MUHAMMAD NOOR MESKANZAI, C.J.--- The Government of Balochistan, Education Department floated a publication in various newspapers inviting applications for different positions throughout Province. In response to the advertisement, the petitioner applied for the post of Khakrob. As per the policy of Education department the interviews for various vacancies pertaining to different colleges of Kalat Division were to be conducted at Khuzdar and similarly at other Divisional Headquarters of the Province for respective colleges of the Division except Turbat. The test and interviews were to be conducted by a Recruitment Committee constituted by the Government of Balochistan under the chairmanship of respondent No,4 vide letter dated 23rd December, 2014. The petitioner along with hundreds of other candidates participated in the test and interviews, which as per schedule were held on 15 to 17 April, 2015 at Government Boys College, Khuzdar. The department did not announce the result and the petitioner apprehended that perhaps on account of political motivation the test and interviews so conducted are going to be nullified. The petitioner lastly prayed for the following relief: a. a writ may kindly be issued for calling the entire record from concerned authorities; b. Directing the respondents to announce the result of test/interview of the candidates of Government Intermediate Boys College Meskan-e-Kalat held on 15th and 17th April, 2015 at Khuzdar and issue the orders of qualified candidates including the applicant immediately, and; c. Directing the respondents to start the academic activities of the College in-question by appointing the academic staff immediately, and; d. Directing the respondents not to cancel the test and interview result during the pendency of this Constitutional Petition."
2. The respondent No,2 filed his para wise comments and contested the petition. The respondent No,4 being Chairman of the Committee also filed his para wise comments stating therein that the process has been observed in a transparent manner, in accordance with law and the recommendations are based purely on merits. The respondent No,4 along with para wise comments also filed the copy of merit list. Subsequent to filing of para wise comments by respondents Nos.2 and 4, the respondent No,1 also filed his para wise comments, however, the same seems to be a verbatim copy of the para wise comments filed by the respondent No,2.
3. Learned counsel for the petitioner submitted that the process of test and interviews for various posts/vacancies were conducted for the whole province of Balochistan except two districts by a valid and legal Committee constituted under the provisions of law. He stated that the process was conducted entirely in a transparent manner, qualified and competent candidates were recommended for appointment. He maintained that from far flung and remote areas of the province applications for appointments were submitted and a mass number of candidates participated in the test and interview. To substantiate his contention he referred to the findings of recruitment committee and contended that after finalization of the result by the Selection Committee, a legal and vested right has been accrued in favour of all the candidates who have been recommended for appointment by a legally constituted committee. He submitted that after change in the regime/government though initially a ban was imposed by the government of Balochistan on appointment, transfer and posting, nevertheless in a Cabinet meeting the ban was lifted/withdrawn and it was decided that the appointments in all the departments should be made on the basis of test and interviews already conducted. The Cabinet decision further endorses/affirms the vested right of the candidates who have been found entitled for the appointment as per the merit list. Learned counsel canvassed that once a right is created that cannot be snatched away on mere pretext of exercise of discretion vested on the competent authority. Learned counsel emphasized that it is a settled principle of law that whenever a discretion is exercised the same has to be exercised justly, fairly, adequately and within the parameters of law by honoring and 'respecting the rights guaranteed to the general public by the Constitution. It was further argued that the poor candidates were burdened with heavy financial loss while attending the process of test and interviews and simultaneously the national exchequer also sustained a heavy financial loss in shape of payment of T.A. D.A. To the members of Recruitment Committee. Learned counsel stressed that admittedly there was/is no irregularity, illegally, perversity or impropriety in the test and interviews nor for that matter the result so prepared has ever been objected to by the competent authority being suffered from any infirmity, unlawful or without jurisdiction.
4. The learned AAG stated that the vacant posts in two districts of the Mekran i.e, Panjgoor and Turbat has been re-advertised owing to law and order situation, otherwise, except the above referred two districts, a fair and transparent tests and interviews were conducted. He stated that the merit list prepared by the recruitment committee, of course, does not suffer from any irregularity, illegality, perversity or infirmity, nevertheless the competent authority enjoys absolute discretion to accept or reject the recommendations. On Court query, as to whether proposal of the department for fresh tests and interviews is justified, he fairly conceded that there is no plausible and reasonable justification for conducting fresh test and interviews because the fresh test and interviews would further burden the national exchequer as well as the candidates.
5. We have heard the learned counsel for the parties and gone through the available record. The perusal of record reveals that undisputedly the government of Balochistan while realizing the deteriorated condition of education due to lack of educational institutions decided to establish ten new colleges in the province and sufficient budget was also allocated. Similarly, there was scarcity of ministerial staff in the colleges already functioning and also non-availability of ministerial staff in the new created colleges. So, to cater the need and requirements of the educational institution, the Government of Balochistan made a publication inviting applications for various posts/vacancies of ministerial staff. In such wake the department decided to conduct test and interviews at the Divisional headquarters of the province and with approval of competent authority the Colleges and Higher Education Department constituted a Departmental Selection/ Recruitment Committee for conducting test and interviews for recruitment against BPS-1 to BPS-15 posts on 23.12.2014 comprising of the following members: 1.Director, Colleges Balochistan Chairman 2.Additional Secretary (Admn.)
Colleges, Higher and Technical Education DepartmentMember.
3.Deputy Secretary (Services-II)
S&GADMember.
4.Deputy Secretary (Reg:/Admn:), Finance Department.Member.
5.Deputy Director (General)
Directorate of Secretary Colleges BalochistanMember.
6. As per the stance of respondent No,4 thousands of applications were received and a very large number of the candidates from far flung and remote areas of the province participated in process of test and interviews conducted at the divisional headquarters. Admittedly, the candidates who appeared before the recruitment committee incurred heavy expenses and simultaneously the national exchequer also incurred heavy expenses in the shape of payment of TA.DA etc. Furthermore, a protracted and procrastinated process was observed by the Recruitment Committee by visiting all the divisional headquarters of the province except Turbat. The Committee after conducting test and interviews in a fair and transparent manner prepared a merit list and 177 candidates were recommended for appointments on different posts in 66 colleges of the province.
It may be observed that the constant silence, and continues slumber of the education department in finalizing the result created apprehersions in the mind of candidates. It is interesting that the only ground by the education department for conducting fresh test and interviews is the late finalization of the result. The operative portion of para-wise comments pertaining to justification of proposed cancellation of recommendations reads as under: "The Recruitment Committee took more than a year in finalizing recommendations for recruitment.
The recruitment process in two districts of Makran Division i.e, Turbat and Panjgur was not completed in the first round of recruitment. The vacancies of the two districts were advertised on September 1, 2015, which process is still inclusive. In view of the inordinate delay in the conclusion of the recruitment process and unduly revision of recruitment process in Makran Division, the Department made a recommendation to the Competent Authority to declare the recommendation of the Recruitment Committee null and void and allow the Department to conduct selection afresh through National Testing Service/Balochistan Testing Service and interviews at Divisional level."
7. During course of arguments a query was put to learned AAG by the Court as to whether such a protracted and lengthy process should be done away merely because the result was finalized with delay and that too without any fault on the part of candidates who have been recommended for appointment, he felt serious difficulty to justify the proposal of the Education Department and fairly conceded that there is no plausible and legal justification for the cancellation of the recommendations and conducting fresh tests and interviews. There is no cavil with the fact that after in house change of the Government, the new worthy Chief Minister imposed a ban but the same was withdrawn later on. However, the Cabinet in its meeting dated 17.02.2016 in order to ensure smooth and fast disposal of official work by Cabinet members as well bureaucracy discussed a detailed agenda and took firm and final, decision thereon. In the given circumstances, the question that crops-up for determination is, whether the trouble and expenses of the candidates could be over looked, the loss caused to national exchequer be dispensed with and the merit list prepared by a competent, valid and legal committee be ignored and the department be allowed to conduct fresh test and interview just on the lame excuse and mere pretext of delay in the preparation of merit list. Legally, the answer to the above question must be a "Big No" for multiple reasons. Firstly, because the proposal for cancellation of recommendations is in utter disregard and flagrant violation of the Cabinet decision taken on 17.02.2016, relevant portion whereof reads as under: "Ex-Agenda Item No,l.
It was decided that the recruitment process in all the government departments will be completed in accordance with the test/interviews already conducted. The Hon'ble Chief Minister Balochistan also announced withdrawal of the directive bearing U.O. No,PS-CM.1-5/2016/10 dated 6th January, 2016."
8. It is crystal clear that subsequent to change of the Provincial Government and prior to the decision taken by the Cabinet no test and interviews were conducted, obviously the decision taken by the Government of Balochistan refers to the test and interviews already conducted inclusive the one in question. Admittedly, sufficient time was already consumed in the finalization of the process and further delay was neither in the interest of the Institution nor in the public interest, therefore, despite delay the Cabinet decided to complete the recruitment process in accordance with the test and interviews already conducted by leaving no option but to complete the process. It is incomprehensible how the Secretary Education could have floated a suggestion that besides being illegal runs contrary to a. Legal, valid and wise decision of the Cabinet.
9. Secondly, the Chief Secretary despite singing the para-wise comments did not remain satisfied with the so called suggestion of Education Department for conducting fresh test and interviews on account of so called delay and sought for valid and genuine reasons.' The Note put up by the Chief Secretary is reproduced herein below: "1 have signed. (However, check it out again should we cancel the earlier recruitment Process? If so, on what grounds? Discuss the above.)
' Secy: Colleges."
' The Secretary Colleges failed to satisfy the conscious of the Chief Secretary and also failed to forward any cogent, viable, reasonable and plausible justification in support of the proposal for the cancellation of valid and legal recommendations of the Recruitment Committee, nor any genuine and convincing reasons were put forth before us.
10. Thirdly, because there is no irregularity and illegality in the constitution of committee and both the parties do not dispute the legality, validity and constitutionality of the Recruitment Committee.
Similarly, both the parties concur and concede that the process of test and interviews was absolutely fair and transparent and the merit list does not suffer from any illegality, impropriety and invalidity. The respondent No,4 has admitted this position in his para-wise comments, the relevant portion is reproduced: "The Selection Committee prepared the merit list strictly on merit, without any political/other influence and submitted to the competent authority for approval as per service rule. Copy of the Balochistan Civil Servants Appointment, Promotion, and Transfer Rules, 2009 is enclosed as (Annex-E). It is pertinent to mention here that the competent authority for appointment of pay scale-1 to B-15 is the Administrative Secretary, terms and conditions for appointment are reproduced."
11. The recommendations are based purely on merit and do not suffer from political inclination, motivation and consideration, therefore, lightly cannot be ignored. The merit list prepared by Recruitment Committee affirms this undisputed position, which reads as under: "Therefore, it is requested that the approval of the competent authority may be granted to enable this office for issuing appointment orders in respect of the eligible candidates stand on merit."
12. No doubt, the valid recommendations by a validly constituted Recruitment Committee deserve much weight and regard. Reference is made to the following observations of Apex Court in the judgment titled as "Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others" reported in PLD 2013 SC page-195, (relevant at page-206), wherein it has been observed as under: "14. In a number of judgments, the courts have clarified that whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed, honestly and scrupulously. In the Corruption of Hall Arrangements' case (PLD 2011 SC 963) and Tariq Aziz-ud-Din's case ibid, it has been clarified that even where there are no explicit rules governing the appointment process, and appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured and reasonable manner and in the public interest. Appointing authorities cannot be allowed to exercise discretion at their whims, or in an arbitrary manner; rather they are bound to act fairly, evenly and justly and their exercise of power is judicially reviewable. And in Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), we have clarified that, when called upon to do so, the Courts are "duty bound to examine the integrity of the selection process", although they "will not engage in any exhaustive or full-fledged assessment of the merits of the appointee nor [..] seek to substitute [their] own opinion for that of the Executive." It May also be noted that just like the appointment of civil servants, their removal and dismissal from service has not been left to anyone's whims and caprice. It is governed by rules and regulations, amongst them the Civil Servants (Efficiency and Discipline) Rules, 1973. Indeed, the anachronistic concept' where government servants held office during the pleasure of the Crown has no place in a dispensation created and paid for by the people."
13. Fourthly, the State and its citizens both have incurred huge and heavy financial loss and any fresh test and interview would again cause a great financial loss to national exchequer and would also create financial burden to the poor people of province without any benefit to State.
14. Fifthly, the candidates that have been recommended for appointment are justified to expect for the fruit of their labour. So, unless the recommendations suffer 'from any illegality and perversity or there is a legal hurdle and hindrance in the way of their right, it must riot be abridged, therefore, the undisputed merit list has created a vested right, which requires to be given due weight and regard within the meaning of principle of `poenitentia'.
15. Sixthly, the proposed annulment of the undisputed merit list and the nullification of valid recommendations without legal and plause justification is reflective of poor approach; subjective thinking and based on mala fides. By now it is settled that in matter of appointments the competent authority cannot act at his wish, whims and sweet will. The discretion must be exercised carefully, cautiously, fairly and justly. In this regard reliance is placed on the judgment titled as 'Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division Islamabad and others' reported in PLD 2012 SC 132 (relevant at page-150), wherein it has been observed as under: "30. It is to be noted that even where appointments are to be made in the exercise of discretionary powers, it has become well settled that such powers are to be employed in a reasonable manner and the exercise of such powers can be judicially reviewed. In the Corruption of "Hall Arrangements" case (Suo Motu Case No,24 of 2010) and in the case of Aziz-ud-Din (2010 SCMR 1301), it has been held that appointing authorities "cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner: rather, they are bound to act fairly, evenly and justly".
There is an obligation thus imposed on the Executive to make appointments based on a process which is manifestly and demonstrably fair even if the law may not expressly impose such duty. In the Hall corruption case supra, the. Court has again clarified this point saying that 'Ply now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled. Indisputably, if the action or decision ... Has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same".
16. Seventhly, the proposal of fresh test and interview by the Department is not based on any legal basis nor there is any rational and wisdom behind the suggestion. The proposal smacks mala fide and lacks bona fide and appears to be an attempt by some of the officials to play with the rights of poor people just because of their bureaucratic mind which is not acceptable. The bureaucratic approach and autocratic attitude of some of the officials have already been deprecated by this Court in its judgment delivered in Constitutional Petitions Nos.1104, 1144, 1233, 1234 of 2015 and 224, 343, 351 and 352 of 2016. For the sake of convenience relevant observations read as under: "However, without assigning any plausible reasons, the said decision was recalled and a fresh publication was made. The candidates participated in the process of test throughout Balochistan from every nook and corner of the province, but, unfortunately, once again the process was set at naught and nullified on the ground that major irregularities have been committed in the process of test and interviews. It is painfully observed that some of the officials in the Bureaucracy are least interested in conducting fair and transparent test and interviews for the appointments sought to be made by it. Till the time of drawing these lines, perhaps, twice/thrice publications and its cancellation have been made and expenses of millions of rupees were incurred by the State exchequer. Similarly, the candidates, who participated in the process of test from every part of the province, may have incurred expenses, apparently, beyond their means and the said amount cannot be calculated, as no data is available. The poor people of the province were subjected to bear heavy expenses for no fault on their part, except the incompetency, inefficiency, incapability and poor approach on the pdrt of some of the officials of the department. This is not the case of one department, rather we have noticed such practice in a number of cases that after completion of the recruitment process, without any plausible explanation, the same are cancelled for one or the other reasons. It appears that, perhaps, the said officials have been politicized and the function sought to be performed by them appears to remain subservient to political considerations."
17. Eighthly, we are cognizant and conscious of the fact that only one candidate has filed this petition, however, we are equally conscious of the command of Constitution that all equals must be treated equally and similarly circumstanced and situated persons must be dealt alike, as it is a basic and fundamental principle on which rests justice under the law. Admittedly, all the recommendees are not party, yet stand on same footings, therefore, deserve alike treatment and the principle of equal treatment entitles them for the same relief. By holding view, we are fortified with the case laws titled as "2009 SCM R 187 Muhammad Nawaz v. Managing Director, Small Business Finance Corporation" and "2010 SCM R 421 State Bank of Pakistan v. Mumtaz Sultana" whereby following observations have been made: "2009 SCM R 187 Muhammad Nawaz v. Managing Director, Small Business Finance Corporation"
"Equal treatment of all similarly situated is the basic principle on which rests justice under the law.
If evenhanded justice is not administered, it can have many adverse and negative effects on a society. It can cause discontentment and frustration in the social set-up. There can be no denial that social justice is an objective and enshrined in our Constitution."
"2010 SCM R 421 State Bank of Pakistan v., Mumtaz Sultana"
"The ambit of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 would get attracted with all force. There is no dearth of precedents where as a result of the legal position stated by the Court benefits accruing, were given even to those who were not party before this Court. Reference in this context may be made to flameed Akhtar Niazi's case (supra), Chairman Pakistan Railways case (supra), Khawaja Abdul Hameed Nasir's case (supra) and Aamir Ikram's case (supra)".
18. Ninthly, last but no the least. To seek and gain knowledge is the Islamic obligation of every Muslim (male and female) and to promote and impart education is the Constitutional obligation of the State. How the "State" and the "Subject" should discharge their reciprocal obligations, the remedy lies in establishing educational institutions, providing infrastructure and sufficient funds for the same, appointing academic and ministerial staff by the former, taking interest, working hard and leaving no stone unturned for gaining and seeking knowledge by the latter. While being the custodian of the Constitution and exercising the Constitutional jurisdiction, we are under obligation to ensure that the State does not fail in performing its constitutional obligation. Thus, we expect that the Chief Secretary Balochistan shall take notice of such facts and will not allow any individual official to play mischief with the fate, future and fundamental rights of the citizens. In the case of Fiagat Hussain and others v. Federation of Pakistan (PLD 2012 SC 224) the Hon'ble Supreme Court of Pakistan made observation about the implementation of Article 25-A read with Article 29(1) and Article 37 of the Constitution, which mandate the 'State' to promote with the special care the educational and economic interest of backward classes or areas. It was further observed that it is the obligation of the State to ensure enforcement of fundamental rights guaranteed under the Constitution.
In the light of above discussion and keeping in view of the huge interest of public at large it is held that:
(a) The test and interview conducted in pursuance of publication dated 16th November, 2014 in Daily Express News, the recommendations of the Recruitment Committee do not suffer from any illegality, irregularity and perversity, therefore, the proposal of the Education Department to conduct fresh test and interview has no legal effect and significance.
(b) As a natural corollary, the competent Authority is directed to finalize the process of appointments in the wake of the recommendations of the recruitment Committee throughout the Province in 66 Colleges except Turbat and Panjgoor within one month by fully observing the legal formalities, if any.
(c) All the new colleges must be made functional and academic staff be appointed/posted at earliest.
(d) Infrastructure should be provided and the required funds must be allocated and made available.
For the foregoing reasons, the instant petition stands accepted with the aforementioned directions.
Copy of this judgment be sent to the official respondents for information and compliance. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.