1. ' Hafiz Mukhtar Ahmed, the petitioner claims that he holds the qualification of M.A. Political Science.
2. Hafiz-e-Quran and is a certificate holder of the National Cadet Corps. He was working in the office of General Manger Postal Life Insurance, Lahore and had applied for the post of Assistant/Head Clerk (BPS-11) through proper channel in the office of Solicitor Government of the Punjab, pursuant to an advertisement published in the national press. In the process of selection he was successful and was issued letter of offer for appointment dated 22-3-2005 and was directed to attend the office of Solicitors Department, Government of the Punjab on or before 30-3-2005 failing which the offer had to lapse automatically. On acceptance of the said offer he was issued formal appointment and posting order dated 28-3-2005 and was posted in the office of District Attorney-I, Lahore. He was given 14 days' time to join duty. In view thereof he was relieved of his duties by the office of General Manager Postal Life Insurance, Northern Pakistan, Lahore in order to enable him to join his new appointment as Assistant/Head Clerk (BPS-11), He submitted a joining report before the District Attorney-I, Sessions Court, Lahore on 29-3-2005 but to his dismay he was not allowed to join due to a ban on recruitment imposed in view of direction of the Chief Minister conveyed to the respective Departments by the Service and General. Administration Department through letter dated 29-3-2005. The petitioner thus has approached this Court through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 for the redressal of his grievance.
2. In the report submitted by the respondents the above mentioned factual aspects have not been disputed. It has, however, been the stance of the respondents that the effect of the order of the Chief Minister was to "suspend the recruitment process", which was not "restricted to the proceedings taking place before the recommendations of the Departmental Selection Committee.
3. It rather starts from the initiation of proceedings and extends upto the period ending immediately before the assumption of charge by the recommended/selected candidates. This interpretation of the words "process of recruitment" truly depicts the intention of the Government behind the above- mentioned letter dated 29-3-2005. "With this stance the petition is being contested.
3. The learned counsel for the petitioner and the learned Additional Advocate General Punjab have been heard in the matter. The learned counsel for the petitioner has placed reliance upon judgment dated 30-11-1998 in W.P. No.13285 of 1997 wherein the ban imposed subsequent to the issuance of merit list was held to be not applicable and direction was issued for the issuance of appointment orders. He has also relied upon Muhammad Ismail and others v. Secretary Education, Government of Punjab and another (2000 PLC (C.S.) 112 in this regard. To the contrary the learned Additional Advocate General Punjab has endeavoured to support the stance taken by the respondents in the report and parawise comments and seeks dismissal of the petition.
4. Since the factual background is not in dispute, it is to be seen as to what extent despite the selection of the petitioner refusal of the respondents to permit him to join the post, he was appointed to, is justified and what is the import of letter dated 29-3-2005. The relevant part of the said letter reads like this:-- "I am directed to inform that the Chief Minister, Punjab has been pleased to suspend the recruitment process with immediate effect, in all Government departments, attached departments, subordinate offices/institutions, autonomous bodies, District offices etc. At the Provincial as well as District level. However, the recruitments being made through the Punjab Public Service Commission shall not be affected by this order."
4. ' It is noteworthy that the petitioner's selection had been flawless and was completed much before the issuance of letter dated 29-3-2005. Firstly he was extended an offer for appointment vide letter dated 22-3-2005 and was then issued formal letter of appointment on 28-3-2005 and he reported for duty on 29-3-2005, although the joining time was still available to him upto 14 days of letter dated 28-3-2005. Insofar as the selection process is concerned it was complete in all respects and no fault had been found with the same. The rationale behind the directive of Chief Minister was the "Complaint that the merit was not being strictly followed". Such was not the allegation qua the selection of the petitioner. Even he had been relieved by his erstwhile employer enabling him to join the new place of appointment and posting. In Muhammad Ismail and others (Supra) while dealing with such an issues elaborately it was laid down that:-- "Coming to the main question, it would be seen that the process of selection starting from inviting applications from various candidates did culminate with the display of merit lists which were displayed after the verification of education qualification of the candidates and their interview i.e. Steps required for the 'selection as enumerated in the discipline meant for the posts. Indeed a right had been created in favour of the petitioners by display of the merit lists and thcic was no locus poenitentiac left with the respondents to retrace their steps. It is not doubt true that the Authority passing or making the order has the power to recall, modify or cancel the same but the said power is subject to one exception that where the order has been taken legal effect and in pursuance thereof certain rights have been created in favour of any, individual, such an order cane not be withdrawn or rescinded to the detriment of those rights. In the instant case it would be seen that the petitioners have been interviewed were declared successful and merit lists in regard thereto were displayed on the notice board. The respondents could have retraced their steps till such time that the merit lists held left the folds of their office. Once it is displayed, it has been made public thereby creating right in favour of the selectees and the respondents' power to retrace their steps had been taken away by the law. The plea that the merit list could also be challenged by way of an appeal and since the rights of third parties were involved, therefore, the display of the merit lists could not be taken to be final. I am afraid, the plea is without any substance and stands defeated in view of the fact that no such appeal is .Stated to have been filed nor it is the case of the respondents, hence, it could not be successfully argued that the .Display of merit lists was not the final step. In the circumstances, it is but obvious that the issuance of appointment letter is only a consequential step which in the course of events had to be issued and could at best be termed to be ministerial. The selection having been completed for all intents and purposes it could not be said that any material steps were yet to be taken.
5. ' This brings me to the allied question as to whether the ban could be applied retrospectively and the answer is not very difficult to find. The ban imposed subsequent to the selection could not possibly take away the rights of the petitioners which have already accrued to them and were also finalized nor could it legally cloud the rights aforestated. The ban could at the best be applied prospectively and that being so, all the cases aforenoted are saved. Needless to add that it was also argued by the petitioners that now that the ban has been recalled and removed, there is no impediment or bar in employing the petitioners who have already been selected. It goes without saying that if the ban is allowed to operate retrospectively thereby nullifying all the steps taken for the selection of a candidate, it would not only erode the confidence of the people in the functionaries of the State but also in the Government itself for the total process of selection, as enumerated above, did raise a legitimate hope in the mind of a candidate that it has the backing of the State and Government and would be fulfilled. This legitimate hope cannot be rendered meaningless by one stroke of On thereby imposing ban or recruitment retrospectively. A plain reading of the notification whereby ban was imposed would show that it was meant to be prospective, therefore, the same could not be interpreted to apply retrospectively. In the circumstances, the petitioners are entitled to the grant of mandamus a prayed for." (Portions underlined for emphasis). Accordingly direction was issued for the issuance of appointment letters.
6. ' In Secretary of Government of N.-W.F.P. C & W. Department and 3 others v. Jamal Abdul Nasir (2003 PLC (C.S. (977) the Hon'ble Supreme Court of Pakistan also had the occasion to examine the import of ban on recruitments. It was observed .That:-- "The perusal of the official correspondence placed on the record would show that at the time of selection and recommendations made by Public Service Commission, there was no ban on recruitments and the posts of Research Assistants were also available against which the appointments of the selectees of Public Service Commission were made after fulfilling the departmental requirements. The subsequent change in policy regarding imposition of ban on fresh appointments and requirement of approval of Chief Minister before sending the requisition to the Public Service Commission would not undo the appointments already made against the vacant posts. The policy of the Government regarding ban on the appointments under the economy drive due to financial constraints or for any other reason, would not operate retrospectively and effect the appointments made in consequence to the recommendations of Public Service Commission before the introduction of policy in question which was not enforceable from a back date and to be given retrospective operation to effect existing rights of the individuals. This is an established principle that such policies 'always operate prospectively and if an order has been given effect or acted upon, the concerned Authority would have no power to rescind such an order." (Underlining by me). In Muhammad Qadeer and 10 others v. Government of the 'Punjab through Secretary, Local Government and Rural Development Department, Civil Secretariat, Lahore and 2 others (1998 PLC (C.S.) 409 [Lahore High Court], Abid Hussain Jafri and others v. Azad Government and others (1998 PLC (C.S.) 141 [Supreme Court Azad J&K], Asghar Ali and another v. Secretary, Local Government and Rural Development Department, Government of Punjab, Lahore and 4 others (2000 PLC (C.S.)
7. 366 [Lahore High Court]. Muhammad Ayaz Sohail v. Director, Anti-Corruption, Punjab, Lahore and others (2000 PLC (C.S.) 453 [Lahore High Court], Muhammad Naeem Sadiq v. Board of Intermediate and Secondary Education, Gujranwala through Chairman and others (2003 PLC (C.S.)
8. 1309 [Lahore High Court] and Ikramullah Saeed v. Chief Secretary Government N.-W.F.P. Peshawar and 3 others (2004 PLC (C.S.) 626 [Peshawar High Cotrrt] somewhat similar situation was dealt with by the Courts."
9. ' The principle culled out from all these precedents is that once the process of selection is completed, without violating any rule or law a subsequent ban on appointment cannot be invoked retrospectively to nullify such selection and appointment. There is no allegation against the petitioner that ,s selection was not on merits or that the appointment was made in violation of any extent rules/regulations. The case of the instant petition stands on a much better footing and on a higher pedestal in as much as not only that he was selected, he was issued the appointment and posting order as well, and it was only at the time of joining report that he was confronted with such a ban on recruitment. The interpretation placed by the respondents upon the directive that the recruitment process was suspended cannot be accepted as correct approach inasmuch as if the effect of the order was to undo the recruitments already finalized the other fresh appointees who had been selected would also have been given similar treatment. It was, however, the petitioner who had to face such agony and a dilemma. Such an unjust and harsh construction cannot be placed upon the directive dated 29-3-2005 nor invoked against the petitioner. It needs no reiteration that an executive/administrative, instruction/instrument cannot be applied retrospectively so as to nullify a completed process and a matter which is past and closed.
10. Everything concerning the employment of the petitioner was complete and joining of duty could not be denied to him.
11. ' In view of the above, the refusal of respondents to allow the petitioner to join his duty is unwarranted and of no legal effect: The petition is accepted accordingly with the direction to respondent No.3 to permit the petitioner to join as per letter of his appointment and posting dated 28-3-2005. It is said to note that despite the above mentioned settled legal position on the subject the respondents who have direct nexus with the legal system and the administration of justice have taken such a stance impelling and drawing the petitioner to litigation for his legitimate right.
12. His grievance deserves to be redressed with costs. Since the refusal to join duty has been found to be wholly unjustified and unwarranted in law, the petition is accepted with costs.