1988 PLP (C (PLC(CS))

NAIMUDDIN, C.J.‑‑ The petitioner was working in the judicial department of Government of Sind upto July, 1984 when he resigned from the service and joined legal profession. Thereafter, the petitioner appeared before the Public Service Commission on 8th October, 1986, and he was selected alongwith 24 other candidates and on merits he was placed at No.3. Selection of the petitioner was followed by a communication from the Public Service Commission that his name has been recommended to the Government of Sind for the appointment to the post of Civil Judge (BPS‑17). Thereafter, by a communication, dated 11‑1‑1987, Government of Sind, the respondents, required the petitioner to fill up the pro forma for his appointment to the post of Civil Judge. In compliance, the petitioner submitted the pro forma and also complied with the direction to appear before the Director Health Service, Sind at Hyderabad, for medical examination for the purpose of employment and he was declared fit by the report of the Medical Board.

2. However, the respondents issued notification, dated 5‑5‑1987 in respect of 22 candidates out of 25 who were selected for their appointment as Civil Judges, but the petitioner was not one of them.

3. The petitioner having failed in his representation to the respondents has filed this petition under Article 199 of the Constitution seeking declaration that the refusal of the respondents to appoint the petitioner as Civil Judge in spite of having been selected by the Sind Public Service Commission and having been declared medically fit, is not warranted by the Sind Public Service Commission Act, 1973 or relevant rules made there under and that the non‑appointment of the petitioner is unlawful, and for direction to the respondent to appoint the petitioner as Civil Judge on the basis of his result of the Public Service Commission and the Medical Board.

4. The respondents have not filed any counter‑affidavit. They have however, filed parawise comments as before the admission of the petition, they were required to file the same. In the comments the respondents have admitted that the petitioner's name was recommended by the Sind Public Service Commission for selection to the post of Civil Judge, but they have stated since the competent authority did not approve petitioner's name for the appointment, his name was not included in the notification for the appointment and the representation made by the petitioner to the President of Pakistan and the Chief Minister were filed under intimation to him.

5. We have heard Mr. Makhdoom Ali Khan, learned counsel for the petitioner and Mr. Abdul Rahim Kazi, Additional Advocate‑General, Sind, for the respondents.

6. Mr. Makhdoom Ali Khan, learned Counsel for the petitioner submitted that after the selection of the petitioner and after he was found fit, there was no valid reason to withhold the appointment of the petitioner and the same is illegal, arbitrary and without jurisdiction. It is further submitted by the learned counsel that in the circumstances of the case the petitioner ought to have been appointed as Civil Judge. In support, the learned counsel relied on Mazhar Hussain v. Province of Punjab P L D 1985 Lah. 394, Muhammad Farooq M. Memon, advocate v. Government of Sind 1986 C L C 1408 and an unreported decision of Sukkur Bench of this Court in Constitutional Petition No. D‑240 of 1987 (Nawaz Ali Shar v. Province of Sind and another).

7. On the other hand, the stand of Mr. Abdul Rahim Kazi, Additional Advocate‑General, Sind, as also taken in the comments, is that the recommendation of the Sind Public Service Commission did not create any vested right in favour of the petitioner as it was only advisory in nature and the recommendations were subject to the approval of the competent authority. He further submitted, as stated in the comments in paragraph (e), that the petitioner was an active political worker and constantly dabbled in political activities and, therefore, the competent authority did not approve his name for appointment as Civil Judge. He relied on Province of East Pakistan v. Dr. K .A. Mansur and others P L D 1963 Dacca '2,11.

8. Therefore, the first question for consideration is whether the Government was bound to accept the recommendation of Sind Public Service Commission in the circumstances of the case and the second is whether there was any valid ground for refusal to appoint the petitioner on the post for which he was selected by the Sind Public Service Commission after he was found medically fit.

9. Before we deal with the question what is the nature of the recommendation of Sind Public Service Commission, we would deal with the question whether there was any valid ground for not accepting the recommendation of Sind Public Service Commission. The only allegation made against the petitioner is that he was an active political worker and constantly dabbled in political activities. We may reproduce hereinbelow paragraph (e) of the comments which reads as follows:‑ "(e) In view of the fact that the petitioner was an active political worker and constantly dabbling in political activities, the Competent Authority did not approve his name for appointment as Civil Judge. As such he was not appointed to the post. It is discretionary power of the Competent Authority to refuse the recommendation of the Sind Public Service Commission for the reasons intimated to the Commission." Excepting the bare allegations, no material has been produced or filed in this case on the basis of which the above allegations have been made against the petitioner. Indeed, it is not even disclosed which party the petitioner belonged to or worked for and what views the petitioner held or how he was dabbling in politics. It may be recalled that according to the petitioner he was in Government Service up to July 1984, when he resigned from the service and thereafter, joined the bar and appeared before the Commission on 8th October, 1986, and therefore, it is clear that upto July, 1984, the petitioner could not have dabbled in politics, otherwise he would have been removed from the service on that account as a Government Servant is prohibited from participating in politics. Now, remains the period from July 1984 to October, 1986, when the petitioner appeared before the Public Service Commission but nothing has been said about this period. There is no allegation that he was member of any political party and nothing has been stated as to how the petitioner dabbles in politics. It is, therefore, obvious that the allegations are not supported by any material on record. Further, even if the petitioner, worked for a political party and that party stood for the solidarity, unity and stability of the country how could that be construed in absence of any rule to the contrary adverse to the petitioner. Furthermore, every citizen of Pakistan under Article 17(2) of the Constitution not being in the service of Pakistan, has the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan.

10. Under section 5 of the Sind Civil Servants Act, 1973 appointment to a civil service of the Province or a civil post in connection with the affairs of the Province is required to be made in the prescribed manner by Government or by a person authorised by it in that behalf.

11. Under Rule 10 of the Sind Civil Servants (Appointment Promotion and Transfer Rules, 1974) initial appointment to posts in Grades 16 to 22, is required to be made if the posts, (a) fall within the purview of the Sind Public Service Commission, on the basis of examination or test to be conducted by the Commission. Although the appointment has to be made by the competent authority but under the provisions of the aforesaid rule appointment has to be made on the recommendation of the Public Service Commission. The competent authority in order to refuse to accept the recommendation of Public Service Commission should have acted under some rule or at least for some cogent reason. In the present case both seem to be absent. Moreover, under Article 4 of the Constitution, petitioner is entitled to be treated in accordance with law. We may reproduce herein below Article 4 of the Constitution for the sake of ready reference:‑ 4. "‑(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. (2) In particular‑‑ (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do." The petitioner, therefore, could not have been dealt with arbitrarily.

11. The competent authority may have discretion in the matter still then the discretion has to be exercised on well‑settled principles, that is, it should be exercised in good faith having regard to all relevant considerations and for public purposes and in accordance with law and it should be exercised justly, fairly and reasonably. It should not be exercised arbitrarily or capriciously. We may here quote a passage from 'Judicial Review of Administrative Action' by S.A. de Smith, page 252, third edition, which reads as follows:‑ "The relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations (emphasis supplied) and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously (underlining is ours). These several principles can conveniently be grouped in two main categories: failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, as will be shown, is it possible to differentiate with precision the grounds of invalidity contained within each category."

12. The above principles were confirmed by the Supreme Court and various High Courts, and we may here refer to the cases of Syed Jaffar Hussain and 4 others v. The Additional Rehabilitation Commissioner, Lahore and 6 others 1985 S C M R 1076; Federation of Pakistan and others v. Messrs Charsadda Sugar Mills Limited 1978 SCMR 428; Makramullah v. Province of East Pakistan P L D 1969 Dacca 417; The Montgomery Flour and General Mills Limited v. The Director, Food Purchases, West Pakistan and 2 others P L D 1957 (W.P.) Lah.

914. In the case of Syed Jaffar Hussain (supra), it was held that if the discretion exercised is not illegal and capricious, it cannot be interfered with. We may also reproduce a passage from the judgment in Federation of Pakistan v. Messrs Charsadda Sugar Mills (supra), which reads as follows:‑ "It is self‑evident that the Central Board of Revenue in allowing the partial abatement was satisfied that the shortfall in the production capacity was substantial and beyond the control of the respondent but to the extent of 855.53 tons only. In disallowing the shortfall for the remaining 2,643.16 tons of sugar claimed by the respondent the Board merely relied on its own formula by applying the 10$ cut on the total production capacity of 26,000 tons per annum. It has failed to even consider the case set up by the respondent in its application made under Rule 4 of the Rules. In doing so the Board acted almost mechanically and failed to exercise the discretion vested in it under the law. It was the duty of the Board to have acted justly, fairly and reasonably having full regard to the facts and circumstances of the case before it. The Board did not even weigh and examine the merits of the claim pleaded by the respondent. This indeed, tantamount to the refusal on the part of the Board to exercise quasi‑judicial discretion vested in it under the law. We, therefore, find that the judgment delivered by the High Court is unexceptionable and hereby dismiss this petition."

13. In the case of Makramullah (supra), it was held by A.S. Chowdhury, J., that there is no scope for anyone to be arbitrary in exercising a discretion. He must act fairly and consider the case in all its aspects. It may be enlightening if we reproduce a paragraph from the judgment, which reads as follows:‑ "He has instead impliedly rejected the application by putting the fishery to auction. The question now is if it is a real exercise of discretion. It should be remembered that there is no scope for anyone to be arbitrary in exercising a discretion. He must act fairly and consider the case in all its aspects. He has to apply his mind. It is wrong to think that in exercising a discretion one can act in any manner he likes. Learned Judge himself has found that the prayer for extension of time as made by petitioner Makramullah is quite reasonable and justified. If he thinks that the prayer for extension is reasonable then it was clearly his duty to interfere, for, an executive authority which exercised his discretion in a matter subjects itself to judicial scrutiny regarding inter alia reasonableness and the Court is empowered to set aside any exercise of a discretion which is unreasonable."

14. In the case of The Montogmery Flour and General Mills (supra), Kaikaus, J., when he was in Lahore High Court said regarding the exercise of discretion as follows:‑ "The only question (if question it can be called) is whether the Director of Food Purchases is entitled to withhold the quota of sugar on the ground that there is an unsettled money claim of the Food Department against the petitioner. The answer to this question must obviously be in the negative. The discretion, given by section 7 of the Sugar and Sugar Products Control Order, for distribution of sugar is not an absolute and arbitrary one, to be exercised according to the pleasure of the Director of Food. It is a discretion to be exercised with a view to attaining the object for which the Essential Supplies Act, 1946, under which this Order was promulgated, was enacted." It was further held:‑ "The Essential Supplies Act was not enacted in order to arm the Government with a weapon to enforce its alleged claim and cannot be used for this purpose. The Director of Food might as well refuse quota for the purpose of putting pressure on a person to give up a particular political party, or to give evidence for the prosecution in a police challan, or to give information to the Customs Department. It should be remembered that no discretion vested in an executive officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly, and reasonably."

15. Even if the allegations made against the petitioner are correct, we are of the opinion that in the absence of any rule that if a person takes part in politics he cannot be allowed to join Government Service, this could not be a disqualification for him for joining the service. Reliance is placed on Mazhar Hussain v. Province of Punjab PLD 1985 Lah. 394, wherein a learned Single Judge of Lahore High Court at p. 399 of the report observed as follows:‑

10. Affiliation 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 Service) Rules, 1974. The Government as appointing authority can lawfully refuse as appoint a person to a civil post despite 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. Affiliation 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 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 the conclusion that although the status of the Public Service Commission is that of a consultative or an 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."

16. This case has been followed by a Division Bench of this Court headed by Mr. Justice Abdul Qadeer Chaudhry, now the Chief Justice of Baluchistan High Court in Muhammad Farooq M. Memon v. Government of Sind 1986 C L C (Kar.) 1408, wherein they dealt with the question of vested right in paragraph (4) thereof, which reads as follows: ‑ "(4).‑.Now the question arises whether we can give such a direction to the Government to appoint the petitioner as Civil Judge. The learned counsel for the petitioner has referred to 1984 PLC (C.S.) 1569 in support of the contention that powers to recede are available till a decisive step is taken and in the present case Merit, List having been prepared, it cannot be revised when same has taken legal effect after series of decisive steps and in pursuance thereof certain rights have been created in favour of the selectees by their appointment. The next case cited by the learned counsel is the case of Mazhar Hussain v. Province of Punjab reported in PLD 1985 Lah. 394 and in this case in para. 13 of the judgment it ha; been observed as under:‑ In the circumstances of the present case, as observed above, refusal of the respondent Government to appoint the petitioner 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."

17. This case has further been followed by another Division Bench of this Court in Constitutional Petition No. D‑240 of 1987 (Nawaz Ali Shar v. Province of Sind and another), wherein it was observed a‑, follows: ‑ "Then the learned Division Bench of this Court in that cas t 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 Lah. 39 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 P 1, D 1985 Lah. 394 and of the Division Bench of this Court in 1986 C L C 1408 support the contention raised on behalf of the petitioner that it 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 record 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 Servant (Appointment, Promotion and Transfer) Rules, 1974. Part III of the Rules 1974 relates to initial appointment and the Rule 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."

18. Mr. Abdul Rahim Kazi, learned Additional Advocate‑General referred to the case of Province of East Pakistan v. Dr. K.A. Mansur and others P L D 1963 Dacca 211 in support of the contention that Government can, in law, refuse to accept and abide by the recommendation of the Public Service Commission in the matter of recruitment to Civil Services and posts under its control and make recruitment thereto in accordance with its best judgment. However, in this very case, it was further held that in practice, however, occasions for overriding the Commission's advice by the Government will arise rarely, for the Government is normally expected to accept the Commission's advice in all cases except in exceptional cases warranting special considerations. These observations were made on the basis of Article 190 of the late Constitution. The learned Additional Advocate‑General particularly relied on the following passage:‑ "But it appears equally true that the requirement of consultation with the Public Service Commission, a consultative body, does not extend to making the advice of the Commission on those matter binding of the Government. This is clearly indicated by Article 190 of the late Constitution, according to which the Provincial Public Service Commission is required to present to the Government annually a report on the work done by the Commission stating, among others, the cases, if any, in which the advice of the Commission was not accepted and the reasons therefore. That the Government itself does not consider the advice of the Commission invariably binding on it is illustrated by section 7 and section 10(2) of Chapter XI of the Secretariat Mannual which runs thus:‑ "7.‑‑ On the receipt of the advice of the Commission on any case, the department will examine the case in order to ascertain whether any exceptional circumstances exist which would justify Government in differing on any point from the advice of the Commission. 10(2).‑‑ When it is proposed not to accept any recommendation of the Commission, the department concerned will submit to the Governor the reasons for the proposal." It would suffice to say about the cited case that no similar provisions as contained in sections 7 and 10(2) of Chapter XI of the secretariat Mannual are produced before us or pointed out to us. In any case, we are of the opinion that discretion in this case has not been exercised on settled principles as stated before, as no material has been produced in support of the allegations that the petitioner dabbled in politics. Therefore, in the absence of any law or rules and/or any cogent seasons such as anti‑State activities, this could not be a disqualification.

19. We, therefore, direct that the recommendation of Public Service Commission regarding the petitioner be implemented. The parties, however, in the circumstances of the case are to bear their own costs. A.A. /M‑439/ K Petition accepted