The petitioner has filed the instant writ petition whereby he seeks a mandamus that public defenders be selected as required by "The Punjab Public Defenders Service Ordinance, 2007 (Punjab Ordinance XVI of 2007) to be read with the "Contract Appointment Policy" issued by the Government of the. Punjab, dated 29th December, 2004.
2. Briefly, according to the learned counsel for the petitioner , the Government advertised the pots of Chief Public Defender, Adds. Chief Public Defenders, District Public Defenders and Public Defenders. The last date to apply for the above-mentioned post was 17.9.2007. The petitioner also applied for the post of Public Defender vide his application No. 2529. It is provided in Section 4(3) of the Punjab Public Defenders Service Ordinance, 2007, hereinafter referred to the Ordinance, that the Government shall make appointments under the Ordinance in accordance with the "Contract Appointment Policy" of the Government. A Committee has also been constituted in pursuance of the Recruitment Policy, 2004 consisting of respondents mentioned in the title of the instant writ petition. According to the learned counsel for the Committee has already short-listed candidates who were qualified to be invited for interview. However, according to the petitioner, respondent No. 2 has already been provided a list of candidates recommended by Ministers, MNAs, MPAs and other political entities annexed herewith as Annexure-D. According to the learned counsel, the appointment of such candidates/persons would be grave miscarriage of justice and offensive to the fundamental rights of the petitioner and other deserving candidates. If the respondents are not forbidden, their conduct would be violation of the Constitution and the laws. It would also be disobedience and disrespect to a number of decisions already delivered by the Superior Courts of the country on the subject which shall be mentioned in this judgment in coming paragraphs.
3. To respond to the above statement of facts, the learned Addl. Advocate General, Punjab contends that present writ petition is not maintainable in view of the issuance of Proclamation of Emergency dated 03.112007 and Provisional Constitution Order 1 of 2007. He also contends that appointments shall be made according to the Contract Appointment Policy. Addl. Secretary Law and Parliamentary Affairs is also present and according to him the posts were duly advertised as required under the law and the list of candidates has also been short-listed in accordance with the qualifications already mentioned in the advertisement and Contract Appointment Policy.
4. We have heard the learned counsel for the petitioner, learned Addl. Advocate General, Punjab and Addl. Secretary Law and Parliamentary Affairs. We have also perused the record produced by the Addl. Secretary
5. Proclamation of Emergency was issued on 3rd November, 2007 by General Pervez Musharraf, Chief of the Army Staff, whereby it was proclaimed that the Constitution of Islamic Republic of Pakistan would remain in abeyance.
However, Provisional Constitution Order 1 of 2007, also issued on 3rd November, 2007 provided as under-.
"Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other order made by the President be governed as nearly as may be, in accordance with the Constitution."
The above-mentioned Article 2 of the Provisional Constitution Order, 1 of 2007 leaves no doubt that the jurisdiction of this Court under Article 199 of the Constitution can still be exercised in matters covered by the P.C.O.' 1 of 2007. The subject-matter of the instant petition, i.e. Selection of Public Defenders under the Ordinance, 2007 is not subject to the Provisional Constitution Order etc. Thus, we have no reservation in our mind regarding our jurisdiction in this matter, so we hold that the instant writ petition is maintainable. At this point we may also mention a Full Bench Judgment of this Court published in PLD 1988 Lahore 49 wherein it was held that power of judicial review cannot be easily abandoned or ousted. In this regard, Sardar Farooq Ahmad Khan Leghari vs. Federation of Pakistan, PLD 1999 SC 57, would also be relevant to be mentioned. In Zafar A.I Shah's case, the Hon'ble Supreme Court held, as under, "We are of the considered view that changing the form of oath will neither take away power of judicial review nor the jurisdiction . Of ,the Court. Notwithstanding the new oath or its language, the Courts shall continue to have jurisdictions to decide the controversy involved as if the new oath and the new Constitutional documents under which the oath is administered, do not adversely affect the jurisdictions and power of the Court" (PLD 2000 SC 889).
6. According to Section 18 of the Punjab Public Defenders Service Ordinance, 2007 service of the Chief Public Defender, the Addl. Chief Public Defenders and District Public Defenders etc. Shall be deemed to be public servants within the meaning of Section 21 of the Pakistan Penal Code, 1360. Thus, despite definition of 'civil servant' given in Section 2(b), the Chief Public Defender etc. Would be deemed as public servants/civil servants. A civil servant means a person who holds a civil post in connection with the affairs of the Province. The employees of the Punjab Public Defenders Service are, therefore, going to hold posts in connection with the affairs of the Province of the Punjab. For the above reasons, Section 4 of the Punjab Civil Servants Act, 1974 fully applies. According to Section 4 of the Act, appointments to a civil service of the Province or to a civil post in connection with the affairs of the' Province shall be made in the prescribed manner by the Governor or by a person authorized by him in that behalf. In the instant case, Selection Committee has already been authorized to make the appointment. The Ordinance of 2007 itself provides in Section 4(3) that the Government shall make appointment under the Ordinance in accordance with the Contract Recruitment Policy of the Government. Sub- section (4) of Section 4 further provides that the Government shall exercise the general control and supervision over the service. Para VIII of the Contract Policy provides and is reproduced as bellow:- "(i) Under the Chapter titled "Fundamental Rights" of the Constitution of Pakistan, equality of citizens and safeguard against discrimination in services has been guaranteed. Article 25 of the Constitution provides that all citizens are equal before law and are entitle to equal protection of law while Article 27 provides that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against.
(ii) Supreme Court of Pakistan in its judgment dated 19.01.1983 in Human Rights Case No. 104 of 1992 stated that recruitments, both ad hoc and regular, without publicly and properly advertising the vacancies, is violative of fundamental rights. As such no post could be filled in without proper advertisement, even on ad hoc or contracts basis.
(iii) Under the provisions of Rule 17 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 no post can be filled in without proper advertisement.
(iv) Recruitment Policy, 2004 does not allow appointment of any person without advertisement and in violation of any procedural formalities laid down in the policy.
(v) All posts to be filled on contract shall be advertised properly in at least two leading newspapers, as per rules.
(vi) No relaxation of qualification, experience, physical criteria etc. As provided in the relevant service rules or as determined by the Government shall be allowed, except as prescribed under the rules.
(vii) The relevant Selection Committees shall ensure that contract appointments are made strictly on merit and in accordance with the rules, selection -criteria and other provisions of this policy as well as the prevailing Recruitment Policy."
7. Article 27 of the Constitution clearly lays down that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated 'against in respect of any such appointment on the ground only for race, religion, case, sex, residence or place of birth. The expression service' does not mention a permanent service or a contractual service; therefore, it would include all kinds of service, permanent, temporary, on contract etc. In the above backdrop, we took cognizance of this writ petition and stopped the process of the appointment on 01.10.2007.
8. However, as noted above, the learned Addl. Advocate-General, Punjab and the Addl. Secretary Law and Parliamentary Affairs have given undertaking that the appointments shall be made strictly in accordance with the Contract Appointment Policy, 2004 which was prepared in the light of Constitutional provisions as well as provisions of the Punjab Civil Servants Act, 1974. The two gentlemen mentioned above have also assured that list of candidates, Annexure-D, according to their knowledge, does not exist. They further assure that no political interference shall be conceded/allowed in the recruitment and it shall be completed strictly on merit. At this stage, it would be pertinent to remind to the respondents finding of the Hon'ble Supreme Court, in Munawwar Khan vs. Niaz Muhammad, etc., (1993 SCMR 1287). The allotment of quota of posts in civil service was severely deprecated by the Hon'ble Supreme Court of Pakistan in these words:--- "As regards the allocation of quota of posts to the local MPA's or MNA's for recruitment to the posts, we. Find it offensive to the Constitution and the law on the subject. The Minister, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to be Ministers/MNAs/MPAs and appointments made thereunder are all illegal ab initio and have to be held so by all Courts, Tribunals and authorities.
9. On the same point, the Hon'ble Supreme Court directed to the public functionaries/civil servants as below:--- "We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as in charge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary 'action." (PLD 1995 SC 530).
According to the Preamble of the Constitution: "whereas sovereignty over the entire Universe belongs to Almighty- Allah alone, and the authority be exercised by the people of Pakistan within the limits --prescribed by Him in a sacred trust."
10. Consequent to the above discussion and undertaking given by the learned Addl. Advocate General, Punjab and the Addy. Secretary Law and Parliamentary Affairs, we allow this writ petition and direct the respondents as follows:-
(i) All appointments shall be made through the process prescribed under the law and rules. No appointment shall be made otherwise;
(ii) All eligible candidates shall be called for interview/written test etc. As provided under the law and rules;
(iii) If there was any list already provided to the respondents, the same would be totally disregarded;
(iv) A copy of list of successful candidates shall be displayed at a place where interviews etc. Shall be conducted. A copy of successful candidates shall also be submitted, to this Court through the Deputy Registrar (J).