The case of the petitioner is that he alongwith others was candidate for the post of Tubewell operator in Agronomic Research Centre, Chak No, 83-85/10-R Khanewal, advertised by Respondent No,
1. After completion of the process, merit list Annexure-C dated 19.09.2007 was prepared wherein the petitioner was mentioned as successful candidate securing highest marks (76/100) but vide Letter No, 29837/4-154/Estt dated 05.09.2008 (Annexure-D), due to imposition of Ban on recruitment after 31.12.2007, no appointment letter was issued in his favour. As such the petitioner has prayed for acceptance of writ petition, declaring the above referred letter as illegal, without lawful authority and consequently issuance of direction to Respondents No, 2 and 3 to make recruitment on the basis of merit list annexure-C.
2. In report and parawise comments submitted by Respondents No, 2 and 3, issuance of advertisement for the above mentioned post, progress in recruitment and recommendations of departmental committee dated 19.09.2007 have been conceded but it has been pleaded that because of filing of writ petition by one of unsuccessful candidates namely Javbed Iqbal (finally decided on 08.04.2008) and due to imposition of complete ban on recruitment w.e.f 01.01.2008, the recommendations of "Departmental Selection Committee" remained invalidated and as such recruitment for above post could not be further processed as a result of which right of the petitioner stood extinguished. After lifting of ban by Government of Punjab fresh process for recruitment of the above post and the other vacant posts will commence on merits.
3. Arguments heard. Record perused.
4. The respondents have admitted that the present petitioner' has been included, as successful candidate for the above said post in the recomendations of the Departmental Selection Committee dated 19.09.2007. As per letter Annexure-D referred supra, the ban on fresh recruitment was imposed w.e.f 01.01.2008. Under the law such ban has no legal effect and impact on the already completed process for recruitment of vacant post/s and the same cannot be given retrospective effect. In this respect reference can be made to case law reported as `Syed Irfan Ahmed and another Versus Government of Pakistan through Secretary, Finance, Ministry of Finance, Islamabad and 4 others' 2009 PLC (C.S.) 4 [Karachi High Court] and unreported judgment of this Court titled `Ghulam Mustafa Versus Secretary Health and others' passed in I.C.A.No, 33 of 2008. In celebrated precedent reported as 'Muhammad Rasheed Versus Government of Punjab'
2006 SCAM 1082 the Hon'ble Supreme Court of Pakistan has very kindly approved the following findings/observations of learned Single Judge of this Court dated 29.04.1999:-- "This brings me to the allied question as to whether the ban could be applied retrospectively and the answer is not very difficult to find. The ban imposed subsequent to the selection could not possibly take away the rights of the petitioners which have already accrued to them and were also finalized nor could it legally cloud the rights afore-stated. The ban could at the best be applied prospectively and that being so, all the cases afore-noted are saved. Needless to add that it was also argued by the petitioners that now that the ban has been recalled and removed, there is no impediment or bar in employing the petitioners who have already been selected. It goes without saying that if the ban is allowed to operate retrospectively thereby nullifying all the steps taken for the selection of a candidate, it would not only erode the confidence of the people in the functionaries of the State but also in the Government itself for the total process of selection, as enumerated above, did raise a legitimate hope in the minds of a candidate that it has the backing of the State and Government and would be fulfilled. This legitimate hope cannot be rendered meaningless by one stroke of pen thereby imposing ban on recruitment retrospectively. A plain reading of the notification whereby ban was imposed would show that it was meant to be prospective, therefore, the same could not be interpreted to apply retrospectively. In the circumstances, the petitioners are entitled to the grant of mandamus as prayed for."
5. It is now well settled that "right to life" as envisaged by Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 includes the "right to livelihood" so, it cannot hang on the fancies of the persons in authority. In case law `Pir Imran Sajid and others Versus Managing Director/General Manager (Manager Finance) Telephone Industries of Pakistan' (2015 SCMR 1257) following observations were made by Apex Court while examining socioeconomic justice with reference to Constitution and the law framed there under:--
11. "It hardly needs to be emphasized that the whole edifice of governance of the society has its genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. Provision of Article 4 embodies the concept of equality before law and equal protection of law and save citizens from arbitrary/discriminatory law and actions by the Governmental authorities. Article 5(2) commands that every body is bound to obey the command of the constitution. Every public functionary is supposed to function in good faith, honestly and within the precincts of its power so that persons concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution. It would include principles of natural justice, procedural fairness and procedural propriety. The action which is mala fide or colourable is not regarded as action in accordance with law. While discharging official functions, efforts should be made to ensure that no one is prevented from earning his livelihood because of unfair and discriminatory act on their part.
12. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably arbitrarily and without ,application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different Articles including Articles 4 and 25. The obligation to act fairly on the part of administrative authority has been envolved to ensure the rule of law and to prevent failure of the justice.'
In landmark judgment reported as 'Faisal Sultan Versus E.D.O. (Education) and others' 2011 PLC (C.S) 419 [Relevant page 4391 this Court has defined the concept of social and economic justice as under:
(K) 'Admittedly, the petitioners belong to a less privileged segment of the society with limited social and economic choices in life. Petitioners have an unequal bargaining position compared to the government. It is for their protection that the constitution provides the concept of social and economic justice. "The expression social and economic justice involves the concept of 'distributive justice' which cannotes the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society... social justice is the comprehensive form to remove social imbalance by harmonizing the rival claims or the interest of different groups and Sections in the social structure or individuals by means of which alone it would be possible to be build a Welfare State." (The Shorter Constitution of India, 13th Edition, by Durga Das Basu). Further the objectives resolution and the preamble to our Constitution state: "Wherein shall be guaranteed fundamental rights, including....social, economic and political justice....." (emphasis supplied). The Constitution therefore reads fundamental rights to be inclusive of social and economic justice.
Social and economic justices are, therefore, indelible, ineradicable, inbred and fundamental parts of a civilized life, more so in an Islamic republic, and therefore are squarely covered under Article 9 of the Constitution. With appointment comes an expectation of a lawful livelihood, hopes of a successful career, sense of wellbeing and security, social recognition and economic independence. Any process that derails a person from this path of social progress and economic self sufficiently violates social and economic justice thereby violating Article 9 of the Constitution. "
(underlined by me to supply emphasis)
6. Thus, from the above case law, it is fully established that the impugned letter Anexure-D regarding imposition of ban on recruitment cannot be given retrospective effect, as valuable right has been accrued in favour of the petitioner and he is entitled to the issuance of appointment letter.
7. Learned A.A.G. has maintained that in response to subsequent advertisement regarding the same post (actually the newly created post of same cadre), the petitioner has also applied but remained unsuccessful and as such he is barred and estopped to pray for issuance of appointment letter on the basis of earlier recruitment process. The contention of learned law officer, as rightly pointed out by learned counsel for the petitioner, is devoid of merits as the petitioner was competent to submit application in response of any subsequent advertisement made by respondents for the said post. Moreover, vide order dated 13.05.2009 passed by this Court in this petition, respondent/department was permitted to further process the recruitment for the post of "Tubewell operator" subject to the decision of this writ petition. As such in view of this injunctive order issued by this Court, by filling up any post by the department during the pendency of this writ petition, the instant writ petition will not become infructuous
8. As a sequal to above discussion, the instant writ petition is allowed, Letter No, 29837/4-154/Estt dated 05.09.2008 (Annexure-D) is declared without lawful authority, having no legal effect and thus ineffective upon the rights of the petitioner. Respondents are directed to issue appointment letter in favour of the petitioner within thirty days on the basis of recommendations dated 19.09.2007 (Annexure-C) prepared by the departmental selection committee of the respondent department.
No order as to costs.