QAZI FAEZ ISA, C.J.--- Through this common judgment we propose to dispose of C.P.(S) No,23 of 2009 and C.P.(S) No,57 of 2009, as vide order, dated 22-10-2009 it had been ordered that "both matters to be decided together". The petitioners have assailed appointments made in the Board of Revenue department of the Government or Balochistan alleging that the same were not made on the basis of merit and have sought to have the same declared illegal, unlawful and of no legal effect.
2. Brief facts of the case are that the Board of Revenue Baochistan through advertisement placed in daily JANG of 6th August 2008 inter alia invited applications for the post of Assistants (in grade B-14) and Stenographers (in grade B-12). The requirement for the post of Assistant was for applicants to possess a Bachelors' degree from a recognized university and to be able to type at the minimum speed or 30 words per minute. It was also mentioned that those possessing computer skills would be given preference. As regards the post of Stenographers applicants were required to posses an Intermediate degree from a recognized institution have the ability to write in shorthand at minimum speed of 100 words per minute and be able to type at a minimum speed of 40 words per minute. The advertisement further stated that applicants possessing computer skills would be given preference. The said advertisement stipulated that time date of test and interview will be subsequently announced. Pursuant to the aforesaid advertisement another advertisement was placed in daily JANG of 18th December 2008 setting out the dates vide serial numbers for the written exam, which ranged from 1st January 2009 through to 5th January, 2009. Thereafter vide advertisement published in daily Jang on 5th February, 2009 interviews for the post of Assistants and Stenographers were scheduled for 23rd and 24th February, 2009. As per the comments filed by the official respondents about 912 applications were received, out of which 79 applicants cleared the written test.
3. It would be appropriate to reproduce order, dated 22-10-2009.
"This case was called earlier today when the learned Additional Advocate-General filed comments on behalf of respondent Nos.2, 3, 4, 5 and 6 but surprisingly with such comments the merit list in respect of the posts of Assistants and Stenographers in the Board of Revenue Department was not attached. We had accordingly directed learned Additional Advocate-General to send for the merit list from the concerned department as the petitioner apprehended that if further opportunity is granted the same will be prepared or tampered with. Now Mr. Javed Iqbal, Law Officer, Board of Revenue has appeared before us and slates that the directions of this court were communicated to Secretary Admin. Board of Revenue Department, but despite such communication he has come empty handed and without merit list. This raises serious concerns, accordingly we appoint Mr. Jehangir Alain, Judicial Magistrate to accompany Mr. Javed Jabal, Law Officer read go to the office and take into his custody the merit list."
' It is regretful that the official respondents did not voluntarily proved the facts which were required for the determination of this matter and which good governance, transparency and justice demanded.
' The original record that was taken into possession revealed that the persons who were given jobs for Assistants received following marks in the written test: =-- {{TABLE}} S. No, Name/Father's Name Marks
1. Abdul Rab son of Abdul Karim 20
2. Qutab Khan son of Taj Muhammad 4
3. Wali Khan son of Taweez Khan 12
4. Ahmedullah son of Khan Alam 22
5. Muhammad Din son of Haji Mubeen 4
6. Tahir Khan son of Kamal Khan 19
7. Abdul Hadi son of Haji Abdul Sattar 24/18 Two papers
8. Bismillah son of Ubaidullah 13
9. Muhammad Shafiq son of Inayatullah 20/20 Two papers
10. Bashir Ahmed son of Khair Muhammad
11. Jameel Ahmed son of Agha Muhammad 19
12. Abdul Bari son of Muhammad Hashim Paper not available
13. Naseebullah son of Haji Abdul Samad 6
14. Ahmed Yar son of Haji Khair Jan 18
15. Mir Adam Babar son of Sher Muhammad 20
16. Hameedullah son of ehboobullah 20/19 Two papers
17. Mir Zaman son of Sultan Khan 11
18. Wall Muhammad son of H. Akhtar Muhammad 28
19. Alam Khan son of Muhammad Islam 16
20. Ahmed Nawaz Bugti son of Mir Hassan 21
21. Par Moth Kumar son of Raj Bahadur Paper not available
22. Wali Muhammad son of Agha Muhammad 14 23.. Mehmood Ahmed son of Khair Muhammad 23
24. Allah Bakhsh son of Saleh Muhammad 22
25. Saghir Ahmed son of Abdul Hakeem 9
26. Zafarullah son of Bakhtiar Paper not available
27. Shah Khalid son of Kia Khan 21/13 Two papers
28. Hassan All son of Muhammad Siddiq 13
29. Shoukat All son of H. Allah Bakhsh Paper not available
30. Fazal Mehmood son of Noor Ahmed Paper not available
31. Mehboob MIMI son Muhammad Hanif 17
32. Abdul Sarnad son of Ran Muhammad Paper not available
33. Habib-ur-Rehman son of Abdul Samad 11/18 Two papers
34. Muhammad Arif son of Noor Muh#nmad Paper not available
35. Chulam Mustafa son of Allah Dina 22
36. Rafiq Alin czl son of Din Muhammad 22
27. Abdul Khaliq son of Abdul Ali 15
38. Haji Khan son of Rahirn Bakhsh 12 {{TABLE}} Surprisingly persons, who got 2, 4 and 6 marks were also appointed and even those who did not take the test. There were also a number of candidates who got considerably more marks than the IA appointed individuals but were ignored.
' The written test for the said posts constituted 60% marks and the viva constituted 40% marks. Four persons constituted the Departmental Selection Committee namely, Nasrullah Tareen, Secretary (Admin) Board of Revenue, Sheikh Asmat Ullah, Secretary (Revenue), Mehfooz Ali, Assistant Secretary (Admin) Board of Revenue and Aziz-urRehman, Assistant Secretary (L.U.), Board of Revenue. The same persons also conducted the viva. The original record taken into possession revealed that no marks were given by any of the said four interviewers to the candidates and instead the following noting was made against their names:- "VV" "P", "C", "Clear". "+-+" or "Pass"
' It is thus unascertainable as to the number of marks obtained by the candidates. It was only after such marks were awarded that the same could have been added to the marks obtained in the interview to arrive at a total, which would have enabled the preparation of the merit list, showing what each applicant had scored. In the instant case no merit list was prepared, nor could the same have been prepared, as no marks in respect of the interview (which constituted 40% of the total marks) were awarded.
' As regards stenographers the tests revealed that a written test c was given but no test to gauge the shorthand or typing ability was conducted.
6. In view of the fact that many of the successful candidates were not arrayed as parties vide order, dated 5-11-2009 the office was directed to issue notice to them. Vide order, dated 16-11-2009 it was notified that the petitions will be disposed of on merits. Messrs Bashartullah, Muhammad Aslam Chishti and Mazhar Ilyas Nagi, Advocates were appointed as Amicus, however in view of his ill health Mr. Basharatullah could not render assistance. The matter was then heard at length. Though certain questions regarding the scope of the Balochistan Public Service Act, 1989 were formulated, however, as the matter can be decided on the basis of existing material, it was not necessary to touch upon the same in the instant petitions.
7. The members of the Departmental Selection Committee, who were arrayed as respondents filed comments denying any wrong doing The said comments were supported by affidavits. However, in view of the material and evidence that came on record the affidavits appeared to be false.
Accordingly on 5-11-2009 it was ordered, that:-- "In view of the original record that has been taken into possession, such comments appeared to be blatantly false. The comments are supported by affidavits of senior officers. The learned Advocate General states that the whole exercise appears to be tainted and that strict action should be taken against the persons filing false affidavits. We agree with the learned A.G. And issue show-cause notice to. Nasarullah Tareen, Secretary (Admin) Board of Revenue, Sheikh Asmat Ullah, Secretary (Revenue); Mehfooz Ali, Assistant Secretary (Admin) Board of Revenue and Aziz-ur-Rehman, Assistant Secretary (L.U.), Board of Revenue and Shahbaz Khan Mandokhail, Senior Member Board of Revenue as to why action should not be taken against them for filing false comments and affidavits."
8. Sheikh Asmat Utah, Secretary (Revenue), Mr. Aziz-ur-Rehman, Assistant Secretary (L.U.) and Mr. Mehfooz Ali, Assistant Secretary (Administration) Board of Revenue filed one reply dated 14-11-2009 to the show-cause notice, wherein they stated that they only conducted interviews of candidates who were short-listed by the Chairman of the Departmental Selection Committee and had no concern with the written tests. They further stated that the original papers of the candidates were in "exclusive custody of the Chairman."
' Additional identical affidavits were filed on 7-12-2009 in the following terms: "At the very outset the deponent begs to tender unconditional apology for the inconvenience caused to this honourable Court and places himself at the mercy of this honourable Court, in relation to comments and affidavit filed by him. The deponent cannot conceive of misleading this honourable Court. The deponent had no previous experience of conducting interviews etc and has proceeded in the mater in good faith.
' The Government of Balochistan has already cancelled the appointments made on the basis of said examination and interviews and have also directed holding of departmental inquiry against all concerned."
9. Mr. Nasrullah Khan Tarcen Secretary (Administration) Board of Revenue Chairman of the Departmental Selection Committee filed affidavit dated 18-12-2009 in the following terms:- "At the very outset the deponent tenders unconditional apology before this honourable Court in relation to issuance of simple list of successful candidate rather than exhibiting a merit Fist containing the marks obtained by each candidate in the overall test and interview. The irregularities committed in the recruitment process were due to inexperience in holding the test and interviews for the first time.
' I place may self at the mercy of this honourable High Court humble prayer for withdrawal of show-cause notice."
10. That Mr. Nasir Mehmood Khosa, Chict Secretary, Government of Balochistan and Mr. Ali Zaheer Hazara Secretary, S&GAD filed the following statement on 16-11-2009.
"That after having knowledge of lack of transparency and fairness during recruitment process of Board of Revenue Balochislan, Chief Secretary Balochistan, with the approval of Chief Minister Balochistan has taken the following actions to ensure transparency in recruitment process:
(i) Recent recruitments made in the Board of Revenue has been cancelled with immediate effect and the process will be initiated afresh after seeking orders from the Honorable High Court.
(ii) In BOR and all other departments, order to ensure transparency, representatives of the S&GAD and Finance Department will be associated in the selection process.
(iii) Departmental and disciplinary action will he initiated against all those officers/officials who committed transgressions in the process.
11. The Chief Secretary also issued the following notification dated 14th November, 2009:-- "Subject: Recruitment Through Departmental Selection Committees.
' The undersigned is directed to refer to the subject noted above and to say that recruitment in B-1 to 15 posts is being made in all departments/attached departments through Departmental Selection Committees. These Committees are constituted under Rule 5 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009. The Competent Authority is of the view that in majority of the departments the criteria for recruitment is not being observed, therefore, concerned candidates and public-at-large shown their dissatisfaction on the process of selection. Moreover recently the honourable High Court of, Balochistan has also taken serious notice of this situation. On the other hand the media has strongly criticized Government of Balochistan on account of transparency and fairness in selection process in Government Departments.
(2) In order to ensure transparency, the Competent Authority has directed lo reformulate the Departmental Selection Committee(s) by including the following members in each Committee.
(i) Representative of S&GAD.
(ii) Representative of Finance Department.
(3) The undersigned is, therefore, directed to request you to forward proposal to this Department for reconstitution/reformulation of the Departmental Selection Committee(s), after obtaining the name of representative of Finance Department.
(4) The above instruction may kindly be strictly adhered to in letter and spirit."
' It may be mentioned that Notifications dated 25-11-2008 and 4-12-2008 removed the representatives of the Finance and Services and General Administration Departments from the Departmental Selection Committee, leaving the representatives of the Board of Revenue alone to undertake the tests and interviews. The said two notifications gave no reason as to why the Departmental Selection Committee was reconstituted by removal of the representatives of Finance and S&GAD Departments.
12. That the Senior Member Board of Revenue stated on 16-11-2009, which statement was incorporated in the order of the same date, that, "appointments in his department were not made properly and merit was by-passed." Earlier on 5-11-2009 the learned Advocate-General stated that, "the whole exercise appears to be tainted ".
13. In view of the aforesaid statements including statements made by the Chairman and Members of the Departmental Selection Committee on record the appointments that were made are clearly not sustainable. We have also noted the following material discrepancies in the appointment Process:--
(1) Test papers of many of the candidates, who were appointed, were not available. As no explanation was offered by anyone where these papers went it may be presumed that they never took the test.
(2) Many candidates failed in the written test, some getting abysmally low marks (2, 4, 6 and 9), yet they were appointed.
(3) Even those who failed the written test were invited for the interview in violation of the prescribed procedure which stipulated that only those who passed the test would be invited for interview.
(4) No marks were awarded in the interview. Since the test commanded 60 marks and the interview 40 marks it was only once the marks obtained in the test were added to those obtained in the interview that determination of the best qualified for appointment could be made. However, as no marks were awarded for the interview there was no way of determining the total marks obtained by the applicants.
(5) No test to determine the ability to type was conducted despite the fact that typing skills was a stipulated requirement for both posts. Which in the case of the post of Assistants was a minimum speed of 30 words per minute and in the case of Stenographers was a minimum speed of 40 words per minute.
(6) The advertisement for both posts (Assistants and Stenographers) stipulated that those possessing computer skills would be given preference, but the applicants' computer skills were not checked.
(7) Stenographers were required to possess ability to write in shorthand at a minimum speed of 100 words per minute, but no test was conducted to ascertain the applicants' ability in this regard.
(8) No merit list was prepared, which in any case was impossible to prepare in view of the aforesaid deficiencies.
' The learned counsel for the private parties respectively Mr. Zahoor-ul-Haq Chishti and Mr. Kamran Murtaza did not dispute the aforesaid facts and simply stressed that the persons were properly appointed. We also heard a number of private respondents in person but they too did not dispute the said facts.
14. Therefore it is reasonable to presume that the appointments that were made either on the basis of favoritism, nepotism, influence and or corruption and by sacrificing truth and merit. Such appointments are not sustainable in fact or in law. Those possessing the requisite qualification and skills were entitled to compete, and as per the comments filed, 912 applicants wanted to do so, but they merely wasted their time, money and effort. The resources of the State too were wasted in futile exercise of placing advertisements in the national press. The whole exercise as it turned out was a charade and the entire process nothing but a hoax and fraud. The fact that holders or grade B-12 and B-14 posts may eventually on account of seniority attained, be promoted to higher echelons of Government Service makes the duty cast on the Government, and those through whom such duty is exercised, all the more important. Regretfully in the instant case this duty was observed only in the breach.
15. Appointments to government posts are highly prized and sought after the Government is obliged to ensure complete transparency in the process of selection and appointment and anything less is unacceptable. If qualified and competent individuals are appointed in Government Service their performance and work would be far superior to those who have come through the back door by having the right connections or by other nefarious means. The latter category would also not be motivated to work like those who have earned the privilege. Consequently the public would suffer, and continue to suffer till the person illegally appointed retires. Even thereafter the hapless taxpayer would continue to bear the burden on account of payment of pension and other benefits. The appointments made on considerations other than merit perpetuate bad governance and a culture of corruption, nepotism and Sifarish. Betrayal of responsibility occurs not just the day when an incompetent or less qualified person is chosen, it continues each and every day such appointee continues to hold the position that another was better qualified to. By making appointments contrary to merit and for extraneous considerations the Government's credibility is eroded, its overall performance adversely effected and the public made to suffer. Whenever a post is advertised those given the responsibility to select suitable candidates exercise an important trust. They must acquit themselves honestly, to the best of their ability and without any fear or favour. They must not tolerate interference from any source, including from Members of Parliament or from Ministries. And if they do, or make recommendations on the basis of fear or favour and or breach applicable rules or violate prescribed criteria they would be accountable and inter alia be subject to disciplinary action.
16. It may be mentioned that alter we had taken cognizance of the matter the petitioners, through their attorney, submitted an application (C.M.A. No,228 of 2009) on 8-12-2009 seeking withdrawal of the petitions as he was not prepared to suffer adverse consequences if the appointees lost their jobs. In view of the fact that the dispute was not simply a private matter, involved State resources, and large scale irregularities and illegalities in appointments made to government positions had come to the surface the said application could not be granted. Moreover, if such permission was granted there is the danger that Courts may be used for extraneous purposes; to settle scores, to extract benefits or to strike bargains. Through the said application the petitioners however could forgo their right, if any, to the advertised posts vis-a-vis the appointees. Accordingly, C.M.A. No,228 of 2009 is granted only to the extent that the petitioners forgo their right, if any, to the said posts.
17. It also needs to be considered what, any, action needs to he taken against the Chairman and Members of the Departmental Selection Committee who submitted false affidavits and attempted to mislead the Court. Subsequently, when an opportunity was provided to them to set the record straight, an apology was submitted and it was stated by way of excuse that they did not have previous experience of conducting tests and interviews. However, the illegalities have been noted above cannot be excused simply on the ground of lack of requisite experience. Be that as it may, by way of indulgence and grace contempt action is not being initiated and because the Chief Secretary and Secretary, S&GAD have stated that "Departmental and disciplinary action will be initiated against all those officers/officials who committed transgressions 'in the process". If however, disciplinary action has as yet not been initiated against the Chairman and Members of the Departmental Selection Committee, we direct that the same be initiated immediately inter alia in respect of the eight (8) transgressions noted above in paragraph thirteen (13).
18. We have thus no hesitation in holding that the appointments made to the posts of Assistants and Stenographers in the Board of Revenue, Government of Balochisian pursuant to the said advertisements were illegal, unconstitutional and have no legal effect and create no right, title; interest, benefit and or privilege in the appointees. The said appointees may however participate, provided they possess the requisite qualifications and skills, if applications for the said posts are again invited.
19. To prevent against such type of malpractices and illegalities from occurring in the future and with a view to serve as a warning to all concerned the Government of Balochistan is directed to circulate paragraph fifteen (15) above to all Ministries, Heads of Departments and Members of all Departmental Selection Committees.
20. In view of the fact that the Chairman and Members of the Departmental Selection Committee of the Board of Revenue Department stated that they had no previous experience in conducting tests and interviews and as the same may also be the position with regard to the members of other departmental selection committees and as the Balochistan Public Service Commission has been specifically established by statute for conducting tests and examinations for recruitment to Balochistan Civil Services, etc. The Government of Balochistan may consider the making of appointments to the posts of Assistants, tenographers and other officials in grade 10 and above through the M Balochistan Public Service Commission.
(Sd.)
(Qazi Faez Isa) Chief Justice ' Petitions are allowed in the aforesaid terms and directions.
Though I agree with the findings arrived at by the learned Chief Justice I am of the view that.
Disciplinary action should also be taken against Shahbaz Khan Mandokhel, Senior Member Board of Revenue and in this regard have attached my separate note.
(Sd.) Syeda Tahira Safdar, J.
' SYEDA TAHIRA SAFDAR, J.--- Though I agree with the findings arrived at by the learned Chief Justice, but in addition to the same keeping in view the record and circumstances of the case I am of the view that not only the Chairman and Members of Departmental Selection Committee are the persons responsible for all acts which resulted in such-like a situation while they are not the only officers who filed false affidavits thus attempted to mislead this Court. Rather, parawise comments were filed jointly by official respondents i.e, Nos.1- A to 5 contending therein that the appointments were made lawfully observing the laid down procedure, codal formalities, purely on merits, while no illegalities and irregularities have been committed by the competent Authority or by the Committee. This parawise comments was accompanied by affidavits of Shahbaz Khan Mandokhel, Senior Member Board of Revenue, the appointing Authority, Nasarullah Tareen, Secretary (Admn.)
Board of Revenue, the Chairman of Departmental Selection Committee, Sheikh Asmatullah Secretary Revenue, Board of Revenue, Aziz-ur-Rehman, Secretary, Balochistan Land Commission, Board of Revenue and Mehfooz Ali Farooqi Assistant Secretary (Admn.), Board of Revenue, all the three are Members of Departmental Selection Committee. Though the Chairman and Members of Departmental Selection Committee tendered their apology before this Court but the Senior Member Board of Revenue despite his statement before the Court on 16-11-2009 that "appointments in his Department were not made properly and merit was by-passed", which amounts to his admission of the act, did not file any statement apologizing for his act. Furthermore, in the statement submitted by Chief Secretary Balochistan and Secretary S&GAD on 16-11-2009, responsibility is specifically fixed on Senior Member Board of Revenue, being the competent Authority.
Keeping in view these facts disciplinary action is not only required to be taken against Chairman and Members of Departmental Selection Committee, but disciplinary action is also required to be taken against Shahbaz Khan Mandokhel, Senior Member Board of Revenue the appointing/competent Authority, further including all those officers/ officials who committed transgressions in the process.
' GHULAM MUSTAFA MENGAL, J.--- These Constitution Petitions were heard by the honourable Members of the Division Bench of this Court comprising of honourable Chief Justice, Qazi Faez Isa and Justice Syeda Tahira Safdar. The judgment written by honourable Chief Justice was gone through by the honorable Senior Member of the Bench and she found herself agree with the 'findings arrived at by the honourable Chief Justice but she is of the opinion/view that disciplinary action should also be taken against Mr. Shahbaz Khan Mandokhail, the then Senior Member Board of Revenue, who is also responsible being appointing/competent authority for the appointments.
' I also agree with the conclusion drawn and findings arrived at by the honourable Chief Justice on the basis of the material available on record of the case. Since the facts and points involved have been sufficiently explained and dealt with in the Judgment, passed by the honourable Chief Justice, therefore, there is no need to repeat the same. I was only required to determine the point whether disciplinary action is also required to be taken against Mr. Shahbaz Khan Mandokhail, the then Senior Member Board of Revenue Baluchistan.
' I have heard Syed Ayaz Zahoor, Advocate, learned counsel for Mr. Shahbaz Khan Mandokhail and Mr. Abdul Rahim Mengal, Assistant Advocate-General and also perused the record of the case.
' Perusal of the record reveals that on 16-11-2009 Mr. Shahbaz Khan Mandokhail, the then Senior Member Board of Revenue Baluchistan appeared before the Bench and made a statement that appointments in the department were not made properly and merit was by-passed. Though, he has not stated this in the reply to show-cause notice. However, he sought permission to file a fresh affidavit. He was permitted to do so, and on the same day he submitted reply to show-cause notice, the contents whereof shows that before making publications. In the News-papers the prior approval of the Government of Balochistan through Services and General Administration Department was sought vide letter dated 29-8-2008 and departmental Selection Committee consisting of a Chairman i.e, Secretary (Admen.) Board of Revenue and three Members i.e, Secretary (Revenue) Board of Revenue, Secretary Balochistan Land Commission and Assistant Secretary (Admn.) Board of Revenue was constituted vide Notification dated 4th December, 2008 and after constitution of departmental selection committee for appointment in BPS-15 and below he had no concern or connection in inviting of applications, conduct of written tests and interviews, which was the exclusive task/responsibility of the departmental selection committee and being a Senior Member Board of Revenue Balochistan had legally not authorized to interfere in the test and interviews, which were carried out by the departmental selection committee and he had to only approve the recommendations of the departmental selection committee and then to issue appointment orders of the candidates.
' Thus in view of the above reasons and facts of the case, I have no hesitation to say that as Mr. Shahbaz Khan Mandokhail, the then Senior Member Board of Revenue Baluchistan, had no direct concern with the conduct of written test and interviews of the candidates, therefore, there is no need of taking any disciplinary action against him in any way/in one way or the other.