' SHAHID ANWAR BAJWA, J.--- With the consent of the learned counsel for the parties these constitutional petitions were finally heard at Katcha Peshi stage and are being decided accordingly.
2. These petitions fall into two categories. In the first category are the petitions relating to recruitment in 2007 and they are C.Ps. Nos.D-150 of 2008, 584 of 2009, 1063 of 2009, 117 of 2010, 339 of 2010, and 554 of 2011. The second set of petitions pertains to recruitment in 2008 and these include C.Ps.Nos.D-1058 of 2009, 1133 of 2009, 3 of 2010 and 929 of 2010.
3. On 16-7-2007 an advertisement was placed in the press for recruitment to posts of Excise and Taxation Inspector (ETI), BS-14. The petitioners in petitions of 2007 sat in the written test. It is claimed in the petition that they were successful in the written test and thereafter they were called for interview. After the interview, results were compiled and the petitioners are shown at various serial numbers in the compiled result prepared after written test and viva voce. In the meanwhile in early 2008 there was change of Government at the helm of affairs in the Province of Sindh.
Consequently, on 12 and 13-7-2008 another advertisement was placed in the newspapers. In the comments it is stated that since there was ban on appointments, none of the successful candidates in response to advertisement placed in 2007 was taken in employment and after change of Government, new advertisement was placed in July 2008. From 17 to 26-2-2009 meetings of Departmental Selection Committee for selection in consequence of advertisement placed in 2007 were held and the following minutes were recorded by the Committee:-- "SUBJECT: MINUTES/RECOMMENDATIONS OF THE DEPARTMENTAL SELECTION COMMITTEE HELD FROM 17 TO 26 FEBRUARY, 2009 FOR RECRUITMENT OF POST OF EXCISE AND TAXATION INSPECTOR (BPS-14) IN EXCISE AND TAXATION DEPARTMENT, GOVERNMENT OF SINDH.
' The honourable Chief Minister Sindh was pleased to approve the relaxation of ban for recruitment of staff from BS-1 to BS-15 in Excise and Taxation Department vide Summary dated 27-11-2008 and Outward No,CMS Diary No,2058 dated 2-12-2008.
(2) Accordingly as per policy/guidelines and Rules thereon of Government of Sindh in Excise & Taxation Department various posts from (Grade-1 to 15) lying vacant were advertised in the leading Daily Newspapers i,e, "Dawn", "Jang" and."Sobh" on 12 and 13 July, 2008 respectively through Information Department. Written tests for the post of Excise and Taxation Inspectors (BPS-14) were conducted by each Regional Director of this Department simultaneously on 31-8-2008 at various places in the Province.
(3) 22,455 candidates were appeared in the written test in their respective Regions/Divisions. After having been completed the process of checking of answer sheets of candidates, 1099 successful candidates in written test were called by their respective Regional Director of this Department to appear before the Departmental Selection Committee No,II in the office of Director General, Excise and Taxation Sindh Karachi for viva voce/interview as per scheduled commenced from February 17 to 26, 2009.
(4) After going through the written test/interviews etc. The Departmental Selection Committee out of 1099 candidates of five Regions i,e, Mirpuirkhas, Larkana, Sukkur, Hyderabad and Karachi who were appeared in viva voce/interviews conducted from 17 to 26 February, 2009. 250 candidates were found eligible/recommended for appointment on open merit as Excise & Taxation Inspectors (BPS-14) against vacant posts lying in the department. Merit list of these candidates is given at (AnnexureI) against clear vacant posts and (Annexure-Il) against future posts maintaining subsequent seniority as per merit assigned by Departmental Selection Committee.
(SOHAIL QURESHI)
' DS (Services-II/Member SGA&CD (SHAFIQUE AHMED SHAIKH) Dy: Secretary/Member,E&T (MUHAMMAD SHOAIB AHMED SIDDIQUI) DG (E&T Sindh/Member (MANZOOR AHMED MEMON) Special Secretary, E&T/Member (MOHSIN S. HAQQANI) Secretary, E&T/Chairman"
4. Mr. Mukesh Kumar G. Karara, learned counsel for the petitioners in C.P. No, D-150 of 2008 led the arguments in respect of the petition of petitioners relating to advertisement of 2007. He made the following submissions:--
(a) No reason for scraping the previous recruitment process has been given beyond a plain statement that process was initiated during the period when there was ban on recruitment. The same reason is equally applicable to recruitment made on the basis of advertisement of 2008 because even in case of 2008 advertisement, the process was initiated while there was a ban because the process was initiated in. July, 2008, and ban was lifted much later, sometime on 2-12- 2008.
(b) The petitioners never applied and appeared in response to advertisement of 2008 and therefore his petition is only confined to the prayer clause where it is prayed as under:---
(i) That the respondents may be directed not to cancel the process of above interviews in any manner, but to proceed with the same and further direct the respondents Nos.1 to 7 to issue appointment order of the petitioner for the post of Excise and Taxation Inspector BPS-14, on the basis of above written test and interview/viva voce, qualification of petitioner, and on humanitarian ground, looking to the increasing age of the petitioner.
(ii) Costs of this petition.
(c) Learned counsel submitted that although he did not apply in response to advertisement of 2008 but the respondents with mala fide intention have shown his name as appearing in 2008 advertisement and in this regard learned counsel referred to merit list of 2008 and stated that firstly his name appeared at serial No,4 and thereafter fresh list was issued and serial No,4 had been shown as blank. He submitted that the answer script allegedly given by him in response to advertisement of 2008 had been produced which is prima facie bogus and fabricated because it is not even in the handwriting of the petitioner.
5. Learned counsel relied upon Muhammad Rasheed v. Government of Punjab (2006 SCMR 1082); Muhammad Ismail v. Secretary Education, Government of Punjab (2000 PLC (C.S.) 112), Secretary of Government of N.-W.F.P., C&W Department v. Jamal Abdul Nasir (2003 PLC (C.S.) 977), .Munir Ahmed v. 'Minister for Home and Tribal Affairs, Government of Balochistan, Quetta (2007 PLC (C.S.)
679), Dr. Marvi Shah v. Province of Sindh (2009 PLC (C.S.) 182) and Muhammad Asghar Waseer v.
Secretary, Local Government (2009 PLC (C.S.) 586).
6. Petitioner in C.P. No,D-150 of 2008 also submitted his written arguments. M/s Mumtaz Rabbani (C.P.D-584 of 2009), M/s. Abdul Qayoom Shaikh (C.P.D-117 of 2010) and M/s. Ubedullah Ghoto (C.Ps.D-339 of 2010 and 554 of 2011) adopted the arguments of Mr. Karara. They also stated various serial numbers at which, according to them, names of their petitioners were placed both in the list issued after written test and the consolidated merit list issued after viva voce. Mr. Ubedullah Ghoto in C.P.D-1063 of 2009 submitted that the petitioners in that petition though having passed the written test and cleared the viva voce appeared in 2000 and though he cleared the written test but he was shown as failed in the viva voce. He relied upon Safdar Ali Sahito v. Province of Sindh and 10 others (2011 PLC (C.S.) 956).
7. Mr. A.R. Faruq Pirzada, learned counsel for the petitioners in C.P.D-1133 of 2009 which is a petition, in respect of advertisement placed in 2008 and who led arguments in respect of that advertisement submitted that advertisement for the post of ETI was placed in the Press on 13-7- 2008. Written test was held on 31-8-2008 and the petitioner cleared the written test and was placed at serial No,84 of the list prepared after the written test. The petitioner was called for interview. He appeared in the interview but has not been included in the list of successful candidates. Learned counsel submitted that many persons who did not appear in the written test or who had not passed the written test had been offered employment In this regard learned counsel referred to para 9 of the petition where it is stated that one Qazi Zakaullah and Muhammad Azeem have been appointed although they did not appear in the written test. He also referred to page 47 of his petition where names of 20 persons are given and he stated that these persons have also been given employment although their names did not appear in the list of ' successful candidates after the written test. Learned counsel also referred to rejoinder filed on 13- 5-2010 and submitted that there are many other irregularities in the recruitment process inasmuch as many persons who did not sit in the written test have been recruited and many other persons have been shown not in the District from which they appeared but in other Districts. Learned counsel submitted that the selection process has not been transparent and fair and merit was ignored and favouritism was resorted to. Learned counsel submitted that certain answer scripts have been filed in the Court but these answer scripts are prima facie manipulated as the name of the center is not mentioned and then on the answer also indicate some manipulation. Learned counsel referred to paras 4 to 10 of rejoinder in this regard. Mr. Muhammad Iqbal Memon adopted arguments of Mr. A.R. Faruq Pirzada and further submitted that list of persons who cleared the written test consisted of 160 persons and the comments have stated that list comprise of 180 persons and there are 250 persons who have been appointed. He submitted that each one of the appointees belonged to one or the other political family and therefore the whole process is neither transparent nor fair and therefore not sustainable. Mr. Qurban Ali Malano (C.P.D-929 of 2010) and Mr. Ubedullah Ghoto (C.P.D-3 of 2010) adopted arguments of Mr. A.R. Faruq Pirzada.
8. Mr. Bhajandas Tejwani, who led the arguments on behalf of private respondents made the following submissions:--
(a) The petitions are not maintainable because they are based on assumptions. It has been assumed by the petitioners that they have passed the viva voce. In fact none of the petitioners in 2008 petitions cleared the viva voce.
(b) The petitioners of 2007 petitions did not have enforceable right and therefore not entitled to maintain the petitions.
(c) Suitability for appointment can only be assessed by the competent authority and no other person be it a Court of law or Tribunal can assume jurisdiction and assess suitability of a person for employment.
(d) The petitioners have made contradictory pleas because on the one hand they are seeking appointment on the basis of selection and on the other hand they are seeking declaration that the process of selection is not transparent.
(e) It is true that in the rejoinder filed by the petitioner in. C.P.D-1133 of 2009 certain new facts have been disclosed but since these facts were not disclosed in the main petition, no rejoinder could have been filed because rejoinder is limited only to new facts stated or pleaded in the reply statement or clarification of any point when contents of the petition are put in juxtaposition with the reply statement.
9. Learned counsel relied upon Abdul Ali v. Balochistan Public Service Commission (2010 PLC (C.S.)
853) to contend that recommendation of Departmental Selection Committee cannot be challenged in writ jurisdiction. Learned counsel relied upon Asadullah. Mangi v. Pakistan International Airlines Corporation (2005 SCMR 445) and Mustafa Lakhani v. Pakistan Defence Officers Housing Authority (2006 SCJ 702) to contend that mere passing of written test or even selection by the selection authorities does not constitute a right enforceable through a writ petition.
Mr. Nizamuddin. Baloch, learned counsel for other private respondents adopted arguments of.Mr. Tejwani and submitted that the private respondents have been properly employed after due consideration and after following all the codal formalities.
10. Mr. A.M. Mobeen Khan, learned counsel for Excise and Taxation authorities including the Secretary, Director General and others, submitted that there were 250 positions. In the Sukkur Region 181 persons passed the written test and he filed a list of such persons. All over Sindh basis 186 persons were cleared after the viva voce and 71 were kept on waiting list therefore there were 257 numbers in the final merit list. Due to clerical error three places were left blank. Therefore, there were 254 persons who were actually cleared after viva voce. Degrees and certificates of 04 of them were found bogus and thus cleared candidates wore 250. However, 213 persons have been recruited. Learned counsel explained the position in respect of various persons stated in the affidavit in rejoinder by reading from various paras of statement filed by him earlier. Learned counsel submitted that 2007 process was scrapped because there was ban on recruitment and when the process was completed by that time the ban was not revoked. Learned counsel relied upon Secretary Finance v. Ghulam Safdar 2005 SCMR 534 to contend that no recruitment can take place during the period when there is a ban. Learned counsel relied upon Asif Mahmood Chughtai v. Government of Punjab (2000 SCMR 966) to contend that those who failed in interview are not entitled to be taken into employment. Learned counsel relied upon State Bank of Pakistan v.
Franklin Credit and Investment Company Ltd. (2010 SCMR 121) to contend that acts performed by public functionaries are presumed to be regularly and properly performed unless it is proved otherwise. Learned counsel relied upon Abdul Hafeez v. Board of Intermediate and Secondary Education (1983 SCMR 566) and Muhammad Rafique v. Abdul Ghafoor 1992 SCMR 1971 to contend that the -petitioners in C.P. No,D-150 of 2008 has come to this Court with unclean hands. Lastly learned counsel contended that the petitions suffer from laches.
11. Learned Additional Advocate-General adopted arguments of Mr. A.M. Mobeen Khan and submitted that the appointees have spent four years in the job and have been confirmed and therefore should not be disturbed. He further submitted that there are factual controversies which cannot be decided in exercise of writ jurisdiction.
12. While exercising right of reply Mr.A.R. Faruq Pirzada, learned counsel for the petitioners submitted that the list, submitted in Court, of results of written test where 181 persons are shown is a manipulated list because earlier list of 160 persons had been submitted. Mr. Mukesh Kumar G.
Karara exercising his right of reply submitted that laches are not attracted in his petition because he filed petition in 2008. He further submitted that no order of Chief Minister scraping the process initiated in 2007 has been produced.
13. We have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar.
14. As far as Petitions relating to recruitment in response to advertisement of 2007 are concerned, the facts are straightforward and not disputed. Advertisement was placed by the Excise and Taxation Department for recruitment to the posts of Excise and Taxation Inspectors on 16-7-2007.
Call letters for written test were issued on 23-9-2007 and written test was held on 27-9-2007.
Committee for interview was constituted on 29-10-2007 and call letters for interview were issued on or about 3-10-2007. Thereafter though there are some newspaper reports but nothing has been placed on record by the official respondents that the Chief Minister had decided to scrap this process. This was precisely one of the contentions of Mr. Karara it appears that recruitment process of 2007 was dropped whether as a hot potato or as an old hag not worthy of any more time, is beside the point and then in July, 2008, to be more precise, on 12th and 13th July, 2007 fresh advertisement-for recruitment was placed in the newspapers and written test was conducted on 31-8-2008. Thereafter as the minutes of the meeting, reproduced, in para 3 above, reveal the process was stopped in its tracks. On 2-12-2008 summary was approved by the Chief Minister for lifting of ban on recruitment and consequently immediately thereafter process of interview was started in respect of test which had been held on 31-8-2008.
15. Regarding maintainability of the petition, Mr. Tejwani, learned counsel for private respondents argued that the petitioners of 2007 petitions did not have any enforceable, right, and were therefore not entitled to maintain the petition. He relied upon Asadullah Mangi's case (supra). The petitioners' claim in the reported case was that they were fully trained flight stewards and received their training at the PIA Training Centre at Karachi and on completion of training they were issued PIA crew uniforms. While some flight stewards who completed training along with petitioners were inducted in service of 'PIA, the petitioners were not appointed flight stewards on the grounds mentioned in their letter dated 28-3-1997. Letter dated 28-3-1997 inter alia stated the following reasons for not inducting in employment after completion of training:--
(a) The petitioners were selected without submitting any application in response to advertisement.
(b) At the training centre their "performance was not entirely satisfactory".
(c) In the meanwhile "an embargo on fresh recruitment had been imposed".
It was in view of these factors that non - induction was upheld by the High Court and CPLA was dismissed by the Honourable Supreme Court. In Mustafa Lakhani's case (supra) which was a case relating to allotment of a plot it was held by the Honourable Supreme Court that no right would be created on the basis of allotment procured through forgery, fraud and in contravention of applicable bylaws and cancellation of such allotment would be legal. Both these cases are clearly distinguishable from the present case and turn on their peculiar facts because one related to an allotment of plot and other related to non-induction for primarily three reasons stated therein.
None of those reasons have been pleaded by the respondents as applicable to the present case.
16. On the other hand Mr. Karara relied upon Muhammad Rasheed's case (supra). Facts of this case were that the appellants applied for job against different vacancies in the Education department in response to an advertisement. They were selected but their appointment letters could not be issued because in the meanwhile on 22-2-1997 Government of Punjab had placed ban on recruitment. The writ petition was allowed by the High Court and the Honourable Supreme Court dismissed the civil appeal while observing that Government did not have authority to withhold appointment letter (?) on account of ban subsequently imposed despite the fact that petitioners were duly selected on merit according to rules. The case-law relied upon by Mr. Karara is partly applicable to the facts of the 2007 petitions but the distinguishing feature is that in the reported case the ban was imposed after the process had been completed whereas in the case of 2007 petitioners the ban was in force when the process was completed. The second case in somewhat similar circumstances is the case of Muhammad Ismail (supra) where the process of public advertisement testing and interview had been completed and thereafter the authority without any reason did not issue appointment letters. A Single Bench of Lahore High Court observed that the respondent could have retraced their steps till such time the merit list had been finalized: It was also held that the ban could not be imposed retrospectively. In Jamal Abdul Nasir's case (supra) it was also held that the ban imposed could not be retrospectively applied to the cases where process of selection had been already completed. In Munir Ahmed's case (supra) the petitioners were recommended for appointment as Risaldar and Levy Sepoy respectively by the Departmental Selection Committee but no appointment letter was issued. They filed a writ petition. It was contended by the Assistant Advocate-General that recommendations were sent to Chief. Minister who directed that the fresh interview of the candidates be held. A learned Division Bench of Balochistan High Court observed as under:--- "No reasons have been assigned for withholding appointments of petitioners which act on the part of competent authority is arbitrary and discriminatory and could not be approved. We are conscious of the fact that recommendations of the Selection Committee are not binding upon the appointing authority, however; while rejecting such recommendations there must be some reasons for rejection as discretion vested in the competent authority is to be exercised judiciously with full application of mind and not . In arbitrary manner, otherwise; spirit behind the rules that the candidates should be selected through Selection Committee in order to maintain transparency in the process would be defeated and the appointing authority would go on rejecting the recommendations of the Selection Committee until desirous candidates are recommended."
17. Dr. Marvi Shah's case (supra) relates to recommendation by the Public Service Commission and therefore is distinguishable and Muhammad Asghar's case (supra) is again on the point that a ban imposed cannot be imposed retrospectively.
18. In the present case, as narrated above, there was a ban when advertisement was placed in 2007; there was a ban when test was held in 2007; there was a ban when interviews were held in 2007; there was a ban when advertisement was placed in 2008 and there was a ban when test was held in 2008. Ban was lifted in December 2008 and then selection was made in respect of those who competed in response to ' advertisement of 2008 and those who had been selected in response to advertisement of 2007 were just not considered worthy of a look even. If advertisement placed during ban in 2008 can be acted upon, we are unable to discern any reason why the advertisement placed during ban in 2007 should not be acted upon. If written test held in 2008 during ban can be acted upon when the ban is lifted we are unable to see any logic as to why the same treatment could not have been and should not be extended to the test held in response to advertisement of 2007. If the authority could after lifting of the ban in December 2008 put their hands in the filing dump and eek (sic) out results of written test held six months earlier why could it not they do so in respect of result of final selection held one year earlier. And Mr. Karara is perfectly justified in arguing that there is no order of any competent authority, at least none has been placed on record and no reason whatsoever has been canvassed at the bar as to why a different treatment was given to one advertisement during ban than to another advertisement during the same ban.
19. Mr. Mobeen Khan referred to Ghulam Safdar's case (supra) and contended that recruitment during ban would be violative of law; It was a case where applications were invited for post of Assistant National Savings Officers. Applicants were subjects to written test and thereafter interviews but it did not result in appointment and consequently writ petition was filed and it was pointed out that when the process was just about to be, completed ban on fresh recruitment was imposed. The writ petition was allowed by the High Court. The Honourable Supreme Court observed as under:--- "Be that as it may, it is difficult to sustain the prayer of the respondents since mere selection in written examinations and interview test, would not, by itself, vest them with a fundamental right for enforcement as such in the exercise of constitutional jurisdiction of the High Court. Admittedly, the appellants had not issued any offer of. Appointment to the respondents and their appointment were subject to clearance by the Establishment Divisions under the centralized system of recruitment till it was discontinued in November, 1996, which again coincided with the imposition of An on fresh recruitments, which could not be safely ignored by the appellants. Thus, the High Court was not right in overlooking this aspect of the case and issuing a writ of mandamus of the - nature prayed for."
' This case is clearly distinguishable from the present case because in the present case while in respect of one advertisement and test during ban recruitment has been held and appointments made and in respect of another advertisement and test during the same period of ban it is being contended that because of the ban the recruitment could not be made. It may also be noticed that the reported judgment appears to have held that it is available to the competent authority to decide to cancel the process of recruitment at any stage. However, present is the case where it is not decided to cancel the recruitment process. Recruitment was made but in respect of one process during the period of ban and not another process, held just a little before the second, during the ban period and no reason has been assigned for such a "discriminating" decision and in fact no written decision in this regard has been placed on record.
20. Mr. Mobeen Khan also relied upon Franklin Credit's case (supra) where the matter related to establishment of a commercial bank and it was observed that acts performed by the public authorities deserve due regard. The case is clearly distinguishable.
21. Mr. Mobeen Khan argued that there were 250 vacancies. 186 persons were cleared in the test 'and Interview process in respect of advertisement of 2008 and 213 persons were recruited. Mr. Baloch contended that though private respondents recruited should not be disturbed merely on the basis of Petitions filed by the persons who were selected on the basis of 2007 advertisement.
We may also refer to other aspects. Mr. Mobeen Khan argued that petition is hit by laches. In fact it is not so because C.P.No,D-150 of 2008 was filed as far back as 19-3-2008.
23. According to Mr: Mobeen Khan since there were 250 vacancies and 213 have been recruited, therefore, there are still 37 vacancies. It will be for the Government to decide whether it wants to increase the vacancies to accommodate those who were illegally denied their right of recruitment on the basis of 2007 advertisement or it wants to displace some other persons. This is entirely within the domain of the Government to decide.
24. Result of the above discussion is that Constitutional Petitions Nos.D-150 of 2008, 584 of 2009, 1063 of 2009, 117 of 2010, 339 of 2010 and 554 of 2011 are allowed and respondents Nos.1 and 3 are directed to issue appointment letters to the persons selected for recruitment through Departmental Selection Committee in response to advertisement of 2007 within a period of 30 days. Following the principle laid down by Honourable Supreme Court in the case of Hameed Akhtar Niazi v. Secretary, Establishment Division (1996 SCMR 1185) respondents Nos.1 and 3 are directed to give the same treatment to the other persons selected through the process consequent upon 2007 advertisement without compelling them to initiate a spate of litigation.
25. As far as recruitment in respect of advertisement of 2008 is concerned, Mr. Mobeen Khan argued that none of the petitioners has cleared the interview and had been selected. Mr. Mobeen Khan had correctly argued while relying Asif Masood's case (supra) that those who failed in interview are not entitled to be taken into employment. It has been held in Abdul Ali's case (supra) that mere passing of the written test does not confer the right of recruitment because one has to clear the viva voce also.
26. Mr. Pirzada extensively referred to the petition and the affidavit in rejoinder and his contention was twofold: that some persons who had not appeared in the written test had been selected in response to 2008 advertisement. This fact is denied by. Mr. Mobeen Khan. It boils down to whether the list contained 160 or 180 names. Mr. Pirzada claims that last page has been subsequently and fraudulently added. Obviously such disputed question of fact cannot be decided in exercise of writ jurisdiction. Same is the position of contention of Mr. Pirzada with reference to pares 4 to 10 of the affidavit in rejoinder where irregularities are alleged in respect of domiciles etc. These again are questions which cannot be gone into these proceedings. As far as then petitioners are concerned, a clear statement has been made that they did not clear the viva voce and the petitioners have failed to place on record any material to substantiate that they cleared the viva voce. D Whether a particular other candidate has been lawfully and properly recruited or not is a question, if there are no disputed facts which cannot be gone into can be sorted out through an appropriate writ in nature of quo warranto. And the Primary grievance in present writ petitions by the petitioners of 2008 recruitment has been that they have not been recruited.
27. Result of the above discussion is that Constitutional Petitions Nos.D-1058 of 2009, 1133 of 2009, 3 of 2010 and 929 of 2010 are dismissed.