MALIK SAEED EJAZ. J.--- This single judgment shall dispose of Writ Petition No.2811 of 2007, Writ Petition No.2703 of 2007, Writ Petition No. 2803 of 2007, Writ Petition No.2537 of 2007, Writ Petition No.1209 of 2007, Writ Petition No.817 of 2007, Writ Petition No.590 of 2007 and Writ Petition No.718 of 2007 because all arise out of similar facts and circumstances.
2. The brief facts are that respondent/Principal Nishtar Medical Institution Multan invited applications through advertisement flashed in daily "Nawa-e-Waqt", to fill in the various posts of Assistant Professors (BS-18), Associate Professors (BS-19) and several other positions in different disciplines, on contract basis, initially for three years which was however, extendable up to 5 years.
This process of selection was to be carried out through a formally constituted Special Selection Board. The petitioners all these eight writ petitions applied for respective posts and fulfilment of all the formalities, the petitioners of Writ Petition No.2811 of 2007, Writ Petition No.2703 of 2007, Writ Petition No.2803 of 2007, Writ Petition No.2537 of 2007, were recommended by the Special Selection Board and their cases were sent to the Secretary to the Government of Punjab Health Department, Lahore for issuance of proper appointment notifications in their favour. The petitioners of Writ Petition No.1209 of 2007, Writ Petition No.817 of 2007, Writ Petition No.590 of 2007, Writ Petition No.718 of 2007, are those candidates who although had also applied for respective posts but they were not selected/ recommended by the Special Selection Board, as such, their cases were not further transmitted to the respondent Secretary Health. It so happened that when cases of the recommended candidates were placed before the Secretary Health Government of Punjab, he through an impugned order dated 25th of April, 2007 scrapped the entire recruitment process at Nishtar Medical College, Multan and directed to re-advertise the posts. The said impugned order/letter reads as under: "I am directed to refer to your Letter No.3193/NML, dated 6-2-2007, on the subject noted above and to state that the Competent Authority in accordance with powers vested on him under clause 17(iv)
Recruitment Policy 2004 has scrapped the recruitment process at Nishtar Medical College, Multan and allowed to re-advertise the posts vide Chief Minister's Secretariat Letter No.2474 dated 9-4- 2007."
Against stoppage of issuance of appointment letter and re-advertisement of posts, the petitioners of first four writ petitions have brought these writ petitions, challenging the above order/letter of the Secretary . Health, whereas, the petitioners of latter four writ petitions have assailed the earlier very recruitment process, wherein, their names were not even recommended to the Secretary Health by the Special Selection Board.
3. Now, to further simplify the situation, even the petitioners of the first four petitions (Writ Petition No.2811 of 2007, Writ Petition No.2703 of 2007, Writ Petition No.2803 of 2007, Writ Petition No.2537 of 2007), can be categorized in following three different sets:-- First Category: These are the petitioners who applied for the vacant posts, there was no rival contestant against them and even after A recommendations of their names, no complaint was lodged from any quarter, against such recommendations by the Special Selection Board; Second Category: These are the petitioners who applied for the vacant seats, there was a contest between them and the other losing candidates, but after their selection by the Board, no complaint was filed against them; Third Category: This category includes those petitioners who applied for vacant posts, there was contest between them and other losing candidates and after their selection by the Board, complaints were also filed against their recommendations of their names.
4. The learned counsel representing the first category of the petitioners, against whom neither their was any contest nor any body moved any complaint against their selection by the Board, contend that the respondent/Secretary Health, Government of Punjab acted in arbitrary manner by upsetting the entire process of recruitment, especially to the extent of these petitioners as according to them there being no other candidate, the Selection Board was not even obliged to prepare the merit list. It was further contended that there was also no complaint against this category of the petitioners and they otherwise, fulfilled the criteria as set through the advertisement and also they fully meet with the requirements of the Recruitment Policy.
5. Similarly, the learned counsel representing the other two categories of the petitioners also hotly challenged the impugned order/letter of the Secretary Health by contending that had there been any miscalculation or any inadvertent omission on the part of the Selection Committee, the Secretary Health at the most could return their cases to the Selection Committee for reconsideration in the light of the objections if any raised by the rival contestants or the Secretary Health, but it was in no way justifiable to upset the entire recruitment process by one stroke of pen.
5-A. Conversely, the learned Assistant Advocate General assisted by representatives of the departments and also the learned counsel representing the petitioners of Writ Petition No.1209 of 2007, Writ Petition No.817 of 2007, Writ Petition No.590 of 2007, Writ Petition No.718 of 2007, supported the impugned letter/order of the Secretary Health by arguing that said order was passed in a proper manner as the Selection Board had not complied with the terms laid down in the Recruitment Policy while recommending the names of those who were not eligible.
6. I have heard the learned counsel for the respective parties, at considerable length and have gone through the entire record with their assistance.
7. All the parties are at consensus that advertised posts were to be filled in on contract basis, however, this period was further extendable, to two years and thereafter, appointments were to be made afresh through a separate advertisement,. It is also not disputed that all the candidates had applied for vacant posts, pursuant to the Recruitment Policy 2004, as it was in vogue at the relevant time. Clause 11-C of the said Recruitment Policy-2004 is in fact the clause, which deals with the recruitments in the cases in hand i.e. Criteria for posts in BS-11 and above. To further scrutinize the cases of all the petitioners, either they have been selected or ignored by the Selection Board, the said Clause 11-C of the Recruitment Policy-2004 is reproduced hereunder"
"C. Criteria for Posts in BS-11 and above Total mark 100 Maximum Marks 60
(i) Educational qualification
(a) Where prescribed minimum qualification is:-- A+ GradeA GradeB GradeC GradeD GradeE Grade 1Matric60 55 50 40 35 30
(b) Where prescribed minimum qualification is intermediate/ equivalent: -- A+ GradeA GradeB GradeC GradeD GradeE Grade 1Intermediate 67%40 37 33 27 23 20 2Matric 33% 20 18 17 13 12 10
(c) Where prescribed minimum qualification is bachelors degree/ equivalent:- 1st Div.2nd Div.3rd Div.
1Bachelor 50% 30 28 20 2Intermediate 33%20 18 13 3Matric 17% 10 9 7
(d) Where prescribed minimum qualification is Master Degree/ equivalent:-- 1st Div.2nd Div.3rd Div.
Masters 50% 30 28 20 Bechelor 25% 15 14 10 Intermediate 17%10 9 7 Matric 8% 5 4 3
(ii) Higher qualificationMaximum Marks 15 in the relevant field Next above the qualification prescribed under the rules- 1One stage higher08 2Two stages higher12 3Three stages higher15
(iii) Position in the Board/UniversityMaximum Marks 05 in the Prescribed Qualification.
11st Position05 22nd Position03 33rd Position02
(iv) InterviewMaximum Marks 20 Note (1) In all the three above mentioned categories, 5 additional marks shall be awarded to Hafiz- e-Qur'an/Ex-Servicemen.
(2) Departments may change the selection criteria for specific specialized posts, if required, but the criteria must be clearly elaborated in order to ensure transparency in the selection process and should be got approved from the Chief Minister."
8. Now keeping in mind the criteria for selection as mentioned above, it is noted that the impugned order of the Secretary Health is absolutely silent as to what clause or condition of the said Recruitment Policy was violated by- the Special Selection Board and the only excuse or explanation is that matter has been referred to the Chief Minister through a summary for re-advertising all the posts. A copy of the said summary has been produced in court by the learned Assistant Advocate- General, but this document by no means can be read or considered to be part of the impugned order. The position remains the same that the said impugned order, as has been reproduced above, does not point out even a single case of illegality or irregularity in the selection process adopted by the Special Selection Board. In such a situation, it was not legally justifiable to strike down and scrap the entire process of recruitment through an arbitrary, non-speaking and fanciful order, without assigning any reasons whatsoever for such a bureaucratic attitude. If at some complaints were made to the Secretary Health about selection on the ground that criteria as laid down in the Recruitment Policy-2004 was not strictly observed, the best course for the Secretary Health could be to scrutinize each and every case and if ultimately he was of tentative opinion that some objections were valid, then he could refer the matter back to the Special Selection Board for strict observance of the said Recruitment Policy-2004. But striking down the entire selection process by himself, is an action which is a clear indication that in fact the entire process was upset for ulterior motives and mala fide intents, for obvious reasons to accommodate their blue-eyes.
This exercise is not only against the principles of natural justice, but is also derogatrory to the Constitution of Islamic Republic of Pakistan, 1973. Further, just a few lined order of the Secretary Health, impugned herein, is also violative of provisions of the General Clauses Act, as before passing such an order, he was supposed to apply his independent mind and must have assigned reasons to justify his order. This specifically was the purpose and intent of the legislation to include section 24-A in the General Clauses Act, which provision now makes it obligatory for every public functionary to issue notice to the party before making any adverse order against him and the order should also reflect reasons for its making. Reliance in this respect is placed on the case reported as Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268. This court while exercising its powers of judicial review can take cognizance of such matters as held in the cases reported in PLD 1993 Lah. 141 and PLD 1989 SC 166, holding that: "Judicial Review: Functionaries of the State, statutory body, corporations are required to act strictly with the defined spheres of their authorities under the law, in case of transgression of powers, abuse of powers colourful exercise of power of such functionaries, the exercise was open to correction in constitutional jurisdiction."
In view of the above, the impugned order of the Secretary Health is set at naught by declaring it to be purely illegal and without lawful authority.
9. After having held so, firstly I would like to take up the cases of the petitioners category wise. The petitioners of the first category were the only candidates who applied for certain posts, without there being any other contestant, and furthermore, no complaint whatsoever was lodged from any quarter about alleged non-application of the above recruitment policy. Otherwise, on Court query it is admitted by the learned counsel representing the respondent/department the petitioners of the First Category did possess the requisite minimum qualification to be selected for the vacant posts. So, therefore, in such a situation, it was highly improper rather extremely deplorable on the part of the Secretary Health that without their appointment letters, without considering the above noted two crucial facts, and to throw them out just with one stroke of pen through the impugned order. The purpose of flashing a detailed recruitment policy was in fact to prepare a merit oriented list amongst all the contestant candidates and thereafter to pick the best amongst the lot, for selection to the job. Where there was only one candidate for one seat, who was otherwise fully eligible for the said post, then even if some formal procedural lacuna existed, it could very conveniently be ignored, as it was not effecting the right of any one else, because even otherwise, none had come forward to challenge the selection of the petitioners of the first category. There is yet another aspect of the matter that so-called lapses pointed out by the learned Assistant Advocate-General are such that these would by no means disturb or question the skill of these petitioners to perform the jobs, for which they have been recommended by the Special Selection Board, and furthermore, whatever policy was adopted by the Special Selection Board, in the above circumstances, it would also not affect the case of the present petitioners as it is not going to infringe the right of anyone else.
10. Here to the extent of these petitioners the point is very simple; a competent authority issued circular inviting applications for vacant posts; the petitioners of first category did file their applications and there was no other contestant against them. There is also no dispute to the fact that after due process, the petitioners of the first category have been declared successful by a competent Special Selection Board and their names were recommended to the Secretary Health for issuance of formal appointment letters. After completion of all above exercise there existed no legal justification for the. respondent/Secretary Health to withhold their appointment letters. While holding so, Clauses 13(iv) and (vii) .of the Recruitment policy-2004, are referred, the said relevant provisions are reproduced as under:-- "13(vi) The relevant Selection Committee shall conduct test/interview and recommend suitable candidates for appointment, strictly on the basis of merit/selection criteria, to the appointing authority;
(vii) The Appointment Authority, shall issue offer of appointments to the candidates recommended by the Selection Committee, clearly indicating the terms and conditions of such appointment."
The above reproduced clauses make it abundantly clear that after recommendations by the Special Selection Board, the discretion was no more left with the Appointing Authority to refuse or withhold the issuance of offer letters in favour of the recommendees.
11. There is yet another important aspect of the case, that by going through the entire process and ultimate recommendations of their names by the competent Special Selection Board the petitioners of the first category had earned a legal and legitimate expectancy to be appointed as such, which right cannot be taken away or rescinded to their detriment, summarily without pointing out any abuse of process of law. On this score also the Secretary Health was not justified to upset their valid recommendations. In the case Muhammad Ismail and others v. Secretary Education, Government of Punjab and another 2006 PLC (C.S.) 112, it has been held "that the authority passing or making order, no doubt had the power to recall, modify or cancel the said order. The said power was subject to exception that where the order had taken legal effect and in pursuance thereof certain rights had been created in favour of an individual, such order could not be withdrawn or rescinded to the detriment of those rights." Similarly, in the case Samia Rashid and another v. Vice- Chancellor, Azad Jammu and Kashmir University, Muzaffarabad and others 2000 YLR 1422, it has been held as under:- S.21-General Clauses Act-Locus Poenitentiae.---Principle of locus poenitentiae could be invoked by Competent Authority till the time the decisive stage was not reached---If it was proved that the order was conveyed and acted upon, then a valuable right would accrue to the party and such party could not be deprived of vested right by the Authority."
In the above circumstances, there is no doubt about the fact that retrieve by the department from earlier valid process and issuing fresh invitations without their being any legal justification, is not only an illegal act but also void and without jurisdiction. Therefore, to the extent of the petitioner of the First Category, it is held that the competent authority shall at once initiate the further process by issuing offer of appointments to them.
12. As regards the petitioners of Second Category, against whom there was a contest but after their selection by the Special Selection Board no complaint was filed, it is observed that their cases shall be considered by the Secretary Health on case to case basis after hearing the other contestants, if at all, they chose to oppose the selection of the petitioners of this category. In case the selection of these petitioners is assailed by their opponents before the Secretary Health and he forms an opinion that some error did crept in, he would refer the cases of every individual to the Special Selection Board for fresh consideration, at the earliest to ensure that criteria as laid in the Recruitment Policy, in vogue is strictly observed.
13. Similarly, the cases of the petitioners of Third Category, against whom there was contest and even after recommendations of their names by the Special Selection Board, complaints were also filed, it is held that the Secretary Health shall hear the aggrieved persons, who were ignored during selection process and also consider the complaints already filed and then if he finds some substance in the objections or complaints, he may refer only the concerned parties to the Special Selection Board for reanalysis of their cases, at the earliest, by strictly observing the criteria of the Recruitment Policy, in vogue.
14. As regards the petitioners of Writ Petition No. 1209 of 2007, Writ Petition No. 817 of 2007, Writ Petition No.590 of 2007, Writ Petition No.718 of 2007, who all are those persons who did apply for the vacant posts, but they were not selected by the Special Selection Board, they shall also plead their respective cases before the Secretary Health, on the above lines.
15. All these eight writ petitions Writ Petition No. 2811 of 2007, Writ Petition No. 2703 of 2007, Writ Petition No. 2803 of 2007, Writ Petition No. 2537 of 2007, Writ Petition No. 1209 of 2007, Writ Petition No. 817 of 2007, Writ Petition No. 590 of 2007, and Writ Petition No. 718 of 2007 are disposed of with above directions and observations.