2017 PLP 1519 (SCMR)

IJAZ UL AHSAN, J.

Through this order, we propose to decide Civil Review Petitions Nos. 125, 130, 137 and 138 of 2017. All the review petitioners arise out of the same judgment of this Court, dated 13.03.2017, passed in Suo Motu Case No.18 of 2016.

2. Ms. Asma Jahangir, learned ASC for the review petitioners in Civil Review Petition No.130 of 2017, has vehemently argued that this was not a fit case for exercise of jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 insofar as disputed questions of fact were involved in the matter. She further maintains that the respondents (petitioners in Suo Motu Case No.18 of 2016), namely Muhammad Junaid Farooqui and others who had agitated the matter involving eligibility of the Chairman and Members of the Sindh Public Service Commission [hereinafter referred to as 'the Commission'] had come before this Court with unclean hands. She states that Mr. Farooqui had filed a petition before the High Court of Sindh on behalf of some of the candidates, however, having failed to persuade the High Court to grant relief, he approached this Court by invoking its jurisdiction under Article 184(3) of the Constitution. He concealed the fact that he had already approached the Sindh High Court where the matter was pending. She also submits that the review petitioners have been condemned unheard insofar as they were not confronted with the record and other material produced by the Commission before this Court. This, according to her, has caused miscarriage of justice. She has argued that even if there were some defects in the appointments of the Chairman and Members of the Commission (who had resigned on receipt of notices from this Court), the review petitioners could not be penalized for a defect in the appointments of Members of the Commission because there was no allegation of any wrongdoing or commission of illegal acts on their part. She further submits that on the basis of de fecto doctrine, the appointments of the review petitioners were liable to be saved. She argues with vehemence that appointment letters had been issued in favour of most of the review petitioners, a vested right had accrued in their favour, they had already attained the status of civil servants and therefore could not have been removed by this Court without following the procedure prescribed by the law.

3. Messrs Ali Zafar, Raja M. Ibrahim Satti and Sh. Ahsan ud Din, learned counsel, representing some of the review petitioners have advanced similar arguments. They have also addressed argument regarding paragraph 23 of the judgment under review which details the illegalities and discrepancies committed by the Commission in written tests and interviews of Combined Competitive Examination (CCE)-2013. They have argued that the illegalities and discrepancies pointed out by this Court are not of a nature which could furnish valid reasons and lawful justification to strike down the entire process of selection which included tests and interviews without there being any violation of the law. They submit that the process had otherwise been validly and lawfully conducted and if there was any deviation, violation, favoritism or nepotism, the same should have been identified on case to case basis, probed and proceedings initialed against concerned parties under the law for appropriate action.

4. We have heard the learned counsel for the review petitioners at length. Having considered their arguments and carefully gone through the judgment under review, we find that no ground for review is made out for the following reasons:- i) It is evident from the record that on receipt of information that the Chairman and Members of the Commission had been appointed in violation of the law because they lacked the requisite qualifications in terms of the Sindh Public Service Commission Act, 1989 this Court took cognizance of the matter in exercise of its original jurisdiction under Article 184(3) of the Constitution. It was also alleged that the said Chairman and Members of the Commission were indulging in nepotism and corruption by not selecting candidates on the basis of merit but for extraneous considerations. The source of information as long as it is accurate in matters of this nature is inconsequential. It has not even been alleged that the information which triggered off the suo motu proceedings was false or incorrect. ii) On cognizance being taken by this Court when notices were issued, the Chairman along with five Members of the Commission tendered their resignations. During the course of hearing of these matters, the record of the Commission including the record of the recruitment process undertaken by the Commission involving the review petitioners was summoned by this Court and meticulously examined. This Court found serious illegalities and discrepancies committed in holding examination and announcing results of the written tests and interviews which were elaborately spelt out in paragraph 23 of the judgment under review. iii) The learned counsel for the review petitioners have emphasized that the illegalities described in the said paragraph are not of a nature that would warrant discarding the entire process. After careful examination of the illegalities pointed out in the paragraph in question, we are convinced that the cumulative effect of the illegalities noticed by the Court paint a very grim and disturbing picture of systematic and well thought out acts and omissions on the part of the Chairman and Members of the Commission to reward a few and deprive many without there being any objective and fair criteria and transparent process in place which could withstand the process of judicial scrutiny and accountability. iv) The question before this Court is not whether one or the other set of candidates had resorted to unfair means and illegal acts in order to gain employment, the real question relates to fairness, integrity and transparency of the process and procedure adopted by the Chairman and Members of the Commission to undertake the selection process. This Court has found serious flaws in the process of selection which point towards lack of transparency to facilitate nepotism and favoritism that cannot be condoned or countenanced. v) We are not persuaded by the argument of the learned counsel that the de fecto doctrine is attracted to the facts and circumstances of this case, which suggest that the very appointments of the Chairman and Members of the Commission suffered from serious defects and flaws. However, the matter did not end there. The process and procedure adopted by the then Chairman and Members for undertaking the exercise of selection was replete with illegalities, departure from recognized norms and deviation from the law, rules and procedure which we have found hard to overlook or sidestep. The impugned judgment has rightly refrained from recording any findings on the basis of the de facto doctrine or discussing the same having come to the conclusion that not only was the legality of appointments of the Chairman and Members of the Commission open to serious question but the mode, manner and procedure adopted by the Commission for selection of recommendees was also illegal, unjust, non-transparent and suspect. vi) This Court has however carefully safeguarded the interests of all candidates including the review petitioners who had taken the written tests by directing that only 2813 candidates who had earlier taken the written tests of CCE-2013 for the 182 available posts be permitted to take fresh written tests even if in the meanwhile they have crossed the stipulated upper age limit and without requiring payment of any additional fee/charge, etc. In addition, elaborate guidelines have been provided in the judgment to ensure fairness, transparency and integrity of the selection process. vii) The case of the review petitioners at best is that on the basis of facts and circumstances brought before this Court, different conclusions could possibly be drawn. We are afraid, the said argument is misconceived. In the first place, there is overwhelming material before this Court casting serious doubts about the integrity, fairness and transparency of the process and even if for the sake of argument and without conceding, it is assumed, that a different conclusion could have been drawn, the same does not constitute grounds for exercise of review jurisdiction by this Court. viii) The scope of review is limited to correction of mistakes and errors apparent on the face of the record or for any other sufficient cause. No such error, defect, flaw or other sufficient cause has been pointed out to us that may have persuaded us to review the judgment impugned herein.

5. Above are the reasons for our short order of even date, whereby the listed Civil Review Petitions have been dismissed. The said order reads as under: "For the reasons to be recorded later on, these Civil Review Petitions are dismissed." MWA/R-3/SC Revisions dismissed.