2018 PLP (C (PLC(CS)N)

TARIQ IFTIKHAR AHMAD, J.-- Through instant Intra-Court Appeal order dated 22.09.2015 handed down by the learned Single Judge-in-Chambers has been called in question whereby Writ Petition No.6315 of 2015 was dismissed.

2. Succinctly, the facts leading to the disposal of present Intra-Court Appeal are that in response to an advertisement issued by the respondent in newspaper the appellant applied for the post of Driver (BS-04). The appellant after scrutiny was found eligible to be appointed for the said post and consequently vide letter bearing Endorsement No.1437/EB dated 11.07.2015 had been appointed as Driver (BS-04). Through the same appointment letter he was required to report for duty within a period of ten days but he failed to do so within the stipulation provided in the appointment letter which resulted into appointment of one Syed Iqbal Hussain, who stood 2nd (next to the appellant) in the merit list. The appellant challenged the act of the respondent for not permitting him to join the duty after stipulated period through Writ Petition No.6315 of 2015, which as mentioned earlier, stood dismissed by the learned Single Judge-in-Chambers through the impugned order; hence this appeal.

3. Learned counsel for the appellant contends that just after issuance of the appointment letter there were Eid-ul-Fitr holidays and as such the appellant could not join his duty within the period as provided in the appointment letter. Further contends that immediately after Eid holidays there were special casual leaves of the Sessions Judge for three weeks starting from 9th September, 2015, so for this reason also the appellant could not submit his joining report. Learned counsel also pleads that since the appointment letter was not dispatched at the residential address of the appellant, therefore, he could not respond to the said appointment as per period provided therein. On the other hand, learned law officer while controverting the submissions made on behalf of the appellant has defended the impugned order.

4. We have heard learned counsel for the parties as well as learned law officer and have also perused the record.

5. At the very outset it has been noticed that the person namely Syed Iqbal Hussain who stood appointed as Driver (BS-04) due to non-joining of the appellant was neither impleaded in the Writ Petition nor in the instant Intra-Court Appeal, which fact speaks volumes about the intention of the appellant and as such this appeal is liable to be dismissed on this score alone.

6. So far as the contention of learned counsel for the appellant that there were Eid-ul-Fitr holidays followed by three weeks special casual leaves due to which, as per learned counsel, the appellant could not join his duty is concerned, we regret to endorse this contention simply for the reason that even during special casual leave the Office of learned District and Sessions Judge remains functional to work to meet with the administrative affairs.

7. As regards the next contention of learned counsel for the appellant that the appointment letter was not dispatched to the residential address of the appellant is concerned, it has also no merit because though the file is silent in this regard but at the same time the appellant has failed to place on record any document showing the delayed receipt of said appointment letter. As the appellant has approached this Court for having relief in its Constitutional jurisdiction, therefore, he was bound to establish his version through documentary proof but he has failed to do so.

8. Perusal of the record further reveals that there is an assertion put forth through C.M. No.3409 of 2015 made in the Writ Petition that appellant had submitted his joining report on 16.07.2015 but the same cannot be endorsed and believed because it prima facie appears to be an afterthought as photocopy of alleged joining report has not been placed on record.

9. In view of above facts and circumstances, instant Intra-Court Appeal has no merits and as such stands dismissed but with no order as to costs. The show-cause notice issued to the respondent (District and Sessions Judge, Bahawalpur) by this Court vide order dated 21.11.2017 is hereby re-called.

10. So far as factum of payment of salary to the appellant is concerned, the appellant was allowed to join his duty as Driver (BS-04) by virtue of order of this Court passed on 20.04.2017 in this appeal. It is pertinent to mention here that since there was no post sanctioned against which the appellant had been permitted to join, the learned District and Sessions Judge has sent a request to the Registrar of this Court vide letter No.2809 dated 31.10.2017. According to which the learned District and Sessions Judge has also discussed the matter with the Authority while submitting the copy of order of this Court dated 20.04.2017 along with the said letter. The matter with regard to creation of post of driver (BS-04) for payment of salary to the appellant is pending at Principal Seat of this Court and, obviously, as and when the post of driver is created, salary to the appellant will be paid.

11. Before parting with this order, we would like to show our concern over the recruitment process undertaken by the Recruitment Committee headed by the then learned District and Sessions Judge, Bahawalpur.

12. We have summoned the record of the recruitment process and carefully perused the same. In response to an advertisement appeared in the newspaper daily "Nawa-i-Waqt" Multan dated 25.05.2015, for the post of Driver (BS-04) with the requisite qualification of Middle, LTV driving license with five years driving experience having the age of 25 to 35 years. In total 64 applications were received and processed.

13. A careful perusal of analysis of the award list prepared by the Recruitment Committee headed by the District and Sessions Judge and Additional Sessions Judge-I as Member as well as Senior Civil Judge as Member-II. As per the merit list following persons including Syed Ali Iqbal Hussain who stood appointed due to non-joining of the appellant emerged on the surface: Sr. No Application No. Name of applicant Total Marks Marks obtained 01 33 Daud Ahmad son of Sher Shah 100 71 02 62 Muhammad Hashim son of Muhammad Mustafa (late) 100 67 03 35 Muhammad Javed son of Muhammad Rafique 100 63 04 04 Syed Ali Iqbal Hussain son of Syed Fazal Hussain 100 59

14. We are astonished after having a look on the minutes of the meeting prepared on 25.06.2015. Perusal of the minutes reveals that a person securing 59 marks out of 100 has been placed on waiting list next to the person who stood appointed as Driver (appellant) and ignored the one who obtained 71 marks out of 100, thus, while ignoring the above award list/merit list and total marks secured by the candidates the name on the waiting list was mentioned of Syed Ali Iqbal Hussain who stood at No.04 from the candidates who obtained highest marks. The Recruitment Committee, to our mind, committed gross inefficiency while ignoring merit and giving preference to Syed Ali Iqbal Hussain over the candidate who secured more marks i.e. Daud Ahmad, Muhammad Javed and Muhammad Hashim. Thus, the appointment made by the learned District and Sessions Judge, Bahawalpur, in favour of said Syed Ali Iqbal Hussain, cannot be endorsed.

15. We have also taken a serious view of this lapse and considered that it depicts some other story. Thus, we come to the irresistible conclusion that appointment of Syed Ali Iqbal Hussain was against the merit which cannot be held to be made legally and the same is liable to be cancelled and as such this Court while exercising its Constitutional jurisdiction so directs accordingly.

16. Having given careful analysis to the recruitment record we have observed that the Recruitment Committee acted in the matter negligently while conducting proceedings and overlooked merit list and put name on the waiting list of Syed Ali Iqbal Hussain followed by issuance of appointment letter which has already been set-at-naught, as mentioned above.

17. Since while making appointment of Syed Ali Iqbal Hussain as Driver (BS-04) merit was ignored by the then learned District and Sessions Judge, Bahawalpur, therefore, we consider it appropriate to remit the matter to the present incumbent of learned Sessions Judge concerned with the direction to reconsider the matter and issue appointment letter to the candidate who fulfill the requisite merit.

18. Office is directed to bring this matter to the notice of Honourable Chief Justice. (Ch. Muhammad Iqbal) (Tariq Iftikhar Ahmad) Judge. Judge. A.D. MIAN*

19. In continuation of the above it is further added that some serious allegations regarding the violation of merit are levelled against the Recruitment Committee comprising of:-- (1) (Rana Masood Akhtar) District and Sessions Judge/Chairman Bahawalpur (2) (Ch. Muhammad Anwar-ul-Haq) Addl: District and Sessions Judge/Member-I Bahawalpur (3) (Hussain Azhar Shah Hafiz) Senior Civil Judge/Member-II, Bahawalpur The gloried object of the whole recruitment process is the sifting of the most competent, eligible and suitable persons amongst the applicants with the object to better serve the institution and also to convey the rights to the merit based eligible persons. The bounden duty/ responsibility of the committee was to assure the maintenance of fairness transparency in the recruitment process and safeguard the esteem dignity and sanctity of the process as well as that of the appointing committee. Further the members of the committee admitted are judicial officers who are saddled with shoulder breaking stanch obligation to show their extra ordinary fidelity toward the cause of justice, fairness and openness while functioning on the administrative side of the institution and to award the right to the person who are competent and eligible on merit by strict observance of law, rules guidelines and written instructions on the subject by maintaining the most distinguishable principle of merit only without being influenced by any other pressure constraints nepotism, favoritism as well as interest, fear, affections. And to accomplish the process of recruitment with the firm integrity. Being torch bearer of the honesty and integrity they have to establish the examples for the other state departments to emulace the hallmarks of the judiciary as well as the judicial officers. Moreover, all the judicial officers are expected to observe much higher, extraordinary stringent and meritorious principles of their routine functions and to protect their integrity jealously than that of others functionaries of the State as a strong expectation of the public at large are firmly attached to the judicial system as well as the judicial officers and it is rightly expected that they shall protect, preserve and safeguard the rights of the Honourable citizens of the Pakistan.

20. Admittedly, Pakistan is an Islamic State and the objective resolution has been made a significant substantial part of the Constitution as provided in Article 227 which provides that "all existing laws shall be brought in conformity with the injunctions of Islam" and no law shall be enacted repugnant to these injunctions. Holy Quran and Sunnah are declared supreme laws of the country and as such it is appropriate to seek guidance regarding the qualities/obligations of the Judge/Qazi from the Holy Quran. Some verses are reproduced as under: Almighty Allah in Surah Almaida Ayat-8 of the Holy Quran says as under:- Again in Suray Almaida Ayat-40-42 of the Holy Quran Almighty Allah says as under: Further, in Surah Al-Nisa Ayat-58 of the Holy Quran Almighty Allah says as under:-- Again in Surah Al-Nisa Ayat-105 of the Holy Quran Almighty Allah says as under:-- In Surah Al-Nisa Ayat-135 of the Holy Quran Almighty Allah says as under:-- In Surah Al-Inam Ayat-153 of the Holy Quran Almighty Allah says as under;-- In Surah Hood Ayat-85 of the Holy Quran Almighty Allah says as under:-- In Surah Al-Nahl Ayat-90 of the Holy Quran Almighty Allah says as under:-- According to Surah Saad Ayat-26 of the Holy Quran Almighty Allah says as under:-- Further in Surah Ashoora Ayat-15 of the Holy Quran Almighty Allah says as under:-- In Surah Al-Hajrat Ayat-8 of the Holy Quran Almighty Allah says as under:--

21. Moreover Article 3 of the Constitution clearly eliminate all kind of the exploitation in the society and assure the provision of the equal protection against it. Article 4 that also deals with the elimination of discrimination amongst the citizen Article 17 furnishing the equality of the all the citizen before the law. Similarly in Article 18 permits all the citizens to enter into lawful profession. Further similarly Section 4 of the Punjab Civil Service Act, 1974 provides that all the appointments shall be made in the prescribed manners. Rules 3 (1) and 17 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 provides that appointment to a posts shall be made by promotion, transfer or initial recruitment, as may be prescribed. Similarly, Para.4 (iv) (v) para-5 (iii) Para-8 (c) Para-9 (i) (ii), Para-12 (vii, viii, ix) and Para-17 (iv, v, vi) of the Recruitment Policy, 2004 also envisages the initial appointments shall be made purely on merit basis.

22. From the perusal of merit and recommendations of the Departmental Selection Committee, it evinces that respondent was below merit and he was appointed in the utter disregard and violation of the merit list, whereas, being Judicial Officers it was the bounden duty of the Selection Committee to appoint an eligible person as per merit list. It is worth mentioning that the Departmental Selection Committee has prepared merit list itself and has deliberately violated the merit which also reflects the functioning and working of these Judicial Officer in dispensation of justice in other cases which in itself is Stigma on their integrity resulting into the multiple suffering of the people whereas the integrity is the most significant jewel/trait of a Judge. It is settled law that in the appointment process the observance of merit, openness and transparency are inevitable priority but in this case astonishingly the Departmental Selection Committee has derogated settled principle of transparency/observance of merits and appointed Syed Ali Iqbal Hussain on the basis of their personal liking and favoritism or its own whims and caprice in derogation of law and merit which is not permissible under the law. It is settled law that all the selection and recruitment shall be made on the basis of fairness openness transparency meritocratic manners without being influenced by any dangerous voice of biasness, partiality personal whims and caprice, interest, fear, affection nepotism and favoritism as discussed in the below cited judgments titled Muhammad Zubair Khan Niazi v. Maryam Nawaz Sharif and 3 others (2016 PLC (C.S.) 269), Muhammad Muneer Malik and others v. Allama Iqbal Open University and others (2016 PLC (C.S.) 896), Muhammad Sadiq and another v. Federal Service Tribunal, Islamabad and others (2003 PLC (C.S.) 1029), Barrister Sardar Muhammad v. Federation of Pakistan and others (PLD 2013 Lahore 343) Muhammad Yousaf v. Director Culture Balochistan and 3 others (2015 PLC (C.S.) 253), Qazi Mustafa Kamal v. Federation of Pakistan through Secretary Establishment Division and others (PLD 2014 Islamabad 123). Further, in a recent judgment reported as Ch. Muhammad Akram v. Registrar Islamabad High Court and others (PLD 2016 SC 961) declared the appointments in the Islamabad High Court made in colourful exercise of power or by bypassing the transparent process of recruitment provided under the relevant service Rules, would have far reaching undulate effects on the public at large declared illegal. For ready reference, relevant portion is reproduced as under:-

85. Before parting with the judgment, we may observe that the Chief Justice Islamabad High Court and/or the Administration Committee of Islamabad High Court have made appointments in the Establishment in complete disregard of the mandate given by the Rules framed under Article 208 of the Constitution. If the competent authority itself starts cherry picking by deliberately ignoring and overlooking meritorious candidates in appointment exercising powers under Rule 26 of the Lahore High Court or Rule 16 of the Islamabad High Court, then the image of the institution will be tainted beyond repair. Such practice may lead to distrust of the public in the judicial institution of the country. We could not allow denial of justice to those candidates who merit appointment nor could we encourage anyone to bypass transparent process of recruitment provided under the Rules. We have already cited certain instances showing the mode and manner in which the appointments were made by abusing the authority. Similar view has been expressed in the cases titled as Ameer Taimoor and 7 others v. Government of Khyber Pakhtunkhwa through Senior Member Board of Revenue and 3 others (2016 PLC (C.S) 106) and Prof. Dr. Ghazala Yasmeen v. Chancellor Shaheed Banazeer Bhutto Women University, Khyber Pakhtunkhwa and 4 others (2016 PLC (C.S.) 686)

23. Admittedly in our country all the laws, rules instructions policies are in written form which are mandatorily to be followed by all the state functionaries and any discretion so bestowed upon the state functionaries is that of a sacred trust of the people and they are expected or saddled with extra ordinary responsibility to discharge the trusteeship to the eligible competent and meritorious persons assessed through the observance of the law and procedure. They should not allow their personal interest, fear, affections nepotism favoritism as well as bias of caste creed and race to impede the delivering of the same to the trustees and in all kind of circumstances they are expected to do right according to the laws, benefit and welfare of the institutions and also to protect and preserve the prestige and dignity of the institution. Judges are considered torch bearer of the glorified trait of fairness, openness, transparently and justness while functioning on the administrative realms also expected to defeat even the slightest iota of the perception of favoritism and nepotism etc., which in itself are grotesque/monster vice for the institution as well as for the society because only the competent, meritorious, eligible person who cements the foundation of the institutions and always play a most pivotal role regarding the betterments of the institution which have accumulative positive effect toward the dignity of entire society. Our great national poet Hazrat Allama Iqbal has said;

24. As discussed above the recruitment committee has committed grave violation of law, rules and instructions as well as the recruitment process and appointed an unelligible person namely Syed Ali Iqbal Hussain son of Syed Fazal Hussain as Driver (BS-4) as such his appointment is hereby quashed with the direction to the District Judge to issue process according to the already assessed and maintained merit list in this regard. As held in case titled Muhammad Akhtar Sherini and others v. Punjab Text Book Board (2004 SCMR 1077) the recruitment committee has committed brazen violations of all the law and legal or moral ethic, as such, Addl. Registrar of this Court is directed to transmit the copy of this judgment along with copy of merit list Mark-A to the Registrar who shall place the same before Administration Committee of this Court as per Volume V, Chapter 10-A and Rule 4 in its next scheduled meeting for taking appropriate departmental action against the members of the recruitment committee as per law. ZC/S-4/L Appeal dismissed.