' ASAD MUNIR, J.--- The facts giving rise to this writ petition are that the petitioner, who is presently working as a Director in Pakistan Council of Scientific and Industrial Research, obtained his Ph.D. In 1987 under UNESCO Fellowship whereafter the petitioner was awarded and completed three Post Doctoral Fellowships under UNIDO Trieste, Italy, Kyung-Hee University, Seoul, South Korea and Biotec Thailand. Among other qualifications, the petitioner is said to have completed nine International Professional Courses/Trainings from various countries and Advance Management Course besides having been awarded the Certificate of Excellence and Appreciation by the Director R&D and Dean Kyung-Hee University, South Korea.
2. On 29-10-2008, an advertisement was published in the press by the Ministry of Science and Technology ("the Minsitry) inviting applications for appointment to the post of Chairman, Pakistan Council of Scientific and Industrial Research ("PSCIR"), in BS-22. In response, forty-two (42) candidates including the petitioner, who was at that time working as a Deputy Chief Scientist/Director Technical in Pakistan Atomic Energy Commission, applied for the post. Out of the forty-two (42) candidates who applied, twenty six (26) candidates including the petitioner were short-listed but only twenty two (22) appeared for the interview on 31-7-2008 before a 7-Member Selection Board, headed by the Secretary Ministry of Science and Technology, comprising Joint Scientific Adviser, Ministry of Science and Technology; Electronics Adviser, Ministry of Science and Technology, Chairman, Pakistan Council for Science and Technology, Rector, COMSATS, Institute of Information Technology; Joint Technical Adviser, PCSIR and Deputy Secretary Ministry of Science and Technology.
3. Selection Board found the petitioner to have the higher merit among the candidates and recommended his name for appointment whereafter on 17-1-2009 the Ministry through the Establishment Division submitted a summary to the Prime Minister of Pakistan for approval of the appointment of the petitioner as Chairman, PCSIR. On 26-1-2009, the Prime Minister finally approved the proposal made in the summary for the petitioner's appointment as Chairman PCSIR.
The aforementioned approval of the Prime Minister for appointment of the petitioner as Chairman PCSIR was sent back to the Ministry on 28-1-2009 with a copy of the same endorsed to the Establishment Division.
4. However, the said approval for appointment of the petitioner as Chairman, PCSIR, was not acceptable to the Minister of Science and Technology and the Secretary, Ministry of Science and Technology both of whom had taken over the charge of the Ministry on 29-1-2009. Accordingly on 11-2-2009 a revised summary was submitted by the Ministry, not through the Establishment Division, but directly to the Prime Minister who on 22-2-2009 reviewed his earlier approval of appointing petitioner as the Chairman, PCSIR. Thereafter, on 4-3-2009 the Ministry re-advertised the post of the Chairman, PCSIR, by changing the qualifications the post as had been advertised earlier in October, 200$. The change in qualifications consisted of lowering the minimum qualification from Ph.D. To B.Sc., the maximum age of 55 years was replaced by minimum age of 50 years and the minimum 20 years' experience in specialization as modified to minimum 20 years' experience in the administration and management of R&D/Scientific/ Technical Organizations.
5. Similarly, the approval of appointment of Dr. Muhammad Aslam Tahir as the Chairman, Pakistan Council of Research in Water Resources ("PCRWR"), granted by Prime Minister on 26-1-2009, was reviewed and withdrawn.
6. It appears from the record that the withdrawal of the approvals in respect of the aforesaid two appointments came to the notice of the Standing Committee on Science and Technology in the National Assembly and pursuant to Rule 224(1) of the Rules of Procedure and Conduct of Business in the National Assembly 2007, the said Standing Committee in its meeting held on 28-5-2009 constituted a Sub-Committee, comprising Mrs. Justice (Red.) Fakhar-un-Nisa Khakhar as its Convenor and Pir Syed Fazal Ali Shah Jilani and Mr. Mahmood Bashir Virk as its members to review the process of nomination of the Chairman of PCSIR and that of PCRWR and to formulate the strategy to settle the issue internally.
7. The Sub-Committee probed the matter and submitted its report dated 8-7-2009,' the concluding paragraph whereof is quoted hereunder: -- "After hearing both the parties and taking note of both the advertisements published in the newspaper the qualification given in the earlier and later advertisement show that there is some hidden hand to accommodate someone with the much lesser qualification. Moreover, the Secretary, Ministry of Science and Technology openly admitted that the revised summary was not processed through Establishment Division. This is a glaring illegality on the part of the Ministry while submitting the revised summary to the worthy Prime Minister. The reasons given in the revised summary are not cogent and have no legal substances as both the candidates possessed much higher qualifications in the field for which they were interviewed. The Committee is of the unanimous view that a grave injustice is done to both the candidates in order to accommodate someone of their choice. The revised summary without being processed in the Establishment Division is also illegal and of no legal effect."
8. The Sub-Committee's Report dated 8-7-2009, was placed consideration before the Standing Committee on Science and Technology who, as is evident from the minutes of its meeting dated 11- 8-2009, "unanimously approved the report of the Sub-Committee" and "recommended that the concerned Ministry should resolve the issue amicably under the light of approved report of the Standing Committee."
9. Through this constitutional petition, originally filed in the erstwhile Islamabad High Court on 24- 2-2009, the petitioner seeks a writ of mandamus to direct respondent No,2 to issue the notification of the appointment of the petitioner as the Chairman, PCSIR. In support of the writ petition, it is contended that once the approval of the Prime Minister was conveyed to the Ministry, it was its duty under Rule 15 of the Rules of Business, 1973 to obey and implement the order of the Prime Minister by issuing the requisite notification of the appointment of petitioner and that the failure to do so on the part of the respondent No,2 is totally unjustified and unlawful as he has been selected and recommended for appointment as the Chairman, PCSIR, by the Selection Board who found him the best candidate on merit among the 40 persons who had applied for the post.
10. Respondent No,2 has filed its parawise comments wherein it is asserted that the writ petition is not maintainable as the petitioner has no right to be appointed as Chairman, PCSIR, as the approval for his appointment, granted by the Prime Minister on 26-1-2009, was withdrawn by the Prime Minister on 22-2-2009 in the light of the fresh summary moved by the Ministry after the Minister for Science and Technology took charge on 29-1-2009 and felt that there were a variety of reasons to seek review of the earlier approval. A report was also requisitioned from the Establishment Division who have taken the stand that the petitioner has no legal right or cause of action as neither the process of his appointment had been finally completed and approved nor anyone else has been appointed to the post in question and that in any case, it is the right of the Government to fill or not to fill a post even after selection of a candidate if it is of the view that the selection is not merit-oriented or subject-oriented or would not achieve the requisite purpose.
11. In order to address the grievance raised in this writ petition, it will not be out of place to refer to the findings of the Sub-Committee which was formed by the Standing Committee of the National Assembly on Science and Technology. The three Member Sub-Committee, headed by Mrs. Justice (Retd.) Fakhar-un-Nisa Khokhar, submitted its report dated 8-7-2009 to the Standing Committee who appears to have approved it unanimously. In its findings, reproduced in para 6 above, the- Sub-Committee has concluded that "the qualification given in the earlier and later advertisement show that there is some hidden hand to accommodate someone with the much lesser qualification" and that there was glaring illegality as "the Secretary, Ministry of Science and Technology openly admitted that the revised summary was not processed through Establishment Division.
12. I have every reason to agree with the finding of the Sub-Committee "that there is some hidden hand to accommodate someone with the much lesser qualification for the simple reason that when the petitioner appeared for the post of Chairman, the minimum academic qualification for the post was Ph.D. But the later advertisement issued on 4-3-2009 lowered the minimum academic qualification to B.Sc. According to the Ministry, the revised summary for reviewing the appointment of the petitioner was made in public interest as the petitioner did not have adequate qualifications. Such an assertion is self-contradictory as appointing a less qualified person could by no means be in public interest but had to be in someone's personal interest. The plea of the Ministry that till someone is appointed, the apprehensions of the petitioner are premature does not explain as to by the academic threshold was in the first place lowered not just one step but at least two steps. Everyone knows that after B.Sc. The next higher academic qualification is M.Sc. Only whereafter one can pursue Ph.D. Either with or without a M.Phil degree. The public interest argument would have certainly carried weight if the minimum academic qualifications had been improved and set higher than before. Thus, no valid or even rational reasons have been advanced to justify the submission of fresh summary against the appointment of the petitioner and the re- advertisement of the post.
13. Rule 11 the Rules of Business, 1973, was also not followed and the revised summary was submitted to the Prime Minister directly instead of being routed through the Establishment. In this regard, reference can be made to Serial. No,7, of Chapter 1 at page 19 of ESTACODE which is quoted hereunder:--- "Constitution with Establishment Division in matters relating to appointment promotions deputations etc. In accordance with Rule 11 of Rules of Business. "no Division shall, without previous consultation with the Establishment Division, issue or authorize the issue of any orders which involved a change in the terms and conditions service of federal civil servants". This provision in the Rules makes it obligatory for the Ministries/ Divisions to consult the Establishment Division, in matters relating to appointment, deputation of civil servants, to any autonomous body or corporation."
14. The grievance of the petitioner is that he has been denied the benefit of the appointment process which was completed in all respects upto the level of the Prime Minister with the formality of issuance of a notification in his favour left to be completed. No valid reasons having been given withdrawing the approval of the appointment, I have no hesitation in saying that the petitioner has been a victim of an arbitrary act which is also a good example of abuse of discretion. It is established law that once process of selection is complete in an ordinary manner it cannot be upset in an arbitrary manner. In my view, this proposition owes its strength from the doctrine of legitimate expectation which in appropriate cases becomes a substantive and enforceable right to provide relief against manifest injustice when an aggrieved person has no statutory right to claim any relief. The doctrine acts as a deterrent for holders of public power from acting unreasonably or exercising their power arbitrarily, and gives an inherent ,right to individuals to save themselves from being victims of the abuse of discretion by the authorities.
15. There have been many reported cases where relief has been granted by our Courts against the abuse of discretion or arbitrary exercise of power in similar circumstances as are present in the instant case. Ir would, thus, be relevant to refer to the case of Dr. Marvi Shah and 9 others v.
Province of Sindh through Chief Secretary and 2 others PLC 2009 (C.S.) 182, wherein the aggrieved persons; who had applied for the jobs of Medical Officers on contract basis, were denied appointment even though they had cleared their written test and had also subsequently passed the interview held by 'the Sindh Public Service Commission. The summary for their appointments was sent by the Sindh Public Service Commission, to' the' Sindh Government recommending their appointments but no appointment letter was issued to candidates. It was held by the Sindh High Court that the process for selection once completed in an ordinary manner could not be upset in an arbitrary manner without any valid reason. In Muhammad Asghar Waseer v. Secretary Local Government 2009 PLC (C.S.) 586, certain candidates were selected after written test and interview the Selection Committee, who, gave a direction for issuance of appointment letters in favour of the , selected persons but upon announcement of General. Elections and a ban on recruitment, the selected persons were not issued the appointment letters. It was held that the, process of the recruitment was complete and all decisive steps had been taken for petitioner's appointment and that lapse or delay in executing a simple clerical or inconsequential formality would rot render such process incomplete as a right had accrued to the petitioners for job against vacancies for which they had been selected. In Munir Ahmad and others v. Ministry for Home and Tribal Affairs, Government of Balochistan,2007 PLC (C.S.) 679, the aggrieved persons after written test and interview were selected and recommended for appointment by the Departmental Selection Committee but no appointment letter was issued to them and the matter was delayed due to the intervention of a Minister, who issued instructions for re-conducting the test and viva voce of the candidates. No reasons having been 'assigned for withholding the appointments, it was held that the act of the authority was arbitrary and could not be approved and that the recommendations of the Selection Committee, though not binding upon the appointing authority, but while rejecting such recommendations there must be some valid reason for rejection otherwise the discretion vested in the competent authority was exercised in an arbitrary manner without application of mind.
16. The foregoing discussion leads me to the conclusion that the withdrawal of the approval of appointment of the petitioner as Chairman, Pakistan Scientific Industrial Research Council was arbitrary and unlawful and after being duly selected, recommended and approved, the petitioner had every right to be appointed to the post.
17. For what has been stated above, the writ petition is accepted and the respondents are directed to appoint the petitioner as Chairman, Pakistan Scientific Industrial Research Council as approved by the Prime Minister of Pakistan on 26-1-2009. Let the necessary notification in this regard be issued without further loss of time. There is no order as to costs.