1998 PLP (C (PLC(CS))

KHALIL-UR-REHMAN RAMDAY, J

This judgment shall dispose of Writ Petition No. 7509/S-96, Writ Petition No. 7644/S-96, Writ Petition No. 8359/S-96 and Writ Petition No. 1596/S-97. All these petitions call in question the vires of the appointments of junior clerks made by the learned District and Sessions Judge of Khanewal, through initial recruitment.

2. According to the notice published in the daily ' Qaumi Aawaz' of Multan in its issue of August 26, 1996, the learned District and Sessions Judge, Khanewal had advertised availability of various posts, including five posts of junior clerks in his Court. The petitioners herein submitted their applications for being considered for the post of junior clerk. The applicants for the said posts, including the petitioners and the private respondents in these petitions, were tested and interviewed for the said posts. From the record of the proceedings of the selection process, it transpires that certain marks were allocated for the academic achievements of the candidates and certain marks were reserved for a written test to which the candidates had been subjected. A Selection Committee comprising the learned District and Sessions Judge as the Chairman, Mr. Mumtaz Munawar Khan Niazi, a learned AD&SJ at Khanewal and Mr. Zahoor-ul-Haq Rana, the learned Senior Civil Judge at Khanewal was constituted to select candidates for the posts in question. Through an order dated 23-10-1996, the said Committee selected six candidates who are the private respondents in these petitions and ordered their appointment against the posts of junior clerks. According to the abovementioned order dated 23-10-1996 of this Committee, one post was left vacant to be filled up at some subject stage.

3. The claim of the petitioners herein is that in spite of the fact that they had performed better than the selected candidates, they were ignored and instead the respondents herein were recruited for the posts in question. The record of the selection process was requisitioned which has been examined. The learned counsel for the parties were heard. 4.According to this record, the respondents-selectees had obtained marks as under: -- Name Academic Merit Written Test/ Interview Total Marks

1. Muhammad Ismail 37 40 77

2. Mansoor Ahmad 30 30 60

3. Abdul Malik 37 38 75

4. Saeed Ahmad 35 36 71

5. Murtaza Ali 35 37 72

6. Babar Ali 38 40 78 5.The marks obtained by the petitioners herein were as under: -- Name Academic Merit Written Test/ Interview Total Marks 1.Muhammad Nasir Khan (W.P. 7509/S-96) 39 38 77 2.Khalid Mehmood s/oGhulam Mohy-ud-Din (W.P. 764/S-96) 37 40 77 3.Shahid Mustafa (W.P. 8359/S-96) 37 40 77 4.Tanvir HussainGhori (W.P. 1596/S-97) 37 42 79

6. It is thus obvious that the selected candidates or at least four of them, namely, Abdul Malik, Mansoor Ahmad, Saeed Ahmad and Murtaza Ali had secured muchless marks than the unsuccessful petitioners. From the record it also appears that there were some other candidates also who had received marks better than the abovementioned four selectees. These candidates are Sajjad Ahmad (77 marks), Sajjad Ahmad Khan Niazi (77 marks) and Liaqat Hussain (77 marks) and then there were some other candidates with 76, 75, 73 and 75 marks.

7. No explanation could be offered as to why the candidates with superior merit as determined from their scholastic achievements and the written test/interview had been ignored and why candidates with inferior merit as above-noticed had been selected for the appointment to the said posts. It was contended by the petitioners that they had been treated discriminately and unjustly.

8. Every person in the country is entitled to be treated in accordance with law and all citizens are equal before law and are entitled to equal protection of law. Needless to state that when a power vests in a State functionary empowering him to do something, then the concerned functionary is obliged to exercise the said power justly, fairly and indiscriminately. If these characteristics are lacking in the doing of an act, then the concerned functionary cannot be held to have acted in the matter in a lawful manner nor can the act in question be said to be lawful and legal.

9. In view of the provisions of section 4 of the Punjab Service Tribunals Act, 1974, since an appeal is not competent before the Service Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or to hold a particular post, therefore, these petitions are not hit by the provisions of Article 212 of the Constitution of 1973.

10. Consequently, all these petitions are allowed. The impugned selection and the resultant appointments of the above-named respondents against the posts of junior clerks in the Court of District and Sessions Judge at Khanewal are set aside as being illegal and of no legal effect. The competent Authority is, however, directed to make the appointments afresh on the basis of the merit, already determined, of candidates who were tested and interviewed in the months of September/October, 1996. It may be clarified that if any of the respondents herein qualify for appointment in accordance with the said merit, then this order shall not preclude the competent Authority from selecting them and offering appointments in question to them.

11. From the record it appears that Tanvir Hussain Ghori petitioner in Writ Petition No. 1596/S-97 had obtained the highest marks i.e. 79 while Babar Ali the selected candidate/respondent had obtained the next highest marks i.e.

78. Then there appear to be six or seven candidates who had obtained 77 marks out of whom, three are the petitioners before me in Writ Petition No. 7509/S-96, Writ Petition No. 7644/S-96 and Writ Petition No.8359/S-96 while one is the selected respondent i.e. Muhammad Ismail. The others who have obtained same number of marks are one Sajjad Ahmad and one Sajjad Ahmad Khan Niazi. Selection of some out of these candidates who had obtained 77 marks could pose a problem for the competent Authority. Although this is not the law but the practice is that from amongst the candidates with the same merit, the ones older in age are preferred for selection and the ones younger in age are ignored. The competent Authority could keep this principle in mind while making the selection and the appointments in question. The inter se seniority of these candidates shall be considered from the date of the fresh appointment, which is now to be made by the competent Authority. The-competent Authority shall make these appointments within one week of the receipt of this order.

12. There shall be no order as to costs.

13. The record shall be immediately returned to the learned District and Sessions Judge, Khanewal through a special messenger. A.A./M-503/L Petition accepted