' SHAHID ANWAR BAJWA, J.--- An advertisement was placed in Daily Dawn on 24-11-2011 by the Secretary, Sindh Local Government Board for various posts in Sindh Council Unified Grade Service including post of Chief Municipal Officer. Petitioners applied for the posts of Chief Municipal Officer (BS-17) as well as for one other post in each case. Another advertisement was placed by the Secretary, Sindh Local Government Board on or about' 14-12-2011 whereby candidates who had applied for various posts were advised to bring documents/testimonials/photocopies thereof duly attested and appear for interview. Petitioner in C.P. D-3406 .Of 2011 filed the petition on 20-12-2011 i,e, before the interviews took place while the petitioner in C.P. D-117 of 2012 appeared for interview.
In both these petitions almost identical prayers have been made and they are in the following words:---
(i) Direct the respondent No,1 to follow the rules and regulations in appointment to the posts, ensure transparent recruitment process and merit policy.
(ii) Declare that the recruitment procedure adopted by the respondent No,1 ignoring the written test is mala fide, illegal, void, discriminatory and without lawful authority.
(iii) Restrain the respondent No,1 from conducting the interviews as scheduled from 22-12-2011 to 3- 1-2012 (Annexure-C) till the final disposal of this petition.
(iv) Any other relief be granted which this honourable Court may deem fit and proper under the facts and circumstances of the case.
(v) Cost of the petition may also be awarded.
2. The petitioner in C.P. D-3406 of 2011 made the following submissions:---
(1) The venue of interview was changed without notice and when he reached the place for interview there were thousands of candidates. No interviews took place and all that happened was that candidates were asked the question whether they had brought their original testimonials and their photocopies and if they stated "yes" the photocopies were taken. He submitted that such an exercise amounts to playing joke on the rules and fraud with the candidates.
(2) No written test was conducted though it was requirement of rule 4(2)(ii) of the Sindh Council Unified Grade Service Rules, 1982 that written test be conducted.
(3) Petitioner again relied upon the above rules and submitted that the rules were amended on 2- 1-2012 and it was provided that appointment shall be made on the recommendation of Sindh Local Government Board whereas prior to such amendment it had been provided that appointment shall be made on the recommendation of the Sindh Public Service Commission.
(4) Petitioner submitted that the Notification by which the amendment was made is prospective in nature and therefore very initiation of the process of recruitment was in violation of law. He relied upon Dr. Naveeda Tufail v. Government of Punjab (2003 SCMR 291), Shoukat Ali v. Federal Public Service Commission (2010 PLC (C.S.) 455) Shaikh Zayed Hospital and Post Graduate Medical Institutes v. Dr. Muhammad Saeed (2010 PLC (C.S.) 967) Dr. Pirzada Jamaluddin Siddiqui v.
Federation of Pakistan (SBLR 2011 Sindh 1143); Imran Hussain v. Water and Power Development Authority (PLD 2010 SC 546), 2011 PLC (C.S.) 548, Ehsan Ullafi v. Inspector-General of Police, Punjab, Lahore (2006 PLC (C.S.) 964) and Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar (AIR 1995 SC 77).
3. Petitioner referred to his C.M.A.979 of 2012 where he had prayed that the record of interview and proceedings of Selection Board, Letter/Notification showing objective criteria framed by the Department for carrying out interviews and copy of letter/Notification through Selection Board whereby Selection Boards were appointed be directed to be produced.
4. Mr. Zulfiqar Ali Sangi, learned counsel for the petitioner in C.P.D.-117 of 2012 submitted that even the amended rule was not followed because the requirement of test and interview laid down in the rule was not followed. He submitted that interview was a sham process and in fact no interviews were conducted. Learned counsel submitted that for an interview there must be a common objective criteria laid down but no such criteria was laid down. He relied upon Imran Hussain's case (supra) and Mashooq Ali's case (supra).
5. Mr. M.M. Aqil Awan, learned counsel for the respondent No,1 made the following submissions:--
(1) The petitioner in C.P.D-3406 of 2011 did not even appear in interview and his petition is merely based on apprehension and therefore it is not maintainable. As far as the other petition is concerned, he is in the same shoes because he has not stated as to what happened in the interview. He submitted that for this reason the petitioners are not aggrieved parties and are not entitled to maintain petition. He relied upon N.-W.F.P. Public Service Commission v. Muhammad Arif (2011 SCMR 848), Secretary. Finance v. Ghulam Safdar (2005 SCMR 534) and Muhammad Riaz Bhatti v. Federation of Pakistan (2004 SCMR 1120).
(2) Petitioners are not civil servants and therefore there is no requirement under the Sindh Civil Servants Act or the Sindh Public Service Commission (Function) Rules that their recruitment be conducted through Public Service Commission. He relied upon Fazal Ahmed Samtio v. Province of Sindh (2010 PLC (C.S.) 215).
(3) Learned counsel submitted that through Notification dated 30-9-2006 it was provided that appointment shall be made on recommendation of Sindh Public Service Commission. He submitted that rule was changed on 12-1-2011 and it was only a change of forum while rest of the procedure stayed the same and therefore the change of the rule is with retrospective effect. He relied upon Miss Ambreen Ashraf v. Federal Public Service Commission, (2004 PLC (C.S.) 159) and Syed Muhammad Amin v. Federal Public Service Commission (2002 PLC (C.S.) 1538).
(4) Learned counsel submitted that the words examination, test or interview is not capable of exact definition. He referred to rule 2(g) of the Sindh Public Service Commission (Function) Rules and contended that the test includes examination and vice versa.
(5) Lastly learned counsel submitted that even recommendation by the Public Service Commission does not confer a right and therefore the Petition is not maintainable. He relied upon Irfan Ali v.
Chairman, District Zakat Committee, Khairpur (PLD 2005 Karachi 434) and Executive District Officer (Revenue), District Khushab v. Ijaz Hussain (2011 SCMR 1864).
' Mr. Liaqat Ali Shar, learned Additional Advocate-General adopted arguments of Mr. Aqil Awan.
6. We have considered the submissions made by the learned counsel and have also gone through the record.
7. Rule 4(2)(ii) of the Sindh Council Unified Grade Service, 1982 was amended vide Notification dated 30-9-2006 and in its amended form it provided as under:- "(2) Initial appointments.---
(i) to the posts in Basic Scales of Pay 7 to 15 shall be made by the Board;
(ii) to the posts in Basic Scales of Pay 16 to 18 shall be made by Government on the recommendations of the Sindh Public Service Commission after such examination or test and interview as may be conducted by it.
8. This rule was amended again vide Notification dated 2-1-2012 and the amended Notification read as under:-- "NO.SLGB/SCUG/ADMN-1/4(4053)/2012/03. In exercise of the powers conferred by Section 103 of the Sindh Local Government Ordinance, 1979, the Government of Sindh are pleased to make the following amendment in the Sindh Council Unified Grade Service Rules, 1982:--- AMENDMENT ' In rule 4, in sub-rule (2), for clause (ii), the following shall be substituted:--- "(ii) to the posts in Basic Scales 16 to 18 shall be made by Government on the recommendations of the Sindh Local Government Board after such examination or test and interview as may be conducted by it."
9. It may be pointed out that the advertisement inviting applications was issued on 23-11-2011 and the advertisement calling for interviews was issued on 14-12-2011. Therefore, when the advertisement inviting applications and the advertisement calling the candidates for interviews were issued the Notification dated 2-1-2012 had not yet been issued and the rule had not been amended. Contention of the petitioner and learned counsel for the petitioner was that a change in rules is always prospective because Notification cannot be given retrospective effect. Such power of giving retrospective effect is though available to the Legislature but is not available to the Government while resorting to subsidiary legislation. This contention was not at all opposed by Mr. M.M. Aqil Awan and we think very rightly so because law is trite and well-settled that a Notification is always prospective in nature and cannot be retrospective in operation. But contention of Mr. M.M.
Aqil Awan was that this Notification merely changed the forum from Public Service, Commission to Sindh Local Government Board and therefore it has to be retrospective in operation. Learned counsel relied upon Syed Muhammad Amin's case (supra) . Facts of that case were that in response to advertisement for posts in BS-17 petitioner submitted application to the Public Service Commission. They were told that since they were over-aged therefore Commission could not allow them to sit in the examination. During the process the petitioner came to know that rules whereby upper age limit was fixed was challenged in Lahore High Court where writ petition was dismissed but the Supreme Court by way of an interim relief had allowed the petitioner to take examination subject to decision of the petition. Petitioner duly participated in the examination and on 26-2-2002 they were informed that their candidature has been rejected due to their being over-aged. This order was challenged in a writ petition in Peshawar High Court. As per advertisement maximum age prescribed was 25 years as on 1-7-2001. However, the rule under which the maximum age limit was fixed on 28 years was made effective from 8-10-2003. The Supreme Court observed as under:- -- "6. The question which needs consideration in this case is whether Rules of 2001 would be applicable in the cases of petitioners would be governed under the previous Rules. The answer to this question was given by august Supreme Court of Pakistan in Constitutional Petition No,D-1207 of 2001 in the following words:-- "Neither the competency of respondent No,1 to change the rules in public interest could be challenged nor any candidate has vested right to be governed by any particular set of Rules. It is within the domain of respondent No,1 to make any alteration in the recruitment policy before finalization of the appointments. If the rules are altered/changed, the latter rules will supersede the former. Vested rights originate from contracts, statutes, and by operation of law. None of the above condition is attracted to this case. The Rules of 2000 could not be invoked for the examination to be held in the year 2001, when the rules of latter year were available. The order of High Court is perfectly correct and no interference is warranted."
7. Keeping in view the advertisement as well as rule 4(1) of the Federal Public Service Commission Rules for Competitive Examination of 2001 and above quoted dictum of the august Supreme Court of Pakistan the candidature of the petitioners was rightly rejected."
The case is clearly distinguishable. It is one thing to say that a particular qualification prescribed or age limit that has been prescribed would be applicable to a person who had already applied and another thing to say that an authority which was not competent to select could initiate and complete the selection process while still not being competent to select and later on if power is conferred upon it to select it rectifies the previous wrong. When the authority initiated the process of recruitment on 23-11-2011 or thereabout it had no power to select. It cannot be assumed that it had divined upon the Sindh Local Government Board that the rules are going to be amended.
Nobody is supposed to have pre-knowledge of any impending change in legislation because till such time on the President or the Governor has inked the last dot, or cross or line or scrawl of his signatures, no one can say with certainty that is and that must always be, hallmark of all Legislative acts, subsidiary or otherwise. Therefore, when the Sindh Local Government Board started the process of recruitment it had no power under law to start that process. When the Sindh Local Government Board completed the process in the sense that it conducted the interviews and therefore decided whom to select or reject (because that decision must a priori is made after the interview, because the interview was the only process resorted to for selection) it had no authority to invite applications or to select candidates. Therefore, Sindh Local Government Board exceeded its authority in initiating the process and in completing the process. It has been held by this Court in Deedar v. Federation of Pakistan (2011 PLC (C.S.) 203) where it was contended that since the persons had worked for quite some time and so much water had passed under the bridges over the years that it would create resentment if question touching their initial induction is decided at that stage that a mere passage of time can never, and should never be allowed to convert an illegality into pristine purity of legal existence.
10. Both under the old rules and under the amended rules the words used are "after such examination or test and interview as may be conducted by it". Words "examination or test and interview" can be read in many ways. Do they mean examination and interview? Do they mean test and interview? Does it mean examination only? We refrain from commenting upon this aspect of the matter because we leave it for the competent authority to decide as to what does the phrase "examination or test and interview" means. However, we are clear in our mind that it does not mean only interview.
11. There might be some weight in argument of Mr. M.M. Aqil Awan that "test" does not mean necessarily written test. However, we leave it for the departmental authority to decide as to what should be ingredients of selection process in terms of what has been prescribed in rule 4(2)(ii).
Contention of learned counsel for the petitioner was that even no interview was held. Such contention need not detain us because we leave it for the authority to decide as to what should be the specific process for "examination or test and interview" required to be conducted by it.
12. In Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar (AIR 1955 SC 77) applications were invited and five years' experience was prescribed. However, in view of large number of candidates only the candidates with 7-1/2 years' experience were short listed and called for interview. This was challenged. Ultimately, Supreme Court of India held that such short listing is not in violation of any law but then it made very important observations in para 6 of the reported judgment in the following words:- "(6) The question which is to be answered is as to whether in the process of short-listing the Commission has altered or substituted the criteria or the eligibility of a candidate to be considered for being appointed against the post of Presiding Officer, Labour Court. It may be mentioned at the outset that whenever applications are invited for recruitment to the different posts, certain basic qualifications and criteria are fixed and the applicants must possess those basic qualifications and criteria before their applications can be entertained for consideration. The Selection Board or the Commission has to decide as to what procedure is to be followed for selecting the best candidates amongst the applicants. In most of the service screening tests or written tests have been introduced to limit the numbers of the candidates who have to be called for interview. Such screening tests or written tests have been provided in the concerned statutes or prospectus which governs the selection of the candidates. But where the selection is to be made only on basis of interview, the Commission or the Selection Board can adopt any rational procedure to fix the number of candidates who should be called for interview It has been impressed by the courts from time to time that where selections are to be made only on the basis of interview, then such interview/viva voce tests must be carried out in a thorough and scientific manner in order to arrive at a fair and satisfactory evaluation of the personality of the candidates. "
13. Therefore, even if the departmental authority decides not to conduct written test even then it has to stick to a structure and scientific interview and not a casual and superficial one and in such a situation it may be relevant to see as to how much time is given to each candidate. For interview on which depends career of an individual and conduct of Governmental affairs, cannot be allowed to be casual, perfunctionery and purely subjective.
14. Regarding objections of Mr. M.M. Aqil Awan regarding maintainability of the petition Mr. Aqil Awan relied upon Muhammad Arif's case (supra). Candidates appearing for competitive examination from Provincial Management Service could not qualify the examination and they claimed grace marks. Since no such provision existed in the rules, it was hold that they were not entitled to maintain their petition. He next relied upon Ghulam Safdar's case (supra) where it was held that mere selection in written examination and interview test would not, by itself, vest the candidate with a fundamental right for enforcement of which he may invoke constitutional jurisdiction. The third case relied upon by Mr. M.M. Aqil Awan was Muhammad Riaz's case. (Supra).
The petitioner filed a petition in Lahore High Court where he stated that he was an elected councilor and his area was denied the amenity of Sui gas. The office objected that the petitioner will have to vouch facts qua that he applied for gas connection and his application was turned down. His contention was that he was a counselor and could maintain the petition. High Court upheld the office objection and Supreme Court dismissed the petition. All these three cases are distinguishable. Present two petitioners have challenged the very process of initiation by the Sindh Local Government Board which at the time when it initiated was not competent to initiate to complete it.
15. Learned counsel for the petitioner argued that the petitioners were not civil servants and therefore recruitment could only be mark by resorting to Sindh Public Service Commission. Mr. M.M.
Aqil Awan rightly and correctly argued that the petitioners are not civil servants. This has been conclusively held by a Division Bench of this Court in Fazal Ahmed Samtio's case (supra). Therefore, contention of the petitioners that in spite of the Notification dated 2-1-2012 appointment can only be made upon recommendation of Public Service Commission is without substance.
16. Result of the above discussion is that these Constitutional petitions are all allowed by holding that when the process was initiated and when the interviews were held and selection process completed Sindh Local Government Board was not competent to initiate or complete the process.
It is also held that the Sindh Local Government Board must comply with the strict criteria laid down in rule 4(2)(ii) in respect of making recommendations "after such examination or test and interview as may be conducted by it". Listed applications are disposed of.