' This ICA brings under challenge the order dated 25-11-2013 passed by a learned Single Judge in Chamber, whereby Writ Petition No,5780 of 2011 was allowed in the terms that "the departmental authorities are directed to issue appointment letters to the persons who are on top of merit list as already prepared by the department, within 15 (fifteen) days".
2. The foremost argument of the learned counsel for the appellant in support of the ICA is that it was clearly stipulated in the advertisement to fill the vacant slots that appointing authority reserves the rights not to fill any post/withhold the appointment against any advertised posts, without assigning any reason.
3. Learned counsel for the appellant argues that Punjab Technical Education and Vocational Authority (TEVTA) is unable to give effect to the order dated 25-11-2013 passed by this Court for the reason that the Chief Minister, Punjab had already approved transfer of Commerce Education Institutions along with the employees, assets and liabilities from TEVTA to the Higher Education Department of the Government of the Punjab vide order dated 28-6-2012. He further submits that the judgments on which the learned. Single Judge in Chamber relied in his order dated 25-11-2013 were handed down by the Hon'ble Supreme Court of Azad Jammu and Kashmir, which merely have a persuasive value and were not to be followed as such. At the same time, he questioned the locus standi of the writ petitioner (respondent No,1 herein) on the ground that no vested right accrued to him even after his qualifying for the posts he applied for. With these submissions, the appellant seeks reversal of the order dated 25-11-2013.
4. Arguments Heard. Record perused.
5. As it is, vacancies for various posts were advertised by the Government College of Commerce, Vehari by placing an ad in daily Nawa-e-Waqt in its issue dated 15-5-2010. The advertisement so published gave the un-mistake noble impression that the vacant posts are needed to be filled. It is undeniable that Muhammad Atif Amin, the writ petitioner applied for the posts of Store Keeper B.S- 6 and Junior Clerk A B.S-5. When his papers were found in order, he was short-listed for the interview. Eventually, he came at the top of the list. He was asked to exercise his option as to whether he would like to join as a Store Keeper or Junior Clerk. As is amply borne out by the record, he preferred to serve as a Store Keeper. His appointment letter was ready to be issued, but the whole process was disrupted abruptly. In his comments furnished to this Court in Writ Petition No,5780 of 2011, Principal of the Government College of Commerce, Vehari by and large confirmed the stand of the petitioner, expressing his helplessness and submitting that the District Manager TEVTA, Khanewal-Vehari had made him a call, ordering to stop the recruitment. And he being a subordinate to the District Manager, TEVTA had no option but to leave the things as they were.
However, he was shrewd enough to add in his comments that the College was in a dire need of clerical staff because only two clerks were working, while there were classes from D.Com. to M.Com.
5. The argument of the learned counsel for the appellant that even after completion of all formalities and having declared respondent No,1, Muhammad Atif Amin as the successful candidate for the post of Store Keeper and Junior Clerk, the competent authority was at liberty to retrace the steps and to wind up the proceedings as it liked, without assigning any reasons, as specified in the advertisement dated 15-5-2010, is wholly specious, flawed and untenable. After holding out the prospects of employment an then dashing the hopes of a successful candidate cannot be countenanced. Such arbitrariness is redolent of the red-tapisim and colonialism. Such orders also give the impression that the Government is in disarray, and is not willing to discharge the trust reposed in it by the people. It has repeatedly been held by the Superior Courts that all the authority vested in the Government and its institutions is to be treated as a sacred trust, which may not be exercised at the whims and caprices of the powers that be. They are bound to act honestly, fairly, equitably, by not allowing themselves to be influenced by any extraneous considerations. It is reiterated that every person charged with such sacred trust is bound to do right to all manner of people according to law, without fear and favour or affection or ill will. In this behalf, it would be worthwhile to remind all the public authorities of the observations made by the August Supreme Court of Pakistan in the case reported as "Chairman, Regional Transport Authority, Rawalpindi v.
Pakistan Mutual Insurance Com an Limited, Rawal indi (PLD 1991 Supreme Court 14). A relevant portion from the judgment is reproduced below:--- "A public office is a public agency or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the officers are held in trust for the people and care to be exercised on behalf of the Government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rulers. A public officer is amenable to the rule which forbids an agent or trustee to place himself in such an attitude towards the principal or cestui que trust as to have his interest conflict with his duty ....
Where a statute is silent with respect to the time within which an official act must be performed, the law contemplates that die duty must be performed within a reasonable time. A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective One who accepts a public office does so cum onere, or with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has .the right to demand that he perform such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute its duties with diligence and fidelity. The duty of a public officer to fulfill the obligations of his office should take precedence over all other matters Every public officer is bound to use reasonable skill ad diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words, he is bound, virtue official, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs.
' Wherever wide-worded powers conferring discretion .are found in statute, there remains always the need and the desirability to structure the discretion and the need for this has been pointed out in the Administrative Law test by Kenneth Culp Davis in the following words:---- ' Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reasons, open precedents, and fair informal procedure .... When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rulemaking power .... When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules.
' In our context, the wide-worded conferment of discretionary powers of reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the powers and it gives that impression in the first instance but where the authorities fail to rationalize it and 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."
7. In our view, although the public functionaries do not take oath or oath is not administered to them prescribed in the Constitution of Islamic Republic of Pakistan, 1973 for the President, Prime Minister, Governors, Ministers, Speakers and Judges but this does not mean that while the highest office holders are expected to do justice, other State functionaries are not required to fulfill the same commitment. Such hypothesis would be anathema to the grain and spirit of the Constitution of the Islamic Republic of Pakistan, 1973 and also opposed to the Principles of Policy set out in Part II of the Constitution of the Islamic Republic of Pakistan, 1973, besides being in conflict with the pious declarations contained in Article 2-A thereof.
8. The people of this country have made a covenant with the State through the Constitution of the Islamic Republic of Pakistan, 1973, which clearly ordains in Article 3 that the State shall ensure the elimination of all forms of exploitation and the gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work.
' There is no need to, put scholarly interpretation on the above-quoted Article of the Constitution of the Islamic Republic of Pakistan, 1973, which is self-explanatory.
9. The prime argument of the appellant that it has washed its hands of, following the order dated 28-6-2012 passed by the Chief Minister, Punjab, transferring Commerce Education Institutions together with their employees, assets and liabilities from TEVTA to the Higher Education Department of the Government of the Punjab, is unconvincing and unappealable, to say the least.
It was admitted by the appellant that earlier, the Government of the Punjab had transferred all the aforesaid assets and liabilities to TEVTA and by the fresh order dated 28-6-2013, the Government of the Punjab has done no more than getting those assets and liabilities retransferred to itself. For all intents and purposes, no fundamental or qualitative change has been brought about. So such an argument as advanced by the learned counsel for the appellant is at best a subterfuge to evade the responsibilities and a clever attempt at circumventing the lawful order dated 25-11-2013 passed by a learned Single Judge in Chamber.
10. The second limb of the argument of the learned counsel for the appellant regarding the judgments relied upon in the order dated 25-11-2013 brought under challenge, is equally spurious.
There is no quarrel with the proposition that the judgments handed down by the Hon'ble Supreme Court of Azad Jammu and Kashmir have persuasive value but it does not mean that if they are based on principles of justice, equity, good conscience and they propound principles to secure the rights of citizens, they are to be put aside. We respectfully adopt the view expressed in the judgments reported as 2000 PLC (C.S.) 9 and 2011 PLC (C.S.) 1366, holding that:--- "While going through a long process, a valuable right had accrued to the petitioners for the post of Senior Auditors B-14, who had qualified the written test and were sent back hopelessly without interview twice---Once a right having accrued in favour of the petitioners, it could not be taken back by any subsequent action which culminated in the extension of the earned legal right--- Petitioners having such right must be considered for appointment to the advertised post of B-14 in the light of the rules prevalent at the time when the posts in that respect were advertised--- Authority was also directed not to re-advertise the posts of Senior Auditors, but to complete the remaining process."
11. At this juncture, we would like to deal with the contention raised by the learned counsel for the appellant to the effect that the very fact that Muhammad Atif Amin, respondent No,1 was placed at the top of the list of the successful candidates would not ipso facto confer any right on him. While making such a submission, he probably had in the uppermost of his mind that particular part of the advertisement which reserved the right to the appointing authority not to fill any post or withheld post, without assigning any reasons. As observed in the foregoing paragraphs, such a right to be reserved by an appointing authority discharging public duties is highly questionable.
The question is, on what basis and under what law an appointing authority could arrogate to itself such an overriding power? Does this mean that the public authorities are not answerable to the people of Pakistan and they are above the law? If they think so, it is high time that such misconceptions and misperceptions were dispelled. Under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, they are to account for their deeds and misdeeds. They cannot get away with their arbitrary orders with impunity.
12. We feel that the rider to the advertisements placed in the newspapers, where hope is held out to the prospective candidates for bright future, and the successful among them are declared to be fulfilling the criteria laid down for such posts, and then all of a sudden, the Government or the Institution concerned either stops the whole process of recruitment or denies to offer the post concerned to the best of the candidates, without assigning any reasons, is clearly repugnant to the well-entrenched principles of openness, fairness and transparency. We would not countenance any policy or advertisement, exhibiting such policy where the final process of selection of candidates or even of awarding of contracts or accepting of bids is shrouded in mystery. Certainty and clarity, not muddled thinking and confusion ought to be the hallmarks of good governance and they are to reign supreme in a, E civilized society. If we are to surge ahead, and stand shoulder-to- shoulder with the advanced nations, all offices and posts are to be filled by those who are the best qualified and richly deserve them.
13. The upshot of the above discussion is that the appeal in hand being devoid of any merits, is hereby dismissed in limine.