2020 PLP (C (PLC(CS)N)

MUJAHID MUSTAQEEM AHMED, J.

This Intra Court Appeal filed by the appellant in terms of section 3 of the Law Reforms Ordinance, 1972 is directed against the order dated 04.06.2018 passed by the learned Single Judge of this Court whereby writ petition bearing W.P. No.360 of 2015 filed by the appellant was dismissed.

2. The pithy facts of instant appeal, necessary for its adjudication, are that in the year 2014 the District and Sessions Judge, Layyah/respondent No.1 advertised various vacant posts including that of "Chowkidar" and "Naib Qasid" 20% quota for the advertised posts was reserved for children of retired/in-service employees of the department in BPS-1 to BPS-7. The appellant also submitted two applications against seats to be filled through reserved quota; one for the post of Chowkidar and the other for Naib Qasid. However, candidature of the appellant was not taken into consideration by the selection committee headed by the District and Sessions Judge, Layyah, observing that in the year 2007 appellant's brother Usman Khalid had already been appointed against such reserved quota as process server in the office of the Senior Civil Judge, Layyah. Feeling dissatisfied with the reason advanced by the Selection Committee for rejection of his applications the appellant filed Writ Petition (No. 360 of 2015) claiming that his above named brother had been appointed on open merits and as such justification of rejection of his applications was not tenable. The respondents in comments however, reiterated the stance taken in the Minutes of Meeting. The learned Judge-in-Chamber of this Court, vide order dated 04.06.2018, dismissed the writ petition concurring with the version of the respondents. The appellant, did no sit at rest and has filed instant Intra Court Appeal to assail the order passed by learned Single Judge mainly on the grounds of against facts and law.

3. We have heard learned counsel for the parties and examined the record.

4. Undeniably the authority vested with a Selection Committee / Selection Board or Appointing Authority is a trust and under law such authority is to be exercised as per command of Almighty Allah ordained in Surah Al-Nisa Verse-58 of the Holy Quran, English Translation of which reads as under:- "Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent, is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing." (emphasis supplied by us).

5. The basic object of the recruitment process in government, semi government sector is always the selection of best, competent, eligible and suitable persons amongst the applicants so as to serve such institutions in a better way. Transparency in recruitment process can boost credibility and promote public confidence in institutions. With this object, rules are framed to streamline the process with transparency in order to avoid any stigma of nepotism and favoritism.

6. In order to remove social, educational and economic backwardness and to accord socio-economic justice as guaranteed in the Constitution, the State had evolved the principle of reservation to an office of the State or post as an affirmative action. Reservation of seats to be filled by way of quota was one of the steps taken in this behalf. One of such quotas is 20% quota reserved for children of government servants who retired from/worked in the same department. One such efforts of the government, recognizing right of employees of Punjab Government, for appointment of their children against reserved quota is reflected from Notification No. SOR-III-I-22/90 dated 1.9.1993 which is to the following effect:- "In exercise of the powers conferred on him by section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974), the Governor of the Punjab is pleased to direct that notwithstanding anything contained to the contrary in any other rules, 20% of vacancies in the cadre of Junior Clerk, Driver, Naib Qasid, Mali, Farrash, Water Carrier and Chowkidar in all Government Departments shall stand reserved for the children of such Government servants in BS-1-5 who are either still serving in the respective department/cadre or had retired from the said department/cadre in BS-1-5." The said instructions with regard to quota were amended from time to time and were also amended through Notification NO.SOR-III(S&GAD)2-74/2008 dated 21.8.2009 to the following terms:- "In exercise of the powers conferred upon him by section 23 of the Punjab Civil Servants Act, 1974 (VIII of 1974), in partial modification of Notification No. SOR-III-1-22/90 dated 01.09.1993, the Governor of the Punjab is pleased to direct that 20% vacancies in the cadre of Junior Clerk, Patwari, Driver, Naib Qasid, Mali, Farrash, Water Carrier and Chowkidar in all Government Departments shall stand reserved for the children of such Government servants in BS-1- 5 and Junior Clerks/Patwaris (previously in BS-5 now upgraded to BS-7), who are either serving in the respective department/cadre or have retired..."

7. Coming to the present case, we have noticed that Usman Khalid, brother of the appellant was selected for his appointment as Process Server in the Minutes of Meeting of Departmental Selection Committee, headed by S.C.J. Layyah held on 23.06.2007 his name being at Serial No. 03 of merit list. Said Minutes of Meeting support the version of the appellant that his said brother had been appointed against open merit because no seat was advertised against 20% reserved quota for the children of employees/retired employees of the department during that selection process. Record shows that in the light of instructions issued by this Court vide Notification No. 4149-E/VII.A. 27 dated 11.4.1963 (reiterated through subsequent notifications issued from time to time) before appointment of Usman Khalid his matter was referred by the learned Senior Civil Judge to this Court for permission, he being relative of an already serving employee. Relevant instruction in the above notification may be reproduced hereunder: "

3. As regards the future policy, their lordships have been pleased to direct that the following instructions should be complied with in the matter of appointment of persons to the officials already in service:- (i) That in order to prevent incidents resulting from the 'collaboration' of relatives in the same office, appointments of relatives, whether permanent or temporary should be made only subject to the approval of the Judges of this Court."

8. It seems that while rejecting applications of the appellant the Selection Committee headed by the District and Sessions Judge, Layyah was misled due to said misconception, only because case of Usman Khalid and some others selectees, relatives of the officials in the Sessions Division, was remitted to this Court for administrative approval.

9. In view of the above admitted facts, we are of the affirm view that the candidature of the appellant for the above posts has been declined by the departmental selection committee/authority against the law/rules and the appellant has been refused his legal right without any rhyme or reason and has been discriminated.

10. Worth mentioning that the candidature of the appellant was also rejected as he was overage for 03 years, 03 months and 21 days, but learned counsel for the appellant, referring the Minutes of Meeting of the Selection Committee dated 23.6.2014 has rightly pointed out that one Muhammad Shoaib, candidate mentioned at serial No.4 was overage by 04 years, 04 months and 30 days, whose case for relaxation of upper age limit was recommended and referred to the District and Sessions Judge, Layyah/Authority for appropriate orders. The Departmental representative has also conceded that at present the upper age limit for the post of Naib Qasid is thirty years. Thus the appellant has also been discriminated in respect of relaxation of upper age limit. In a recent pronouncement handed down by the Apex Court while taking Suo Motu Action Regarding Eligibility of Chairman and Members of Sindh Public Service Commission and others reported as 2017 SCMR 637 the Hon'ble Supreme Court of Pakistan observed that when through a discriminatory selection process civil servants were selected and appointed, it would infringe Article 27 of the Constitution which stated that, "No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against". It was further observed that Article 25 of the. Constitution, prescribing the equality of citizens, was another Fundamental Right which was attracted if all those who were tested and interviews were not treated equally. In another judgment reported as Pir Imran Sajid and others v. Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan and others [2015 PLC (C.S.) 1487 (Supreme Court of Pakistan)] it was observed as under: "

12. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and

25. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of the justice."

11. Consequently, the instant Intra Court Appeal is allowed, impugned order dated 04.06.2018 passed by learned Judge-in-Chamber is set aside and the impugned order of the Selection Committee/Authority (respondents Nos. 1 to 3) is declared without lawful authority, without jurisdiction and of no legal effect. The Superintendent/Departmental representative in attendance, has conceded that the posts of Chowkidar and Naib Qasids are still lying vacant. As such the Selection Committee/Authority (respondents Nos.1 to 3) is directed to re-consider the candidature of the appellant for the above posts against the vacant seats, of course without disturbing/upsetting the appointment orders issued in favour of the respondents already serving the department, as per law/rules, within thirty days from the date of receipt of order of this Court, under intimation to this Court through Deputy Registrar (Judicial). ZC/A-65/L Appeal allowed.