1. ' ARSHAD NOOR KHAN, J.---By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the legality and validity of the order dated 27-6-1998 passed by respondent No,3 and prayed to declare it to be illegal, inoperative and ultra vires to the Constitution of Islamic Republic of Pakistan, 1973.
2. ' The facts leading rise to the present petition in brief are that in pursuance to advertisement dated 27-10-1995 published in Daily Jang, advertised by Pakistan Banking and Finance Services Commission, hereinafter shall be referred as the "PB & FSC", on behalf of National Bank of Pakistan for recruitment of different categories of the officers/officials, whereby the applications were invited from suitable candidates, who were fulfilling the requisite qualification and experience mentioned against each of the said posts and the last date of filing of the application was fixed as 30-11-1995 on prescribed form. The petitioner No,1 applied for the post of Resident Engineer (Civil)
3. Officer, Grade-II, vide Case No, RECT/N.B.P./95.30(A). The petitioner No,2 applied for the post of Assistant Engineer (Civil) Officer, Grade-III, vide case No, RECT/N.B.P./95-32(a). The petitioners along _with other candidates were called for written test/interview to compete for their respective posts. The petitioner No,1 was assigned Roll No,K-5141 and petitioner No,2 was assigned Roll No,K- 5402 for the purpose of written test/interview. Both the petitioners successfully qualified their written tests/interview and result was declared on 6-9-1996 and subsequently displayed on Notice Board of the PB&FSC within the premises of the office of respondent No,3 and also announced through press release belatedly on 2-10-1996. It is further stated in the petition that the petitioners were selected and their cases were accordingly recommended for their appointment. The petitioners were intimated by the PB&FSC, which intimation envisaged that an offer of appointment will be issued to the petitioners in due course of time by respondent. No,2 viz. National Bank of Pakistan, vide its letter dated 23-10-1996.
4. ' After receipt of the recommendation for appointment in the month of September, 1996, respondent No,2, National Bank of Pakistan did not contact the petitioners by itself to convey any further progress of their cases, however, in reply to the correspondence, letter dated 25-1-1997 was addressed to the petitioner No,2 wherein the recommendation of the respondent No,3 (PB&FSC) were acknowledged and in spite of favourable understanding extended to petitioners nothing has been conveyed further to them by respondent No,2 however on persistent approaches of the petitioners through their letters, thereby requesting for issuance of appointment letters, respondent No,2 adopted a fake plea as an eye wash, to protract and avoid issuance of appointment letters under the fake and fallacious plea of ban allegedly imposed by the Government on fresh appointment, as such, the case of the petitioner was not further processed for their appointment. It is further stated in the petition that respondent No,2 has already made so many fresh appointments in spite of alleged ban imposed by the Federal Government and the petitioners were discriminated by respondent No,2 for certain extraneous consideration. It is further stated in the petition that in spite of so-called ban one, Mr. Hamid kaza, the candidate of same advertisement, who was similarly recommended by the PB&FSC, has been appointed by respondent No,2. It is further stated in the petition that PB&FSC also selected and recommended candidates for their appointment in National Bank of Pakistan and in Federal Bank for Cooperatives, respondent No,5 by a consolidated press release dated 2-10-1996 in daily "The News, Rawalpindi" has been pleased to implement the said recommendation of the PB&FSC and appointment letter in favour of Mr. Imranullah was issued by respondent No,2 and the issuance of appointment letters in favour of the petitioners was delayed illegally and malafidely by respondent No,2. It is further stated in the petition that about 300 appointments were directly made by respondent No,2 on the recommendation of respondent No,3 and the ease of present petitioners is of discrimination for satisfaction of illegal lust of the officers of respondent No,2. It is further stated that respondent No,2 with mala fide intention and concocted plea of ban allegedly imposed by the Federal Government of fresh appointment, are denying the legitimate right of the petitioners, in spite of several appointments made by them, so far in the bank other than the recommendation of the PB&FSC. In view of section 8(3) of the Pakistan Banking and Finance Services Act No, XIII of 1992 (hereinafter shall be referred to as "The Act of 1992"), as such, the act of respondent No,2 is illegal, inoperative, discriminatory, ab initio void and ultra vires to the Constitution of Islamic Republic of Pakistan, 1973.
5. ' Respondents were served with the notice of the present petition and respondent Nos. 1 and 2 filed their comments. Respondent No,2 in his comments, pleaded the maintainability of the present petition and further stated that while the matter regarding appointment of the petitioners were under consideration by the respondent-Bank, the Government of Pakistan through its letter dated 14-11-1996 imposed ban on fresh appointment, inter alia, in the banks/ D.F.Is. The Government of Pakistan through its letter dated 26-7-1999 again extended ban on making fresh recruitment in banks/D.F.Is. It is further stated in the comments by respondent No,2 that the petitioners were informed by letter dated 16-2-1997 that there is ban on recruitment in bank services. It is further pleaded in the comments that the petitioners did not approach to the Court with clean hands as both of them had made applications dated 13-10-1998 and 22-7-1998 for their joining as party in Writ Petition No,737 of 1998 in the Lahore High Court filed by Sultan Mehmood Nasir and another against respondents Nos.1, 2 and 3 herein, which petition was heard along with Writ Petition No,14693 of 1997 by Mr. Justice Ihsanul Hague Chaudhry, who was pleased to dismiss both the petitions vide judgment dated 26-10-1999, as such the case of the present petitioners is also hit under section 11, C.P.C. The other allegations regarding publication of advertisement by respondent No,3 and the mala fide acts of the respondents etc. Have also been refuted by respondent No,2 in his comments.
6. ' Respondent No,1 in his comments has also pleaded the ban allegedly imposed by the Federal Government on 14-11-1996 on fresh recruitment which was extended on 28-7-1999 and the publication of advertisement made by the respondent No,3 in daily newspapers as well as the powers of respondent No,3 for making recommendation to respondent No,1 has not been disputed.
7. Respondent No,3 has not filed any comments in the present petition but the comments filed by respondent No,3 in Writ Petition No,14693 of 1997 before the Lahore High Court, are available on record of the present petition and the relief claimed in the petition against the respondents is same and identical to the present petition, and is also the off-shot of the recruitment of the present process, wherein respondent No,3 has admitted the publication of advertisement dated 10-5-1995 in daily newspapers on the requisition of respondent No,2, National Bank of Pakistan and after conducting written test/interview on 18-6-1996, the case of other petitioner was recommendation on merit to the respondent No,2 for issuance of appointment letters to those petitioners for the posts for which they were recommended. It is further stated in the comments that the said PB&FSC is a statutory body established under the Act of 1992 entrusted with the recruitment/selection of the officers on merit in the Nationalised Commercial Banks and Development Financial Institutions through a process of written test and interviews as per its charter. After selection, names of the selectees are forwarded to the requisitioning agency for issuance of appointment offers and thereafter it is duty of the requisitioning agency to implement the recommendation of the PB&FSC in terms of section 8 (3) of the Act of 1992.
8. ' We have, therefore, heard Mr. Faiz Ghanghro, Advocate for the petitioners, Mr. Usman Shaikh, Advocate for the respondents and Mr. Badar Alam, D.A.G. For Federation of Pakistan.
9. ' Mr. Faiz Ghanghro, learned Counsel for the petitioners vehemently contended that the petitioners were declared successful and qualified for the post of Resident Engineer (Civil) Officer, Grade-II and Assistant Engineering (Civil) Officer, Grade-III and were accordingly recommended by the PB&FSC as such a vested right has been created in favour of the petitioners and they have been denied their legitimate right of appointment, which, is, in contravention and ultra vires to Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. It is further contended that the alleged ban imposed by the Federal Government on 14-11-1996 was imposed much after the recommendation of the petitioners for the post applied by them as such, the alleged ban could not be pleaded as a sufficient bar to refuse the issuance of appointment letters to the petitioners and the petitioners have been deprived of from their legitimate rights on the fallacious and false plea of alleged ban imposed by the Federal Government, which is not available to the respondent No,2 at any time after receipt of recommendations by the PB&FSC. It is further contended that in Writ Petition No,737 of 1998 though the petitioners had applied for joining them as a party but they were not allowed to implead as party by the learned Lahore High Court in C.P. No,737 of 1998 and even the case of the present petitioners was not decided on merit as such no bar exists in way of the petitioners to approach to this Court. According to him, respondent No,2 appointed so many other officials but the petitioners were discriminated by the respondent No,2 in spite of the valid selection and recommendation by the PB&FSC. In support of this "contention, he has relied upon the case of Mushtaq Ahmed Mohal and another v. The Honourable Lahore High Court, Lahore and others reported in 1997 SCMR 1043; the case of Manthar Ali M. Jatoi v. The Government of Sindh through Chief Secretary, Sindh reported in 1988 PLC (C.S.) 344; the case of Muhammad Farooq M. Memon v.
10. Government of Sindh through its Chief Secretary, Karachi reported in 1986 CLC 1408; the case of Miss Farzana Qadir v. Government of Sindh through Secretary, Ministry of Health, Karachi reported in 2000 PLC (C.S.) 255; and the case of, Muhammad Rasheed v. Government of Punjab and others reported in 2006 SCMR 1082.
11. ' Mr. Usman Shaikh, learned counsel for the respondents vehemently contended that the petitioners had applied for their joining as party in Petition No,737 of 1998 and the said petition along with Petition No,14693 of 1997 was heard and dismissed by the learned Lahore High Court on 26-10-1999 as such the petition is completely hit under section 11, C.P.C. Being res judicata. He further contended that Federal Government had imposed ban on fresh recruitments in the banks and other financial institutions through its letter dated 14-11-1996 and the said ban still continue, which is a great hurdle in the case of the petitioners and unless the said ban is removed by the Federal Government, the case of the petitioners could not be considered. According to him, the petitioners are not entitled for the relief as claimed in the present petition, as no particulars of mala fide have been stated against the respondent as such the petition is not maintainable, on this score also.
12. ' Mr. Badar Alam, learned D.A.-G. Has adopted arguments advanced by Mr. Usman Shaikh, learned counsel for the respondents and has further contended that respondent No,2 did not invite any applications by way of any publication in any newspaper nor had made any requisition to the PB&FSC for appointment of the officials for respondent No,2 as such, petitioners are not entitled for any relief as claimed by them in this petition.
13. ' We have considered the arguments advanced on behalf of the parties and have gone through the entire material available on record as well as the case law on the subject.
14. ' The preamble of the Act, 1992 is very plain and unambiguous in its wisdom, which provides for establishment of a Banking and Finance Services PB&FSC for the purpose of recruitment of the officers/officials for appointment in banks and other financial institutions. The establishment of the PB&FSC as provided under clause 3 of the Act, 1992 consists of a Chairman and not more than four members, appointed by the Federal Government. The powers and functions of the PB&FSC have been provided under section 7 (ibid), which are usefully quoted herein below, for the sake of convenience:--
(a) To conduct open competitive examination for recruitment to Grade III or higher posts in the financial institutions;
(b) To conduct interviews and tests for recruitment to posts in grades higher than Grade-III, except where such recruitment is excluded from the purview of the PB&FSC by the Federal Government;
(c) To conduct tests for promotion of existing employees from lower cadres to Grade III and above, if so required by a financial institutions; and
(d) To advise the Federal Government on matters relating to qualifications for, and methods of recruitment to, posts in Grade-II or higher grades in the financial institutions, if so required by the Federal Government.
15. ' The functions and powers of the PB&FSC are, therefore, to advertise the post on requisition of Banks and other financial institutions and to conduct open competitive examinations for the recruitment of officers in Grade-III and above in financial institutions after conducting the requisite tests/interviews for the said posts. Section 7 of the Act 1992 provides that all the recruitments to the posts in financial institutions in Grade-III or higher grades in financial institutions shall be made on the advice of the PB&FSC, as suck, it is very much clear that no appointment may be made by the banks or financial institutions without recommendation of the PB&FSC established under the Act of 1992.
16. ' It is, therefore, evident from the perusal of Act, 1992 that for all practical purposes and intention, the Government has to establish a PB&FSC for recruitment through PB&FSC for filling the posts in financial institutions and established under Act of 1992, who is the final authority to select and recommend the incumbents for their appointment in the banks or other financial institutions. The banks and financial institutions, who are mentioned in schedule of Act, 1992 are usefully quoted here in below, for the sake of convenience:-- SCHEDULE
(1) State Bank of Pakistan (2) National Bank of Pakistan (3) Habib Bank Limited (4) United Bank Limited (5) Muslim Commercial Bank (6) Allied Bank Limited (7) Investment Corporation of Pakistan
(8) Industrial Development Bank of Pakistan (9) National Development Finance Corporation (10).
17. Pakistan Kuwait Investment Company Limited (11) Pak-Libya Holding Company Limited (12) Saudi- Pak. Industrial and Agricultural Investment Company Ltd. (13) National Investment Trust (14)
18. Pakistan Industrial Credit and Investment Corporation (15) Equity Participation Fund (16) Bankers Equity Limited (17) Small Business Finance Corporation (18) House Building Finance Corporation (19)
19. Federal Bank for Cooperatives (20) Agricultural Development Bank of Pakistan.
20. ' A perusal of the schedule attached to the Act of 1992 shows that National Bank of Pakistan, who is respondent No,2 herein, is included in the schedule as such the respondent No,2 is bound by the provisions of Act of 1992 to follow the recommendations of respondent No,3, who is the PB&FSC set forth under section 3 of the Act, 1992 and since the respondent No,2 falls within the schedule of Act, 1992 as such the respondent No,2 could not ignore or refuse to implement the recommendations of respondent No,3 without any just or legitimate cause.
21. ' The respondent No,2 in his comments has not disputed that the vacancies were not requisitioned to PB&FSC and that petitioners had not appeared in the written test/interview before respondent No,3 for the posts applied by them. It is also not disputed by both these respondents that respondent No,3 did not recommend the petitioners for their appointment to the posts applied by them, as such, the qualification of the petitioners duly recommended by respondent No,3 for the post they applied, remained undisputed. The respondent No,3 admittedly recommended both the petitioners to respondent No,2 for their appointment to their respective posts for which they have applied. The recommendation of respondent No,3 dated 23-11-1996, which is same to the case of both the petitioners, is usefully quoted herein below, for the sake of convenience:-- "Recruitment To The post of Resident Engineer (Civil 0G-11), In National Bank of Pakistan Case No,Rect/N.B.P./9530(A).
22. ' With reference to your application for the above noted post, we are pleased to inform you having recommended your name to National Bank of Pakistan for appointment.
23. ' This intimation should in no way be construed as an offer of appointment which will be issued by National Bank of Pakistan, in due course of time.
24. Yours faithfully (Sd.) (Arshad Hafeez)
25. Deputy Director (Rect.)."
26. ' From the perusal of recommendation of respondent No,3, it is evident that both the petitioners were declared successful and were recommended for their appointment by National Bank of Pakistan. The receipt of the said recommendation has also not been denied by respondents Nos.1 and 2. The respondents Nos.1 and 2 have pleaded that the case of the petitioners could not be processed for the reason that ban was imposed on fresh appointments vide Notification of Federal Government dated 14-11-1996. The date of recommendation of the petitioners by respondent No,3 viz. 23-10-1996 is very crucial under the circumstances of the present petition as by that date the petitioners had been recommended for their appointment in the Bank of respondent No,2 and simply the formalities had to complete by respondent No,2, which were necessary for their appointment and the alleged ban was imposed on 14-11-1996 i.e, much after their recruitment, selection and recommendation for their posts as such the ban, if any, imposed by the Federal Government on recruitment in financial institutions was not applicable in the case of the present petitioners, as by that time they were already declared successful candidates and were accordingly recommended for their appointment, as such a vested right had already been accrued in favour of the petitioners immediately on their recommendation by the PB&FSC vide its letter dated 2340-1996, reproduced hereinabove. Respondent Nos.1 and 2, therefore, could not plead any shelter under the banner of alleged ban dated 14-11-1996 imposed by the Federal Government on the appointment and recruitment of staff of financial institutions.
27. ' The respondent No,3 has not denied the selection and recommendation of the petitioners after their successfully passing the written test and interview and their recommendation to the respondent No,2 for their appointment, by way of filing any comments, however, in the comments filed in Petition No,14693 of 1997, respondent No,3 has candidly admitted the recommendation of the other petitioners of the same advertisement and proceeding. The comments submitted by respondent No,3 in the aforesaid petition, are usefully quoted herein below for the sake of convenience:-
(1) The name and address of the PB&FSC as given in ate writ petition is correct. However, it is clarified that Pakistan Banking and Finance Services PB&FSC at serial No,1 and the Deputy Director representing the PB&FSC at serial No,2 is one and the same entity.
(2) It is correct that on receipt of a requisition of vacancies from the National Bank or Pakistan this PB&FSC arranged publication of a consolidated advertisement (No, RECT/95-6 on 27-10-1995) which, inter alia, included 20 vacancies for the posts of Officer Grade-I (copies of advertisement and requisition of N.B.P. Enclosed). In response to this advertisement, the petitioner Mr. Khalid Javed applied for the post of Officer Grade-I (case No, RECT/N.B. P. /95-28).
(3) The statement of the petitioner is correct that he was called to appear in Test/Interview conducted by this PB&FSC on 18th June, 1996 at Lahore.
(4) It is also correct that after qualifying the test and the interview, the name of Mr. Khalid Javed along with others was recommended on merit to the requisitioning Bank viz. National Bank of Pakistan for issuance of appointment offer to the petitioner for the post of Officer Grade-I (case No, RECT/N.B.P./95-28) subject to verification of his antecedents and medical check-up. Copies of recommendation letter No, RECT/N.B.P.-001/96-660 and No, RECT/N.B P.- 001/96-1387 dated 9th May, 1996 and 5th September, 1996 respectively are enclosed.
(5) We regret we are not aware of the circumstances/reasons due to which the petitioner could not be offered letter of appointment by the requisitioning institution i.e, National Bank of Pakistan.
28. ' A perusal of the comments submitted by respondent No,3 in the aforesaid writ petition that they had recommended the petitioner of that petition along with others on merit to the requisitioning bank, show that the said process of appointment was started on the requisition of vacancies from.
29. Respondent No,2 after the publication of consolidated advertisement dated 27-10-1995 and after all the requisite formalities, the successful candidates were recommended to the National Bank of Pakistan on merits for issuance of their appointment letters. The respondents Nos.1 and 2 have also not refuted the said comments filed by respondent No,3, referred to above, as such stand taken by respondent Nos.1 and 2 appears to be divergent with the stand taken by respondent No,3 before the competent Court. The recommendation of respondent No,3 for appointment of petitioners, therefore, remains unassailed or unshaken throughout the proceeding before this Court.
30. ' The respondent Nos.1 and 2 are vehemently pleading the ban dated 14-11-1996 imposed by the Federal Government but that ban, as discussed above, was imposed before acquiring the vested right by the petitioners on the recommendation of respondent No,3 vide their letter dated 23-10- 1996. Even otherwise the said ban was lifted by the Federal Government vide their Notification dated 28th July, 1999 for recruitment of the posts. The said notification, is reproduced here in below, in extenso, for the sake of convenience:--- ' Government of Pakistan ' Finance Division (Internal Finance Wing)
31. ' No,6(1)Bkg-I11/99/983 Islamabad, the 28th July, 1999 ' From ' Mohammad Yousuf Memon, ' Deputy Secretary (Bkg.)
32. ' To ' The Governor, ' State Bank of Pakistan, ' Karachi.
33. ' Subject: Ban On Recruitment In Financial Institutions Including Nationalized Commercial Banks
(NCBS) Which Are Being Privatized.
34. ' Dear Sir,
(1) I am directed to state that the Cabinet in its recent meeting has decided to lift ban on employment in Ministries/Divisions, Corporations, Autonomous/Semi Autonomous Bodies as per guidelines being issued by the Establishment Division. The ban on recruitment will continue in respect of the Financial Institutions, including Nationalized Commercial Bank (NCBs) which are in the process of being privatized by the Privatization PB&FSC . No recruitment against any post shall be made in these institutions.
(2) However, recruitments against any post necessitated due to exigencies of service in exceptional circumstances, shall require prior approval of the Prime Minister for which a self contained summary shall be submitted through the Ministry of Finance.
(3) State Bank and Bank/DFIs are accordingly advised to note the above instructions for strict compliance.
35. Your faithful (Sd.)
36. (Mohammad Yousaf Memon)
37. Deputy Secretary (Bkg)
38. ' The ban allegedly pleaded by respondent Nos.1 and 2, if taken into consideration, then too, it is apparent from the language of the said Notification, reproduced, herein above, that it was lifted on 28-7-1999 on employment in Ministries/Divisions, Corporations, Autonomous/ Semi-Autonomous Bodies as per guidelines being issued by the Establishment Division. The ban on recruitment, however, continue in respect of the Financial Institutions, including Nationalized Commercial Banks which are in the process of being privatized by the Privatization Commission. It is, therefore, evident that the ban remained in respect of the appointment in the institutions which are being under the process of privatized by the Privatization Commission and the respondents Nos.1 and 2 are not pleading that they were under the process of Privatization by the Government as such, if the respondent No,2 was honest in its act and design for appointment of the petitioners, they had to process the case of the petitioners immediately after 28th July, 1999, but instead of processing the case of the petitioners they are still pleading that the ban on fresh appointment is still continuing, which is misguiding and mala fide attempt on the part of the respondent No,2 to deprive of the petitioners from their legitimate and vested right of the appointment.
39. ' The contention of the learned counsel for the petitioners that petitioners are being victimized by respondent No,2 and a vested right has already been accrued in their favour immediately on the day when they were recommended by respondent No,3 for their appointment by respondent No,2 seems not to be devoid of any force. The contention advanced by the learned counsel for the petitioners seems to be in consonance with the finding of the Honourable Supreme Court in the case of Mushtaq Ahmed Mohal, supra, wherein the Honourable Special Bench of the apex Court consisting of five learned Judges, was pleased to observe that appointment to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the preamble of the Constitution as part of the same and which inter alia enjoins equity of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in Government setups/ institutions. Further observation in this case, is usefully quoted here in below, for the sake of convenience:-- "The Constitutional requirement inter alia, enshrined in Article 18 of the Constitution which enjoins that "subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business" includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/corporations etc. On the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness. Such an objective enshrined in the Constitution cannot be achieved unless due publicity is made through public notice for inviting applications with the aid of the leading newspapers having wide circulation."
40. ' In the case Manthar Ali M. Jatoi (supra) the Honourable Division Bench of this Court was pleased to observe that after recommendation of the petitioner by the Public Service Commission a vested right has been accrued in his favour and the competent authority's order to refuse to accept the recommendation of Public Service Commission should have acted under some rules or at least for some cogent reasons. In the present case, we do not find cogent and sufficient reason for non- delivering the appointment letters to the petitioners by the respondent No,2, except the fake plea of ban imposed by the Federal Government, which has been thoroughly discussed in the preceding paras of this judgment.
41. ' In the case of Miss Farzana Qadir (supra), learned Division Bench of this Court was again pleased to observe that after recommendation of the case of the petitioner, a vested right was created in her favour, which could not be brushed aside leniently without showing any sufficient reason. The dictum laid down in the case of Miss Farzana Qadir (supra), is usefully quoted herein below, for the sake of convenience:-- "The above judgments clearly indicate that when posts, under statutory rules, are required to be filled on the recommendation of the Public Service Commission, the advice of the Commission confers a vested right upon the nominated candidate. Moreover, even if the Commission be authorised to recall its advice, such authority can only be exercised for a valid reason. Respondent No,2 has not been able to assign any reason or point out any defect in its original recommendation so as to entitle it to review the same. Similarly, the respondent No,1 has not bothered to explain why the recommendation of the respondent No,2 which indeed has created a legitimate expectation to be appointed has not been honoured."
42. ' The observations made by the learned Bench of this Court in the case of Miss Farzana supra, are therefore, fully applicable to the circumstances of the present case, as the respondent No,2, who has not disputed the recommendation of respondent No,3 for appointment of the petitioners has not acted lawfully in refusing the issuance of their appointment letters under the fake and fallacious plea of ban imposed by the Federal Government, which was not available to them at the relevant time of their recommendation by respondent No,3.
43. ' In the case of Muhammad Rasheed, supra the Honourable apex Court was pleased to observe that after recommendation of the petitioners, the Government has no authority to withdraw the appointment letters on account of ban imposed, despite the fact that they were duly selected on merits according to rules. The observation made by the Honourable apex Court in the case of Muhammad Rasheed, supra, usefully quoted here in below for the sake of convenience:-- "When we confronted learned Assistant Advocate-General with the above noted decisions and called her to explain as to whether different view can be taken in the instant cases when the question involved in all the cases is identical namely whether the Government had not authority to withhold the appointment letters on account of ban imposed despite the fact that they were duly selected on merit according to rules. She could not answer satisfactorily except stating that previous decisions were not in the knowledge of respondents. We are afraid, contention so raised by her is not correct because a perusal of the judgment in the above noted cases indicates that Government of Punjab was duly represented through Additional Advocate-General."
44. The case-law as discussed above fully shows that, if the incumbent has been declared successful by the Commission authorised to recruit him, and on recommendation by the Commission to the concerned authority for their appointment, a vested right has been accrued in favour of the recommended and the said right could not be disputed, denied or challenged without assigning any just and sufficient reasons. Even the ban imposed by the Government on the recruitment could not be pleaded as a defence by the said authority to whom the recommendation for appointment of the successful candidates, has been made. In the present case, we found that the respondent No,2 has not assigned any just, sufficient and plausible reasons to deprive of the petitioners from their legitimate right of the appointment for the posts applied by them under the vague defence of ban imposed by the Federal Government which defence was not available to the respondent No,2 for the reasons that before imposing any ban by the Federal Government, the petitioners were declared successful and qualified for the posts, for which they had applied and mere departmental formalities remain to observe for issuance of their appointment letters.
45. The contention of the learned Counsel for the respondent that the petitioners had applied in Petition No,737 of 2008 before the learned Lahore High Court to join them as parties, which was decided against them which creates res judicata under section 11, C.P.C, but in our humble opinion, the said plea of res judicata is also not available to the respondents Nos. 1 and 2 for the reasons that case of the petitioners was not decided by the learned Lahore High Court on merit, nor even they were impleaded as a party, because no such order by the learned Lahore High Court is available on record to show that the petitioners were impleaded as party in that writ petition as such, it could not be said that the case of the petitioner was finally decided in Writ Petition No,737 of 1998 by the Lahore High Court, as such, in any manner, bar of the res judicata is not attracted to the circumstances of the present case. We have also gone through the judgment passed by the learned Single Bench of the Lahore High Court in Writ Petitions Nos.737 of 1998 and 14693 of 1997, and found that the learned Judge of the Lahore High Court while relying upon the case of Syed Nuzhat Abbas Jaffery v. Government of Sindh reported in 1993 PLC (C.S.) 470 was pleased to dismiss these petitions wherein it was observed that after offer of appointment to the petitioners, formal appointment orders were issued by the respondent, which were accepted by the petitioners, which is not the case in hand, as in the present case, neither the appointment orders have been issue by respondent No,2 in pursuance of the recommendation made by respondent No,3 dated 23-10-1996 nor the petitioners have refused to accepted the said appointment letters, as such the case of Syed Nuzhat Abbas Jaffery is not applicable to the circumstances of the present case.
46. ' For the aforesaid reasons and circumstances, we are of the considered opinion that respondent No,2 under the vague plea of ban allegedly imposed by the Federal Government on appointment in the financial institutions, has refused to process the case-of the petitioners, which ban, as discussed above, was not available to them for the reasons that before imposition of said ban on the appointment by the Federal Government, the petitioners were already declared qualified for their appointment along with other candidates who were recommended by respondent No,3 to respondent No,2, and some of them were appointed by respondent No,2, which is manifest from the judgment of the learned Lahore High Court, available on record, as such, the respondent No,2 has discriminated the present petitioners. The petitioners, under the peculiar circumstances are, therefore, entitled for the relief claimed by them in the present petition. The petition is, therefore, allowed with the direction to respondent No,2 to issue the appointment letters in favour of the petitioners within fortnight. The seniority of the petitioners shall be regulated according to the seniority fixed by the PB&FSC in the list of the successful candidates, communicated to the respondent No,2. Since the intrinsic point of interpretation of the provisions of Act 1992 was involved in the matter, as such, we will leave the parties to bear their own cost.