undue influence by a political figure in the grab of executive authority." Writ Petition No. 68/2016 Prayer:- "It is therefore, humbly prayed that. 1) The appointment of respondents Nos. 4 to 6 may kindly be declared null and void, without lawful authority and void ab-initio. 2) Respondents Nos. 1 to 3 may kindly be directed to appoint petitioner against the post of Assistant Director. 3) Any other relief may be granted which this honorable Court deems fit and proper to meet the ends of justice."

2. The brief facts giving rise to the controversies in hand are the petitioner Rasheed-ud-Din son of Muhammad Aslam has filed Writ Petition No. 66/2016 and has arrayed beside the higher officials of Government of Gilgit-Baltistan, also respondents Nos. 6 to 9 being aggrieved from the appointment in Gilgit-Baltistan Disaster Management Authority. The claim on behalf of the petitioner is that he was serving in Gilgit-Baltistan Disaster Management Authority since 2009. The petitioner prayed that instead of regularizing the petitioner the posts were advertised and respondents Nos. 6 to 9 were illegally appointed under the garb of GDMA office Order No.3(2)/2015 dated 14-06-2016. The petitioner further averred in the writ petition that these appointments are void ab-initio as these have been ordered in violation of the recruitment policy, which deprived the petitioner from his genuine right and the change was made to favour some blue eyed persons, who are sitting at the helm of the affairs. The petitioner claimed that the recruitment plan for the above posts was not only prepared but also approved by the committee on 04-11-2015 prior to the advertisement, wherein 20 marks were allocated for the candidate, having related experience with Disaster Management, while 70 marks for written test and 10 marks for interview were allocated. About 09 posts of Assistant Directors were advertised on 23-11-2015 according to the approved plan of 04-11-2015. On representation by some individuals regarding their apprehension about the recruitment plan and in response to the representation Chief Minister Gilgit-Baltistan constituted a committee, which submitted their recommendation on 19-05-2016 and recommended that the criteria which was fixed by the committee and approved on 04-11-2015 be followed but the Chief Minister maliciously and with sinister intention, ordered to change the scheme of marking and allocated 30 marks for interview to get the result of his choice in favour of his cronies. The petitioner prays that action of Chief Minister and the subsequent proceedings be declared null and void and the appointment of respondents, which have been made on political basis be declared illegal, unwarranted and without lawful authority. The learned counsel for the petitioner relied on 2006 PLC (C.S.) 1238, 2008 SCMR 773, 2012 SCMR 96, PLD 2010 Lahore 546 and 2010 GBLR

27. Writ Petition No. 68/2016 The claim of the petitioner Haroon Gul son of Ziarat Gul is that respondent No. 3 (Director General GDMA Gilgit-Baltistan) advertised the post of Assistant Director and the written test were conducted through NTS on 06-03-2016. The petitioner was place at serial No. 3 after announcement of NTS result, whereas respondent No. 4 Muhammad Ali son of Doulat Khan and respondent No. 5 Shehzad Baig son of Khush Amdin and respondent No. 6 Assam-ud-Din son of Noor-ud-Din Shah were placed at serials Nos. 4, 5 and 10 of merit list respectively. The petitioner secured 54 marks in written test, while respondent No. 4 secured 53, respondents Nos.5, 49 marks and respondent No. 6 secured 43 marks. The petitioner further submitted in writ petition that the respondents illegally and unlawfully appointed respondents Nos. 4 to 6, whose merit is much below as compared to the petitioner, which is a classical example of favoritism and nepotism. Lastly that the appointments of respondents Nos. 4 to 6 be declared illegal and the respondents Nos. 1 to 3 be directed to appoint the petitioner to meet the ends of justice.

3. We heard the learned counsel for the petitioners/respondents and the learned Assistant Advocate General at a considerable length and scanned whole the record with their valuable assistance.

4. To set the controversy at rest, we examined the initial recruitment rules, which were approved by the committee on 04-11-2015 and the applications were invited through an advertisement. The criteria set forth and approved by the committee was as under:- a. Written Test : 70 Marks b. Experience related to Disaster Management work : 20 Marks c. Interview : 10 Marks

5. The above criteria was changed by the Chief Minister after commencement of recruitment process and even after written test and against the recommendation of committee vide their recommendations dated 09-05-2016. The new criteria of selection was not only in violation of the advertisement but also against the recommendation of the committee constituted by Chief Minister himself. a. Written Test : 70 Marks b. Interview : 30 Marks The petitioner Rasheed-ud-Din, who was serving in GDMA since 23 July 2009, has lost 20 marks, which resultantly affected his merit and he was not appointed. Likewise petitioner Haroon Gul (in Writ Petition No. 68/2016) was placed at serial No. 3 of the merit declared after NTS result but respondent Assaam-ud-Din, who secured 43 marks as against 54 marks obtained by the petitioner was appointed and petitioner Haroon Gul was dropped from the final selection, which is an apparent malpractice and dishonest act on the part of respondents.

6. We are daily confronted with the cases like one in hand. The merit is being buried since long in the Departments of Gilgit-Baltistan. Almost all appointment are made on political basis, depriving the genuine and eligible persons, which is not only a condemnedable act, but appointment of an under serving person, for a job, the nation/department has to suffer over many decades. The Chief Executive must born in mind that the poor people are also part of our society and if they have no political influence, they should not be knocked out to adjust blue eyed person. The principle Secretary of Chief Minister and Chief Secretary are responsible to inform the Chief Minister about the area of his domain and any encroachment should be strongly resisted. The Government Officials are only bound to obey the legal orders of the high officials/minister/chief minister and not bound to follow their direction blindly, which may expose them to disciplinary action/registration of criminal cases against them.

7. Advertisement in relation to filling up of any vacancy/vacancies in a particular department was a firm and gentlemen commitment which was given to all the individual/participant that for the advertized post, without any discrimination the most suitable and eligible person will be chosen among them. No deviation from the rules/regulation was permissible, to any one irrespective of his position, how high so ever. If the authorities later on were interested to introduced any change, the same was again required to be published in the same newspaper / newspapers as the initial advertisement was got published. In the instant case the respondents did not exercise their authority in a fair and transparent manner, which deprived the most suitable candidate from their employment, thus they breach the trust, which was vested upon them. The wisdom is drawn from a case respondent in 2013 PLC (C.S.)

484. The relevant citation is re-produced as under:- "Constitution of Pakistan

Art.199

Constitutional petition

Advertisement for recruitment

Scope

Petitioner was a candidate for post in question and her grievances was that authorities changed criteria for recruitment

Validity

Advertisement in relation to filling up of vacancies was a promise stating all rules which the authority undertook to observe in consideration for giving employment to the most suitable candidates

No deviation should take place from the advertisement and if at all any deviation was necessary in order to overcome some shortfall/legal lacunas then such changes should have been advertised in the same manner as original advertisement and also to be notified to each and every applicant if process of filling up the posts commenced in the meanwhile

Authorities did not exercise its authority for appointment in just, fair and transparent manner, thus transgressing and breaching trust vested in it

Criteria for short-listing candidates was contrary to terms and conditions of the advertisement and the same was declared illegal and without lawful authority

High Court declared consequent appointments as illegal, void and the same were set aside and authorities were directed to prepare fresh list of eligible candidates

Constitutional petition was allowed accordingly." Likewise it was also held in 1997 PLC (C.S.) 855 as under:- "The purpose of making advertisements for the purpose of recruitment against various posts in the government and public institution is that fair opportunity should be granted to all eligible persons who may apply and contest for appointment. While on the one hand, it gives an opportunity to the eligible persons to contest for a particular post on the other hand it gives opportunity to the employer to select the best person for the job in question. The requirement of due publicity of the post in the press is relatable to the constitutional guarantee provided by Article 25 of the Constitution, which enjoins that all citizens are equal before law and entitled to equal protection of law. This means that in the matter of appointments in the Government or Government controlled agencies all eligible citizens should have equal opportunity to contest for the appointments against posts in the public sector."

8. We have observed in many judgment that appointment in public sector is the trust in the hands of public functionaries and it is their moral duty to discharge their trust, with full zeal, efficiency, devotion and with complete fairness and transparency as per requirement of law to provide a level playing field to all the suitable/contesting candidates, so that no suitable and eligible candidate is excluded from the process of selection, only because he is not blue eyed person of any body, who is sitting in the helm of the affairs.

9. In the present case, the respondents have not exercised their authority in fair and transparent manner, which is not only evident from the deviation for the advertisement published for the posts but also the Chief Executive ignored the recommendation of a three member committee, which was also constituted on his directives and imposed his own will, which he was not allowed under law. The Chief Minister has exercised the powers in excess of his domain/authority just to shower blessing on his own cronies. We will not allow such an act to prevail and the people sitting in power will not be allowed that they were managing to hang a "sheep instead of lamb".

10. We deliberated a lot about the unjust appointment ordered by the respondents in GDMA, where merits have been buried. The learned counsel for respondents and learned Assistant Advocate-General submitted that no statutory rules of the institution have yet been framed and their affairs are being run through an Act. They further stated that Chief Minister is Chairman of Disaster Management Authority and thus was competent to introduce a policy in deviation of an earlier one to find out better human resources. We are not convinced but we take exception of the situation as a period of above 3 years has elapsed since the appointment of respondents Nos. 4 to 6 and by the passage of time they might have gained sufficient experience and Director GDMA, who is present in Court, stated that the respondents are performing their duties with full devotion, zeal and efficiency and any adverse action against them will adversely effect the efficiency of GDMA. The Director GDMA stated in Court that a post of Account Officer in the same cader (BPS-17) is available and the petitioner Haroon Gul, who is on the top of merit may be adjusted if necessary orders are passed by this Court.

11. In view of above we dismiss the writ petition filed by the petitioner Rashid-ud-Din as he was much below on the merit list prepared on the basis of written test/interview. However petitioner Haroon Gul son of Ziarat Gul, who was at Ser. No. 3 of the merit list, as he secured 54 marks in written test, is directed to be adjusted against a vacant post of Accounts Officer (BPS-17) immediately within a period of 15 days.

12. Both the Writ Petitions bearing Nos. 66/2016 and 68/2016 are disposed of in the above terms.

13. A copy of this judgment/order be sent to Director GDMA, through a special messenger for information/compliance. ZC/70/GB Order accordingly.