1999 PLP (C (PLC(CS))

6. ‑ Azhar Mehmood 56 5 16 77 7 Zafar Iqbal 58 5 13 76

8. Bshir Ahmad 58 5 13 76 9 Hassan Nasim 51 - 17 76 10 Mujahid Hussain 58 - 18 76 11 Nabeel Ahmad 56 - 19 75 12 . Imtiaz Ali 60 5 10 75 13 Muhammad Sabir Javed 58 5 12 75 14 . Abdul Jabbar 58 - 16 74 15 . Zafar Abbas 70 - 03 73 (petitioner)

6. The afore‑referred resume and the manner in which recruitment process was carried out has eroded the sanctity of the appointments made. Following irregularities reflect adversely on the entire process:‑‑ (i) that the advertisement was given only in the daily "Khabrain" for 17‑3‑1995 and the last date for receipt of applications was 22‑3‑1995 which means that only five days period was given for filing the applications; (ii) All respondents except Abdul Jabbar did not apply within the cut up‑date; (iii) most of the applications are undated and some of the applications are addressed to, the Chief Minister of Punjab and there is nothing on record as to how those applications reached the office of the Commissioner Faisalabad Division, Faisalabad. This lends credence to the allegation that political influence was exerted to secure favourable appointment orders in favour of the respondents. (iv) the respondents‑appointees have been given unusually high marks in interview.

7. Law is now settled that appointments against State jobs are not the personal bounty of a person in authority but have to be given to those who qualify on merit. In Human Rights Case No. 104 of 1992 the Hon'ble Supreme Court took serious note of this and held as under:‑‑ "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Government, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of the Fundamental Rights (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith. ". The afore‑referred view was reiterated in Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287). The Indian Supreme Court also was of the same view as in C. Channbasavaih and others v. State of Mysore and others (AIR 1965 SC 1293) it held as under:‑‑ "It is very unfortunate that these persons should be uprooted after they have been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is We would be failing in our duty if we did not, even at the cost of considerable convenience to Government and the selected candidates do the right thing."

8. For what has been discussed above I am of the considered view that the appointments made do not reflect a bona fide exercise of power on the part of the Divisional Recruitment Committee. The appointments so made, which are impugned herein, are, therefore, set aside and it is directed that the Commissioner Faisalabad Division, Faisalabad shall initiate a de novo exercise for determining the merit afresh and issue appointment order accordingly While doing so‑he shall ensure that:‑‑ (i) advertisement for the post is given in two national dailies; (ii) there should be a gap of three weeks between the date of advertisement and the last date for receiving applications. The date and time of interview should be given in the advertisement; (iii) Since for the appointments in question the cut up date for receipt of applications, was 22‑3‑1995, only those would be eligible to apply who had acquired their, basic qualifications required for the said post prior to 22‑3‑1995; (iv) the Commissioner shall complete the entire exercise by 30th November, 1998.

9. Before parting with the judgments it is imperative to refer to another recurrent phenomenon in our body politic. It is a putter of common observation that public functionaries many a times act beyond the call of their duty resulting in usurpation of rights of the people. In developing societies there are frequent instances when merit is tinkered with and functionaries of the State who are entrusted with the task of making appointments on merit accommodate political favourites which have eroded public confidence in the concerned Institutions. A public functionary who abuses his lawful authority in utter disregard to his mandate of office cannot claim protection of "action taken in good faith". This serious dereliction of duty calls for the proper action on the part of the Courts so that such instances are not repeated and those suffered are provided some, compensation. It was precisely for these reasons that while making a judicial review of administrative action Courts have burdened the delinquent officials with costs., In "JUDICIAL REVIEW OF ADMINISTRATIVE ACTION" BY DE SMITH WOOLF AND JOWELL (FIFTH EDITION IN CHAPTER 19 AT PAGE 75) the Author refers to an observation of Professor Dicey who said "every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals". He adds that "Dicey then alleges that the law reports of his time abounded with cases in which officials were brought before the Courts and made, in their personal capacity, liable to the payment of damages for acts done in their official capacity". For Dicey "the function of tortious liability here was principally to provide a mechanism for controlling Governmental power". Recognizing the wisdom ‑and rationale of awarding costs the Hon'ble Supreme Court in Khurshid Ahmed Naz Faridi v. Bashir and 3 others (1993 SCMR 639) at page 642, observed as under:‑‑ "The object of granting such costs may be two‑fold, one to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to unnecessary litigation and harassment The other object is to penalise a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring acts with highhandedness, arbitrarily, mala fide or ulterior motive. Where a person acting in his official capacity in complete disregard of the clear records and documents and having no authority to pass order of a particular nature, passes such an order, then while setting aside such order the Court awards cost to be paid by him personally, it will be proper exercise of discretion. "

10. In the instant case, tampering with the official record and accepting applications of the candidates after the cut up date for extraneous consideration was not a bona fide exercise of the "lawful" authority vested in the then Commissioner. Respectfully following the dictum laid down by the Hon'ble Supreme Court referred to above I am persuaded to burden the then Commissioner Faisalabad Divisions Riaz Ahmad Khan with a cost of Rs.10,000 (rupees ten thousand only) which shall be paid to the petitioner as costs for the agony and mental torture and for having incurred the costs of filing this petition. A copy of this judgment shall be sent to the Accountant General, Punjab who shall ensure that this amount is deducted from his salary and paid to the petitioner. H.B.T./M‑1047/L Order accordingly.