1990 SCMR 2744 (PLP)

"(5) From the correspondence and the hearing proceedings, it was established that the Agency did not adhere in letter and spirit to its established practice nor could it maintain its uniformity. Because 32 candidates were reallocated after the commencement of training session. Out of these, 24 vacancies were from repeaters which were rendered vacant at the end of the Common Training Programme (about 8‑9 months later), but these vacancies were filled in through reallocation process in anticipation of their occurrence. On the other hand the complainant was denied this opportunity in spite of the pendency of his representations before the Agency since the commencement of the Session. The double standard adopted in this case could not satisfactorily be explained by the Agency. Again, out of three vacancies rendered vacant due to resignations, the complainant was to be considered for allocation against anyone of the service group which could be the group of his 1st or 2nd Choice." "(6) During the personal hearing proceedings it was established that the case of the complainant might have been considered for the Commerce and Trade Group, provided the Agency had taken up the entire process of reallocation. " . "(7) The Agency at one time clarified that besides the complainant there were five other candidates with higher merit position who could not be allocated as well, dire to their limited choice of services group and since they have never made any such representation; hence it can safely be assumed that they had better opportunity in hand and did not choose to take any representation or to pursue the case. Therefore, the only case qualifying consideration and lying pending with the Agency is that of the complainant, Mr. Muhammad Tarique Mahmood Pirzada. " "(8) Under the aforementioned circumstances, the complainant seems to have been considered against vacancies existing at that relevant time but the Agency carried these forward through a self‑styled order. Despite the fact, that the complainant had qualified the examination and the candidate with merits lower to him were allocated in D.M.G. on the basis of domicile, he was neglected." "(9) The Agency had expressed its deep concern over the re‑opening of similar cases and on the other hand, it has also admitted that no such case from the contemporaries of the complainant was pending before it." "(10) No doubt, any reshuffle/reallocation of the entire services cadres is neither advisable not desirable at such a belated stage, even then the right accruing to a citizen at a certain time and remains current and wanted, can neither get time‑barred nor should be refused. Therefore, the discriminatory treatment of the Agency through mis‑application of administrative powers needs to be checked at some stage. " "(11) Considering the merits of this case it is recommended that the Agency should consider the complainant Mr. Tariq Mahmood Pirzada for allocation of the service group indicated as his first choice against the vacancies rendered vacant due to resignations of the three probationers. "

6. The learned Judge in Chambers while accepting the writ petition took the view that a discriminatory treatment had been meted out to the respondent. In this context, it was observed:‑‑ ....the Government's own stand as taken by it before the Hon'ble Supreme Court in Civil Appeal No. 1076 of 1995 in Saeed Iqbal Wahlah's case was that right from the year 1983 it had been the practice of the Government to fill the vacancies of a particular year from amongst the selectees of that very year and not to carry the said vacancies forward to the next year. Now, if this was the practice of the Government consistently followed by it since 1983, how could the Government justify its stand and its treatment of the petitioner in a manner different from the consistent practice followed by it. The Government on the face of this clear admission before the Hon'ble Supreme Court is guilty of discriminatory treatment viz‑a‑viz the petitioner which clearly was violative of the guarantee afforded to all the citizens of the State by Article 25 of the Constitution. The petitioner before this Court can, therefore, in my view legitimately claim a right unto himself to be allocated one of the two posts falling vacant from amongst D.M.G. quota from the selectees of 1983 course to which he belonged. The petitioner's case, therefore, viewed from any angle whether on the basis of the recommendations of the Wafaqi Mohtasib or on the basis of the stand of the Government itself as taken by it before the Supreme Court of Pakistan as aforesaid has to be accepted as correct. "

7. Mr. Muhammad Yawar Ali, learned Deputy Attorney‑General argued that the findings/recommendations recorded by the Wafaqi Mohtasib vide his Order, dated 17‑10‑1993, were recommendatory in nature and not binding on the Government. In the alternative, it was argued that the recommendations of the learned Wafaqi Mohtasib stood no longer in the filed, in that, the same were set aside by the President on representation submitted by the Government. He further argued that the under Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President's Order 1 of 1983), (hereinafter referred to as the Order), it was not incumbent upon the President to assign reasons while accepting the representation, inasmuch as, in such matters the President acts on the privileged advice of the Prime Minister.

8. The contention is devoid of any force. It is true that in terms of Article 32 of the Order, any person aggrieved by a decision or order of the Mohtasib may, within 30 days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit. The words "as he may deem fit" used in Article 32 of the Order clearly signify that the President has full and complete powers to arrive at his own conclusion in order to do justice but in the exercise of such powers he must act justly and fairly and if the recommendations made/findings recorded by the Mohtasib are intended to be interfered with in the interest of justice, valid reasons must be assigned. The above phrase does not imply passing of arbitrary orders but only just and fair orders by assigning valid reasons by the President. It is wholly immaterial whether in such cases he acts independently or on the advice of the Prime Minister. Clearly, the Mohtasib records his findings and recommendations, after thorough investigation of the complaint lodged before him. Article 11 of the Order lays down the scope and methodology for implementation of the recommendations/findings recorded by the Mohtasib. Sub‑Article (2) of Article 11 provides that the Agency concerned has to inform, within such time, as may be specified by the Mohtasib, about the action on his direction or the reason for not complying with the same. If the Agency concerned does not comply with the recommendations of the Mohtasib or does not give reasons to the satisfaction of the Mohtasib for non‑compliance, it is treated as "Defiance of Recommendations" as contemplated under Article

12. Sub‑article (2) whereof provides, "In each instance of "Defiance of Recommendations" a report by the Mohtasib shall become a part of the personal file or Character Roll of the public servant primarily responsible for the defiance: provided that the public servant concerned had been granted an opportunity to be heard in the matter. Article 14 of the Order provides that the Mohtasib has the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, in respect of: (a) summoning arid enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) receiving evidence on affidavits; and (d) issuing commission for the examination of witnesses. It has been laid down by their Lordship of the Privy Council in Nakkauda Ali v. M.F.De S. Jayarane (PLD 1950 PC 102), that the only relevant criterion as to whether an act is a judicial act " is not the general status of the person or body of persons by whom the impugned decisions is made but the nature of the process by which he or they are empowered to arrive at their decision. When it is a judicial process or a process analogous to the judicial, certioriari can be granted". It would, thus, be seen that the functions performed by the Mohtasib are quasi judicial in nature, therefore, the recommendations made or findings recorded by him cannot be arbitrarily set aside without assigning any valid reasons in writing in disposing of a representation under Article 32 of the Order.

9. There is nothing in Article 32 of the Order to support the plea raised by the learned Deputy Attorney‑General that while disposing of a representation the President can pass any order without assigning reasons. The Order is a self -contained code and provides methodology and manner of enforcement of the findings recorded and the recommendations made by the Mohtasib on complaints lodged by any person against maladministration and injustices suffered by him. The institution of the Wafaqi Mohtasib was established for redressal of the people against maladministration of the Agencies. Thus, visualized, the recommendations made by the Mohtasib cannot be lightly interfered by the President in exercise of power vested in him under Article 32 of the Order, except for valid reasons to be assigned in writing. Suffice it to say that even if the President, while seized of a petition under Article 32 of the Order, is considered as an administrative authority, whether acting independently or on the advice of the Prime Minister, is under legal obligation to deal with the representation before him fairly and justly and a complainant in whose favour finding has been recorded and recommendations made by the Wafaqi Mohtasib, has a legal right to demand that the President should decide the representation affecting his valuable right by assigning valid reasons, if the findings/recommendations by the Mohtasib are sought to be set aside, reviewed or modified.

10. The President under the Order is a statutory body and has to function as such under the provisions and the scheme envisaged by the Order. It could not be the intention of the Legislature that disposal of the representation be made in an arbitrary manner. Even if it is assumed that the institution of Wafaqi Mohtasib is an administrative body and the President also acts in administrative capacity while disposing of a petition under Article 32 of the Order, an aggrieved person in whose favour a recommendation has been made/finding recorded by the Mohtasib, has legal right to demand that an adverse decision should not be taken against him in violation of the principle of natural justice. It is true that there is no provision for affording a hearing either to the person who lodged a complaint before the Mohtasib or the representationist. Nevertheless, a favourable order having accrued in favour of a complainant, cannot be brushed aside by setting aside the recommendation of the Mohtasib without assigning any reason whatsoever. The recording of valid reasons while setting aside the recommendations of the Mohtasib would be the minimum requirement of law consistent with the principle of natural justice, under the scheme of the Order. It would be seen that under Article 32 of the Order, any conceivable just and proper order can be passed, depending upon the facts of each case. The phrase "as he may deem fit" implies that the President has jurisdiction, power and competence to pass all proper and necessary orders as the facts of each case justify and in doing so he must decide rightly and in accordance with law. It is an inalienable right of every individual to be dealt with in accordance with law and in case of violation thereof, the High Court in exercise of its Constitutional jurisdiction can interfere. Refer Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447), wherein this Court while examining the scope of section 25‑A of the Industrial Relations Ordinance (XXIII of 1969), with specific reference to the interpretation of the words "just" and "proper" under subsection (5) of section 25‑A of, the Ordinance XXIII of 1969 observe at page 452 as follows:‑‑ "I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in law, the High Court still cannot intervene in exercise of its Constitutional jurisdiction is not justified and I feel that the judgments of this Court in the cases of Muhammad Hussain Mirnir (PLD 1974 SC 139) and Zulfiqar Khan Awan (1974 SCMR 530) have not been read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it 'rightly or wrongly' because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law it deciding the matter before it, it goes outside its jurisdiction and therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction. It needs hardly be said that under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, it is the right of every individual to be dealt with in accordance with law. Where the law has not beer correctly or properly observed a case for interference by the High Court in exercise of its Constitutional jurisdiction is made out. In this case, the terms 'just' and 'proper' occurring in subsection (5) o1 section 25‑A, were not rightly construed. The Labour Court, under the said provision of law, could only make a 'just' and 'proper' adjudication when an issue existed that could be tried in regard to the violation of a right guaranteed or secured by or under any law. Hence merely because an order was thought to be 'just' and 'proper' even though no justifiable issue in regard to the violation of a legal right existed was clearly liable to be corrected under the writ jurisdiction of the High Court."

11. There is also no force in the plea raised by the learned Deputy Attorney‑General that the complaint lodged by the respondent was hit by Article 9(2) of the Order, which provides, "Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is or has been, working in respect of any personal grievance relating to his service therein". The learned Judge in Chamber was right in holding that the case of the respondent was based on a selection as a result of the competitive examination held by the Federal Public Service Commission. He had yet to enter the service and was not already in service for the purpose of the claim as made by him. Article 9 of the Order, therefore, could not stand in his way in seeking redress of his grievance through complaint filed by him before 'the Wafaqi Mohtasib. We are, therefore, inclined to hold that the complaint lodged by the respondent before the Wafaqi Mohtasib was not hit by Article 9(2) of the order:

11. In view of the above discussion, we do not find any illegality or legal flaw in the well‑reasoned impugned judgment of the High Court to warrant interference.

12. Resultantly, the petition is dismissed and leave declined. H.B.T./F‑45/S Petition dismissed.