This Intra-Court Appeal concerned the denial of appointment to an S.E.S.E. post, where a vacancy arose due to a prior appointee's transfer under court orders. The appellant, next on the merit list, was denied appointment based on a policy stipulating a 190-day validity for merit lists. The core legal questions were whether this policy applied to subsequent vacancies arising after 190 days, whether its mechanical application amounted to fettering discretion, and if the 190-day validity period was reasonable.
The Lahore High Court held that the policy was over-rigidly applied and did not apply to the present facts. The Court ruled that the 190-day validity period for a merit list is unreasonable and unsustainable in law, except where no candidate comes forward despite an offer. The respondents were directed to consider the appellant's case.
Key principles established include that public authorities must not fetter their discretion by rigid adherence to policies without applying their minds to individual case facts, as this constitutes an abuse of discretion and violates constitutional due process (Article 4). Administrative discretion and policy must be reasonable, fair, and advance the purpose of the law, considering relevant factors and public interest. A merit list, once the top candidate is appointed, can function as a waiting list and should remain operational as long as the post continues, to fill vacancies efficiently.
' SYED MANSOOR ALI SHAH, J.--- Brief facts of the case are that the appellant applied for the post of S.E.S.E. In Government Girls Elementary School, saeedwala, Tehsil Kallurkot, District Bhakkar.
Appellant was placed at Sr. No,25 in the Merit List for the above post in the above school. The appellant had also applied for the post of E.S.E. In Government Girls Primary School, Mussalianwala and was appointed against the said post w,e,f, 2-10-2009. One, Naila Shakoor, having been placed higher on merit for the post of S.E.S.E. Was appointed to the said post at Government Girls Elementary School, Saeedwala, Tehsil Kallurkot, District Bhakkar, however she approached this Court through Writ Petition No,21196 of 2009 complaining that she was entitled to appointment against the post of S.S.E. At Government Girls Community Model School, Chak No,30/M.K., Tehsil Kallurkot. Her petition was allowed vide order dated 3-3:2010 and she was appointed against the post of her first preference at the said school as S.S.E. Resulting in creation of a vacancy in the post of S.E.S.E. , at Government Girls Elementary School, Saeedwala, Tehsil Kallurkot, District Bhakkar.
2. The appellant admittedly being next on Merit List for the said school requested to be appointed to the said post, however, the request of the appellant was turned down by respondent No,1 vide order dated 14-3-2011. The said order placed reliance on Contract Appointment Policy ("Policy- 2004") dated 29-12-2004 (as amended till 14-3-2009) which provides that Merit List shall be valid for a period of only 190 days. The writ petition of the appellant against order dated 14-3-2011 of respondent No,1 was dismissed vide impugned order dated 13-7-2011 passed by the learned Single Judge on the basis of the said Policy.
3. Learned Assistant Advocate General, however, supports the impugned order in the light of Policy- 2004.
4. Arguments heard. Record perused.
5. The appointing authority of the petitioner is the concerned District Education Officer. For streamlining the exercise of discretion by the said appointing authority, two policies provide for the recruitment to the post of Elementary School Educator (ESE), namely: (i) Policy for Recruitment of Educators in Government Schools (2008-2009) ("Policy-2008") dated 23-8-2008 issued by the School Education Department, Government of the Punjab and (ii) Contract Appointment Policy ("Policy-2004") dated 29-12-2004 issued by the Services and General Administration Department (O&M Wing), Government of the Punjab. Policy- 2008 is from the concerned administrative department and Policy- 2004 is a recruitment guideline issued by S&GAD for contractual appointments applicable to all departments. Both the policies are available to the competent/appointing authority i,e,, District Education Officer to consider and apply while exercising its discretion in selecting and making appointments to the post in question.
6. Policy-2004 provides' "policy guidelines" and mandates that "all the Administrative Departments/Authorities are requested to ensure strict compliance of the policy, at all levels". Sub- clauses to Clause VIII of Policy-2004 provide as under:--- "(viii) The relevant Selection Committee shall prepare a merit list and shall provide it to the appointing authority along with its recommendations.
(ix) The merit list shall remain valid for a period of 190 days {{FOOT NOTE}} ' from the date of recommendations of the relevant Selection Committees and the appointing authority shall complete the process of appointment within the said period.
(x) No request for extension in the joining time as specified in the offer of appointment shall be entertained.
(xi) If a person to whom offer of appointment has been issued, fails to join the post within the period specified in the said offer of appointment or where a written refusal is received from a selectee, his/her selection shall stand cancelled and next person on the merit list may be offered the job.
(xii) In case a person joins the job and leaves the same within the period of 190 days, then the appointing authority may offer the job to the next person on the merit list." (emphasis supplied)
7. The above shows that Merit List is valid for 190 days and the appointing authority shall complete the process of appointment within the said period. It further states that in case the candidate fails or refuses to join, the next person on the merit list shall be appointed and if a person joins and leaves within a period of 190 days then the appointing authority may offer the job to the next person on the merit list. The Policy is silent regarding the following aspects which arise in the present case:---
(a) Whether, the period of validity of 190 days deals with the first appointment to the post or is also applicable to the subsequent appointments? In other words, if the first candidate joins within 190 days and then leaves, is the .Next appointment governed by the rule of 190 days?
(b) Where vacancy arises due to transfer of the incumbent to another post, as in this case under court orders after a period of 190 days, does the Policy envisage that the post be left vacant in spite of the fact that the candidates are available and waiting for appointment as per Merit List?
(c) Does the Policy envisage keeping the post of an S.E.S.E. Vacant at a school to the disadvantage of the students affecting their right to education, simply because a period of 190 days has lapsed?
Fettering of Discretion.
8. The purpose behind formulating any policy is to' provide guidelines for better exercise of discretion by the competent authority. The policy enhances efficiency and lends consistency to the process.
' However, the policy does riot disable the competent authority from applying its mind to the facts and circumstances of , every case as required by law. The policy may be silent regarding a particular set of facts, therefore by not exercising discretion in every case and mechanically deciding the matter on the basis of an over rigid application of the Policy amounts to fettering of the discretion by the competent authority, which in turn amounts to abuse of discretion, which renders the decision illegal besides ultra vices the law vesting such discretion in the competent authority. Discretion can neither be straitjacketed in a Policy nor can there be a blind adherence to it without application of mind to the facts and circumstances of each case. "A decision making body exercising public functions which is entrusted /with discretion must not, by the adoption of , a fixed rule or policy, disable itself from exercising its discretion in individual cases. It may not "fetter" its discretion.'" By doing so both the grounds of judicial review i,e,, legality and procedural propriety are offended. "The public authority offends against legality by failing to use its powers in the way they were intended, namely, to employ and to utilize the discretion conferred upon it. It offends against procedural propriety by failing to permit affected persons to influence the use of that discretion. By failing to "keep its mind ajar", by "shutting its ears", to an application, the body in question effectively forecloses participation in the decision-making process.
9. Lord Reid in British Oxygen Co. Ltd. v. Minister of Technology" stated: :'If the Minister thinks that policy or good administration requires the operation of some limiting rule, 'I find nothing/to stop him, provided that the authority is always willing to listen to anyone with something new to say...".
"The underlying rationale of the principle against fettering discretion is to ensure that two perfectly legitimate values of public law, those of legal certainty and consistency, may be balanced by another equally legitimate public law value, namely, that of responsiveness. While, allowing rules and policies to promote the former values, it insists that the full rigour of certainty and consistency be tempered by the willingness to make exceptions, to respond flexibly to unusual situations, and to apply justice in the individual case ... The no-fettering principle does not necessarily frown on the articulation of policies but it does not permit them to be rigidly applied.
10. Discretion must be exercised with full application of mind to the {{FOOT NOTE}} ' facts of the case. Even though policy is framed to facilitate discretion, leading to an efficient administrative system, pillared on consistency and certainty, it is never so absolute as to disable the exercise of discretion to facts of every case because some cases might have unusual facts that might not be catered to or covered under the policy but meet all the legal requirements under the law. Therefore, whenever discretion is subjected to a perfunctory application of a Policy without independent application of mind to the facts of each case, discretion is said to be fettered and hence bad in law.
11. Fettering of discretion also offends constitutional due process enshrined in Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973. We refer with advantage to Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish. Kashmiri (PLD 1969 SC 14) wherein Hamoodur Rahman, J. Speaking for the august Supreme Court of Pakistan explained the meaning of word "law" appearing in Article 2 of the Constitution of Islamic Republic of Pakistan, 1962, which is almost similar to Article 4 of the present Constitution, in the following manner:- "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the Superior Courts. It means according to the accepted forms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may well be, as has been suggested in some quarters, that in this sense it is as comprehensive as the American "due process" clause in a new garb. It is in this sense that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Action taken upon no ground at all or without proper application of the said (sic)6 of the detaining authority would also not qualify as action in accordance with law and would, therefore, have to be struck down as being action taken in an unlawful manner." (emphasis supplied) Shorish Kashmiri case in 1969 settled the principle that discretion exercised without application of mind or upon extraneous or irrelevant considerations shall not be considered to be an exercise of discretion "in accordance with law".
Today these principles of administrative law form part of the word "law" appearing in our "due {{FOOT NOTE}} ' process clause" under. Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973.
12. Abuse of discretion by a public functionary, therefore, violates Article 4 of the Constitution as it impairs due process and the right of a person to be treated in accordance with law. In the instant case both the abovementioned Policies are not attracted when the last incumbent of the post leaves under a court order creating a vacancy behind her. Policy- 2004 is silent where the vacancy has occurred due to the above reason. Hence, denying appointment to the petitioner do the basis of Policy, 2004 is a clear case where there is lack of application of mind resulting in abuse of discretion by the. Appointing authority. It is important 'to mention that Policy-2008 which needs to take preference over Policy - 2004 provides no time frame for a Merit List to expire.
Reasonableness
13. There is another aspect of the matter. It has been argued that rule of 190 days applies across the board and the Merit List comes to an end after the expiry .Of the said period. Therefore, it is important to analyze, whether the 190 days period fixed for the validity of the Merit List per se meets the test of "reasonableness."
14. What is the test of "reasonableness"? Reasonableness "includes many things, such as, taking into account irrelevant or extraneous considerations, colourable exercise of power for collateral purpose or improper object, action being mala fide or malicious, etc. The expression 'unreasonableness' thus covers multitude of sins'. "Every act of such authority must be rational, should be in accordance with law and informed by reason. If the action is unreasonable, i,e,, such that on the facts and in the circumstances of the case, could not have been taken, it can be quashed and set aside by a court of law8. "The application of the doctrine is not limited to the orders or actions which are merely absurd or capricious but it would also take within its sweep actions merging into illegitimate motives, collateral purposes, or actions based on irrelevant or extraneous considerations9".
15. According to Lord Bingham "a more orthodox, and better, test {{FOOT NOTE}} ' is whether the conduct which it is sought to challenge, was "conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt ... It is often sufficient to ask whether the challenged decision was 'within the range of reasonable decisions open to a decision maker"."
16. The concept of reasonableness is a "normative one." "Reasonableness means that one identifies the relevant considerations and then balances them according to their weight...Indeed reasonableness is an evaluative process...The bounds of any zone of reasonableness depend on the characteristics of the authority being exercised: the language and purpose of the authorizing statute; the identity of the administrative agency; the issue, being regulated by the authority...
17. According to Justice (Retd.) Fazal Karim'3 our courts have also considered reasonability as a ground to test administrative discretion:--- "In Government of Pakistan v. Dada Amir Haider Khan", the respondent was refused a passport, but no reasons were disclosed. Before the High Court, the reason for the non-issuance of passport given was that the respondent was an old 'political worker having 'communist thought'. In upholding the decision of the High Court, the Supreme Court observed: "We do not think that this reason was a reasonable ground on which a citizen's liberty to travel abroad could be curtailed. Undoubtedly, to travel abroad could be barred if it was shown that the applicant was going abroad to meet the enemies of the country and his foreign visit could endanger the security of the State or was against the public interest.... The world, however, is filled with "communist thought" and communist regimes are existing on more than one continent. They are part of the world spectrum and if we are to know them and understand them we {{FOOT NOTE}} ' must mingle with them. Keeping alive intellectual intercourse between opposing groups is important...." (emphasis supplied)
' In Messer Gadoon Textile Mills and others v. WAPDA and others15 Saleem Akhtar, J. Referred to it as the true test of reasonable exercise of discretion and said that "The rule of reasonableness is so embedded in the jurisprudence that even where statute confers arbitrary powers on any authority, it is to be read in such statute that the authority while exercising its discretion shall act reasonably."
In Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others', validity of regulations (a specie of subordinate legislation) made under the Sindh Buildings Control Ordinance, 1979 was in question. The High Court held that the regulations provided "a lever in the hands of the tenant to coerce the landlord to agree to his terms howsoever unreasonably they may be" and were therefore "unfair, impractical, and contrary to the policy of law and are therefore, unreasonable". Ajmal Mian, J. Speaking for the Supreme Court referred to the dictionary for the ordinary meaning of 'reasonable' and upholding the view of the High Court held that the regulations were unreasonable and hence ultra vires."
' This long established judicial enunciation of 'unreasonableness' as a ground for judicial review has now received legislative confirmation in section 24A of the General Clauses Act, 1897, which reads:- "24A. Exercise of power under enactments:
(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, officer or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the Act."
(2) (emphasis supplied)
18. From the above it can be drawn that "Reasonableness" of an administrative discretion or administrative policy carefully,evaluates the factors that have been considered by She executive in arriving at the decision or in formulating the policy. Reasonability of an administrative discretion or a policy must, therefore, inter alia, hinge on the following: (a) it must advance the purpose of The law (b) it must be in general public interest (c) must be based on relevant and key considerations arising out of the facts of the case (d) must not be tainted with collateral purpose, colourable exercise of power or improper object and (e) must not be based on mala fide or malicious intent.
The Court will also thoroughly evaluate the range of reasonable decisions taken by the decision maker to see whether any one of these decisions pass the test of reasonableness. . '
19. With the above checklist, let us evaluate the logic and wisdom of the government behind the rule of 190 days. Learned law officer in support of the said rule stated that there should be a timeframe to complete the recruitment process and the Merit List must stand discarded after that.
He contended that Merit List cannot go on indefinitely.
20. One simple situation could have been that once the top candidate according to the Merit List was duly appointed, the remaining Merit List is discarded and in case the top candidate refuses to join, fresh recruitment process is initiated. However, this is not the case here. Policy-2004 keeps the Merit List alive for 190 days and states that any vacancy arising after the said period cannot be filled on the basis of the Merit list as it stands expired.
21. The Merit List is kept alive, under Policy, 2004 and rightly so, in order to meet administrative exigencies and hence assumes the status of a Waiting List once the top candidate is duly appointed. The Merit List transferred into a Waiting List is actually a list of selected eligible candidates, who have successfully filtered through the recruitment process. They are a valuable human resource, a contingency reserve from amongst the successful candidates, which can feed any unsuspected vacancy.
22. . other advantages of a merit list-cum-waiting list are that vacancy can be filled immediately without re-coursing to a full-fledged recruitment process starting with a fresh public advertisement. Waiting List mechanism saves public money, human resource and time spent on carrying out a full course recruitment process. In case only one or two vacancies occur they can be immediately filled without waiting for a fresh recruitment process to be initiated and without keeping several posts vacant for a considerable period of time. As vacancy can arise at any time, the contingency plan in the shape of an operational Waiting List must also be available as long as the post continues. Hence, there can be no timeframe or a cutoff date for the expiry of the Waiting List. It is surely not binding on the candidates to remain on the Waiting List and are free to search for other and better employment prospects, but till they do so, their names continue to be retained on the Waiting List. As and when vacancy arises the said candidates can be contacted and if they are available the vacancy can be duly filled. The only time Waiting List might lose its utility and efficacy is when the eligibility criteria, to the post in question is altered or if the post itself is abolished or restructured or reorganized. .
23. On a socio-economic level, the students at the school are deprived of S.E.S.E. And have to wait till the next recruitment, takes place. This affects the education of the students as it unnecessarily deprives them of a teacher, which is without any rational justification when the Merit/Waiting List has a number of duly selected teachers who can be immediately appointed to the post, thereby providing uninterrupted education to the students. The policy makers have given little thought to the abovementioned considerations.
24. For the above reasons we first hold that the Contract Policy, 2004 has no application to the present case and has been over-rigidly applied to the case of the appellant without evaluating the facts and circumstances of the case. Subject to the qualification, hereunder, we also hold that the validity period of 190 days for the expiry of Merit List is unreasonable and therefore cannot be sustained in law. However, rule of 190 days can still have a limited application to the extent that where no candidate in the Merit List/Waiting List comes forward to be appointed to the post in spite of the offer made by the department, in such eventuality the merit list can come to an end after a period of 190 days and the department can initiate fresh recruitment process.
25. Respondents are directed to consider the case of the appellant for the post of S.E.S.E. On the basis of the Merit List in question within a week from the receipt of this judgment.
26. Resultantly, the writ petition, as well as I.C.A. Is allowed. Order dated 13-7-2011 passed by learned Single Judge, is set aside.