' MUHAMMAD FARRUKH IRFAN KHAN, J-- Through this judgment I intend to decide both the W.P.
No,5801 of 2010 and W.P.No,8649 of 2010, as identical questions of law and fact are involved in both these petitions.
2. The main grievance of the petitioners is that the respondents filled up various posts in Gujranwala Electric Power Company Limited (hereinafter referred to as "GEPCO") in utter disregard of the recruitment policy, in violation of terms and conditions of the advertisements in the national press and under political intervention/direction in sheer discrimination to the rights of the petitioners.
3. Briefly, the facts of the case as put forth by the petitioners are that the respondent No,3 invited applications for various posts of BPS-1 to 15 through an advertisement in the Daily Jang dated 2-11- 2008. The petitioners having requisite qualification applied for the said posts. On 6-11-2009 the petitioners appeared for interview before the respondent authorities. Despite the fact that the petitioners have high grades in their academic qualifications they were ignored and appointment letters were issued in favour of the candidates recommended by the Federal Minister for Water and Power Development Authority (WAPDA) in complete disregard to the merit policy hence, this writ petition.
4. Learned counsel for the petitioners submits that there are serious irregularities in the recruitment process; that no written test was held as per terms and conditions of the advertisement; that the posts were reserved for the candidates belonging to the area of GEPCO but this vital requirement has been ignored and candidates belonging to other divisions in particular Rawalpindi District have been selected; that the appointments have been made in total disregard to the terms and conditions of the advertisement; that no merit list was prepared after the interview as per policy and as was required in the terms of the advertisement; that out of the total 437 appointees 72 were over age; that the whole process of appointment was a result of nepotism and favourtism; further that the applications of most of the appointees did not bear the signatures of the applicants, were undated and were addressed to the Minister for Water and Power Development Authority which is sufficient proof of illegality, colourable exercise of jurisdiction, mala fide and political influence in the selection process; that the appointments are made in derogation of the merit policy and have deprived the petitioners of their legitimate expectation of being appointed or at least being considered against the said posts on the basis of their qualifications, written test and interview; that the appointments for State jobs are not the personal bounty of any one person and authority and have to be made on merit; that the persons appointed against the posts were not even eligible to be considered as most of them belonged to areas not falling within the jurisdiction of GEPCO, were over age, did not apply in the prescribed manner, within the stipulated time, and have been appointed without observing the due process in contravention of the rights of the bona fide applicants; Finally submits that the appointment orders are violative of Articles 4, 18 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. Conversely, the learned counsel for the respondents Nos.1 to 3 submits that the respondent No,2 is a public limited company and is not governed by any statutory rules, therefore, this Court lacks the jurisdiction to entertain matters against it under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973; that what has been raised in the instant petitions are matters of factual controversies which cannot be resolved in the Constitutional jurisdiction of this Court; that the selection procedure followed by the GEPCO/respondents Nos.1 to 3 is based upon the policy of the Government and the documents were scrutinized in terms of the Service Rules; that a Selection Board recommended the candidates who fulfilled the requisite criteria and also were found to be on merit by the Chief Executive Officer after due scrutiny and evaluation; that only filing of applications for the said posts cannot create any vested right in favour of the petitioners; that no doubt according to the terms and conditions of advertisement, the seats were reserved for the inhabitants of the area of GEPCO, but the applications were received from all over the Punjab, therefore, keeping in view the policy of PEPCO dated 11-10-2009 (Annexure "R/4" to the parawise comments dated 14-4-2010) opportunity was given to the candidates from all over the Punjab; that the person who publishes an advertisement can change or modify the terms of the same at any stage; that a corrigendum in this regard has also been published in various newspapers; that a written test was not conducted because about "hundred thousands" candidates applied for the said posts and keeping in view the law and order situation in the country the competent authority decided not to conduct the written test (Annexure:R/2 dated 15-10-2009 of the parawise comments); that according to the policy competent authority can grant relaxation in the upper age limit upto ten years; that all the appointments were made in an open and fair manner without violating the constitutional provisions in the selection process; that merit was the only criteria for the selection of candidates who fulfilled all other requirements laid down by the honourable Superior Courts of the country which has been followed in the selection process by GEPCO/respondent; that no appointment was made on the recommendation of the Minister for Water and Power Development Authority.
6. I have heard the arguments and have gone through the record of the petitions. I find it essential to deal with the question of maintainability of these petitions first.
7. It is an admitted fact that the petitioners applied for the posts advertised by the respondent No,3 but were not recruited, therefore, they do not fall within the category of a civil servant and as such the bar A contained in Article 212 of the Constitution does not apply while dealing with the instant constitutional petitions. Reliance in this regard is placed on Ahmad Salman Waris v. Nadeem Akhtar PLD 1997 SC 382.
8. As to the other contention of the learned counsel for the respondents Nos.1 to 3 that respondent No,2 is a public limited company whose service rules are not statutory in nature as such the jurisdiction of this Court under Article 199 of the Constitution cannot be invoked against the said respondent-company. In order to deal with this postulation it is essential to make a reference to sections 3, 4, 5, 6, 8(2) (ii) and 8(5)(a) of the Water and Power Development Authority Act, 1958 which are reproduced as under:--- Constitution of the Authority.--- (1) There shall be established an Authority to be known as the Pakistan Water and Power Development Authority for carrying out the purposes of this Act.
(2) The authority shall be a body corporate, shall be entitled to acquire, hold and dispose of property, shall have perpetual succession and a common seal and shall by the said name sue and be sued.
(3) The Federal Government may, from time to time, issue such directives as it may consider necessary on matters of policy and the Authority shall comply with such directives and if a question arises whether any directive relates to a matter of policy, the decision of the Federal Government shall be final."
4. Appointment and term of office of Chairman and Members.---(1) The Authority shall consist of a Chairman and not more than (three) Members appointed by the Government: ' Provided that till such time as the Authority is fully constituted, the Chairman shall exercise the powers, functions and duties of the Authority.
(2)
(3)
(4) The Chairman or any Member may at time resign: provided that his resignation shall not take effect until accepted by the Government.
5. Remuneration and conditions of service.--- The Chairman and each member shall receive salary and allowances and be subject to such conditions of service as may be prescribed by the Government, and shall perform such duties as are assigned to them under this Act or by any Regulations framed under it.
6. Removal of Chairman or Member.--- The Government may by notification remove the Chairman or any Member---
(a) if he refuse or fail to discharge or becomes in the opinion of the Government, incapable of discharging his responsibilities under this Act; or
(b) if he has been declared insolvent; or
(c) if he has been declared to be disqualified for employment in or has been dismissed from the service of Pakistan, or has been convicted of an offence involving moral turpitude; or
(d) if he has knowingly acquired or continued to hold without the permission in writing of the Government, directly or indirectly or through a partner, any share or interest in any contract or employment with or by or on behalf of the Authority, or in any land or property which, in his knowledge, is likely to benefit or has benefited as a result of the operation of the Authority.
8(2)(ii). General powers and duties of the Authority and framing of Schemes.--- (1)
(2)
(3)
(4) the generation, transmission and distribution of tower; and the construction, maintenance and operation of power houses and grids 8(5)(a) undertake any joint venture or work in association with the Provincial Government, and agency, corporation, company, authority or any person and may subscribe to the equities and acquire such other rights and obligations as may be necessary for such joint venture or association."
9. A perusal of the above provisions makes it quite clear that the Government or the Competent Authority to carry out the functions of the Federation may frame schemes for a Province or any part thereof providing for inter alia, the generation, transmission and distribution of power. The respondent No,2 and seven other distributing companies were thus created to perform the functions in connection with the affairs of the Federation.
10. The primary test as to whether a body politic or a body corporate may be regarded as a person performing functions in connection with the affairs of the Federation or a Province is laid down in the case of Salahuddin versus Frontier Sugar Mills and Distillary Ltd. PLD 1975 SC 244, which requires
(i) Whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii) Whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) Whether the bulk of funds is provided by the State.
' Further what has been laid down in the case of Aitchison College, Lahore through Principal v.
Muhammad Zubair PLD 2002 SC 326 also applies squarely to the respondent No,2 as it is performing the functions of the State involving exercise of the public powers.
11. Moreover, from the very conduct and the stance taken by the respondent No,2 in its pleadings, the following floats to the surface:---
(a) the advertisement dated 2-11-2008, inter alia, states that. {{URDU TEXT}}
(b) It is the case of the respondents Nos.2 and 3 in para 3 of their parawise comments dated 14-4- 2010 "That the procedure for selection followed by GEPCO Limited is based upon the policy of the Government";
(c) In paragraph 5 of the parawise comments it is stated that "thereby it was decided in terms of the policy of the Government, sent by PEPCO through letter dated 11-12-2009 (Annexed "R/4") to expand the process of selection of the candidates in terms of this policy of the Government of Pakistan";
(d) The annexure R/4 being a letter from PEPCO states "please find enclosed a letter No,1(17)2007- I&C dated 23-11-2009 on the subject received from Section Officer (I&C), Ministry of Water and.
Power, GOP, Islamabad, for information and strict compliance";
(e) The Annexure "R/2" is the direction from the Ministry of Water and Power through PEPCO which reads as follows:--- "It has been brought to the notice of Minister of Water and Power that PEPCO is following Recruitment Policy adopted from WAPDA, that is based on GOP Policy parameters like open advertisement of the vacancies in the National Press and conducting the written tests and interviews of the eligible candidates, a process not likely to complete within 4-5 months even if given straight going. The job has become difficult on account of overwhelming response of the candidates for the advertised vacancies i.e, running in hundred thousands. Still another very serious concern is one the law and order situation as prevalent in the country, where holding of written test in congregation of thousands of candidates is not without serious life threats. There is a rising trend of the insurgency and terrorism where mass gatherings are the obvious and easy targets for the miscreants. It has been deemed appropriate to avoid providing any chance to terrorists by avoiding holding of gathering of candidates for written tests on certain places and venues.
' The position has been discussed and brought in the notice of Minister of Water and Power and in the view of the aforementioned circumstances, it has been advised to fill 50% of the vacancies in BPS-1-16 on immediate basis in accordance with the Recruitment Policy with unavoidable exception, where required. Additionally, the Minister of Water and Power has also been kind to allow recruitment against vacancies for Engineers and Officers of Common Cadre (BPS-17) including those pertaining to Revenues, Accounts and Audit etc." (the underlining is mine)
Therefore, it is established from the exercise carried out hereinabove that the respondent- company is entrusted and performing functions which are undoubtedly functions of the State involving exercise of public and sovereign power, where control vests exclusively in the hands of the Government. All the Directors, Chief Executive and the Chairman of the respondent No,2 are nominated members/employees of PEPCO/Water and Power Development Authority and are to hold office at the pleasure of PEPCO/ Water and Power Development Authority. These Directors have no discretion to do any act or process or formulate any policy independently without the prior approval of PEPCO/ Water and Power Development Authority. Although nothing has been adverted to in this regard by the learned counsel for respondents Nos.1 to 3, it can be safely assumed that all the funds are also provided by the State for carrying on of its functions to respondent No,2. Thus a corporate veil or layers of hierarchy would not be sufficient to hide the very engine which runs the entire system of the respondents Nos.1 to 3 being none other then the Federal Government.
Therefore, this Court holds that the respondent Nos.1 to 3 are amenable to the writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
12. Now let me proceed further to consider the merits of the case and begin with the examination of the requirements for the applicants for the posts advertised for 34 various designations in the advertisement dated 2-11-2008. The relevant provisions to be considered being (b) and (c) are reproduced below:- {{URDU TEXT}}
13. The conditions ibid stated in the said advertisement find their basis in the guidelines of the respondent No,2 for recruitment of staff which are reproduced, for ease of reference, as under:---
(a) ..........................................................................................
(b) Advertisement in the electronic media/national newspapers (at least in 2 dailies) will be made with 30-days notice and on Sundays only.
(c) .............................................
(d) Posts for various Grade i.e, (BPS-1-15) will be advertised.....
(e) .........................................................................................................................
(f) All appointments are to be made strictly on Merit basis on experience/academic/ technical qualification.
2. Objective/Trade test will be organized for all advertised post by the respective formations, where considered necessary.
3-b or all advertised posts: Selection Board will be as per WAPDA Service Rules.
5. Domicile ' All direct recruitees should be domiciled of the Region (Area Electricity Board/Province) where the posts exist, as per existing policy.
BPS-3-15. As far as possible, recruitment in Head Office, Power Stations and Dams is made on all Pakistan basis according to the Provincial Quota prescribed by the Federal Government.
9. The appointing authority may not disagree with the recommendation of the Selection Board without cogent reasons. Waiting list if any shall remain effective for a period of three months.
14. According to the policy given in the Water and Power Development Authority Office Memorandum dated 19-11-2003 paragraph 3 whereof being relevant is reproduced as under:---
3. Merit direct appointment upto BPS-15 will be prepared as under:---
(a) Weightage to written test65 marks
(b) Weightage to interview25 marks
(c) One step worker qualification and about than the prescribed qualification in the relevant service Rules (No weightage to above one step higher qualification).10 marks
15. Therefore, according to the learned counsel for the petitioners by giving this advertisement in the newspapers a promise was made to and a hope was kindled in the petitioners for the appointments on merit. The applications were called for from the candidates belonging to the districts falling within GEPCO region (Gujranwala, Sialkot, Hafizabad, Narowal, Gujrat and Mandi Baha-ud-Din) only, as according to the learned counsel for the petitioners similar posts were advertised for their respective divisions like FESCO, LESCO and MESCO etc. This being based on the rational that candidates from respective divisions are to be employed in the same division circle of the respondents Nos.1 to 3 having its basis in the policy (ibid) of the respondent No,2 requiring that all direct recruitees should be domiciled in the region (Area Electricity Board/Province) where the posts exist, as per existing policy. Thus, the advertisement restricted the said posts to the candidates belonging to the District within the work area of GEPCO and did not extend to the whole of the Province.
16. The respondents Nos.1 to 3 after much persuasion have placed on record a list of district wise recruitments which is reproduced as under:--- (Chart is annexed with this judgment as Mark "A")
17. This chart reveals that out of 437 appointees 254 belong to districts other than GEPCO and in particular out of 254 appointees 242 hail from Rawalpindi district. The learned counsel for the respondents Nos.1 to 3 states that the competent authority decided to expand the recruitment process to all over the Punjab and in this regard a corrigendum was also issued. The Corrigendum published in the newspaper is placed on record which is reproduced as under:--- Corrigendum
(1) Reference advertisement published in the national dailies on 2-11-2008 and 29-11-2008 for recruitment of employees ranging BPS-1 to 17. Last date for receipt of applications regarding above has been extended upto 15-3-2009, while other terms and conditions remain the same.
(2) The candidates, who have already routed applications, need not to apply afresh.
18. This corrigendum did not mention extending the invitation of the applications to the whole of the Province of the Punjab, and in fact only extended the date of receiving the applications upto 15-3- 2009 while stating that the "other terms and conditions shall remain the same". Thus re- emphasizing the respondents Nos.1 to 3's promise that the requirements laid down in the advertisement dated 2-11-2008 would be followed strictly. It is the contention of the learned counsel for the petitioners that the advertisement in the news paper was in fact not only an eye wash but a misrepresentation to the citizens of the area of GEPCO, as the respondents from the very beginning had the intention not to recruit and to follow the conditions laid down therein. The written test was not undertaken and the appointments were made on the basis of recommendations by the Minister for Water and Power Development Authority. Moreover, it is very astonishing that GEPCO area comprises of Gujranwala, Sialkot, Hafizabad, Narowal, Gujrat and Mandl-Baha-ud Din Districts and even in the illegal appointments only 183 candidates could get employment from this area, while from Rawalpindi district alone 242 candidates have been selected.
19. The act of placing an advertisement is called "advertising" (a verb). Black's Law Dictionary (8th Edition) defines advertising as follows:-- "The act of drawing the public's attention to promote it."
' In the case reported as Muhammad Intizar-ul-Hassan v. University of Agriculture, Faisalabad and 2 others 1997 PLC (C.S.) 855 this Court has very elaborately defined the functions of an advertisement for a job. Relevant observations are reproduced herebelow:--- "The purpose of making advertisements for the purpose of recruitment against various posts in the government and public institutions is that fair opportunity should be granted to all eligible persons who may apply and contest for appointment. While on the one hand, it gives an opportunity to the eligible persons to contest for a particular post, on the other hand it gives opportunity to the employer to select the best person for the job in question. The requirement of due publicity of the post in the press is also relatable to the Constitutional guarantee provided by Article 25 of the Constitution, which enjoins that all citizens are equal before law and are entitled to equal protection of law. This means that in the matter of appointments in the Government or Government controlled agencies all eligible 'citizens should have equal opportunity to contest for the appointments against posts in the public sector."
' In the case reported as Amir Hamza v. Government of Balochistan and others 2005 PLC (C.S.) 1201 the honourable Supreme Court of Pakistan in a case where the appellant was denied a job as he did not meet the quota requirement which the Provincial Government issued but was not mentioned in the advertisement despite the said policy being very much in force observed on the sanctity and value of the contents of the advertisement for the post in the following terms:- "The policy having a statutory backing attains the legal status and is required to be adhered to in letter and spirit by all the Departments of the Government, including the Board of Revenue, being one of the Department of the Provincial Government under the Rules of Business, 1976, therefore, they owe a duty to mention in the advertisement about the bifurcation of the posts according to rotation- wise quota of the relevant Divisions."
20. It is therefore to be noted that an advertisement is a promise stating all the rules which the authority undertakes to observe in consideration for giving employment to the most suitable candidate. Ordinarily, there should be no deviation from the said advertisement requirements.
However, for the general good and/or to overcome some legal deficiency if any deviation has to be made from the originally advertised conditions; then such changes should be advertised in the same manner as the original advertisement and also to be notified to each and every applicant, if the process of filling up of the posts has commenced in the meanwhile. This is so, because the authority bringing about the change in the advertised employment conditions has a much more onerous responsibility to discharge once the process of employment has begun and the un- suspecting candidates are drawn into the said process with full vigour and zeal, for some of whom this, may be the start of a new phase in life, placing full trust in the appointing authority and the system prevalent in the country, thus dreaming and planning their future on the basis of their getting through the "advertised" conditions on merits. The Superior Courts of this country have always tried to preserve this "trust" of the society in the procedure to be adopted following `promise' made in the course of an advertisement for employment, admission to an institution etc. To avoid any ambiguity, arbitrariness deviation from transparency and transgression from authority.
Guidance can be had in this respect from the case reported at Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others 1986 CLC 1056 (Karachi) which holds that vested rights accrue to an applicant after the passing of the last date for the submission of documents as stipulated in the advertisement. Relevant quotation is reproduced as below:--- "The determination of such date is necessary as once a vested right is created any amendment in the admission Rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited upto a particular date.
' These applications are considered and scrutinized immediately on the expiry of the last date for their submission. The applicants are then interviewed and selected for admission. In this process for admission the moment date for submission of application expires the applicant becomes entitled to be considered for admission: This seems to be a reasonable and proper approach to the problem. After the expiry of the last date no one can apply for admission. The applicants Are to be considered on the basis of conditions, categories and criteria laid down in the prospectus or rules of admission. If the concerned authorities are allowed to amend the rules or policy after the last date and at any time before the admission process is completed, then it is likely to result in serious abuses, mal practice, manipulation and favoritism. Even if the authority honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injury the reputation and prestige of august bodies like Syndicate. Amendment after the expiry of the date before submission of application is fraught with serious consequences and likely to cause mistrust."
Therefore, there was no moral or legal jurisdiction vested in the respondents to deviate from the conditions as laid down in their departmental policy and/or the advertisements dated 2-11-2008 and 29-11-2008 and to circumvent the procedure as laid down therein to make the appointments in such a brutal massacre of merit and fairplay. Thus trampling upon the spirit of ambition, desire of progress through merit, and taking up the challenges of life in a fair and square manner of thousands of young aspirants of the jobs on merit. Causing a permanent scar on. Their psyche which could encourage them to give up the path of merit and to wander in the fathomless desolation of the hells of illegality, nepotism, corruption and coercion. The above acts are also against the doctrine of "advertising substantion" which linter alia, makes it an unfair and deceptive act to put out an advertisement unless the advertisee first has a reasonable basis for believing that each statement/claim/condition in the advertisement is true and will be followed diligently.
21. This Court also summoned the records of the selected candidates which was provided with much pain and hesitation by the respondents. While examining the said record it was observed.
That most of the applications of selected candidates are incomplete, some of the "so-called applications" are just the testimonials of the applicants without a covering note or the prescribed application form, which appear to have been removed rather hastily from the said records before submission in this Court and some even do not bear the signatures of the candidates.
' This state of affairs is very alarming. The letter of Chief Executive GEPCO, Gujranwala dated 23-1- 2010 is available on the record which depicts that some political forces transgressed their powers and did what they were not supposed to do and the authorities competent to make the appointment in their keenness obeyed their illegal orders, flouted the rules with utmost impunity and crossed all limits of consciousness. No words are strong enough to deprecate this tendency, which has unfortunately seeped into the very foundations of our society, thus slowly creating major fissures which threaten the entire edifice built thereon, resulting in chaos while destroying Governmental departments and similar institutions. The departmental authorities competent to make appointments are expected to exercise their authority and discretion honestly, objectively and in accordance with law without being influenced by any external forces including their superiors. As has been most instructively observed by the apex Court in case reported at Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 that, "the appointments in the public sector is a trust in the hands of public authorities and it is their legal and moral duty to discharge their function as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such posts is excluded from the process of selection and is deprived of his right of appointment in service." The appointments in question being 'void ab initio from every angle and by all standards are not sustainable.
22. The learned counsel for the petitioners have also drawn the, attention of the Court to a further misconduct and fraud played by respondents Nos.1 to 3 on this Court as in Writ Petition No,3708 of 2010 Asad Mehmood Khalid petitioner assailed the said appointments and this Court vide order dated 25-2-2010, suspended the operation of the order dated 30-1-2010 regarding appointments challenged in these writ petitions as well. An application (C.M. No,1200 of 2010) dated 8-3-2010 was moved by the learned counsel for the respondents Nos.1 to 3 for vacation of stay which came up for hearing before another learned Bench of this Court and vide order dated 11-3-2010 the learned Judge directed the office for placement of the said application for hearing before this Court. Along with the said application appointment letter of Asad Mehmood Khalid dated 30-1-2010 was annexed which was a sufficient bate for the petitioner and an attempt to hush up the things. The petitioner got the case fixed before another learned Bench of this Court and withdrew his petition (Writ Petition No,3708 of 2010). This obviously is a further proof of the conduct of the respondents Nos.1 to 3, who issued a back dated appointment letter in favour of the said writ petitioner, otherwise, if it had been issued on the date as mentioned in the said appointment letter, there would have been no occasion for the said writ petitioner to approach this Court. It is worth- mentioning that Asad Mehmood Khalid approached this Court with the prayer that appointments on various posts are against the policy, rules, advertisement and be declared illegal and void having no sanctity of law. He further prayed that the respondent Nos.1 to 3 be directed to scrutinize the process of fresh appointments in accordance with prescribed procedure and recruitment policy. The act of the respondents Nos.1 to 3 of issuing the appointment letter in the back date in favour of the said writ petitioner was an attempt to prevent the flood gates from being opened against the illegal acts of the respondents Nos.1 to 3 by other aggrieved persons. However, this turned out to be of no avail but rather exposed the illegal and fraudulent acts of the respondent Nos.] to 3 in issuing a back dated appointment letter in favour of the said writ petitioner.
23. For what has been discussed above, this petition is allowed with costs of Rs,25000 to each of the petitioners. All the appointments made by the respondents are declared void ab initio, illegal, without lawful authority, of no legal effect and are set aside accordingly. The process of appointment will recommence from where the deviation was made therein in a fair and transparent manner in accordance with the terms of advertisements dated 2-11-2008 and 29-11- 2008. The appointment process of all the posts shall be completed by 30-12-2010.
24. The public functionaries have been repeatedly reprimanded and warned by this Court and the apex Courts for taking actions in utter disregard to the lawful authority and for such dereliction Courts have burdened them with costs. Reliance is placed on case of Khurshid Ahmed Naz Faridi v.
Bashir and 3 others 1993 SCMR 639 which has been followed by this Court in case of M. Zafar Abbas v. Commissioner and others 1999 PLC 931. In the instant case, hesitation of the officials to produce the official record, tampering with it and efforts to defeat the ends of justice by concealing the facts of the case requires that the concerned officials be burdened in their personal capacity rather then to pay the same in their official capacity. It is ordered that the Chief Executive Officer GEPCO Gujranwala and Director Human Resources and Administration GEPCO, Gujranwala will pay a further sum of Rs,25,000 as compensatory costs to each of the petitioners for the mental torture and agony that they have suffered in this process. The costs are to be paid to the petitioners before 30-12-2010 by the respondent No,2. However, all these costs shall be recovered by respondent No,2 from the personal salaries of the said officials on monthly basis-during the period of next three years or so according to the length of the service of the official concerned.
25. Before parting with this judgment although this point has not been agitated by the learned counsel for the petitioners or the respondents I would like to deal with the question of the fate of all the persons who have been appointed through illegal acts of the respondents Nos.1 to 3. Having considered from every angle it is an admitted position that the so-called selectees have managed to obtain "appointments" which cannot be termed as lawful appointments, as these have been made by ab initio illegal acts undertaken by the respondent Nos.1 to 3 by curtailing the due process of recruitment in violation of the policy, rules and the conditions of the advertised posts and without following the due process in an arbitrary and capricious manner apparently under the pretext of discretion. Exercise of discretion is bound by the rules of reasons which must be guided by law and must not be exercised in an arbitrary or fanciful manner. Reliance is placed on the case reported as Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 SCMR 1747.
26. Due process has not been applied in the so called appointments, as such no vested right has been created in the said 437 so-called appointees and their appointments have been declared as void ab initio by this Court herein before. In case reported as Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh 2009 PLC (C.S.) 161 it has been ruled that, "the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of natural justice." I am further fortified by the dictum laid down in case reported as Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483.
27. Vested right if any has to be treated in accordance with law and due process. Vested right has been only created in favour of the applicants who responded to the advertisement for the posts, including, if any, of the so called appointees. The appointment process would commence from the point where it was abandoned by the respondent No,2. If any of the so called appointee has applied for the said posts in accordance with the advertisements dated 2-11-2008 and 29-11-2008 he/she will have an equal and fair opportunity to compete with the rest of thousands of the applicants to be considered on merits after due process has been observed. For those who did not apply within the prescribed time limit and in accordance with the requirements laid down in the advertisements dated 2-11-2008 and 29-11-2008 no locus standi or vested interest accrued in their favour that can be protected by this Court.
28. The original record requisitioned by this Court vide order dated 28-4-2010 shall be kept by the office sealed in Record Room till the time this judgment attains finality or is requisitioned by the appellate Court if an occasion so crises. Therefore, the said record be sent back to the HR Iv Director GEPCO, Gujranwala through its authorized officer.
' Disposed of.
RECRUITMENT UNDER GEPCO Sr. No.Name of post BPSTotal selected 1 Commercial Assistant1421 2 LS-1 132 3 Steno-II 125 4 LS-II 115 5 Senior Clerk/UDC 98 6 Junior Clerk/LDC 736 7 Meter Reader 722 8 Driver 63 9 Tracer 51 10 Assistant Linemen 3/5275 11 Bill Distributer 351 12 Chowkidar 18 Total 437 Brief District wise Skt. GujratM.B. DinJlmLahMltnR. pindiT.T. SinghChakwalTotal 1 5 14 1 21 1 1 2 3 2 5 2 1 1 1 5 2 5 1 8 8 8 18 2 36 1 6 4 10 1 22 2 1 3 1 1 61 39 1 2 169 1 2 275 10 12 29 51 7 1 8 104 78 1 13 242 1 6 437 ' GEPCO District = 183O ther than GEPCO Districts = 254 Total 437