C.P.No.D- 803: of 2011.
Present.
Mr.Justice
Ahmed Ali Shaikh.
Mr.JusticeSalahuddinPanhwar.
For KatchaPeshi.
13.2.203. Mr.Mukesh Kumar G Karara advocate for the petitioner.
Mr.A.M.Mubeen Khan advocate for respondent Nos. 3 to 7 alongwith respondent No.6.
Mr.NizamuddinBaloch advocate for respondents.
Mr.Liaquat Ali SharAddl.A.G: for respondent Nos.1 and 2.
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SALAHUDDIN PANHWAR ,J- Petitioner seeks directions for appointment as Excise & Taxation Inspector, having been selected on merits from District NaushahroFeroze.
2. Succinctly, the facts as set out in the instant petition, are that pursuant to the advertisement dated 13.7.2008 the petitioner applied for the post of Excise & Taxation Inspector; qualified written test and viva-voce examination and was declared as successful candidate, thus his name was placed at S.No.60 of the merit list; in spite of that he was not appointed on required post; but surprisingly 20 persons from Sukkur Division, who had never appeared in the written test and interview, were appointed.
3. Respondent Nos.3 to 7 filed their comments, wherein, they stated that the petitioner had appeared for viva-voce test but was not selected as he failed to qualify the same.
4. The petitioner filed rejoinder, wherein, he refuted the plea of respondents and disclosed that he was declared successful candidate, his name was placed at S.No.60 of the merit list and in support of his contention he appended merit list.
5. In that eventuality, respondent No.3 also filed rejoinder, wherein while admitting the claim of the petitioner contended that “it was decided by the Departmental Selection Committee that as and when the post of Excise & Taxation Inspector will be available vacant these awaiting candidates in the list, will be considered for appointment to the post of Excise & Taxation Inspector”. It was further contended that, however; at present ratio of direct appointment is already filled, therefore no fresh appointment for the post of Excise & Taxation Inspector can be made.Respondent No.6 filed affidavit, wherein, it is disclosed that 15 candidates were appointed on adhoc basis, as those 15 posts were not vacant but were created by the Chief Minister Sindh as intimated by administration of department i.e. Excise & Taxation on telephone.
06. Learned counsel for the petitioner has
inter alia contended that the petitioner qualified written test and viva-voce
examination; his name was placed at S.No.60 of the merit list; competent
selection authority approved his name, but the respondents, while, bypassing
merit list appointed outsider’s, who, had not appeared in the
examination.During the pendency of instant petition 15 other persons, with the
order of Chief Minister; were appointed on adhoc basis, who were subsequently
regularized and one another candidate, who was son of Deputy Director Excise
& Taxation Department, his name was available at S.No.59 of the merit list
has also been appointed, therefore respondents have negated the basic principle
of law and their actions have violated the fundamental right of the petitioner.
He has further submitted that his claim is not disputed, plea of
non-availability of vacant seat is unjustified as many persons, who did not
appear in selection process have been appointed by the authorities in sheer
violation of rules and regulation. He has relied upon Government of NWFP
through Secretary Education Department,
07. On the contrary, learned counsel for respondent Nos.3 to 7 has argued that it is not disputed that the petitioner’s name appears at S.No.60 of the merit list, but vacant seats were filled according to merit lists; though, petitioner qualified examination and his name is available in awaiting merit list but vacant seats were limited, thus petitioner cannot claim his legal right for such post. He has further contended that 15 persons were appointed by the direction of the Chief Minister,on Adhoc basis, as such posts were created by the Worthy Chief Minister; therefore department has not committed any illegality. Petitioner cannot take benefit of subsequent events i.e. appointment on adhoc basis and appointment of one person, was placed at S.No.59 of the merit list; as such plea, is beyond his pleading. He has relied upon citations: Binyameen and 3 others v Chaudhry Hakim and another (1996 SCMR 336), Muhammad Din v Abdul Ghani and another (2012 SCMR 1004), Petitioner v BahauddinZakariya University, etc (NLR 1998 Service 60) and Sono v Province of Sindh through Chief Secretary Government of Sindh and 228 others ( 2012 PLC (C.S) 249).
8. Learned counsel for private respondents has contended that the respondents have no concern with the case and their appointments were considered in case of Sonov. Province of Sindh through Chief Secretary Government of Sindh and 228 others (2012 PLC (C.S) 249) and the petitioner has not challenged their appointment; therefore any decision may not affect upon their right and their case is covered under the doctrine of Res-judicata.
9. Learned Addl.A.G has contended that according to rules, Chief Minister is competent to create posts; thereby appointment of 15 persons, by creating post in said department is not an illegal act.
10. Heard the learned counsel and perused the record.
11. It is a matter of record that respondent No.3, Secretary Government of Sindh (Excise & Taxation Department) has clearly mentioned that the petitioner qualified for the post of Excise & Taxation Inspector by the Department Selection Committee and it was decided by Department Selection Committee that as and when the post of Excise &Taxation Inspector will be available vacant, then awaiting in the merit list will be considered for the appointment. Thus there is no question regarding the eligibility of the petitioner in respect of said post, therefore, plea of respondent’s counsel that only available 24seats were vacant; and filled-up from merit list; therefore, petitioner is not entitled; has no force under the law. Moreover, it is pertinent to say that the stance taken by the counsel is completely against the version of respondent No.03; pleaded in the pleadings; therefore, under the law same cannot be considered.
12. As regards to the contentions of learned counsel for the respondent Nos.5 to 7 that the petitioner is not entitled for the appointment on the ground of latches and Limitation Act and to strengthen such plea the reliance has been placed upon the case of Muhammad Din (supra) in which it is held:
“If a Court comes to a conclusion that the petition was barred by latches, it is not required that it should also decide the issue, raised in the petition on merits”.
There is no cavil on above proposition of law, as held by Honourable Supreme Court. However, we need to add here that before insisting upon applicability of any principle of law or settled proposition of law,one has to establish that the facts and circumstances of his case are such, which have made such principle of law or settled proposition of law applicable to his case. The facts and circumstances of instant case are entirely different as the petitioner passed his examination in the year 2009 subsequently appeared in viva-voce thereafter he was declared as successful candidate and was approaching to the concerned authorities, thereafter filed instant petition in 2011, therefore, it cannot be said that this petition is barred by latches. Moreover, we feel it quite proper to reproduce clear stand of the respondent No.3, maintained in his rejoinder, which is as follows:-
“it was decided by the Departmental Selection Committee that as and when the post of Excise & Taxation Inspector will be available vacant these awaiting candidates in the list, will be considered for appointment to the post of Excise & Taxation Inspector”.
Bare reading of the above statement makes two things quite clear and obvious that the Departmental Selection Committee not only acknowledged the merit of the successful candidate (s) but also undertook to consider their case for appointment to the said post as and when same falls vacant. Thus it can safely be inferred that right of petitioner continued and continuing when posts fell vacant and were filled without considering the petitioner for such post. Thus, we safely hold that case of petitioner is not hit by latches; therefore the above referred precedent is not helpful to the plea of respondents’ counsel.
13. As regards to the plea of respondents’ counsel that appointments on adhoc basis and the appointment of thecandidate, who was at S.No.59; during the pendency of this petition are subsequent events and such plea is beyond the scope of pleading; therefore, benefit of subsequent vents, cannot be extended to the petitioner. Before adding any thing in this respect we would again refer to the statement of the respondent No.3, reproduced hereinabove, that since the authorities themselves had undertaken to consider the case (s) of successful candidates, including petitioner, in future, therefore, “respondents are not legally justified to take such plea or to call such event(s) subsequent one”. Even otherwise it is germane to refer the case ofMuhammad Rashid and 4 others v. Member Board of Revenue Punjab and 7 others, reported in 2001 MLD 548 in this dictum it is held that :-
“It is settled principle of law that this Court has
ample jurisdiction to take into consideration the subsequent events”
Thus,“it is suffice to say that in constitutional
jurisdiction, subsequent events can beconsidered for causing substantial
justice”.
14. Regarding the case of petitioner v. BehaudinZakria university (supra) relied by counsel for the respondents, it is manifest that in that case the petitioner was at S.No.5; whereas respondents, who were at serial number 2, 3 and 4, in the merit list did not challenge appointment, therefore, it was held that petitioner was not aggrieved person but in the instant case one candidate at S.No.59,has been appointed by the respondents; whereas petitioners name is placed at serial number 60; therefore objection regarding locus standi is not sustainable under the law.
15. As regard, to the plea of Additional A.G
that Chief Minister was competent to create posts and appointment on adhoc
basis; without referring the same to Public Service Commission or authority, is
according to law, it would be conducive to refer the relevant Rules of Part-IV
of theSindh servant (Appointment, Promotion and Transfer) Rules, 1974,
Rules,which is as under:-
Rule-19: When the appointing authority
considers it to be in the public interest to fill a post falling withinthe
purview of the Commission urgently, it may, pending nomination of a candidate
by the Commission, proceed to fill such post on ad-hoc basis for a period not
exceeding six months by advertising the same, in accordance with the procedure
laid down for initial appoint in Part-III.
Rule-20: Short-term vacancies in the
posts falling within the purview of the Commission and vacancies occurring as a
result of creation of temporary posts for a period not exceeding six months may
be filled by the appointing authority otherwise through the Commission on a
purely temporary basis after advertising the vacancy.
Bare perusal of above rules, it is pertinent to say that above rules relates to the short-term arrangement,in exceptional circumstances; for “public interest”; the appointing authority can sidestep procedure, provided in normal course. It is worth to add here that legislatures in their wisdom did not give a free-hand to such an appointing authority to exercise such jurisdiction in a mechanical manner but the limitations whereof have been explained. Needless to add here that every single word in a provision of law or rule carries importance, purpose and some objective within wisdom of the Legislatures. In relevant Rule i.e. 19 the use of phrase public interest has significance which makes it clear that deviation to normal course has been allowed only when such action is justified to be in the interest of welfare of public at large. Besides this, said Rule also brought another limitation to such exercise with use of phrase “pending nomination of a candidate by the Commission”. Thus it becomes obvious that it is not a vested or discretionary right of the Chief Minister (appointing authority) to appoint person (s) in name of such discretion in some colourful manner, because it may result in causing a prejudice to the Article-18 of the constitution, which guarantees every citizen a right of profession. We would like to reproduce the operative part of the judgment of Honourable Supreme Court of Pakistan, reported in 1996 SCMR 1349 which reads as under:-
“While inquiring
into various complaints of violation of Fundamental Human Rights, it has been
found that the Federal Government, Provincial government, Statutory Bodies and
the Public authorities have been making initial recruitments both ad-hoc and
regular, to posts and offices without publicly properly advertising the vacancies
and at times by converting ad-hoc appointments into regular appointments. This
practice is prima facie violative of Fundamental Rights (Article 18 of the
Constitution) guaranteeing to every citizen freedom of profession”.
16. It is significance to add here that the
word ad-hoc is purely relating to any appointment for specific purpose with
specific period, it cannot be assumed that ad-hoc appointments will be
subjected to conformity,without adopting proper procedure provided under
statute asthere is a
distinction between regular appointments and the temporary/ad-hoc appointment;
because the temporary / ad-hoc appointments are only to fill a vacancy as a
stopgap arrangement in the public
interest and creates no legal right in such appointees to claim an
exception for regularization without undergoing the process and procedure, so
required to be undertaken by an individual for a regular appointment. There can
no denial to the admitted position that even if there had been some urgency
which could have justified, to resorting Rule 19, even then successful
candidates, per waiting list, should have been considered as was assured by
Selection Committee. We can safely say that if things are legally required to
be done in a particular then the same have to be done in that manner; because
the authorities cannot be allowed to deviate from normal course and
procedure,for the reason that the procedure and course is always framed to
ensure a sense of equality among the equals.
17. It is germane to add here that since recruitment in a department is always subject to certain limitations,; including age factor therefore, the authority, within its jurisdiction, can disagree with recommendation of Selection Committee but such disagreement should not only be reasonable but such authority should also keep in view before insisting for initiation of fresh process for recruitment that a person qualifying requirement; may fail on technical reason, in particular age factor, after the lapse of some period , which too without any fault on his part. since there can be no denial to the fact that it is not only the legal obligation and duty of the Federal Government, Provincial government, Statutory Bodies and the Public authorities to ensure job opportunities within limitations but also to ensure that recruitment is made in such a manner and fashion that not a single individual could come and allege any discrimination or colourful deviation at the cost of guaranteed right of an individual, more particularly, when recruitment is made on the basis of skills / qualification and not on the basis of colour, caste, creed and status. If not so, it would result in taking away the very concept of Article 25 of the Constitution which insists that Law should be equal and equally administered among equals;according to the guarantees enshrined by our constitution. Whenever legislation invests discretion in an authority,it also creates an undeniable moral and legal duty upon such authority that it should exercise the same in a judicious, transparent, impartial and non-discriminatory manner. The reference can well be made to case law, reported as The Citizens Foundation and another v Director, SESSI and others (2010 SCMR 1659). However, since the appointment made by the Chief Minister on ad-hoc basis is not challenged by the petitioner; therefore, we feel it proper to refrain ourselves to give any findings in that regard.
18. It is pertinent to mention here that in identical circumstances; related to same department, candidates, who, in pursuant to the advertisement made in the year 2007, applied for the post of excise inspector; declared successful candidate but were not recruited; filed constitution petition Sono and others v. Government of Sindh and others reported in reported in 2012 PLC (C.S) 249, same was allowed, relevant paragraph number 24 of judgment, is as under:-
“24. Result of the above discussion is that Constitutional Petitions Nos.D-150 of 2008, 584 of 2009, 1063 of 2009, 117 of 2010, 339 of 2010 and 554 of 2011 are allowed and respondents Nos.1 and 3 are directed to issue appointment letters to the persons selected for recruitment through Departmental Selection Committee in respect to advertisement of 2007 within a period of 30 days. Following the principle laid downs by Honourable Supreme Court in the case of Hameed Akhtar Niazi v Secretary, Establishment Division (1996 SCMR 1185) respondents Nos.1 and 3 are directed to give the same treatment to the other persons selected through the process consequent upon 2007 advertisement without compelling them to initiate a spate of litigation”.
19.Since the discussion, made above, has made us of the clear view that petitioner was entitled for his appointment to the post for subsequently fallen posts for he was found eligible and was so declared successful with an assurance to be considered on falling of vacancies, therefore, keeping the petitioner out of his such right would be a denial to the very guarantee, provided by Article 18 of the Constitution, to the petitioner, Consequently, respondents are hereby directed to issue appointment order in favour petitioner, within two months, under compliance report.
JUDGE
JUDGE
Akber.