1999 PLP (C (PLC(CS))

The Government decision about district‑wise representation has already been communicated to you. In continuation of that decision I am directed to state that whenever it is intended to fill up a vacancy the concerned Department shall be bound to indicate in the advertisement that the post would be filled up from the district specified therein against the reserved quota and only candidates from that district would be brought under consideration. However, if a suitable candidate possessing the required merit is not available from that district, the appointment will be made from amongst suitable candidates from other districts. This principle would apply to all posts which are filled up through competitive examination and are gazetted. So far as non‑gazetted and subordinate officials are concerned they will be recruited from within their available from within the district in that case appointing authority will bring the matter in the notice of the immediate officer and would then make appointment from other districts. Public Service Commission will also be required to indicate in the advertisement inviting applications that the recommendation of the Commission will be formulated on the basis of district‑wise quota, however, if candidate of required merit is not available the Commission will recommend the most suitable candidate irrespective of the district to which he belongs. ??????????????????????????????????? Please act upon the foregoing. ??????????????????????? (Sd.) ??????????????????????????????????????????????????????????????????????????????????? Addl. Chief Secretary." Mr. Abdul Rashid Abbasi added that Fundamental Right No. 17 (Safeguard Against Discrimination in Services) visualises that Government jobs can be reserved on the basis of place of birth or domicile. There is force in this submission. The legal provisions and Government orders reproduced above support the view taken in the judgment under appeal that reservation on the basis of regional quota is mandatory in nature and negative the other view that it is rule of convenience. For the latter view no reason has been recorded by the High Court. The learned counsel for the respondents also did not support the "rule of convenience" view and contested the appeal on technical grounds to which we will be presently adverting. We, therefore, uphold the opinion that the provisions under reference are mandatory in nature. It is, therefore, clear that all concerned functionaries are bound to implement them and any inconsistent order will be a serious illegality. ????? In opposition to the appeal only some technical points have been raised. It was contended by Raja Shiraz Kayani, the learned Advocate ?General, that it is proved from the record that Mechanical Engineers were never appointed through Public Service Commission under the quota system, although the appellant, a refugee, was appointed on ad hoc basis. This is the plea which was raised in the written statement filed by the Government in the High Court. This plea does not have any merit because there is no provision or Government order that quota system would not be applicable to Mechanical Engineers. If on the previous occasions the posts of Mechanical Engineers were not filled in on the basis of regional quota it was an illegality which went unchallenged but, as is well‑settled, there is no estoppel against law. It is specifically laid down in order of 5th July, 1972, reproduced above, that quota system will apply to all gazetted posts to be filled up through competitive examinations. The posts under dispute fell in this category and, thus, regional quota was fully applicable. The learned Advocate‑General as well as Sardar Rafique Mahmood Khan had contended that the appellant is not entitled to any relief because he appeared in examination held for the two disputed posts. It was argued by the learned Advocate‑General, Raja Shiraz Kayani, that the appellant cannot be allowed to blow hot and cold at the same time. Sardar Rafique Mahmood Khan pressed into service the principle of acquiescence against the appellant and submitted that acquiescence by conduct is fatal for invoking the Constitutional jurisdiction of the High Court. He cited some reported judgments in support of his contention which are as follows:‑‑ This Court held in Ghulam Mustafa v. Azad Government and 2 others (1996 MLD 355) as follows:‑‑ "

9. Acquiescence even by conduct has been held to be fatal for invoking the Constitutional jurisdiction. In the instant case the appellant is not only precluded by his conduct to seek the Constitutional remedy but he practically participated in the subsequent allotment proceedings and with his consent an agreement arrived at between the allottees and the members of Allotment Committee the re?scheduling in the initial site plan was done and allotments were made .. ... ... ... .... .... ... .. ... ... ... ... ... ... ... ... ... ... ..." In a case reported as Dr. Habibur Rahman v. The West Pakistan Public Service Commission,. Lahore and 4 others (PLD 1973 SC 114) the following view was expressed by Supreme Court of Pakistan:‑‑ ... ... ... ... ... .... ... .... ... ... Such being the case it appears to us that the appellant instituted the second writ petition only after he had unsuccessfully completed in the second selection held by the Public Service Commission for five posts advertised by it in June 1967. By participating in this selection without protest of any kind, the appellant must be deemed to have waived his rights and grievances in respect of the first selection held by the Commission in 1965 . ... ... ... ... ... .. ... ... ... ... ... ... ... ... ... ... ... ... .. Nagpur High Court observed in Miss Avi, J. Cama v. Banwarilal Agarwal and others (AIR 1953 Nagpur 81) as follows in para. 21:‑‑ "(21)??????????????????????????????? Shri R.V.S..Mani, Counsel for the petitioner, admitted before us that the petitioner did not raise any objection to the validity of the nomination paper of respondent No.l before the Returning Officer as provided by Rule 4(5) of the Rules relating to the election of Councillors. She has not stated any reason why she did not take the objection. She has not averred that she was unaware of this provision. She is an advocate and must have read these rules before filing her own nomination paper and she had an opportunity of scrutinizing the nomination papers of respondent 1; yet, she did not promptly raise the objection but waited till she was defeated at the election." The objection of acquiescence was not raised in the High Court and has been raised for the first time in this Court in the concise statement filed by the respondents. The record shows that both the parties filed their concise statements on the same day. It means that till the filing of his concise statement the appellant was not aware that an objection of acquiescence was being raised against him. Respondent Muhammad Latif had been, on his request, impleaded as a respondent before the High Court and he filed a written statement. He specifically mentioned in the written statement that Umar Hayat appeared as a candidate in the test and interview conducted by the Public Service Commission but did not raise the objection of acquiescence. He mentioned the fact of appearance of appellant Umer Hayat in the test and interview in another context, as will be seen from the reply which is reproduced below:‑‑ "In fact during the last ten years only four posts have been filled in on the basis of merit. Out of the two present posts one vacancy has been withdrawn by the Government through Notification issued on 3rd December, 1997 and only one post is left vacant. Against this post test and interview have been held on the basis of open merit in which the appellant and respondent No.4 have appeared." Since this point was not raised in the High Court the appellant never had an opportunity of explaining his position as to why he appeared in the test. In our view no adverse inference can be drawn against the appellant in absence of an opportunity to explain his position. It cannot be assumed that the appellant was aware that his participation in test and interview in the circumstances of the case can be treated as objectionable. It was held in M/s. Globe Textile Mills (O.E.) Limited v. Textile Commissioner, Ministry of Industries, Government of Pakistan. Karachi and 2 others (1993 SCMR 900) that acquiescence as legally understood does not take place where its roots and basis are based? on unawareness of ones rights. Even otherwise the objection of acquiescence cannot be sustained in the present case as will be presently seen. The ordinary meanings of the word "acquiescence" as assigned in Wharton's Law Lexicon are: "consent, either expressed or implied". The meanings of this word in Black's Law Dictionary are as follows:‑‑ "Acquiescence. Conduct recognizing the existence of a transaction, and intended, in some extent at least, to carry the transaction, or permit it to be carried, into effect. It is some act, not deliberately intended to ratify a former transaction known to be voidable, but recognizing the transaction as existing, and intended, in some extent at least, to carry it into effect, and to obtain or claim the benefits resulting from it, and thus, differs from 'confirmation' which implies a deliberate act, intended to renew and ratify a transaction known to be voidable. De Boe v. Prentice Packing and Storage Co.172 Wash. 514, 20 P.2d 1107, 1110, Passive compliance or satisfaction; distinguished from avowed consent on the one hand, and on the other, from opposition or open discontent. Pul v. Western Distributing Co. 142 Kan. 816, 52 P.2d 379,

387. Equivalent to assent inferred from silence with knowledge or from encouragement and presupposes knowledge and assent. Imports tacit consent, concurrence, acceptance or assent. Natural Soda Products Co. v. City of Los Angeles, Cal App., 132 P.2d 553,

563. A silent appearance of consent. Failure to make any objections. Submission to an act of which one had knowledge. Exists where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right, Yench v. Stockmar, C. A.:Colo., 483 F. 2d 820,

834. It is to be distinguished from avowed consent, on the one hand, and from open discontent or opposition, on the other." In "Law Dictionary of Words and Phrases Judicially Defined" by Dr. A.R. Bisaws, defines this word as follows:‑‑ 'Acquiescence.' Acquiescence is used in two senses. Sometimes it is used to denote conduct which is evidence of an intention by a party, conducting himself, to abandon an equitable right, sometimes it denotes conduct from which another party would be justified in inferring such an intention. Krishan Dev v. Ram Piari, AIR 1964 Him. Pra.

34. There can be no acquiescence where both parties are unaware of their rights in the disputed property and both are labouring under some mistake about their respective rights. Abdul Khair v. S.M. James, AIR 1957 Pat. 308: 36 Pat.

362. If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence'. Duke of Leeds v. Amherst, 2, P.124." The case relied upon by Sardar Rafique Mahmood Khan also do not lay down any different principles. It is difficult to summarise in a few words all the shades of the meaning of the acquiescence as defined and interpreted in the judgments and the celebrated works mentioned above, but it can be safely stated that there can be no acquiescence unless two ingredients are present. Firstly, there should be express or implied, abandonment of a right or failure to enforce it, The second ingredient is that the act by which acquiescence is inferred should be inconsistent with the right. In the present case, both these factors are absent. So far as inconsistency is concerned, it needs to be emphasised that the appellant's contention never was that the Public Service Commission had no authority to hold test and interview for the disputed posts. His contention was that test should be restricted to refugees settled in Pakistan. His appearance in the failure to get it cancelled, was not an inconsistent conduct because being a refugee himself he was entitled to appear in the test. We have already noted the facts which show that the appellant filed a writ petition to challenge the violation of quota system and he has all along been fighting for his claimed rights and at no stage consented to its violation. The appellant did appear in the examination, when he failed to get it postponed, but he continued to pursue his writ petition and subsequently moved this Court and applied for a stay order which was initially issued but was subsequently vacated. If the stay order had not been vacated the appeal would have been decided without declaration of result by the Public Service Commission and nobody could have come to know as to who had succeeded in the examination. We find that the appellant has been consistent in his efforts throughout and at every stage he tried that Public Service Commission should not hold examinations. In these circumstances test and interviews were held not with his consent but against his endeavours. The principle of acquiescence might have been applicable if the appellant had appeared in the examination and would have filed a writ petition after having failed to get an appointment. It was lastly argued by learned counsel for respondent No.4 Muhammad Latif Khan that the appellant did not amend his writ petition so as to seek a relief that the appointment of his client may be annulled. He, therefore, submitted that no order can be passed against the said respondent. This argument has been countered by Mr. Abdul Rashid Abassi by relying on the principle that if a mandatory condition for exercise of jurisdiction is not fulfilled then the entire proceedings which fall and became illegal. In this connection he relied on Mansab Ali v. Amir and 3 others (PLD 1971 SC 124). We do not find force in the submission of Sardar Rafique Mahmood Khan. We have found that the basic step taken by the Public Service Commission was illegal being inconsistent with the mandatory provision about quota system. It is well‑settled that in such a situation all subsequent actions will automatically be rendered illegal and need not be separately challenged. On this point we may refer to Civil Appeal No.81 of 1995 titled Syed Iftikhar Hussain v. Azad Government and 6 others (decided by ?this. Court on 16‑6‑1996) in which Syed Iftikhar Hussain, a civil servant, was proceeded against for embezzlement etc. and was dismissed from service. It was also ordered that embezzled amount may be calculated and be recovered from him. Subsequently a separate notification was issued in which it was ordered that embezzled amount, as calculated, was to be recovered from him. Syed Iftikhar Hussain only challenged the dismissal order and did not challenge the subsequent notification before the Service Tribunal. The Service Tribunal accepted the appeal filed against the dismissal order and declined to set aside the subsequent order for recovery of embezzled amount on the ground that no appeal had been filed against him. This order was challenged and, by majority view, the appeal was accepted and the order for recovery of embezzled amount was set aside after holding that it was a consequence of an illegal order and it was not necessary to challenge it separately. We may reproduce the relevant portion of the judgment:‑‑ "??????????????????????????????????????????????????????????????????????. It is settled principle of law that an order passed or a structure raised on an illegal order would also be illegal. Thus, if basic order is found to be violative of law, any subsequent orders passed on the basis of first order would be, ipso facto, illegal and of no legal consequence; and any structure raised on an illegal order would dash to the ground on the cancellation of the original order. Thus, after the annulment of the Notification dated 6‑1‑1994 by the Service Tribunal, no recovery could be made from the appellant on the basis of the second Notification dated 7‑2‑1994 and, therefore, even if no appeal would have been preferred by the appellant against the subsequent notification, the relief regarding the subsequent notification should have been given to the appellant by the Service Tribunal, as it is a legal consequence of the annulment of the Notification dated 6‑1‑1994. It may be also be pointed out here that the Service Tribunals possesses all the powers of Civil Court for disposing of an appeal before it and, thus, it also possesses inherent powers which vest in a Civil Court under section 151, Code of Civil Procedure. Therefore, it cannot be said that the hands of the Service Tribunal were tied and it could not give any relief to the appellant with regard to the Notification dated 7‑2‑1994." In light of the aforementioned principle it is obvious that the subsequent appointment being result of an illegal action automatically stands annulled. This appointment was even otherwise subject to decision of this appeal and is liable to be vacated. Now we come to relief. In the writ petition it was prayed that: (a) advertisement issued by the Public Service Commission may be cancelled; (b) the test and interviews fixed for 17th and 18th September, 1997 may be cancelled; (c) the respondents may be directed to re‑advertise and fill in the two disputed posts on the basis of regional quota; and (d) any other relief which may advance the ends of justice may also be granted. Subsequent to the filing of the writ petition tests and interviews have been held and merit list has already been finalised. All those who were desirous of appointment as Mechanical Engineers, including Jammu and Kashmir refugees, were invited to submit their applications. It will be, therefore, wasteful to order de novo proceedings. Only a new merit list has to be freshly prepared on the basis of regional quota. This relief will not only advance the ends of justice but will also save time, energy and expenditure which would have been involved in de novo proceedings. Consequently it is ordered as follows:‑ (1) The appeal is accepted, the order of the High Court is set aside and writ petition filed by the appellant is accepted in terms to follow. (2) Secretary Works/Secretary Services are directed to inform the Public Service Commission the region or regions from which two Mechanical Engineers are to be recruited. (3) On receiving the information, the Public Service Commission will prepare fresh merit list on the basis of regional quota on the basis of tests and interviews already conducted by the Commission. (4) The whole process will be completed within one month. Respondent Muhammad Latif Khan may continue to hold office for a period of one month. There will be no order as to costs. H.B.T./306/SC (AJ&K)?????????????????????????????????????????????????????????????????????? Order accordingly. ???????????