ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH

CIRCUIT COURT, HYDERABAD

PRESENT

1. Mr. Justice Amir Hani Muslim

2. Mr. Justice Ahmed Ali Shaikh

C.P.No.D-373 of 2009

Order with signature of Judge

21.12.2009

Mr. Aijaz Ali Hakro Advocate for the Petitioner.

Mr. Mumtaz Alam Leghari Assistant Advocate General Sindh.

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Ahmed Ali Shaikh J: Through this petition, the petitioner has prayed as under:-

a) It be declared that the petitioners were appointed/offered for the posts of Accountants Assistant (BPS-14) Field Assistant (BPS-14), Data Processing Assistant (BPS-12) and Lab: Assistant (BPS-11) by the respondents vide Order No.158/Admn/09 dated 13.05.2009, after following the required procedure are bound to issue posting orders to the Petitioners;

b) It be declared that the Orders no.158/Admn/09 dated 10.06.2009 passed y the respondents No.1 & 2 are illegal, malafide, without jurisdiction in excess of lawful authority and may be declared of no legal effect and may be set-aside.

c) To direct the respondents to issue posting orders to the Petitioners of the posts of Accountants Assistant (BPS-14), Field Assistant (BPS-14), Data Processing Assistant (BPS-12) and Lab: Assistant (BPS-11) forthwith and they may be taken on duties without any delay;

d) The cost of the petition may be borne by the respondents;

e) Any other relief deemed just and proper be granted to the Petitioner;

2. The facts giving rise to this petition are that on 15.07.2008 the respondent No.1 invited applications from the eligible candidates for the posts of Accounts Assistant (BPS-14), Field Assistant (BPS-14), Data Processing Assistant (BPS-12) and Lab: Assistant (BPS-11) and other posts through publication appeared in daily Dawn and Kawish. In pursuance of that advertisement, the petitioner No.1 applied for the post of Accounts Assistant, petitioners No.2 & 3 for the post of Field Assistant, the petitioners No.4 & 7 for the post of Data Processing Assistant whereas petitioners No.5 & 6 for the post of Lab: Assistant alongwith testimonials. According to the petitioners, they were found eligible as they possessed the required qualification/ Degrees besides the experience. The applications of the petitioners were scrutinized and they were called for written interview through letter dated 10.10.2008. The petitioners appeared in written test conducted by the Departmental Selection committee constituted by the respondents and they were declared successfully qualified the same and ultimately they were called for interview vide letter dated 09.03.2009, 16.03.2009 and 17.03.2009 respectively. Since the petitioners were eligible candidates for the posts and they passed the written test and interview, therefore, their cases for appointment were recommended by the Selection Committee and were found fit for the posts, as a result of which the petitioners were issued appointment/offer orders dated 13.05.2009. The relevant part of one of the appointment letter issued to the petitioners is reproduced herewith:

“With reference to your application for the post of “Account Assistant” in Environmental Protection Agency, Government of Sindh in response to the advertisement published in daily newspaper Dawn dated 15.07.2008, and your subsequent appearance before the Selection Committee, you are hereby informed that the competent authority has approved your appointment to the aforementioned post”

3. It is pertinent to mention here that in aforesaid appointment order the petitioners were required to submit original testimonials including the physical fitness certificate. In compliance with the above directions, the petitioners appeared before Civil Surgeon, Services Hospital, Karachi, who after examination had found them fit and accordingly medical certificates were issued to the petitioners on 20.05.2009, 23.05.2009, 26.05.2009 and 30.05.2009 respectively. Without any loss of time, petitioners submitted their joining reports before the respondent No.2 with a request that they have already joined the duty and submitted joining report, therefore, posting orders may be issued to them. From the pleadings, it appears that vide letter/Order No.158/Admn/09 dated 10.06.2009, the petitioners were intimated that in view of certain irregularities the process of recruitment has been annulled, therefore, their appointment orders were withdrawn and they were advised to reapply for the relevant posts when the vacancies are advertised again, which order has been impugned in these proceedings.

4. The respondents have filed their comments, in which they have admitted that appointment orders were issued to the petitioners but stated that on receipt of reports, that the process of appointment was not transparent and that the result of selection committee has been manipulated, therefore, appointment orders were kept in abeyance on 21.05.2009 till an inquiry was made into the matter. According to them, none of the candidates, who were issued appointment letters, were able to join their assignments, subsequently, after a preliminary inquiry it was noticed that the sanctity of the record had not been ensured and that the results of the selection was manipulated. It is further stated in the comments that in the meeting of Departmental Selection Committee the only independent member of the representative of Service, General Administration and coordination Department were absent, therefore, accordingly it was conveyed that the entire process was annulled, interalia, on the ground of manipulations and poor maintenance of the record and appointment letters issued were withdrawn. It is further stated in the comments that no separate directions were conveyed to the petitioners for their medical checkup. They had approached the Services Hospital Karachi directly on the basis of instructions contained in the appointment letter. The respondents further submitted that the appointment order to any post does not become effective till the joining of the appointee is accepted and notified and he is posted for duty at a specific place. The comments further revealed that the credibility of the process conducted by the Selection Committee was found questionable when applications of certain recommendees could not verified to have been received within the prescribed time or not and when any illegality or shortcoming or manipulation or lack of transparency is detected at any stage of procedure or process followed by a Government Department, it is the requirement of justice to annul the proceedings and start them afresh providing a fresh and equal opportunity, therefore, the impugned orders No.158/Admn/09 dated 10.06.2009 were passed by them in accordance with law.

5. In rebuttal of the comments filed by the respondents, the petitioners have filed their rejoinder through affidavit in which they denied the contention of the respondents in regard to submitting their duty reports. They have stated that on 13.05.2009 the respondents issued the letters and copies whereof were forwarded to the Medical Superintendent Services Hospital for medical checkup of the petitioners and on the directions of the respondents, they approached the Services Hospital Karachi for medical certificates which were duly issued. They further denied that the process of selection was found to be blended with shortcomings and manipulation as well as lack of transparency. It was further denied that entire process became questionable and tented and illegal. It was further asserted that the Minister of the Department has no jurisdiction in the matter as the respondents No.1 & 2 are Competent Authority, who have approved the appointment of the petitioners. No inquiry was conducted by the respondents in presence of the petitioners, so question of approval of Minister does not arise. It is further denied that none of the petitioners appeared before the respondents in this connection, in fact the petitioners had submitted their joining reports and were requesting the respondents for issuance of posting orders but were kept on hopes.

6. It is inter alia contended by learned counsel for the petitioner that the process of appointment of the petitioners was transparent and in accordance with the law. According to the petitioners’ counsel the respondents have invited the applications from the eligible candidates through the advertisement appeared in Daily Dawn and Kawish dated 15.07.2007 and the petitioners being eligible had applied for the posts. The petitioners had submitted their applications alongwith testimonials and experience certificates etc, appeared and qualified the written test, later on they received interview letters and were declared successful, therefore, they were issued appointment orders on the recommendation of the Selection Committee of the respondents and on the directions containing in the appointment order, they appeared before the Civil Surgeon Services Hospital Govt. of Sindh Karachi and after medical chekup they were found fit as such the fitness certificates were issued by the competent authority. Following which, the petitioners submitted their duty joining reports to the respondents but for the reason best known to the respondents, they were not issued posting orders and ultimately impugned order/letter was issued by the respondents with sole object to accommodate their blue eyed boys in place of petitioners. In support of his contentions the counsel for the petitioners has placed before us the copy of advertisement appeared in daily Dawn, written test letter, interview letter, appointment orders issued by the respondents, medical fitness certificates and copies of duty joining reports.

7. On the other hand Mr. Mumtaz Alam Leghari learned Assistant Advocate General Sindh for the respondents contended that though the appointment letters had been issued to the petitioners but their appointment process was not transparent and tented with manipulation and illegalities. He further contended that though the petitioners had submitted their joining reports but they were not issued posting orders and in absence of posting orders, their appointment orders could not be treated valid orders. He lastly contended that it was the discretion of the respondents and being the competent authority, the respondents have rightly withdrawn the appointment orders

8. We have heard learned counsel for the parties and gone through the record. We have noticed that the advertisement appeared in daily Dawn, written test letter issued by the respondents, interview letters, appointment orders, medical fitness certificates and duty joining reports and we could not find any illegality or irregularity in the entire process of selection of the petitioners. Applications were invited through advertisement, which appeared in well reputed and widely circulated newspaper of the country, the petitioners possess the required qualification cum experience as per criteria laid down in the advertisement. They have qualified the written test as well as declared successful in interview and then after observing all formalities they were issued appointment orders on the recommendation of Departmental Selection Committee. Moreover, on the directions contained in the appointment order, they appeared before the Civil Surgeon, Services Hospital Karachi, where they were found fit and such fitness certificates were issued by the competent authority and ultimately they submitted their duty joining report before the concerned authority. We are of the view that the impugned orders issued by the respondents are bad in law, which are not sustainable and are liable to be set-aside. No inquiry in regard to alleged illegality or lack of transparency has been conducted by the respondents before withdrawing the appointment orders of the petitioners, the negligence, if any on the part of the respondents cannot take away the rights of the petitioners, which have been created on the basis of the appointment letters which were issued after complying with all the codal formalities. Besides this, the petitioners have been condemned unheard which amounts violation of law of natural justice. Neither the petitioners were heard during the so called inquiry nor they were provided an opportunity of hearing, even on this single score alone, the impugned orders are not sustainable. The Honourable Supreme Court in re: ABDUL JABBAR MEMON and others(1996 SCMR 1349) while inquiring into various complaints for violation of fundamental rights did not approve the method and procedure of the Government functionaries while making appointments without publicity and properly advertising vacancies whereas in the case in hand, the proper publicity and advertisement was made through largest circulated newspapers viz. Daily Dawn and daily Kawish, which is largest circulated newspaper in Sindhi language and the post also pertain to province of Sindh, therefore, question of lack of transparency and irregularities in regard to the appointment of the petitioners is nothing but an after thought as the respondents were bent upon to deprive the petitioners from their jobs by hook or crook in order to accommodate their favourite persons. Once appointment letters have been issued then such appointment letters cannot be withdrawn. Posting order is the consequential order and can not be made a ground to invalidate appointment letter. In the case of SUHAIL JABBAR MALAK v. PROVINCE OF SINDH and 2 others (2009 PLC (C.S) 155) a divisional bench of this Court in similar circumstances where offer orders were issued to the petitioners and later on same were withdrawn by the Government, allowed the petition and held as under:

“Sufficient material is available on record that all the prescribed procedures were followed and after inviting applications through press the respondent No.3 conducted written test and then conducted interviews of successful candidates and thereafter recommended their names for appointment. The respondent No.2 after following all required procedures issued offer of appointment to petitioners. The petitioners submitted required documents alongwith acceptance letters within prescribed time. The respondents cannot after accepting recommendation recall the same and/or scrope the recommendation once accepted. Respondents are therefore, directed to issue posting orders within thirty days from the date of order and in case such posting orders are not issued then petitioners are entitled for payment/salary from such date.”

9. The above order was challenged by the province of Sindh through Chief Secretary Sindh and another through Civil Petitions No.426-K to 437-K, 445-K to 448-K of 2008 and 07-K to 17-K of 2009 before the Honourable Supreme Court. The Honourable Supreme Court while dismissing the petitions refused leave with following observations:

“The High Court while deciding the instant cases has rightly arrived at the impugned conclusion by passing the above referred order and we also do not take any exceptions to the reasons and finding given by the High Court and do not see any reason to interfere with the same. Resultantly, all the petitions are dismissed and leave refused.”

10. In the light of principles laid down by this Court in Suhail Jabbar Malak’s case (Supra), which were affirmed by Honourable Supreme Court of Pakistan we allow the petition and direct the respondents to issue posting orders to the petitioners within 30 days from the date of the order and in case such posting orders are not issued the petitioners would be entitled to the salaries/payment from such date. These are the reasons for our short order dated 15.12.2009.

JUDGE

A.K