1988 PLP (C (PLC(CS))

NASIR ASLAM ZAHID, J.‑‑Petitioner, holding a degree of B.Sc. and LL.B. and a practising Advocate, in response to advertisement of the Sind Public Service Commission inviting applications for appointment as Civil Judges in BPS‑17, filed an application for one such post. The Public Service Commission interviewed the applicant and he was declared successful and placed on serial No.20 in order of merit out of 25 applicants selected by the Public Service Commission for 25 posts of Civil Judges to be filled up. The Government also intimated the petitioner that his name was being considered for appointment. The petitioner also appeared before the Medical Board and was declared medically fit. By a notification dated 5‑5‑1987, 22 out of the 25 selected candidates were appointed as Civil Judges but the name of the petitioner was missing from the list of appointees. According to the petitioner he possessed the prescribed educational qualifications and experience and was within the age limit prescribed for the said post. The petitioner made a representation to the Chief Minister but no reply was received and in the circumstances he filed the present Constitutional petition. Comments were called for and in para. 15 of the parawise comments filed by the Secretary (Services) Services and General Administration Department, Government of Sind it was observed as follows: "In view of the fact that petitioner was an active political worker and constantly dabbling in political activities, the competent authority did not approve his name for appointment as Civil Judge. As such he was not appointed to the post. It is the discretionary power of the competent authority either to accept, or reject the recommendations of the Sind Public Service Commission." This petition raised the same points as were raised in earlier filed Constitutional Petition No.D‑240/87 by Nawaz Ali Shar and on 16‑11‑1987 the file of the Government relating to the petitioner Abdul Malik was produced for our perusal and it was found that the case of Abdul Malik was identical to the case of Nawaz Ali Shar. Accordingly the petition was admitted to regular hearing as the earlier petition had also been admitted to regular hearing. We heard the argument of learned counsel for the petitioner and the learned AAG, on 18‑1‑1988, when this petition was fixed for regular hearing, and on conclusion of the arguments by a short order we allowed the petition and directed the Government to appoint the petitioner as a Civil Judge. Reasons for our short order are given in this judgment. The case of the petitioner is identical to the case of Nawaz Ali Shar. By our judgment given today in Constitutional Petition No.D‑240/87 filed by Nawaz Ali Shar, we have given our detailed reasons for allowing the other petition. As observed earlier, the petitioner was qualified to be appointed as a Civil Judge. He applied to the Public Service Commission in response to the advertisement of the Public Service Commission inviting applications for appointment to fill up 25 posts of Civil Judges in BPS‑

17. The petitioner was declared successful and placed at serial No.20 in the merit list. He appeared before the Medical Board who found him medically fit. From the comments filed by the Secretary to the Government it follows that the only reason given for not appointing the petitioner as the Civil Judge was that the petitioner was an active political worker and dabbled in politics. The record of the Government which was made available for our perusal by the learned AAG on our direction, shows that there was no adverse material or report against the petitioner. There were no reports or material that the petitioner was a political worker or had dabbled in politics. The remark in the Government file that the petitioner was a political worker and dabbled in politics was based on no material or report. Even otherwise, according to the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, in respect of initial appointment, the applicant is not disqualified in case he was a political worker or dabbled in politics. In the circumstances of this case a vested right had been created in favour of the petitioner for being appointed as a Civil Judge. The decisions of the Lahore High Court in the case of Mazhar Hussain v. Province of Punjab (P L D 1985 Lahore 394) and Division Bench judgment of this Court in the case of Muhammad Farooq Memon v. Government of Sind (1986 C L C 1408) support the case of the petitioner that he is entitled for a direction to the Government for being appointed as a Civil Judge. The refusal of the Government to appoint the petitioner when he fulfils all conditions and is otherwise selected on merits by Public Service Commission and found medically fit and there being nothing adverse against the petitioner, is arbitrary. For the aforesaid reasons we had allowed this petition by our short order passed yesterday on the conclusion of the arguments of the learned counsel and the learned A.‑A.G. and a direction was issued to respondent No.l to appoint the petitioner as a Civil Judge in BPS‑

17. M. Y. H. /A‑282/ K Petition allowed