' QAZI FAEZ ISA, C.J.--- These two petitions were admitted to regular hearing and heard together, as they were similar in nature. C.P. No,339 of 2012 has been filed by three petitioners, who are serving as Risaldars (B-14) in the Balochistan Levies Force, assailing the appointment of Mir Maqbool Ahmed (respondent No,3), and C.P. No,558 of 2012 assails the appointment of Mr. Muhammad Umar (respondent No,6). The appointments that have been challenged are initial appointments to the post of Risaldar Majors (B-16) in the Balochistan Levies Force, and were made, "in relaxation of rules on ad hoc basis."
2. Mr. Nadir Ali Chalgari and Mr. Baz Muhammad Kakar, the learned counsel for the petitioners, stated that the appointments were made illegally and unlawfully and urged the following grounds in support of their petitions:---
(i) That the appointments were made in contravention of the Balochistan Civil Servants Act, 1974 ("the Act").
(ii) The appointments were admittedly made in relaxation of rules, and neither the Act nor the Balochistan Civil Servants (Appointment Promotion and Transfer) Rules, 2009, ("the Rules"), permits the relaxation of the Rules.
(iii) Ad hoc appointments can only be made under certain prescribed conditions, which were not applicable.
(iv) Ad hoc appointments can only be made after applications are invited by advertising the same in leading newspapers, as mandated by Rule 17 read with Rule 9 (2) of the Rules.
(v)) The appointments were made solely on political considerations and on the recommendation of the Minister for Home and Tribal Affairs. One such recommendation is contained in the letter dated January 12, 2012 written by Mir Zafarullah Zehri, Minister for Home and Tribal Affairs to the Secretary Home, and is reproduced hereunder:- "Mir Maqbool Ahmed son of Haji Muhammad Ibrahim is very well known to me is a Notable and Sensible personality of the area. He may be appointed as Risaldar Major in district Khuzdar or Kalat."
' Learned counsel for the petitioners also relied upon the following precedents of the Hon' ble Supreme Court:--- * Abdur Rasheed v Riazuddin 1995 SCM R 999; In re: Abdul Jabbar Memon 1996 SCM R 1349; and Government of N.-W.F.P. v. Muhammad Tufail Khan PLD 2004 SC 313.
' Learned Assistant Advocate General stated that the Government of Balochistan did not intend to confirm the appointment of the Risaldor Majors appointed in relaxation of rules and on ad hoc basis. Mr. Iqbal Lehri, Advocate representing Mir Maqbool Ahmed, stated that the tenure of all the ad hoc appointees had expired, therefore, the petition had become infructuous. However, neither of them justified the appointments that had been made.
3. The Secretary Home and Tribal Affairs, Government of Balochistan, filed comments (in C.P. No,339 of 2012), wherein it was stated, that:--- "The appointment in question is on ad hoc basis for a period of six months. As such, fulfillment of codal formalities as per Recruitment Policy was not applicable in this case."
' Along with the comments is attached a document dated January 12, 2012 titled 'Summary for Chief Minister of Balochistan', wherein it is stated that the Minister for Home and Tribal Affairs, "has desired for the appointment of Mir Maqbool Ahmed," therefore, he may be appointed as Risaldar Major for a period of six months on ad hoc basis. The document is signed by Mr. Naseebullah Khan Bazai, Home Secretary. The second page of this Summary contains the following typed noting:- "In the recent past Risaldar Major (BPS-16) have been appointed in Kohlu and Sherani Districts on ad hoc basis for a period of six months. It is therefore recommended that the instant case may also be approved in the interest of public service."
' The said Summary was countersigned by Mr. Ahmed Bakhsh Lehri, the then Chief Secretary of Balochistan, and the Chief Minister Balochistan noted thereon, "recommendation is approved" on March 5, 2012. Thereafter, vide order dated March 12, 2012 Mir Maqbool Ahmed was appointed as Risaldar Major Levies (B-16), "with immediate effect and till further orders" and "in relaxation of rules on ad hoc basis".
4. On June 20, 2012 Mr. Amanullah Tareen, learned Additional Advocate-General along, with Mr. Saqib Javed, Additional Secretary Home and Mr. Abdul Latif, Additional Secretary, Balochistan Levies Force were present in court and placed on record another summary that had been sent to the Chief Minister Balochistan, titled 'Extension in Contract Period of ad hoc Appointees' dated June 8, 2012. This Summary, which we shall refer to as the 'second Summary', states, that Mir Maqbool Ahmed, Mr. Muhammad Umar, Mr. Fateh Khan Marri and Mr. Danish Marri were appointed on ad hoc basis and in relaxation of rules, and that:- "Meanwhile some aggrieved Levies employees have filed C.P. No,339 of 2012 before the Hon'ble High Court of Balochistan vide order dated 8-5-2012 has directed to produce the original record with regard to their appointments and further directed to explain the reason for Relaxation of rules." Therefore, "the Home Department proposes that extension in the above mentioned ad hoc appointees may not be made to avoid any embarrassment before the High Court of Balochistan."
The second Summary further states that the said ad hoc appointments "cannot be justified." We had directed that the decision taken on the second Summary by the Chief Minister of Balochistan be provided, but it appears that no decision was taken as nothing in this regard was produced.
5. We have heard the learned counsel and gone through the documents on record. The second Summary dated June 8, 2012 states that all four gentlemen mentioned therein were appointed on ad hoc basis and in relaxation of rules, "on the directives of Hon'ble Chief Minister Balochistan and Hon'ble Minister for Home". There is no power vesting in either the Home Minister or the Chief Minister to issue a directive for the appointment of Risaldar Majors and the Home Secretary was correct in stating (in the second Summary) that the said ad hoc appointments 'cannot be justified'.
Unfortunately, the very same Home Secretary, namely Mr. Naseebullah Khan Bazai, had earlier, himself, moved a summary recommending the appointments to be made on ad hoc basis and in relaxation of rules, probably to please his Minister. He only came to remember the law and the rules when we directed for the production of the record and sought the reason/s for the 'relaxation of rules'. His earlier subservient attitude can be gauged from the fact that the Home Minister wanted Mir Maqbool Ahmed to be appointed as Risaldar Major vide his letter dated January 12, 2012 and on the very same day the Home Secretary moved the Summary recommending his appointment. The indecent haste with which the Home Secretary acted is a sad reflection on his conduct. Sadly, the then Chief Secretary also did not record his objection on the Summary, nor that it was in contravention of the Rules.
6. It is the duty of the bureaucracy to point out if any law, rule or regulation is being violated and not to move a summary which is in clear contravention thereof. The method of appointment of civil servants is attended to by the Act and the Rules. Section 5 of the Act provides: "5. Appointments.--- Appointments to the Balochistan Service or to a civil service of the Province of Balochistan or to a civil post in connection with the affairs of the Province of Balochistan shall be made in the prescribed manner by the Government of Balochistan or by a person authorized by it in that behalf. "
' The word 'prescribed' is defined in section 2(f), as under:- "prescribed" means prescribed by rules.
' The Legislature of Balochistan has enabled the Government of Balochistan to enact rules pursuant to subsection (1) of section 25, which is reproduced hereunder:--- "25. Rules.--- (1) The Government or any person authorized by it in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of the Act."
In exercise of the powers vesting in the Government under the above cited provision the Government has made the Rules. The Balochistan Legislature has not granted the Government any power to 'relax' any rule. There is also no provision in the Rules enabling the Government to do anything in purported 'relaxation of rules'. In view of this clear legal position it is not understandable how two senior bureaucrats, one heading a department and the other heading the bureaucracy in the province, acted in purported 'relaxation of rules' and wrongly advised the Chief Minister to do so too.
7. In the case of Abdur Rasheed (supra) a chowkidar was appointed on the recommendation of a Member of a Provincial Assembly and the Hon'ble Supreme Court held that, "The appointment made on the recommendation of M.P.A. Was held to be void, ab initio and illegal." In the case of Abdul Jabbar Memon (supra) a different bench, presided over by the Chief Justice of Pakistan held as under:- "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession."
' The following year a bench of five learned judges of the Supreme Court, in the case of Mushtaq Ahmed Mughal v. Hon'ble Lahore High Court, 1997 SCM R 1043, held, as under:--- "17. We reiterate that the appointments to various posts by the )Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid government set-ups/institutions."
In Muhammad Tufail Khan's case (supra) the Hon'ble Supreme Court reiterated and reproduced the above paragraph, and concluded in the following terms:--- "7. However, in spite of all these directions, this salutary principle is being frustrated with impunity.
This malady which has plagued the whole society shall be arrested with iron hands and the principle of merits shall be safeguarded, otherwise, it would be too late to be corrected. In the case in hand admittedly the appointment was made clearly in violation of the coda! Formalities simply on the dictation of a political figure."
8. The appointment to the post of Risaldar Major in the Balochistan Levies Force is a sensitive appointment. The Levies Force has been established, 'for maintenance of law and order' and designated as an 'essential service'. The Levies officers in their area of jurisdiction have been given the same powers as police officers under the Code of Criminal Procedure. If persons are appointed as levies officers on the personal whims of a Minister or on the basis of sifarish the fundamental rights of those aspiring to such posts are transgressed, including their right to aspire to such posts (Article 18), to be considered equal before the law (sub-article (1) of Article 25) and the guarantee that they will not be discriminated against (sub-article (2) of Article 25).
9. The facts that have come on record in these two petitions disclose that a number of violations were committed in making the said appointments. Firstly, the Rules were relaxed, secondly, the appointments were made on ad hoc basis, thirdly, they were made without placing advertisements by inviting all interested persons and, fourthly, no test was conducted. The appointments contravened the provisions of the Constitution of this country, the Balochistan Civil Servants Act, 1974, the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 and a number of judgments of the Hon'ble Supreme Court (inter alia as mentioned above) .
10. We have noted that far too often rules are purportedly relaxed, which to state the obvious defeats the very purpose of enacting rules in the first place. Rules can only be relaxed if the rules permit their relaxation, and the conditions stipulated for relaxation are strictly met. However, the applicable Rules did not permit that the Rules could be relaxed.
11. The Minister concerned also ought to have abided by the oath that he took at the time he became a Minister, when he solemnly swore that he would not allow his personal interest to influence his official conduct or official decisions, that he would preserve, protect and defend the Constitution of Pakistan and that he would do right to all manner of people according to the law, without fear or favour, affection or The protection accorded under Article 248 of the Constitution, amongst others to ministers, only extends to acts done or purported to be done in the exercise of powers and performance of their office. Therefore, if a minister seeks the appointment of a particular individual he would not be able to take shelter behind Article 248. In addition if a minister seeks the appointment of a particular individual he would also be contravening his oath or office.
However, as we had not issued notice to the Minister concerned we are not proceeding further in this regard.
12. There, however, is no excuse for the conduct demonstrated by senior bureaucrats in recommending that illegal appointments be made. They ought not to have moved summaries in blatant disregard of the Constitution, the Act, the Rules and the precedents of this court and Hon'ble Supreme Court. If at all the Summary was moved, on the insistence of the Minister, it should have been clearly mentioned that it was done so on the Minister's behest, but that was in contravention of the Constitutional of Pakistan, the Act, the Rules, and the precedents of the Hon'ble Supreme Court. Unfortunately, senior bureaucrats permitted themselves either to be coerced or bullied by the Minister pr else did so to ingratiate themselves with him. Bureaucrats need to be reminded that they are servants of the State and not of ministers. They, like everyone else, are bound to abide by the Constitution of Pakistan, the law, rules and judgments of the Hon'ble Supreme Court, and in failing to do so they betray the civil service, and thus the people. The bureaucracy's abject subservience to ministers is destroying the confidence of the people in it. In accommodating the illegitimate and illegal demands of ministers and acting as their handmaidens the bureaucracy reduces its own prestige and betrays the interest of the people, and at times with disastrous consequences.
13. In the districts of Kohlu, Sherani and Khuzdar the law and order situation is far from satisfactory, therefore, extra caution should have been exercised in making the appointments to the posts of senior Levies officers. If persons come to occupy these posts on the basis of sifttrish of a minister their loyalty would not be to the State, but to their benefactors, who may call upon them not to proceed against certain criminals and/or involve their opponents in false criminal cases. The consequences then of one illegal appointment are manifold. And if the person recommended is also not qualified or competent, or both, as often the case has been when resort has been made to favoritism, then, even in cases wherein his political benefactor has no interest he may not be able to conduct himself properly, including apprehending criminals and/or properly prosecuting them.
Resultantly, the people pay the price.
14. The Constitution of Pakistan contains the Fundamental Rights and it was enacted unanimously in the year 1973, and reflects the will of the entire nation, but is rendered meaningless if, for instance, bureaucrats become tools in the hands of ministers and permit the violation of the Fundamental Rights. Laws, made by the Provincial Legislature, too are mocked if they are observed in the breach. And rules, formulated by the government, commanding the confidence of the majority in the assembly, are derided if bureaucrats or individual ministers flout the same. If a bureaucrat pampers a minister and knowingly flouts the Constitution laws or rules he does so either because he is corrupt or lacks strength of character. He may also apprehend that in case he does not abide by the dictates of a minister he may be moved to an unwelcome post or made an 'officer on special duty' i,e, an officer without a post; however, such an apprehension or fear is no defence or justification and on this altar of fear or apprehension the Constitution, laws and rules must not be sacrificed. Bureaucrats must not, and cannot be permitted to, breach the Constitution, the law and/or the applicable rules. And, when this is done the State is eroded. Another consequence of appeasing a minister's illegal demand renders him into supra-Constitutional being, and is destructive of good governance. Bureaucrats are under a bounden duty to say 'no' when the provisions of the F Constitution, any law or rule are sought to be violated; and, if they do not then they must suffer the consequences.
15. That for the aforesaid reasons we set aside the ad hoc appointments of Risaldars Majors made in the Balochistan Levies Force and further declare that such appointments were ab initio void and of no legal effect, having been made in contravention of the Rules, the Act and as the same violated the provisions of the Constitution, as mentioned above. Consequently, we direct those who were appointed to such posts to refund all salaries and benefits received by them to the Government of Balochistan, failing which the Government of Balochistan is directed to recover the same from them as arrears of land revenue.
16. Copy of this judgment be sent to the Chief Secretary and the Secretary Services and General Administration, Government of Balochistan, for information and compliance; they are further directed to forward the same to the secretaries of all the departments of the Government of Balochistan. Therefore, if in future any secretary, including a chief secretary, initiates or recommends a summary in contravention of the Constitution, applicable law and/or rules they will be held personally responsible, and recommendation for initiating disciplinary action may also be made.
17. Petitions are thus allowed with cost in the sum of Rs,10,000 in each petition to be paid by the Government of Balochistan.