SYED MANSOOR ALI SHAH, J. - This judgment decides the instant petition, as well as, petitions mentioned in Schedules A and B. As they raise same questions of law and facts. Petitions listed in Schedule-B carry an additional fact that the applications for the post in question were submitted after the cut-off date i.e., 25th April, 2011.
2. Brief facts of the titled petition are that the Punjab Public Service Commission (Respondent No. 1) invited applications for 66 posts of Provincial Management Service ("PMS") BS-17 through public advertisement No. 7 of 2011, dated 03.04.2011. The advisement was for initial recruitment to the post of PMS through Combined Competitive Examination. Clause 5 of the advertisement required the age of the prospective candidates (nongovernment, candidates) to be between 21, - 28 years on 01.01.2011 while it provided age relaxation for government employees under the relevant rules.
3. The grievance of the petitioners is that inspite of the Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 ("Rules, 1961") and its Schedule as amended through Notification dated 4.11.2006, the Administrative Secretary i.e., Secretary S&GAD, Government of the Punjab, has failed to grant relaxation of upper age limit to the petitioners (non-government candidates) for the above post.
Learned counsel for the petitioners submitted that relaxation of upper age limit for the post of PMS has been consistently extended to thk non-government candidates in the past including the lastHjme in 2008. It has also been urged that for the last two year? There has been no recruitment against the said post and the last Combined Competitive Examination took place in the year 2008, as a result the petitioners missed their chance to apply for the said post and have become overage during this interregnum i.e., between 2009 and 2010, hence they were entitled to the grant of benefit under Rules, 1961. It was also submitted that in other departments of the Government of Punjab, relaxation of 5 years in the upper age limit has been granted and referred to public advertisement No. 5/2011 published in national dailies on 13-3-2011 wherein relaxation of upper age limit has been granted by the Agriculture, Auqaf, Food, Planning and Development Departments and the Board of Revenue, Punjab for a period of 5 years.
4. Learned Law Officer on the other hand submitted that the discretion to grant relaxation of upper age limit vests with the concerned Administrative Secretary under Rules, 1961 and the benefit has been refused to the petitioners this year. The reason for withholding the said benefit was the declaration made in,the year 2008 that the benefit was being given for the last time in the year 2008, being a ONE TIME DISPENSATION. Hence, the upper age limit was not,relaxed this year. It was furthersubmitted that relaxation of age extended in, other departments. Casts no obligation on the Secretary, S&GAD as every department operates independently.
5. Arguments heard, record perused.
6. In the Schedule to Punjab Delegation of Powers (Relaxation of Age) Rules. 1961 amended under Section 23'of the Punjab Civil Servants Act, 1974 vide Notification dated 4.11.2006, the discretion to grant relaxation of upper age limit vests in the concerned Administrative Secretary in the following manner:--- ((Table))Sr. No. Authorities :competent to relax age prescribed for recruitments - Services and posts in respect of . Which relaxation is permissible Limit upto which age can be relaxed.
1 Administrative Secretary i.
All the services and posts meant for initial Unto 5 years across the recruitment, (emphasis supplied) ii. Cases where a highly qualified candidate board, to aooear as part of advertisement.
(emphasis applies for a particular post to be specified by the Administrative Secretary. Supplied)
Upto 8 years across the board, to appear as part of advertisement.
District Coordination Officers. All services and posts meant for initial recruitment falling under the domain of a District Government. Upto 5 years, across the board, to appear as part of advertisement.
7. As a matter of background, Schedule to Rules 1961 as amended vide Notification dated 21.06.1999 provided for relaxation of upper limit in the following manner- ((Table))Authorities competent to relax maximum age prescribed for recruitment Services and posts in respect of which relaxation is permissible Limit upto which age can be relaxed Administrative Secretary Cases where no Equivalent to the recruitment was made for anv reason durina last Deriod for which no recruitment was five vears. This relaxation made. (emphasis eauivalent to the Deriod supplied) durina- which no recruitment took Dlace shall be aiven across the board and aooear as a part of the advertisement for recruitment obviatina the necessitv of an individual aoDroachina the Government authorities for relaxation. (emphasis supplied)
8. T hereafter the said Ru es were held in abeyance and relaxation in upper age limit for initial recruitment to post BS-1 to BS-17 (for non-government candidates) was granted under the Recruitment Policies issued by the Services and General Administration Department (Regulations Wing), Government of the Punjab from time to time.
9. The Recuritment Policy, 2003 dated 05.05.2003 provided as under:- ((TAble))"IX RELAXATION IN UPPER AGE LIMIT FOR INITIAL RECRUITMENT IN BS-1 TO 17 According to the Punjab Delegation of Powers (Relaxation of Age) Rules, relaxation in upper aae limit eauivalent to the period durina which no recruitment took place, is aiven across the board, subject to a maximum of five vears. Under these rules, benefit could not be given to most candidates, as some recruitments in various categories of posts have been made in the past, from time to time. It has, therefore, been decided that:
(1) 05 years relaxation in upper age limit may be allowed, across the board, for all categories of posts, irrespective of the fact as to whether recruitment was made or not.
(2) This relaxation would be a one time dispensation which will be valid upto 31.12.2004. for all kinds of recruitments. Durina this time, the application of Punjab Deleqation of Powers (Relaxation of Aae)
Rules, shall be held in abevance." (emphasis supplied)
Thereafter Recruitment Policy. 2004 dated 17.09.2004 once again granted relaxation in upper age limit in the following terms:-- ((Table))"16. RELAXATION IN UPPER AGE LIMIT FOR INITIAL RECRUITMENT IN BS-1 TO 17. "
(i) 05 years relaxation in upper age limit shall be allowed, across the board, for all categories of posts in BS-1 to 17.
(ii) This relaxation would be valid upto 30.06.2005j for all kinds of recruitments. During this time, the application of Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 shall be held in abeyance." (emphasis supplied)
The relaxation granted upto 30.06.2005 under the Recruitment Policy, 2004 was further extended upto 30.06.2006 vide letter dated 14.07.2005 issued by the Services & General Administration Department (Regulations Wing), Government of the Punjab.
10. The said post was once again advertised in the year. 2008 vide public advertisement No. 18 of 2008 by the Punjab Public Service Commission, Lahore. Relaxation of upper: age limit was not granted to the non-government candidates, however, through partial modification of the above advertisement1, Government of the Punjab, granted three.Years age relaxation for all the posts in the Combined Competitive Examination 2008 as a one time dispensation.
11. Thereafter, Combined Competitive Examinations were not held in the year 2009 and 2010 and the post of PMS was advertised after two years in the year 2011. The public advertisement for the year 2011 did not gra^t 'relaxation of upper age limit for the non-government candidates (petitioners) on the ground thatjhe Government of the Punjab granted relaxation of upper age limit as a ONE TIME DISPENSATION, hence benefit of age. Relaxation could not be extended to the petitioners in the year 2011.
12. The legal question that emerges for the deliberation of this Court is whether there has been failure or ofcuse of discretion by the Secretary S&GAD ,(the concerned Administrate Secretary) vested in him under the Schedule to Rules, 1961?
13. Reading of the Punjab Delegation of Powers Advertisement No. 18/2008 (Relaxation of Age)
Rules, 1961 shows that the powers have been delegated to the Administrative Secretaries to grant relaxation in upper age limit for all the posts meant for initial recruitment. The secretaries may or may not grant relaxation of upper age limit but they have to exercise their discretion whenever initial recruitment takes place. The exercise of this discretion for the sake of transparency and good governance has to be . In writing supported by cogent reasons in accordance with law.
14. The discretion vested in the Administrative Secretary determines the upper age limit of a prospective candidate for initial recruitment in a particular year, therefore, exercise of discretion prior to the public advertisement for initial recruitment is essential as it determines and provides the prospective candidate with access to lawful employment. The administrative secretary is therefore under an obligation to consider to the attending circumstances of an initial recruitment in a particular year and exercise the discretion vested in him under the law.
15. Due process guaranteed under Article 4 empowers a citizen to be lawfully and transparently considered for any public office, in addition, inbuilt in the right to life under Article 9 of the Constitution is the right to a lawful recruitment process pr " office Any haphazardly structured recruitment process impairs the prospects j', r deP.nvin9 "V the oDoortunitv * to compete for a public post. This ' denial of -n ^ V emP'yment offends the fundamental denial ctfre. Government in regulating public appointments, Jtfsides ensuring merit and transparency of the process must also guarantee fairness and equity in the recruitment process^ Good governance mandates that Government must deal with the affairs of the citizen with compassion and care.
16. In the present case, Rules, 1961 vest discretion in the Administrative Secretaries to grant relaxation of upper age limit in cases of initial recruitment (for non-government candidates) after considering the facts of initial recruitment to every post. This discretion vested in the Administrative Secretaries is for the benefit of the citizens applying for public posts and therefore it must be exercised in accordance with law. No doubt, it is the prerogative of the concerned Secretary to extend or not to extend the benefit of age relaxation to the prospective candidates for a particular year but it is obligatory on the Secretary to apply his mind and give reasons for his decision. It is useful to refer to the oft quoted observation of Earl Cairns CJ in the leading case of Julius v. Lord Bishop of Oxford?
"Where a power is deposited with a public officer for the purpose of being used for ,tfie benefit of persons....That power ought to be exercised, and the Court will require it to be exercised." that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings. Open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it fernd regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times", (emphasis supplied).
Further reliance is also placed on Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), Director Food, N.W.F.P. And another v. Messrs Madina Flour. & General Mills (Pvt.) Ltd. & 18 others (PLD 2001 SC 1), Abdul Wahab and another v. Secretary, Government of Balochistan and another (2009 SCM R 1354) and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101).
13. The exercise of discretion under Rules. 1961 bv the Administrative Secretary for relaxation of upper age limit, forms part and parcel of the initial recruitment process. This discretion must be exercised and reasons must be given for granting or not granting age relaxation in a particular year. Failure to exercise this discretion is not permissible under the law and results in derailing the entire recruitment process.
14. In the present case there has been a total failure of discretion by the Administrative Secretary as he laboured under a misconception that his discretion under Rules, 1961 stood exhausted or was fettered and frozen by the declaration of the Government of the Punjab (either by his predecessor or by the Chief Minister of the Province) by marking it as a one time dispensation in the year 2008. Competent Authority underJRules, 1961 or even the Chief Minister cannot divest or deprive the future Administrative Secretary of his discretion provided under Rules, 1961. Any such declaration amounts to usurping the discretion vested in the Administrative Secretary besides frustrating the power vested in the Secretary under the-Rules. As long as Rules, 1961 subsist the discretion provided thereunder subsists. The ONE TIME DISPENSATION purporting to impose a mark of finality on the exercise of discretion under Rules, 1961 is therefore without lawful authority and not permissible under the law.
15. Authority entrusted with discretionary power must enjoy the power and flexibility to consider the facts and circumstances of an individual case and independently apply its mind to it. Any fetter or over rigid policy that prevents application of free mind renders the discretion bad in law. "An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance. It is fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case; each one must be considered on its own merits and decided as the public interest requires at the time."[1] What is expected of the authority is that it must consider the facts of each case, apply its mind and take a decision. If a general rule is propounded and applied to all cases, there is no consideration of the facts of an individual case at all which results in failure of exercise of discretion by the authority. "By failing to keep the 'mind ajar' and by 2012 Uzma Rani V. Punjab Public Service Commission L&S.C 97 (Syed Mansoor Ali Shah, J.) 'shutting ears', the authority virtually forecloses participating in the decision-making process."[2] Therefore, the clog of ONE TIME DISPENSATION imposed on the discretion of the Administrative Secretary is illegal. It also amounts to playing a fraud on the people and making a mockery of public commitment made by the Government. For example, the Recruitment Policy 2003 gave a one time dispensation in the following terms:-- .
This relaxation would be a one time dispensation which will be valid upto 31.12.2004, for all kinds of recruitments. During this time, the application of Punjab Delegation of Powers (Relaxation of Age)
Rules, shall be held in abeyance.
However in the Recruitment Policy, 2004 the relaxation was extended upto 30-6-2005 and then to 30-6-2006[3] with little regard to the one time dispensation granted in the year 2003.
16. The Administrative Secretary had to apply his mind to the facts and circumstances of the case, which he failed to do due to the fetter of one time dispensation announced in the year 2008. The words of Justice Khalil-ur- Rehman Ramday in Chief Secretary, Punjab and others v. Abdul RaoofDasti (2006 SCM R 1876) are a timely reminder: "It is our misfortune that when we are looking for individuals to serve our own-selves, we search for the best of doctors, the best of architects, the best of lawyers, the best of engineers, the best of cooks, the best of butlers and so on but when it comes to selecting similar individuals to serve the public, we get swayed by nepotism, by petty personal interests and by other similar ulterior and extraneous considerations, and settle for the ones not worthy of serving the public in the requisite manner. We need to remind ourselves that choosing persons for public service was not just providing a*job and the consequent livelihood to the one in need but was a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public. The individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer. Therefore, we must keep it in mind that not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had right to be served by the best. It is also blatant violation of the rights of-those who may be available and whose rights to the said posts are denied to them by appointing unqualified or even less qualified persons to such posts. Such a practice and conduct is highly unjust and spreads a message from ones in authority that might was right and not vice versa which message gets gradually permeated to the very gross (sic) root level leading ultimately to a society having no respect for law, justice and fair play. And it is the said evil'norms which ultimately lead to anarchic and chaotic situations in the society. It is about time we suppressed such-like evils tendencies and eliminated them before the same eliminated us all."
17. It was important for the Administrative Secretary to consider the following a. In the past, as mentioned above, upper age limit has been relaxed in order to cover for the period during which recruitment could not take place. It is an admitted position that recruitment did not take place for the post of PMS in the years 2009 and 2010. b. Recruitment policies of the Government over the years have granted age relaxation as a consistent policy including the last recruitment in the year 2008. c. Candidates who are government employees consistently get age relaxation under the relevant rules when the post (PMS) dees not require prior experience except simple graduation, hence whether the petitioners are being unduly discriminated. d. Reasons to be given for deviating from the past Uzma Rani V. Punjab Public Service Commission L&S.C 99 (Syed Mansoor Ali Shah, J.) practice spanning over several years. e. Reasons showing co-relation between "best talent" and relaxation of upper age limit (as given in the comments filed by the Government) especially when the government employees enjoy the benefit of relaxation of upper age limit under the Rules for the same post.
18. Public advertisement No. 7 of .2011, dated 03.04.2011 for the post of PMS on the basis of the Combined Competitive Examination has been issued without the Administrative Secretary having exercised his discretion under Rule, 1961. This besides offending due process clause also mars the prospects of the petitioners to gain a lawful employment and earn a livelihood which impairs right to life under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. I, therefore, set aside the initiation of the recruitment process through public advertisement dated 03.04.2011 to the post of PMS. As a result, these petitions are dispatched to Secretary S&GAD, Government of the Punjab who will apply his mind to all the attending circumstances of the case mentioned above under the Schedule to Rules, 1961, disregarding the one time dispensation announced in the year 2008 and pass a speaking order giving reasons whether upper age limit of the petitioners ought to be relaxed for the post of PMS advertised this year (2011). The post of PMS in question will thereafter be re-advertised afresh.
19. In order to reduce administrative inconvenience the Administrative Secretary may entertain the applications so far received for the post of PMS under public advertisement dated 03.04.2011 and consider them alongwith the fresh applications received in pursuance of the trfeoK advertisement to be made in the light of his decision taken unoer Rules, 1961.
Peu.
25. For the above reasons both sets of the ' are allowed in the above term.