2012 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

By this order I intend also to dispose of W.P.No.11575 of 2011 along with instant petition.

2. The petitioners are candidates in the Combined Competitive Examination ("CCE") 2011 which is being held by the respondent PPSC. The successful candidates in the selection process shall be recommended for appointment by the PPSC to posts of Excise and Taxation Officer (BS-17), Assistant Director Local Fund Audit (BS-17) and in Provincial Management Services (BS-17). The question in issue is that whilst the concerned administrative department namely, S&GAD, Government of Punjab, has granted relaxation of upper age limit to candidates in the CCE who are serving government servants, however, no relaxation of upper age limit has been granted to candidates from the public including the petitioners. It is the petitioners' case that such relief ought to have been granted to the competitors from the public under the Punjab Delegation of Powers (Relaxation of Age) Rules, 1961. In other recruitments currently being undertaken through the PPSC by other departments of the provincial government, relaxation of upper age limit has been granted to candidates from the public. This is quite apart from the fact that S&GAD's letter dated 4-11-2006 amends the aforenoted rules by empowering the concerned Administrative Secretary to grant age relaxation up to "5 years across the board" for initial recruitment against all services and posts.

3. The case of the respondents is that although the Administrative Secretary has discretion to grant age relaxation to public candidates for government recruitment, however, in the present case he has decided not to extend them such relief. In the light of the above circumstances and the law, candidates from the public cannot claim the said relaxation of upper age limit as of right from the respondents.

4. Accordingly, the question arising for determination is whether the impugned denial of relaxation of upper age limit to candidates from the public in the subject recruitment process is discriminatory; and in any event, whether an Administrative Secretary can by mere inaction deny the desired discretionary relief to such candidates without disclosing grounds.

5. Learned counsel for the parties have been heard. An instructive judgment on the point in issue has been rendered recently by my learned brother Syed Mansoor Ali Shah, J on 12-7-2011 in W.P. No.8741 of 2011 titled Uzma Rani and others v. PPSC and others 2011 PLC (C.S.) 1537. The essence of that ruling is that all types of discretion vesting in a public authority must be duly surveyed in every eligible case before taking a decision. Such an exercise must precede every decision including both the grant or the refusal of a discretionary benefit by a public authority to a candidate/applicant.

6. In case of either outcome, the decision must reflect application of mind of the deciding authority to the facts of a case to assess its merits for relief. To consciously consider and examine the merits of a case is accordingly the duty of every public authority whose discretion is invoked. In order to be reasonable and fair, the decision taken either way in the exercise of discretion must be sustained by relevant reasons that are duly recorded. It does not lie with an administrative authority to justify denial of a benefit to an applicant by ignoring, disregarding or avoiding to examine the merits of a case seeking or involving the exercise of its discretion. The authority must consider and decide whether a claimant is a rightful beneficiary of relief or not. On the above point, the learned Judge has quoted H.W.R. Wade and C.F. Forsyth: "Administrative Law" (Oxford, 10th Edition, page 270) as follows:

"An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance. It is fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case; each one must be considered on its own merits and decided as the public interest requires at the time."

7. The above noted rule is eminently fair and just. Firstly, it checks abdication of discretionary authority and secondly, it demands the application of mind by the public authority vested with a discretion. Both elements are essential attributes for safe and proper discharge of functions by public authorities.

8. The impugned decision in the present case to neglect candidates from the public for relaxation of upper age limit is actually the result of inaction and abdication of discretion by the concerned public authority which has allowed the present state of affairs to prevail by neglecting or avoiding a decision in the matter. Such an omission to exercise discretion constitutes default requiring correction. Consequently, the concerned Administrative Secretary of S&GAD department shall revisit the matter of relaxation of upper age limit of candidates from the public for the posts under consideration. In doing so, he shall inter alia, apply his mind to the following relevant points: effect of non-recruitment from the public for the subject posts in years 2009 and 2010; reasons for distinguishing recruitment from the public for the posts in issue as against recruitment for other advertised government posts wherein age limit relaxation has been extended by other recruiting departments of the government; and reasons for giving government employees preferential treatment over candidates from the public by the grant of relaxation to the upper age limit of candidates from the first category.

9. The said Administrative Secretary shall consider and decide the foregoing points within one month of this order and shall record reasons in support thereof. Until he decides the matter in issue no recommendation of successful candidates shall be forwarded by the PPSC to the provincial government. In case the Administrative Secretary decides in favour of age relaxation being granted to candidates from the public for the posts in question, fresh recruitment process shall be commenced; otherwise the PPSC shall forward its withheld recommendations to the provincial government. Petition allowed in above terms. M.H./I-8/L Order accordingly.