2017 PLP (C (PLC(CS)N)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Facts of the case in brief are that respondent No.1-Punjab Public Service Commission (PPSC) invited applications for the post of Sub-Inspector BPS-14 through consolidated advertisement published in Daily Nation and Daily Jang of 11th of January, 2015. The petitioner and respondent No.5 applied for the same against post reserved quota for the minorities from Sahiwal Division. Respondent No.1 recommended respondent No.5 for his appointment as such despite the fact that he did not allegedly fulfill the required medical standard as laid down in the advertisement. The petitioner approached respondent No.3 and brought the matter in his notice but of no avail. Hence, this writ petition.

2. Respondent No.1/PPSC in its report and parawise comments admitted that according to initial medical certificate chest expansion of respondent No.5 was less than the required standard, however, at the time of interview said respondent had produced a revised medical certificate according to which his chest expansion was upto the required standard.

3. According to report of respondent No.3/DPO, respondent No.5 was falling short of the required expanded chest, however, it put the responsibility on the shoulder of PPSC for his recommendation/ selection.

4. The contention of learned counsel for respondent No.5 is that after going through different parlays his client was selected/ recommended for the post of Sub-Inspector against the seat reserved for minorities of Sahiwal Division; that a close relative of father of the writ petitioner namely Amjad is employed in DPO Office, Sahiwal; that when respondent No.5 was medically examined the said person while using his influence got recorded wrong chest measurement of respondent No.5; that on the application of respondent No.5 PPSC allowed him to get himself re-examined from DHQ Hospital, Sahiwal from where he was declared medically fit for appointment.

5. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.

6. According to advertisement No.03/2015 published in Daily Nation and Jang dated 21.01.2015 male candidates having following chest measurement were eligible to apply for the post of Sub-Inspector:- 33"x34'/2" inches (83.82x87.63cm) Medical certificate of respondent No.5 bearing No.93 dated 31.01.2015 issued by the M.S. DHQ Hospital, Sahiwal is available on record and figures of his chest measurement 31"x33" has been apparently made 33"x331/2" inches through overwriting. Learned counsel for respondent No.5 emphatically argued that aforesaid Amjad Ali has been instrumental in getting the chest measurement of respondent No.5 manipulated in the records by using his influence, therefore, this Court vide order dated 09.06.2015 directed DPO, Sahiwal to conduct an inquiry and submit report to this Court. In compliance with the said order DPO concerned submitted his report stating that according to office record chest measurement of respondent No.5 was recorded as 31"x33" inches. It was also stated by the DPO that respondent No.5 by manipulating the medical certificate No.93 changed the digit from 31"x33" into 33"x33 1/2". He refuted that said Amjad Ali played any kind of role in this matter.

6. The contention of learned counsel for respondent No.5 that his client fulfilled the requisite criteria is belied by the respondent itself while making application before PPSC wherein he stated as under:- "I have not been interviewed by the Authorities due to lack of "1-1/2" inch in my expansion of chest in my medical certificate. The measuring date according to old certificate was 31-1-2015 and now the expansion of my chest is "33x34-1/2" as demanded."

7. Learned counsel for the petitioner was asked to assist this Court on the point as to whether any short fall found in physical measurement of a candidate on the day of his examination could be cured subsequently till the completion of recruitment process. Learned counsel for PPSC was also required to provide rules and regulations authorizing it to declare a candidate eligible on the basis of subsequent certificate curing physical or any other deficiency on the cut off date for considering the stipulated requirement/ condition.

8. Learned counsel for PPSC has not been able to show any rules and regulations in this regard, therefore, manifestly the PPSC exceeded its jurisdiction while recommending respondent No.5 on the basis of subsequent medical certificate making up deficiency of his chest expansion.

9. Learned counsel for respondent No.5 in reply to Court's query, while relying upon the judgment of the Hon'ble Apex Court reported as Yousaf Haoorn and others v. Punjab Public Service Commission, Agha Khan/Davis Road, Lahore through Secretary and others (PLD 2001 Supreme Court 1012) contended that once the recommendations have been made the authorities have no power to withdraw the same. I have minutely gone through the judgment relied upon by the learned counsel for respondent No.5 and am of the considered view that the same is not helpful to respondent No.5 in any manner. In the above reported case the candidates were declared eligible in the first medical examination, however, on re-examination by the Divisional Medical Board they were found deficient in height and chest and their recommendations were withdrawn and the Hon'ble Apex Court observed as under:- "There is force in the arguments addressed at the Bar on behalf of the appellants that they were not put under notice when the respondent-authorities decided to 're-check' the measurements in question. The observations by this Court in Zakar Ahmad (supra) that: "....Nevertheless, the general consensus for judicial opinion seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be effected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and "to correct on controvert any relevant statement brought forward to his prejudice." Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge-sheet upon him. Such a person or authority can obtain in any way it thinks fit, provided it gives a fair opportunity to the person sought to be effected to correct or contradict any relevant statement prejudicial to him. In other words, "in order to act justly and to reach just ends by just means" the Courts insist that the person or authority should have adopted the above "elementary and essential principles" unless the same had been expressly excluded by the enactment empowering him to so act" ... .... go a long way in support of their case in that behalf.

17. We are inclined to consider yet another question which has a great bearing on the instant cause viz., whether respondent- authorities had any power under any law/rule to undo the effect of the appellants having made it to their induction into service on the grounds, among others, of the measurement of their height by the Health Department? Consideration of this above-question falls in line with the observation made by this Court in Lahore Improvement Trust v. Custodian of Evacuee Property PLD 1971 SC 811 by referring to The Chairman, Each Pakistan Railway Board v. Abdul Majid Sarder PLD 1966 SC 725 that before striking down an action of the functionaries of the Government all the avenues for maintaining the same should be explored. Further, this question also has a direct nexus with the availability or otherwise of the powers with the respondent-authorities to put spanners in the wheel leading to the induction into service of the appellants. It has been noticed in the above that the action on part of respondent-authorities in calling upon the appellants to submit to the questioned measurement before the Police Department without first putting the blame atop their shoulders regarding the alleged deficient measurement and/or without calling upon them to put forward their case in that behalf is tantamount to not following the "elementary and essential principles" laid down by this Court in Zakar Ahmad (supra). The effect is that the result of the all acts/efforts of the respondent-Authorities cannot but be held to thwart the smooth conclusion of the process of selection/appointment of the appellants as Inspectors of Police in B-16, which is liable to be struck down."

10. The facts and circumstances of present case are distinct inasmuch as in the instant case the petitioner was declared deficient in his first medical examination and he was allowed for re-examination by the PPSC for which it was not authorized. The petitioner was required to fulfill the criteria of chest measurement as laid down in the advertisement on the cut off date and any improvement made thereafter would not make him eligible. In holding so I am fortified with the principle laid down in case reported as Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others (1986 CLC 1056 (Karachi) it has been held as follows: "The determination of such date is necessary as once a vested right is created any amendment in the admission Rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited upto a particular date. These applications are considered and scrutinized immediately on the expiry of the last date for their submission. The applicants are then interviewed and selected for admission. In this process for admission the moment date for submission of application expires the applicant becomes entitled to be considered for admission. This seems to be reasonable and proper approach to the problem. After the expiry of last date no one can apply for admission. The applicants are to be considered on the basis of conditions, categories and criteria laid down in the prospectus` or rules of admission. If the concerned authorities are allowed to amend the rules or policy after the last date and at any time before the admission process is completed then it is likely to result in serious abuses, malpractice, manipulation and favoritism. Even if the authority honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injure the reputation and prestige of the august bodies like Syndicate. Amendment after expiry of the date before submission of application is fraught with serious consequences and likely to cause mistrust."

11. Keeping in view the conduct of respondent No.5, the District Police Officer, Sahiwal vide letter dated 07.08.2015 being competent authority has also refused to accept the recommendations of PPSC for appointment of respondent No.5 as S.I.

12. For what has been discussed above, it has been established on record that respondent No.5 was deficient in chest measurement on the cut of date, therefore, he was ineligible for the said post and his recommendation for appointment as S.I. is a result of mis-representation or maladministration on the part of PPSC. Resultantly, this writ petition is allowed and recommendations of the PPSC for appointment of respondent No.5 as S.I. against the reserved seat for minorities are set-aside. PPSC will make recommendation of the next candidate on merit, if any, on the basis of merit list maintained by it. If none is eligible to be recommended this post will be re-advertised within three months from the date of this order, as it is a position meant for minorities as such it would be filled by a minority candidate and would not be absorbed in favour of the majority population. ZC/S-21/L Petition allowed.