' ZUBDA-TUL-HUSSAIN, J.--- The two Writ Petitions Nos.1582 of 2008 and 1690 of 2008 arising out of identical circumstances shall be decided by this single judgment.
2. The respondent No,1 through a consolidated advertisement published in the Daily "Jang" dated 8-8-2007 invited applications from the eligible candidates for the posts of Union Secretary, (Community Development), Union Secretary, (Technical) Union Secretary, and Naib Qasid/Chowkidar in all the districts of the Punjab. It was provided that the recruitments shall be made in accordance with the Recruitment Policy, 2004 of the Government of the Punjab for a period of five years on contract basis. It was directed that applications, complete in all respects, shall be submitted by 25th August, 2007 to the A.D.L.G./ District Officer (Community Organization) of the concerned District and the date of test/interview, shall be notified by the concerned District Office. The petitioners in Writ Petition No,1582 of 2008 submitted their applications in the Office of respondent No,4 for the post of Union Secretary, (Community Development), in BS-11, while the petitioners in Writ Petition No,1690 of 2008 submitted their applications in the similar manner for the posts of Union Secretary, (Technical). The applications were duly processed and on the basis of the test and interview the relevant Selection Committee selected them for appointment against the respective posts.
3. Admittedly, D.O. (C.O.) Local Government and Community Development, Rahimyar Khan, was the Appointing Authority for the posts applied for by the petitioners in both the writ petitions. This fact is further borne out from the copy of the letter, dated 17-11-2007 available on the record of this file as Annexure "C". The D.O. (C.O.) was also Chairman of the Selection Committee. By 17th of November, 2007 the Selection Committee had finalized its recommendations whereupon the minutes were recorded at the end of which the following observations were recorded:--- "All above mentioned seats are to be filled up after completion of all formalities. Succeeded candidates recommended for issuance of appointment/offer letters accordingly."
4. The significant and the most important factor in this behalf is that the. Chairman of the Selection Committee was also the Appointing Authority for the posts for which recommendations were finalized by the Committee. Keeping this fact in view that the Chairman of the Selection Committee was also the Appointing Authority, the only meanings that can be given to the above quoted note are that it was a decision for the appointment of the selectees because it categorically imparted instructions to the office for issuance of appointment/offer letters to the candidates. Thus, for all intents and purposes the process of selection and appointment had been completed and only consequential clerical requirements were left to be complied with. The substantial job of the appointment could not be adversely affected by any lapse in such clerical formalities.
5. The respondents, however, did not issue the formal appointment/offer letters initially on the excuse that respondent No,1 had verbally restrained them from doing so. This having not been owned by respondent No,1 a reference to the report and comments submitted by the respondents can be made for the determination of the issue. The respondents have admitted all the facts regarding the advertisement of the vacancies, the constitution of the Selection Committee, the conduct of test and interview and the formulation of the final recommendations as well as the direction for issuance of letters of appointments. What they have maintained in defence is that the recruitment process was stopped as the Election Commission of Pakistan had announced the schedule of election on 20-11-2007 and the transfer/postings and recruitments were banned thereby. Regarding the period subsequent to the General Elections, it has been stated that vide notification, dated 11-1-2008, the Government of the Punjab placed a complete ban on postings/transfers and recruitment in whole of the Province which has not yet been lifted up and as such the recruitments cannot be made as desired by the petitioners. It has also. Been argued on behalf of the respondents that because of the aforesaid ban the petitioners are trying to avail undue gains. Relying upon the case cited as Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 the learned counsel for respondents argued that ill-gotten gains would be refused to the petitioners because the High Court in exercise of its discretionary jurisdiction would not allow things to happen to cause injustice or doing injustice against valid orders of the government.
' This, I would not feel hesitation to say, is an absolutely misleading and misconceived argument.
The petitioners are striving for their lawful rights which, as would be seen, cannot be denied under the law, and, therefore, by no stretch of imagination can be termed as ill-gotten or ill-aimed relief.
6. The contentions of the respondents are also misconceived insofar as their excuse in terms of the issuance of election schedule by the Election Commission of Pakistan and the imposition of ban by Government of the Punjab on recruitment is concerned. As already stated, the process of recruitment had already been completed before the announcement of the schedule of election by the Election Commission of Pakistan as well as the imposition of ban by the Government of the Punjab. None of these factors could operate retrospectively and as such neither the issuance of the schedule of election nor the ban imposed by the Government of the Punjab could operate as an impediment in the way of issuance of appointment/offer letters to the petitioners in accordance with the direction of the Appointing Authority, namely, D.O.(C.Q.) who incidentally was also the Chairman of the Selection Committee.
7. The rule of locus poenitentiae also could not be invoked in aid of the impugned inaction of the respondent which applies only to the cases where decisive steps have not been taken whereas in the case of the petitioners the whole process of recruitment was complete and all decisive steps had been taken for their appointment. The lapse or delay in executing the simple clerical or consequential formalities could not render the process incomplete or indecisive.
8. Since the factual background is not in dispute, it is to be seen as to what extent despite the selection of the petitioners' refusal of the respondents to issue appointment letters is justified and what is the import of the ban claimed by the respondents.
9. The selection of petitioners was flawless and was certainly completed before the issuance of program of election and the consequential ban. Insofar as the selection process is concerned it, was C complete in all respects and no fault had been found with the same. There was not the allegation qua the selection of the petitioners that it was against merit.
10. At this juncture a fruitful reference may be made to a judgment dated 30-11-1998 in Writ Petition No,13285 of 1997 (Lahore jurisdiction) 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.
The judgment in the case of Muhammad Ismail and others v. Secretary Education, Government of Punjab and another 2000 PLC (C.S.) .112 may also be relied upon in this regard. While dealing with such an issue elaborately in this case 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 there was no locus poententiae left with the respondents to retrace their steps. It is no 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 cannot 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 had 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 were not the final steps. 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.
' 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 afore stated. The ban could at the best be applied retrospectively and that being so, all the cases afore noted 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 ban 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 pen thereby imposing ban or on recruitment retrospectively."
11. The following observations recorded by the Honourable Supreme Court of Pakistan in the case of Secretary of Government of N.-W.F.P. C&W Department and 3 others v. Jamal Abdul Nasir 2003 PLC (C.S.) 977 are also of immense importance:- "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."
12. This is an established principle that such policies always operate prospectively and if an order has been given effect or D acted upon the concerned authority would have no power to rescind such an order.
13. What follows from the above is that once the process of selection is completed, without violating any rule or law a subsequent E ban on appointment cannot be invoked retrospectively to nullify such selection and appointment. There is no allegation against the petitioners that their selection was not on merits or it was made in violation of any rules/regulations. The interpretation placed by the respondents upon the alleged bans cannot be accepted as correct approach. Such an unjust and F harsh construction cannot be placed upon the directive of the Election Commission nor invoked against the petitioner. The administrative k, instructions cannot be applied retrospectively so as to nullify a completed I-process and a matter which is past and closed. Everything concerning the H employment of the petitioners was complete and issuance of letters of appointment could not be denied to him.
14. The upshot of the above discussion is that the respondents had illegally refrained from issuance of appointment letters to the petitioners. Their action, rather inaction, in this behalf was against law and contrary to the spirit of the recruitment policy of the Government of the Punjab. It I also offends against the fundamental rights of the petitioners because after having been duly selected and directed to be appointed, a right had accrued to them for job against the vacancies for which they were selected/appointed.
15. It is regrettable that despite obvious circumstances and the legal rights of the petitioners, the respondents have been drawing the petitioners to litigation for the enforcement of their rights. The result is that both the writ petitions are allowed with costs and respondent No,3 is directed to issue formal appointment letters to the petitioners within a period of one month positively.