1999 PLP 583 (CLC)

(ii) that the representation filed by the Government was as a matter of fact based upon misrepresentation of facts. The Government has been changing its stand from time to time to suit its convenience. This shall be amply borne out by the stand taken by the Government before the Supreme Court of Pakistan in case reported as ' Saeed Iqbal Wahlah v. Pakistan through Secretary, Establishment Division and three others' in Civil Appeal No. 1076 of 1995 to the effect that eversince the year 1983 the Government had been filing the vacancies occurring on account of repeaters and non joiners from amongst the selectees of the concerned examination/course. 'Learned counsel for the petitioner with some vehemence submitted that in view of the stand taken by the Government before the Honourable Supreme Court, the contention of the Government before this Court that the vacancies occurring on account of non joiners/repeaters had to be carried forward to the next course/examination was wholly incorrect and a sheer misstatement of facts on the part of the Government; (iii) that the instructions issued by the Federal Public Service Commission for the purposes of a particular examination are mere the instructions which do not enjoy the status of a rule. Learned counsel submitted that no right could be founded on such instructions; (iv) that as shown on the basis of the analogy of Saeed Iqbal Wahlah's case, the Government had been filling the vacancies occurring on account of non joiner/repeaters from amongst the selectees of the same course right from the year 1983. This notwithstanding the petitioner had been discriminated against. The action of the Government is violative of the guarantee provided by Article 25 of the Constitution of the Islamic Republic of Pakistan. The petitioner belonging to 1983 course is entitled as a matter of right to be considered against one of the posts occurring from amongst the selectees of the said course.

3. Ch. Afrasiab Khan, learned Standing Counsel for the Federal Government controverted the submissions made on behalf of the learned counsel for the petitioner and submitted:‑‑ (i) that the President was not supposed to give reasons in support of his order of rejection on the ground that he was bound by the advice tendered to him by the Prime Minister as per the requirement of Article 48 of the Constitution. Learned Standing Counsel submits that in this view of the matter, the contention of the learned counsel for the petitioner that the order of the President be struck down on the ground that it was not a speaking order or that it did not specify any reason in its support does not hold ground; (ii) that the advice tendered by the Prime Minister on the representation of the Government to the President was protected under Article 48(iv) of the Constitution and could not be questioned or made justiciable before this Court; (iii) that under Article 9 of the Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, Wafaqi Mohtasib is not competent to interfere in the service matters and that in this view of the matter, the very assumption of jurisdiction by the Wafaqi Mohtasib was coram -non judice and the order passed by him was a nullity in the eyes of law and no right could accordingly be founded on this order. In this view of the stance taken by the learned Standing Counsel, the recommendations of the Wafaqi Mohtasib even if the same were not challenged through a representation had no legal efficacy; (iv) that the vacancies which occurred and against which the 'petitioner claimed his right to be considered fell vacant subsequent to the commencement of the Common Training Course and the Commission could rightly take the said vacancies to the next Competitive Examination, 1984 and that the rule relied upon by the F.P.S.C. in this behalf and reproduced hereinabove is quite clear; (v) replying to the contention of the learned counsel for the petitioner based upon the judgment of the Supreme Court in Civil Appeal No. 1076 of 1995, learned Standing Counsel submitted that it appeared that the case was not properly represented before the Honourable Supreme Court which resulted in the judgment as contended by the learned counsel for the petitioner.

4. I have considered and evaluated the respective submissions of the learned counsel for the parties hereinabove reproduced and have perused the record placed before me very carefully. The case of the petitioner in the instant petition in net shell is that he was a selectee of 1983 course and while opting for various Occupational Groups, he had given his option for D.M.G. Group by way of his first choice. Unfortunately for him, because of the merit position the petitioner was able to earn for himself, he could not be considered for a post in the D.M.G. Group. It is the case of the petitioner before this Court that three vacancies subsequently occurred from amongst the selectees of 1983 course to which the petitioner belonged on account of the resignation of the three selectees. The petitioner maintained that of the three posts, thus, falling vacant on account of resignations, two belonged to D.M.G. Group and one was of Commerce and Trade Group. Having opted for D.M.G. Group as his first choice, the petitioner on the vacancies occurring from amongst the selectees of D.M.G. quota, the petitioner demanded of the Government that one of the posts of D.M.G quota falling vacant should be allocated to him. The request of the petitioner as made was not granted by the Government whereupon he was constrained to approach the Wafaqi Mohtasib for seeking redress of his grievance. The learned Wafaqi Mohtasib after thorough examination of the petitioner's complaint vide his recommendation, dated 17‑10‑1993 held the petitioner entitled to be considered for one of the posts. The petitioner on the strength of the findings recorded by Wafaqi Mohtasib on his complaint accordingly approached this Court that he be considered against one of the posts falling vacant from D.M.G. Group as notwithstanding the said recommendations he had not been considered against the said post till the year 1996. The Government in the meanwhile feeling aggrieved of the recommendations of the Wafaqi Mohtasib preferred a representation before the President of Pakistan. The representation filed by the Government was accepted by the President vide his order, dated 2‑5‑1998.

5. Learned Standing Counsel for the Federal Government maintained that the recommendation of Wafaqi Mohtasib on which the entire case of the petitioner was founded had merged in the final order passed by the President of Pakistan whereby the same were set aside and the representation of the Government was accepted. As the learned Standing Counsel for the Federal Government relied upon the order of the President in support of the Government's version of the case and the learned counsel for the petitioner questioned the legality and the propriety of the same, it appears appropriate to reproduce the said order which reads as follows:‑‑ "The President is pleased to accept the representation of the Establishment Division against the orders of the Wafaqi Mohtasib in Complaint NO.REG.1/792g/93." '

6. A bare perusal of the order passed by the President would show that the same consists of a few lines. It is conspicuous by the absence of any reasons whatever in its support. The order does not give any indication that the President applied his conscious judicial mind to the facts of the case before him. Keeping in view the tone, the tenor and the text of the order as passed by the President, it can safely be gathered that it runs counter to the manifest intent behind the enactment of Article 32 of the Ombudsman Order, 1983 which provision provided that any person feeling aggrieved of the order of the Wafaqi Mohtasib could file a representation to the President of Pakistan. It could not be the intention of the Legislature that the representation to be filed before the President and which of course would involve valuable rights of the parties to the litigation shall be disposed of by the President in such summary manner in which the order, dated 2‑5‑1998 has been passed by the Honourable President. It is a matter of common knowledge that on the representations filed before the President of Pakistan against the recommendations of the Wafaqi Mohtasib, he does not call for a party against whom the representation is filed and merely disposes of the representation on the advice tendered to him by the Prime Minister. This by itself would show the absence of application of 'conscious judicial mind to the facts of the case by the President himself. When questioned as to this by the learned counsel for the petitioner during the course of his arguments before this Court, the learned Standing Counsel for the Federal Government Ch. Afrasiab Khan submitted that as to what advice had been tendered by the Prime Minister to the President in the matter of the representation filed by the Government before him against the recommendations of Wafaqi Mohtasib, was a privilege communication and was not justiciable before this Court. I am afraid, the contention of the learned Standing Counsel for the Federal Government is wholly devoid of merit. In the matters of State policy perhaps the arguments of the learned Standing Counsel would hold good and the framers of the Constitution made the advice tendered by the Prime Minister to the President in the said matters a privilege communication and made the same also not justiciable before the Court. Such, however, could not be the intention of the Legislature behind the enactment of Article 32 of the Ombudsman Order, 1983 which makes the provision for filing of representation before the President. For, the representation to be filed before the President against the recommendations of the Wafaqi Mohtasib would of necessity involve valuable and precious rights of the parties before the Wafaqi Mohtasib. Such valuable rights could of course not be brushed aside and disposed of by the 8 President by just writing two lines and that too in the absence of the party affected thereby. The order passed by the President in this view of the matter, therefore, is such as cannot be allowed to hold the field, so as to obliterate the precious right of the petitioner. If the reasoning and the logic of the learned Standing Counsel for the Federal Government in support of the order made by the President is accepted, the result would be that the Government which would invariably be a party to a representation before the President would never loose its case before the President and it would always claim immunity against the scrutiny of, the orders made by the President by the Court. In this view of the matter which I take, there is no force in the contention of the learned Standing Counsel for the Federal Government that the order of the President as passed has set at naught the recommendations of the Wafaqi Mohtasib and that too in the absence of the petitioner and without affording any opportunity of being heard having been provided to him. Learned counsel for the petitioner rightly contended before me that the President was while dealing with the representation acting in a quasi judicial capacity and was bound as such to act judicially so as to apply his conscious judicial mind to the lis before him. The order to be passed by him ought to be a speaking order containing reasons in its support and exhibiting application of conscious judicial mind by the President. Such, however, is not the case with the order of the President as impugned before this Court. No reliance can, therefore, be placed on such an order. The position taken by the learned Standing Counsel for the Federal Government before this Court was that the petitioner had set up his entire case on the recommendations of the Wafaqi Mohtasib and the same having been set aside by the President by accepting the Government's representation, the entire edifice built by the petitioner around the recommendations of the Wafaqi Mohtasib stood demolished. Firstly, for the reasons aforestated with regard to the legality and the propriety of the order passed by the President on the representation of the Government, the argument of the learned Standing Counsel for the Federal Government does not hold good and is ineffective on the rights of the petitioner. Secondly, the Government's own stand as taken by it before the Honourable Supreme Court in Civil Appeal No. 1076 of 1995 in Saeed Iqbal Wahlah's case was that right from the year 1983 it had been the practice of the Government to fill the vacancies of a particular year from amongst the selectees of that very year and not to carry the said vacancies forward to the next year. Now, if this was the practice of the Government consistently followed by it since 1983, how could the Government justify its stand and its treatment of the petitioner in a manner different from the consistent practice followed by it. The Government on the face of this clear admission before the Honourable Supreme Court is guilty of discriminatory treatment vis‑a‑vis the petitioner which clearly was violative of the guarantee afforded to all the citizens of the State by Article 25 of the Constitution. The petitioner before this Court can, therefore, in my view legitimately claim a right unto himself to be allocated one of the two posts falling vacant from amongst D.M.G. quota from the selectees of 1983 course to which he belonged. The petitioner's case, therefore, viewed from any angle whether on the basis of the recommendations of the Wafaqi Mohtasib or on the basis of the stand of the Government itself as taken by it before the Supreme Court of Pakistan as aforesaid has to be accepted as correct.

7. The learned Standing Counsel for the Federal Government during the course of his arguments had taken up a plea on the basis of the provisions contained in Article 9 of Ombudsman Order, 1983 that the matter as canvassed by the petitioner before this Court related to his service and as such was beyond the jurisdiction of Wafaqi Mohtasib to interfere in the same.

8. I have examined the contention of the learned Standing Counsel for the Federal Government based on Article 9 of Ombudsman Order, 1983 but I am constrained to hold that the same is not valid. The petitioner's entire case was based upon his selection as a result of the competitive examination held by the F.P.S.C. He had yet to enter the service and was not already in service for the purpose of the claim as made by him. Article 9 of the Ombudsman Order, therefore, could not stand in his way in seeking redress of his grievance through complaint filed by him before the Wafaqi Mohtasib.

9. For the foregoing reasons the instant Constitution petition is accepted and the respondent/Government is directed to allocate one of the posts falling vacant from D.M.G. quota from amongst the selectees of 1983 course to which the petitioner undeniably belonged. The parties are left to bear their own costs. H.B.T./M‑906/L Petition accepted.