1988 PLP (C (PLC(CS))

NASIR ASLAM ZAHID, J.‑‑In December 1985, Sind Public Service Commission, respondent No.2 herein, on behalf of the Province of Sind (respondent No.l), invited applications for appointment as Civil Judges in BPS‑

17. According to the petitioner, the number of seats originally advertised was 15 but later on the number was raised to

25. The petitioner, M.A. in Political Science, B.Ed. and LL.B. and a practising Advocate, submitted his application. The petitioner was summoned to appear in an interview before the Sind Public Service Commission at Hyderabad on 29‑10‑1985. The petitioner appeared in the interview before the Public Service Commission and he successfully qualified for the post of Civil Judge and was placed at serial No.10 on merit list. An official letter dated 26‑11‑1986 was received by the petitioner from Sind Public .Service Commission to the effect that his application for the post of Civil Judge has been recommended to the Government to be considered for appointment to the said post subject to medical examination and completion of other formalities/ requirements as provided under the applicable Rules. The petitioner then appeared before the Standing Medical Board, Sukkur on 10‑2‑1987. The petitioner was found medically fit and written intimation to that effect was sent by the Public Service Commission to the Sind Government with copy to the petitioner. The Government then, through letter dated 11‑1‑1987, informed the petitioner that he had been considered for appointment as Civil Judge and directed petitioner to fill the pro forma enclosed with such letter. The pro forma was duly filled in and sent to the Government. According to the information received by the petitioner, the inquiry conducted by respondent through their agencies did not reveal anything adverse against the petitioner. However, in the list of 22 applicants who were appointed as Civil Judges published through notification dated 5‑5‑1987 of the Sind Government did not include the name of the petitioner. The petitioner made representations to the Chief Minister but it did not receive any response. The petitioner, in the circumstances filed the present Constitutional Petition seeking the following reliefs:‑ (a) to declare that refusal of respondent No.l to appoint the petitioner as Civil Judge in the Province of Sind, is without lawful authority and is of no legal effect, (b) direct respondent No.l to appoint the petitioner as Civil Judge in the Province of Sind. Comments were called for from the Government which were filed. In para. 11 of the memo. of petition it was averred as follows:‑ "That the petitioner reliably understands that confidential inquiries conducted by respondent No.l through their agencies, such as special branch did not reveal anything adverse against the petitioner." In para. 11 of the comments filed by Secretary (Services) Services and General Administration Department, Government of Sind in reply it is stated as follows: ‑ "This is based on the presumption on the part of the petitioner. Special Branch is not the only source. In fact, reports from other sources indicated that the petitioner was an active political worker and constantly dabbling in political activities." In view of the aforesaid reply in para. 11 of the parawise comments, by order dated 7‑10‑1987, it was directed that the entire file of the Government relating to the petitioner be produced by the learned A.A.‑G. for our perusal on 20‑10‑1987 and after perusal of the file, this petition was admitted to regular hearing. The order dated 20‑10‑1987 passed by this Court is reproduced here:‑ "20‑10‑1987. Mr. M.A. Rashid Advocate for the petitioner with petitioner Nawaz Ali Shar present in person. Mr. Zawar Hussain Jafferi, learned A.A.‑G. has produced the file of the Government relating to petitioner Nawaz Ali Shar for our perusal. Mr. Zawar Hussain Jafferi submits that the relevant information is available in the summaries to the Chief Minister appearing at pages 93, 94 and 95 of the file, According to learned A. A. ‑G., there is no other document in this file which is relevant for the purposes of the issue involved in this petition. From the perusal of the relevant papers in the file of the Government pointed out by the learned A.A.‑G., it appears that there is no written report from any quarter against the petitioner. We have heard the learned counsel for the petitioner. The petitioner's name had been recommended by the Sind Public Service Commissioner for appointment as a Civil Judge and he has also been declared medically fit in the comments received from the Secretary (Services) S & GAD Government of Sind, in reply to para. 11 of the memo. of the petition to the effect that enquiries conducted by respondent No.1 did not reveal by anything adverse against the petitioner, the reply is as follows:‑ 'This is based on the presumption on the part of the petitioner. Special Branch is not the only source. In fact, reports from other sources indicated that the petitioner was an active political worker and constantly dabbling in political activities.' As observed earlier, the file produced by the learned A.A.‑G. for our perusal does not show any written report against the petitioner. The petitioner has not been appointed as a Civil Judge by the Sind Government on the ground that there are reports against him. Otherwise his name has been recommended by the Sind Public Service Commission for appointment as a Civil Judge and he has also been medically cleared. In view of the material available in the file, as observed earlier, it appears that there is nothing in writing against the petitioner. This petition is admitted to regular hearing. Notice is waived by the learned A. A. ‑G. This petition may be fixed for regular hearing during December 1987." We heard Mr. M.A. Rashid, Advocate for the petitioner and Mr. Zawar Hussain Jafferi A.A.‑G. on behalf of the respondents on 18‑1‑1988 when this petition was fixed for regular hearing. On the conclusion of the arguments of the learned counsel, by a short order, this petition was allowed and the Government was directed to appoint the petitioner as a Civil Judge. Reasons for allowing the petition are contained in this judgment. It is an admitted position that petitioner's name had been, recommended by the Sind Public Service Commission for appointment as Civil Judge and he had also been cleared in the medical examination. Apparently the petitioner has not been appointed as a Civil Judge by the Sind Government on the ground that there are reports against him as is stated in para 11 of the comments filed by the Secretary to the Government. As observed earlier, the file of the Government relating to the petitioner had been produced by the learned A.A.‑G. for our perusal. In the file the relevant information was available in the summaries to the Chief Minister appearing at pages 93, 94 and 95 of the Government file. Learned A.A.‑G. had also made a statement on 20‑10‑1987 that there was no other document in the file which was relevant for the purpose of the issue involved in this Constitutional petition. The perusal of the Government file relating to the petitioner had also shown that there was no written report from any quarter against the petitioner except for one sentence in the summaries to the effect that there are reports from other sources which indicated that the petitioner was an active political worker and constantly dabbling in political activities, there was nothing in the entire against the petitioner. We had asked the learned A.A.‑G. about the reports on the basis of which aforesaid sentence appeared in the summaries and the learned A.A.‑G. could not refer to any such reports. No reference could also be made as to the source which had made any report against the petitioner. In fact the entire Government file showed that no report had been made from any quarter or source to the Government indicating that the petitioner was an active political worker and he constantly dabbled in political activities. The insertion of the aforesaid sentence in the Government file about the petitioner had therefore, no basis. The parawise comments had been filed as far back as 7‑10‑1987. No counter‑affidavit or any document has been filed by the Government to show that any report had been made from any quarter or source against the petitioner. If the Government was not accepting the recommendation of the Public Service Commission and was not appointing the petitioner as a Judge on the basis that there were reports against him such reports must exist on record. Admittedly no such report exists on the record of the Government against the petitioner. The Government, therefore, could not refuse to appoint the petitioner as a Civil Judge on 'the ground that there were reports against him. Mr. M.A. Rashid had referred to two decisions; one of the Lahore High Court and the other is decision of a Division Bench of this Court. The Lahore case relied upon by learned counsel for the petitioner is Mazhar Hussain v. Province of Punjab (P L D 1985 Lahore 394). In this case from Lahore the petitioner had qualified in every respect for appointment as Civil Judge. He was recommended by the Punjab Public Service Commission for appointment as a Civil Judge. He was also declared medically fit by the Medical Board. The Government of Punjab in the parawise 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 competative examination. The learned Judge of the Lahore High Court who decided that case referred to the Punjab Civil Servants Act and the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 made pursuant to the provisions of section 23 of the Punjab Civil Servants Act 1974 and to the Punjab Public Service Commission Ordinance, 1978 and then observed that the appointing authority i.e. Government, in the matter of appointment of Civil Judges has to act upon advice of the Public Service Commission but the Government in exercise of its powers as the appointing authority is empowered not to appoint a candidate as a Civil Judge in spite of the recommendation of the Commission if he is not found eligible for such appointment. Then reference was made to Part III of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 which deals with initial appointments. Paras. 10, 11, 12 and 13 of the judgment in the case of Mazhar Hussain v. Province of Punjab are reproduced here:‑ "

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 Services) 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 a result of competitive examination has little relevancy. Affiliations of a 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 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 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 a 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 tile 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 may not be acted upon by the appointing authority for lawful reasons but the appointing authority, particularly the Government being a juristic person is under an obligation to act in accordance with law and relevant rules. A 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." The aforesaid judgment of the Lahore High Court reported in P L D 1985 Lahore 394, was referred in the Division Bench judgment of this Court in the case of Muhammad Farooq M. Memon v. Government of Sind (1986 C L C 1408). In the Sind decision, the petitioner had been declared successful by the Public Service Commission and he was informed that the Government was considering the petitioner for appointment as Civil Judge. He was also cleared by the ;Medical Board. It had been contended that there were 12 vacancies for the post of Civil Judges who were to be appointed by the Government and the petitioner was No.9 on the list of successful candidates and, therefore, he was eligible to be appointed as such on having been declared medically fit. The contention of the petitioner that there existed vacancies had also not been controverted by the respondents but in the notification issued by the Government regarding appointment of Civil Judges the name of the petitioner did not appear in the said notification. The petitioner made inquiries from the Government quarters and he was informed that as he was associated with a political party, therefore, he was not considered for the said appointment. In that case the learned A.A.‑G. had conceded that there was no material against the petitioner. As observed earlier, in the instant case also we have found that there is no adverse material or report against the petitioner. The Division Bench of this Court in 1986 C L C 1408 observed as follows:‑ "The petitioner had qualified the examination. He was examined by the Medical Board and was declared fit. The petitioner has fulfilled all necessary qualifications and had been declared successful by the Public Service Commission. A vested right had accrued in his favour, therefore, the petitioner was entitled to be appointed to the post of Civil Judge. Under the service rules appointment is to be made on the basis of examination or test to be conducted by the Public Service Commission and since the petitioner was declared successful by the Public Service Commission he was entitled to be appointed for the post, to which he had applied for." Then the learned Division Bench of this Court in that case considered the question whether they can give a direction to the Government to appoint the petitioner as a Civil Judge. Reference was then made to 1984 P L C (C.S.) 1569 and the earlier referred Lahore case reported in P L D 1985 Lahore 394 and then it was observed on the basis of the facts of that case that a vested right had been created in favour of the petitioner, and therefore, a writ could be issued against the respondent‑Government and accordingly a direction was given to the respondent‑Government to appoint the petitioner as Civil Judge. Decision of the Lahore High Court in the case reported in PLD 1985 Lahore 394 and of the Division Bench of this Court in 1986 CLC 1408 support the contention raised on behalf of the petitioner that in the circumstances of the present case where the petitioner had been declared successful by the Public Service Commission and had been found medically fit and the respondent‑Government had also informed the petitioner that he was being considered for appointment as Civil Judge and that there were vacancies available, vested right had been created in favour of petitioner Nawaz Ali Shar when there was no material or report adverse to the petitioner in the records of the Government. It may further be observed that learned counsel for the petitioner had referred to the provisions of Sind Civil Servants Act, 1973 and the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Part III of the Rules, 1974 relates to the initial appointment and the Rules in Part III are similar to the Punjab Rules. The relevant rules do not provide that the Government can refuse the recommendation of the Sind Public Service Commission if the applicant otherwise fulfils the conditions laid down in Part III of the Rules. As observed earlier, in the case of petitioner Nawaz Ali Shar there is no adverse material or report against him on the record of the Government and the remarks in the summary to the Chief Minister that there are reports against the petitioner that he dabbles in politics and that he is a political worker is not based on any material or report. In any case as rightly argued by Mr. M.A. Rashid, learned counsel for the petitioner, the rules for initial appointment do not provide that applicant who dabbles in politics is disqualified from) appointment. Even if the remark in the Government file that the petitioner is a political worker and dabbles in politics had any basis, which basis is missing in this case, the Government could not refuse to appoint the petitioner on that ground. This is so as the relevant rules relating to initial appointment do not provide that an applicant for initial appointment is disqualified if he was a political worker or had dabbled in politics. The refusal of the Government to appoint the petitioner when he fulfils all the conditions and is otherwise elected on merits by Public Service Commission and found medically fit and there being nothing adverse against the petitioner is arbitrary. For the aforesaid reasons this petition was allowed by our short order dated 18‑1‑1988 passed on the conclusion of the arguments of the learned counsel whereby a direction was given to the respondent/ Government to appoint the petitioner as a Civil Judge. M. Y. H. /N‑87/ K?????????????????????????????????????????????????????????????????????????????? Petition allowed