2012 PLP (C (PLC(CS))

MUHAMMAD QASIM KHAN, J.

As all following matters arise out of almost similar facts and circumstances, therefore, are being decided by means of this single judgment:

(1) Writ Petition No.1548 of 2010 titled as "Shafqat Nadeem and others v. DCO, Bahawalnagar, and others" (2) Writ Petition No.2961 of 2010 titled as "Muhammad Aslam v. Dy.DEO(M), Bahawalnagar, and others" (3) Writ Petition No.2850 of 2010 titled as "Muhammad Sajid and others v. EDO, Bahawalnagar, and others" (4) Writ Petition No.3661 of 2009 titled as "Muhammad Hanif v. DCO, Bahawalnagar, and others" (5) Writ Petition No.1699 of 2010 titled as "Muhammad Ishtiaq v. EDO (E), Bahawalnagar, and others" (6) Writ Petition No.1515 of 2010 titled as "Tanvir Hussain v. DCO, Bahawalnagar, and others" (7) Writ Petition No.1531 of 2010 titled as "Muhammad Asghar Javed v. DCO, Bahawalnagar, and others" (8) Writ Petition No.2226 of 2010 titled as "Muhammad Shafiq v. DCO, Bahawalnagar, and others" (9) Writ Petition No.3292 of 2010 titled as "Amir Saeed and othersv. EDO(E), Bahawalnagar, and others" (10) Writ Petition No.2851 of 2010 titled as "Hafiz Muhammad Hassan and others v. EDO, Bahawalnagar, and others" (11) Writ Petition No.2787 of 2010 titled as "Muhammad Idrees v. DCO, Bahawalnagar, and others" (12) Writ Petition No.3814 of 2010 titled as "Ahmad Khan and others v. DCO, Bahawalnagar, and others" (13) Writ Petition No.1563 of 2010 titled as "Hasnain Ahmad and others v. EDO, Bahawalnagar, and others"

2. Briefly stated the facts are that Executive District Officer (Education) Bahawalnagar/respondent No.2 through press advertisement dated 4-3-2010 flashed in local newspapers invited applications for numerous posts of Class- IV employees as Naib Qasid, Waterman, Chowkidar, Mali, Security Guard, etc. in different Government Higher Education and Secondary Schools (Girls/Boys), all over District Bahawalnagar. It may be clarified here that according to the said advertisement each post was School specified and this recruitment was to be made according to Punjab Contract Policy, 2004 for a period of three years. It is also provided in the said advertisement itself that 20% quota was reserved for the children of Government Employees (BPS-1 to 5), 5% quota was reserved for women, 5% for minorities and 2% for disabled persons. Minimum qualification for the post of L.A. (Lab Assistant) was set as matriculate and for all other posts the candidates were required to at least literate. All the applicants were further required to submit their candidatures till 15-3-2010 in complete form. Through these writ petitions the petitioners who had also submitted/or intended to file their candidatures for respective vacant posts but either they could not file their applications or ultimately were not recruited, have impugned the entire recruitment process mainly and precisely on the following grounds:

(a) The persons from outside Tehsils were imported and recruited against vacant posts just to accommodate political figures of a specified political party and that too without even in-time receipt of their formal applications, as such local deserving residents were denied the opportunity; (b) The quota reserved for various categories i.e. for 5% for minorities, 20% for children of government employees, 2% disables, and 5% for women etc. was outright ignored in the entire selection process; (c) All the recruitment process, according to the petitioners, was bad in law, as the said process was not carried on by a competently formulated Recruitment Committee; (d) Interview marks were awarded to different applicants without observing any criteria, in an arbitrarily manner by ignoring the deserving candidates in terms of their qualifications, etc. (e) All the appointees of Tehsil Minchianabad and Bahawalnagar had not applied against the posts where they were appointed. On the other hand, learned Additional Advocate-General assisted by learned counsel representing the private respondents mainly attacked the maintainability of these writ petitions by contending that the aggrieved persons must have availed the alternate remedy available to them; the recruitment process with regard to eligibility and fitness of persons, was entirely within the domain of Executive, as such, this Court could not interfere in such affairs and even otherwise, the petitioners approached this court with considerable delay. Further they also defended the entire recruitment process by arguing that quota with regard to different categories was observed. Further argued that there was no such compulsion upon the recruitment committee to only consider the residents of within Tehsil limits and only condition in this behalf was that candidate must be the resident of District Bahawalnagar, as such, appointment of persons from other Tehsil is not violative of any provision of the Recruitment Policy. Further it has been argued that Selection Committee is only advisory authority and after its recommendations it has nothing to do with the issuance of appointment letters. The learned counsel for private respondents added that after issuance of appointment letters, the respondents have joined their respective places of posting, as such, valuable right has accrued in their favour which cannot be taken away, especially when lot of them have not been arrayed as respondents nor any notices have been issued to them. Even otherwise, according to the learned counsel procedural defects or questions of facts could not be determined by this Court in these proceedings.

3. I have considered, the above arguments of learned counsel for the parties and have also gone through the entire record before me.

4. In this case after submission of report and parawise comments from the official respondents and examining the record, there appeared some glaring procedural defect and illegalities, as such, the respondents authorities were directed to bring the original record of entire recruitment process, right from the receipt of applications till issuance of appointment letters. In compliance with the court order, produced the respective record which has been produced and perused.

5. Further to ensure that all the newly appointed employees are represented and heard before passing the final judgment, as directed by this Court, the official respondents have placed on file reports about the fact that all the newly appointed Class-IV employees had been served with notice so that they may either appear in person or through counsel to defend their cause before this Court, all these reports are available on the record. Pursuant to these notices, a large number of newly appointed Class-IV employees appeared before this Court in person or through their Pleaders and put their version.

6. There is no dispute amongst all the parties that recruitment of Class-IV employees, impugned in these writ petitions, had to be governed by Recruitment Policy, 2004 No.SOR-IV(S&GAD)10-1/2003, issued by Government of the Punjab and circulated to almost all departmental heads of Province of Punjab and a perusal of the said policy would make it clear that policy makers took maximum care to ensure that entire recruitment process not only remains transparent at every level but also that equal rights to every interesting candidates are made available to them without any sense of insecurity in any mind, that is why respective quota seats were reserved for various categories like government employees children, minorities, disables and women. The said delicately framed policy also makes it clear that almost nothing had been left at the discretion of any of the individual and in this regard the principles set in Punjab Civil Servants Act and Punjab Civil Servants (Appointment and Conditions) of Service Rules, 1975 had been made the guidelines. Considering the facts of the cases in hand, it may be observed that under Clause 10(d) of the said Policy a Departmental Selection Committee at District Level had to be formulated for appointments against posts from BS-1 to 10 and the said Committee must have consisted of:

(i) Executive District Officer concerned Chairman (ii) Executive District Officer (F&P) Member (iii) District Officer (Coord) Member (iv) Appointing Authority concerned (If other then the EDO concerned) Member (v) One member to be nominated by the Administrative Department with the approval of Minister Incharge. Member (vi) District Officer concerned Member/ Secretary The formation of the above Selection Committee also shows that senior officers had been inducted therein apart from one members who had to be nominated by the Administrative Department with the approval of Minister concerned. This all had been done with obvious reason that high rank government officers would not only ensure transparency but they would also be able to resist any untoward attempt to frustrate the selection process and further induction of a Member with the approval of Minister concerned also is an indication that he might be able to participate in the selection process, check its niceties and then if feels may submit an report to the Departmental Head and to the concerned Minister about the transparency of the process, who ultimately had to check the entire recruitment process. So much so, the said framers of the said Policy also took note-of the situation where recruitment could not be possible under that Policy and the said Policy could not be followed in its actual form and in this behalf through Note-2 in para 11 it had been provided that:

NOTE-2: Department may change the selection criteria for specific specialized posts, if required, but the criteria must be clearly elaborated in order to ensure transparency in the selection process and should be got approved from the Chief Minister.

7. After the formation of a high rank Recruitment Committee, with an intent to pick the best of the candidates for ultimate recruitment and induction in government departments, para-1(A) of the said Policy specified a criteria for posts in BS-1 to 4, which is reproduced here below:

CRITERIA FOR POSTS IN BS.1-4. (i) EDUCATIONAL QUALIFICATION (a) Where prescribed minimum qualification is literate:-- Literate 30 Primary 35 Middle 40 Matric 50 (b) Where prescribed minimum qualification is Primary: Primary 35 Middle 40 Matric 50 (c) Where prescribed minimum qualification is middle: Middle 35 Matric 40 Intermediate 50 (d) Where prescribed minimum qualification is Matric: Matric 40 Intermediate 45 Bachelor 50 (ii) EXPERIENCE IN THE RELEVANT FIELD Over and above experience in the service rules (a) One year 5 (b) Two years 7 (c) Three years 10 (iii) INVERVIEW Maximum Marks 40

8. Now on the touchstone of said policy, this court would see the procedure of recruitment which is subject matter in these writ petitions. I have gone through the entire record which had been produced by the official respondents but have not been able to find even a single document which would show that any such Selection Committee, as mandated by the above Policy, had ever been formulated with regard to induction of a Member who had been inducted after approval of the Minister concerned, nor any such document would be cited on behalf of the respondents during the course of arguments or annexed with their report and parawise comments. This was a glaring deviation from the conditions set in the Policy and as reproduced above, although recruitment could be made by a changed criterion, but firstly it could only be done for specific specialized posts, which does not appear to be the case in impugned recruitments, and secondly for that purpose approval from the Chief Minister was essential. This court also could not lay hands on any of such approval letter from the Chief Minister from where it could be inferred that change in the recruitment criteria had been approved by the Chief Minister. There is a well known latin legal maxim "A communi observantia non est recedendum" when the law requires a thing to be done in a particular manner, it has be done in that way, otherwise it has no sanctity in the eyes of law. Non-participation of a specific member in the Selection Committee for recruitment proceedings would be quoram non judice and void and thus the appointment having been made in violation of relevant instructions. These cannot be said to have been made in accordance with law. In this behalf I would rely on the cases "MUHAMMAD SULEMAN v. ADDITIONAL DEPUTY COMMISSIONER (GENERAL) LAHORE CANTT" (PLD 2000 LAHORE 262) and "Dr. IKRAMULLAH v. DISTRICT COORDINATION OFFICER, GUJRANWALA and 6 others" (2004 PLC (C.S.) 921).

9. Apart from the above fatal irregularity, it has also been observed by this Court that in the impugned recruitment process no list was prepared or produced before the Court which could show that interview were conducted and how interview marks were given to the candidates by each Member of the Recruitment Committee. Non-availability of such list in the entire original record of the official respondents strengthens the argument of learned counsel for the petitioners that as a matter of fact the entire process was sham and tainted with mala fides. Further, it has been observe that although a merit list was available in the original record of the official respondents but it was observed that it was not carrying the signatures of all the members of the Recruitment Committee, nor even the minutes of the meeting had been signed by all Members of the Committee. This all shows that neither the Committee had been properly constituted nor the merit list had been prepared in the light of recommendations of a validly constituted Recruitment Committee. Even otherwise, non availability of signatures on the merit list or the minutes of the meeting by even some members of the Committee is sufficient to lead to an inference that either no committee was constituted or the officials who were the members of committee as per their designation had not agreed to the recommendations and by not signing the relevant papers they in fact intentionally kept themselves away from the recruitment process. This fact is sufficient to establish mala fide, nepotism and arbitrariness in the recruitment process.

10. During the proceedings a letter was presented before the Court by the learned counsel for the petitioner which shows that a number of Head Masters, Head Mistresses and Principals agitated before the Higher Authorities with regard to the recruitment and the behavior of the local administration and violation of prescribed procedure. On Court direction all of them except two appear before this Court and when the letter with regard to the appointment of Class-IV Employees, written by them, was shown to them, they all admitted the fact that this document was written on their behalf and also admitted that it has been signed by them. The same has been placed on file as Mark-A and Mark-A/1. A cursory perusal of this letter would clear the entire picture, as the officials/officers in whose Institutions the newly recruited personals were to be posted had expressed serious reservations about the entire recruitment process.

11. In this context it may also be pointed out that the District Education Officer (S.E) also went on to admit before the court that in all seventy seven persons had been appointed against different posts of Class-IV employees but he could produce a merit list of only twenty two persons. Therefore, the letters Mark-A and Mark-B coupled with the fact that only a list of twenty two persons could be brought on the record, is sufficient evidence of the fact that actually the entire exercise was being done secretly just in order to choose the persons of likings of specific class. This act and conduct of the official respondents in deviating from the prescribed procedure and appointing a large number of persons in an extremely fishy process, has resulted in chaos amongst the eligible persons who were ignored for appointments on extraneous considerations. By doing so the concerned authorities not only frustrated the scheme of the applicable Policy, failed to perform the duty cast upon them, but also did not care about the fact that by making recruitment in violation of the policy and by appointing those persons who were otherwise not eligible for those posts, the available Members of the Recruitment Committee played a role in attempting to further destroy the education sector, if not already destroyed.

12. After having discussed the factual flaws in the impugned recruitment process, I would deal with the preliminary objections thrown, by learned Additional Advocate General as well as learned counsel for the private respondents, with regard to maintainability of these petitions with reference to Paragraph-17 of the Recruitment Policy for the year 2004. Firstly, I would reiterate here that already a lot of Head Masters, Head Mistresses and the Principals had moved applications to the concerned authorities pointing out the irregularities committed , in the impugned recruitment process, but despite lapse of considerable time till filing of these writ petitions, the concerned authority never thought of taking notice of the pointed irregularities and flagrant violation of the Recruitment Policy. This inaction, rather deliberate silence on the part of the concerned authority by itself is sufficient to infer that as a matter of fact almost all the quarters from tail to head were involved in sheer breach of conditions and requirement of the Recruitment Policy, for obvious reasons to accommodate the blue eyed of the political figures. For this reason alone even if the clause 17 of the Recruitment Policy with regard to constitution of Complaint Redressal Cell is made available, even then inaction on the part of the authority in not taking notice of the apparent irregularities as pointed out by their own employees, has made this remedy of approaching the Complaint Redressal Cell, absolutely redundant and it cannot be said to be efficacious remedy, as held by this Court in the "DR. MUHAMMAD SADIQ SALEEM v. SECRETARY HEALTH, GOVERNMENT OF PUNJAB, LAHORE and 6 others" (2008 PLC (C.S.) 25). There is yet another aspect of the matter that The question about availability of remedy before the Complaint Redressal Cell came under consideration before this Court and vide judgment dated 2-4-2009 passed in Writ Petition No.1916 of 2007-BWP "Dr. NAJAM IQBAL AHMED v. PROVINCE OF PUNJAB AND OTHERS", this Court after detailed discussion observed that para-17 of the Recruitment Policy constituting Complaint Redressal Cell can neither be considered to be substitute of the Parent Act nor of the Rules framed there-under, as such it was held that conferment of power on the Complaint Redressal Cell to set-aside the order of the competent authority in respect of appointment and the recommendations drawn by the Special Selection Board, is bad in law and this Court strike down para No.17 of the Recruitment Policy through its judgment discussed above. This decision having been rendered on 2-4-2009, afterwards neither this Paragraph of the Recruitment Policy would be deemed to have been anymore part of the said Policy, nor any such remedy is available to any of the aggrieved person. As such, the petitioners are well within their lawful right to invoke the constitutional jurisdiction of this Court, therefore, the above argument with regard to maintainability of these writ petitions in the presence of alternate remedy, is overruled.

13. The next objections on behalf of the learned Additional Advocate-General and the learned counsel for the private respondent were that recruitment or appointment of suitable persons is only the prerogative of the administrative authorities, these writ petitions touch the factual aspects and that minor procedure defects cannot be made basis to overturn the entire recruitment process. I am afraid these arguments are just fallacious with no legal backing behind. The success of whole system of a developed society depends upon the checks and balances, where our Constitution or the relevant statues bestow power on some authority; at the same time it has been ensured that such power or authority does not go unchecked or unbridled. If the entire recruitments, appointments or induction of employees in all the government departments are left on the discretion of the tamed bureaucracy, then I am afraid no good can be expected in the present scenario. Even otherwise if any order is passed without lawful authority and without jurisdiction, this Court can look into such illegal exercise. In this case, the Recruitment Committee was not constituted as per requirement of the Policy, as such the recommendations about the appointed candidates is an action without lawful authority. Furthermore, the matter does not relate to the promotion where eligibility or fitness may not fall within the jurisdiction of this Court. In these cases eligibility and fitness is with regard to fresh appointment and all appointment matters if based on mala fide, without lawful authority or result of exercise of defective jurisdiction, can validly be thrashed by this Court in exercise of its constitutional jurisdiction, as held in PLD 1974 SC 139, 1975 PLC 781 and 1976 PLC 638.

14. Further, this is not the case where factual controversy remains to be resolved, as a matter of fact by the record of the respondents authorities themselves every thing has become crystal clear and if anything was left, it was covered by the letters produced by the respective heads of the Schools showing their reservations about the impugned recruitment process. As regards the argument that these are only minor procedural lapses, having gone through the entire relevant record, as discussed above, I am of the considered view that irregularities agitated by the petitioners and established on the record are not minor, procedural defects, rather it all being violative of the basic scheme of recruitment, go to the very root of the entire selection process and such illegally conducted process cannot be protected under any canon of law. Under such circumstances, this Court being the custodian of fundamental rights can validly issue writ, direction or order in exercise of its authority. 15 Next comes the objection of learned counsel representing the private respondents/newly appointed Class-IV employees that their appointment are protected by the principle of locus poenitentiae and that omissions made by the departmental authorities cannot be made basis to upset their appointments. I am afraid the principle of locus poenitentiae cannot be pressed into service to protect the ill-gotten gains. If some benefit has been obtained in sheer disregard to settled procedure and it also has been done by tarnishing the rights of other eligible persons, then such a benefit cannot be maintained perpetually and as discussed above, in the case in hand, neither a valid Recruitment Committee was ever constituted nor the recommendations can be said to have been validly made by the competent authority, as such, the entire recruitment process being defective, the above argument of learned counsel is not sustainable under any law. As such, this Court has ample power to set-aside the impugned appointment orders in which the work has not been done as required to be done by the Recruitment Policy, 2004. This being a case of flagrant violation of the above Policy and lack of jurisdiction in the authority making the impugned appointment, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, this Court certainly has to assume its jurisdiction to protect the violation of fundamental rights. Reference may be made to "K.M. ASAF v. ABDULLAH MALIK and another" (1975 PLC 781), "PROVINCE OF WEST PAKISTAN v. Raja BASHIR MUHAMAMD KHAN" (PLD 1983 Lahore 53), "SAHIB and 3 others v. THE STATE" (1990 MLD 1161) and "MUHAMMAD JAFAR TARAR v. DISTRICT MAGISTRATE GUJRANWALA and another" (1990 CLC 281).

16. The Hon'ble Supreme Court of Pakistan in the case "CHIEF SECRETARY PUNJAB and others v. ABDUL RAOOF DASTI (2006 PLC (C.S.) 1278), held as under:

"Choosing persons for public service is not just providing a job and the consequent livelihood to the one in need but is a sacred trust to be discharged by those charged with it, honestly, fairly, in a just and transparent manner and in the best interest of public. Individuals so selected are to be paid not out of the private pocket of the persons appointing them but by the people through the public exchequer

Not selecting the best as public servants is a gross breach of public trust and is an offence against public, who has a right to be served by the best; it is also a blatant violation of the rights of those who may be available and whose rights to the posts are denied to them by appointing unqualified or even less qualified persons to such posts

Such practice and conduct is highly unjust and spreads a message from those in authority that might is right and not vice versa, which message gets gradually permeated to grass-root level leading ultimately to a society having no respect for law, justice and fair play

Evil norms ultimately lead to anarchic and chaotic situations in a society

Such likes evil tendencies should be suppressed and eliminated before the same eliminate us all."

17. The respondents by their act through which they over looked rather smashed, the whole policy and the procedure for the recruitment of employees deprived a large number of society members from their basic rights. It is settled principle of interpretation of statute that the fundamental rights are not static documents and should be interpreted in the light of needs of the day. Article 2-A (Objective Resolution) of the Constitution of Islamic Republic of Pakistan cast upon a heavy duty on the Executive, Legislature and the Judiciary to be more careful with regard to the fundamental rights of the citizens as these are the rights which are awarded by divine, respected and announced by Holy Prophet (P.B.U.H), but in the case in hand the respondents officials have ignored their official legal duties and violated the fundamental rights of the citizen and have played with the miseries of the people and in this way abused their power and ignored their duties imposed upon them by law. Article 4 of Constitution of Islamic Republic of Pakistan guarantees to the people that Executive cannot take their rights, liberty, property and reputation unless it has the support of some legal provisions for doing so. Every public functionaries is supposed to function in good faith honestly and within precincts of its powers so that person concerned should be treated in accordance with law. The act of respondents is against Article 4 of the Constitution of Islamic Republic of Pakistan. The Article 9 of the Constitution of Islamic Republic of Pakistan protect the life and liberty of citizen that no person should be deprived of his life and liberty save in accordance with law and the word "life" include a right to have a rule of law their right to live where all fundamental rights are guarantees but the case in hand, the respondents officials have deprived and ignored poor citizen from their right of life and by this act violated Article 9 of Constitution of Islamic Republic of Pakistan. The respondents have also violated Article 14 of the Constitution of Islamic Republic of Pakistan which provides the dignity to the citizen and in this case as the respondents officials ignored the procedure provided by the government for the recruitment and also did not constitute the Recruitment Committee in accordance with law, this fact create frustration and hatred in the minds of ignored applicants and this act is hit by Article 14 of the Constitution of Islamic Republic of Pakistan and moreover, by depriving the legible candidates respondents have refused the rights of the persons having better qualification and entitled to be appointed and infringed the rights of profession guaranteed by the Article 18 of the Constitution of Islamic Republic of Pakistan and calls for interference by this Court to strike down the same to ensure the protection of the citizen. I have seek guideline in this regard by the judgment of Hon'ble Supreme Court of Pakistan in a case titled as ABDUL JABBAR MEMON and others Human Rights Cases (1996 SCMR 1349).

18. For what has been discussed above, I am of the considered view that the actions of official respondents in making the impugned appointments corum non judice, against the Recruitment Policy prepared for this purpose as well as fundamental rights, as provided under Articles 2(A), 4, 9, 14, and 18 of the Constitution of Islamic Republic of Pakistan, 1973. These all writ petitions are allowed and I declare the entire impugned recruitment process for Class-IV Employees in District Bahawalnagar in response to press advertisement dated 4-3-2010 flashing in local newspapers as illegal, corum non judice based on nepotism, colorable exercise of jurisdiction, violative the Fundamental rights guaranteed by the Constitution of Islamic Republic of Pakistan, 1973 and the same is set-aside with the direction that first of all if there are candidates who applied under section 17-A of the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974, they be adjusted first then the quota of all categories i.e. 5% female quota, 5% minorities quota, 20% for, the children of government employees in basis scale Nos.1 to 10 and 2% disable quota on the basis of total strength will be observed and other remaining seats will be filled in on open merit strictly in accordance with law. The Secretary Education shall minutely supervise the whole process for recruitment by himself or by deputing some other senior officials that no illegality, irregularity or colourable exercise of jurisdiction should take place. However, the persons who worked, they should be paid salary for their work done in accordance with law and official respondents are directed to restart the recruitment of Class- IV employees after the stage of publication and the official respondents shall constitute the Recruitment Committee in accordance with the government policy and shall observe all formalities mentioned in the policy, prepare merit list amongst the candidates have already applied before them in response to their advertisement before the cut date and also fulfill the qualifications criteria. Office shall return the record to the concerned department. M.H./I-7/L Petition allowe