MUHAMMAD SAJID MEHMOOD SETHI, J.--- Brief facts of the case are that respondent No,2 advertised 89-posts of Line Superintendent Grade-I in BPS 15 on behalf of respondent No,l.
Petitioners, being Bachelors of Science in Electrical Engineering, applied for the said posts and appeared in the test conducted by National Testing Service ("NTS") on 12.07.2015. They cleared the test and were placed at Sr. Nos,17, 9 and 33 respectively. Petitioners appeared in the interview but their names did not surface in the list of successful candidates. The selected candidates were not even graduates but also secured lower position in the merit list issued by NTS. Petitioner No,2 submitted an application to respondents, but no attention was paid to his request. Feeling aggrieved, petitioners filed W. P. No,27312 of 2015, which was disposed of vide order dated 14.09.2015, passed by this Court. In pursuance of the direction contained in aforesaid order, respondents passed order dated 28.10.2015, which has been assailed through instant petition, with the following prayer:- "In view of the submissions made above it is therefore respectfully prayed that this Petition may kindly be accepted and the process of recruitment for the posts of Line Superintendent Grade-I by the Respondents may kindly be declared to be illegal, without lawful authority and of no legal effect. It is further prayed that impugned Order dated 28.10.2015 passed by Respondent No,3 and impugned Order dated 12.03.2010 passed by Respondent No,5 but reiterated by the Chief Engineer (Admin) Power, PEPCO be declared illegal and may kindly be set aside in the interest of justice. It is also further prayed that the Petitioners may kindly be declared to be eligible and may kindly be appointed as Line Superintendent Grade-I in LESCO.
It is further prayed that the Respondents may kindly be restrained from filling the posts of Line Superintendent Grade-I, till the disposal of the writ petition.
2. Learned counsel for petitioners submits that petitioners are graduates and their qualification is higher than the requisite criteria, but despite that respondents appointed less qualified persons. He further submits that petitioners have been subjected to gross discrimination.
3. On the other hand, learned counsel for respondents defends the impugned order and submits that petitioners, being over-qualified, were not appointed as per policy, in order to avoid their disgrace. He adds that petitioners have failed to point out any illegality or legal infirmity in the impugned order, which is liable to be upheld under the law.
4. Arguments heard. Available record perused.
5. The order dated 28.10.2015, passed by respondent No,3, is reproduced hereunder: "Honourable Lahore High Court in subject writ petition filed by Mr. Waqas Aslam son of Muhammad Aslam Nayyar in the judgment dated 14.09.2015 was ordered as under: "in view of the factual controversy involved in this case, I deem it appropriate to send a copy of this petition along with its annexures to respondent No,1, who shall treat it as an application and shall decide the same strictly in accordance with law through a reasoned order after hearing all necessary parties within a period of four weeks of the receipt of a certified copy of this order.
Disposed of." In view of above, you Mr. Waqas Aslam were called for personal hearing on 21.10.2015 at 11:00 am to address the grievance vide this office letter No, HRD/RC/38039-40 dated 15.10.2015. After hearing you in person, it is clear to you, vide PEPCO's letter No,17123-38/MD/PEPCO/E- 11/16/3039/09/UTS dated 12.03.2010, graduate engineers cannot be employed on lower posts (i,e, Line Superintendent Grade-I) and you did not meet the prescribed qualification in service rules for the post as advertised on 30.04.2015. Hence, you were not considered further for recruitment under LESCO."
6. Likewise, order dated 12.03.2010, passed by the Chief Engineer (Admn.) Power PEPCO, is reproduced hereunder:- "The HRD PEPCO has informed to reiterate the instructions of M.D. (PEPCO), for not employing graduate engineers on lower posts to save them from disgrace. The instructions may kindly be brought to the notice of all concerned for compliance in letter and spirit."
7. Perusal of above reproduced orders shows that petitioners were refused appointment on the pretext that they possessed higher qualification and their appointment on a lower scale would earn disgrace for them. It is evident that required qualification for the post of Line Superintendent Grade-I BPS-15 was "Matric with 3-years Diploma in Electrical/Electronic Technology from any Government Poly Technical Institution in Grade-B with 3-years experience in the trade from any Government Institute". It appears nowhere in the said advertisement that candidates having higher qualification would not be entitled to apply for the said post.
8. Petitioners have placed on record copies of various advertisements published by HESCO, SEPCO, FESCO, IESCO, etc., for recruitment of post in question and all of them required three years Diploma in Electrical/Electronics with one year relevant job experience. They further made relaxation of one year experience if the candidate is holding higher qualification i,e, Degree in Electrical Engineering.
Disparity in setting eligibility criteria for one and the same post by LESCO is not understandable. The eligibility/qualification mentioned in the advertisements is considered as minimum criteria and candidates below required standard are not entitled to apply. It does not create an embargo on the candidates having higher qualification because in that case they certainly fulfill the minimum criteria. It was specifically mentioned at Condition No,8 of the advertisement that short listed candidates would be called for test but at the time of scrutiny of applications of petitioners, no such objection was raised by the respondents which seems to be an after-thought.
9. Undeniably, all appointments are to be made in a transparent manner, after inviting applications through Press from all those who are eligible, deserving and desirous. In spite of this legal position, it is being violated with immunity. Such malady, which has plagued the whole society, has to be arrested with iron hands and the principles of merit have to be safeguarded otherwise it would be too late to correct it. Refusal to appoint petitioners merely on the ground of being overqualified, was a serious encroachment upon their rights. They stood deprived of their rights and are sufferers of illegal exercise of discretion, thus the impugned actions are in serious violation of the merit and transparency.
10. Even where appointments are to be made in exercise of discretionary powers, such powers are to be employed in a reasonable manner and exercise of such powers unreasonably, can be judicially reviewed. To test the validity of appointment process, it is to be checked that as to whether an objective selection procedure was prescribed; that if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise; and that if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law. In absence of criteria, process employed was unguided, unplanned, unsystematic, arbitrary, aimless, perfunctory, mechanical, haphazard, discrete and unreasonable. The impugned criteria/process has never been geared to search and select best man for such post. Such an unguided and unstructured process of appointment being facially discriminatory would block merit, cripple opportunities and impair access of talented persons to the post in question.
11. After the merit list was prepared, wherein the petitioners were declared higher in merit, but instead of appointing them, the other candidates were appointed on the ground that petitioners were over-qualified, and appointment to the post in question would be disgrace to them. This act of respondent authorities was discriminatory and was in utter violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), which had shown mala fide on their part. Petitioners had been deprived of their lawful rights in an illegal and unlawful manner.
Petitioners' fundamental right to life and livelihood takes priority over alleged notion of disgrace earned through a post for D which they might possess higher qualification. Discrimination on the basis of qualification on pretext of disgrace, is a way to deprive the candidates of their right to livelihood. Even otherwise, the post of Line Superintendent Grade-I i,e,, post of BPS-15, being a white collar job, cannot be termed as disgrace, especially when unemployment is rife in the country.
12. Any criteria/policy/instruction depriving over-qualified persons from applying a particular job, cannot be termed as reasonable classification under the law and the class of less qualified persons cannot be put in advantageous position vis-a-vis over-qualified persons. Such classification constitutes discrimination and, as a result, better qualified candidates from amongst the ordinary citizens are ignored, while less qualified persons are appointed. Such state of position results in aggravation of agonies of unemployed youth. No justification has been made out in support of such classification, which offends the doctrine of "equal protection of law" enshrined in the Constitution. Constitution commands that all the citizens, without any discrimination, shall be dealt with in accordance with law and are entitled to equal protection of law. Our Constitution permits reasonable classification provided that it is founded on an 'intelligible differentia', which distinguishes persons or things that are grouped together from those that are left out of the group, and it must have rational nexus to the object sought to be achieved by such classification. But, in the present case, the reason posed by respondents for not considering petitioners for appointment, is not reasonable rather resulted in inequality amongst citizens of this country. The Holy Quran has enjoined that there is no difference between the individuals of mankind and all human beings are equal in the eye of Allah, the Almighty. Fittest person, who is strong and trustworthy, has to be employed in public employment.
13. State is bound to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle from each according to his ability to each according to his work. State is responsible to establish a society which is free from exploitation wherein social and economic justice is guaranteed to its citizens. Right person should be engaged in the right job, which could not be done unless there is an open competition for appointment against the posts in government departments/attached departments/institutions. Posts cannot be filled by the method of competition when arbitrary classification is made between different classes of citizens and preferential rights are extended towards less qualified at the cost of over-qualified citizens. The impugned criteria/ policy is a classic example of arbitrariness where less qualified persons have been put in advantageous positions vis-a-vis over-qualified persons.
14. Every individual has right to enjoy the protection of law and to be dealt with in accordance with law. "Law" would imply such provisions of law, which are in conformity with fundamental rights guaranteed by the Constitution. Every person and authorities are required to perform their duties and discharge their functions within the limits prescribed by law, and respect and obey the Constitution and law in letter and spirit. Competent authority is bound to consider the merit of all the eligible candidates for appointment on the post in question. Any departmental instructions/directions/rules, which are inconsistent with the fundamental rights, are void.
Constitution being a basic document is to be treated higher than other instructions / rules / statutes. Whenever a document in the shape of law / rules / instructions / criteria given by any competent authority is in conflict with the Constitution, then to such extent, same is liable to be declared unconstitutional.
15. Every citizen should have the right subject to such qualification, if any, prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business. Said fundamental right would include the right of a citizen to compete and participate for appointment to a post in any government department/attached department/autonomous body/corporation.
Right of open competition cannot be exercised, unless the process of appointment is transparent, fair, just and free from any complaint. Reliance, in this regard, is placed upon PWD Employees'
Union, Balochistan through Vice-President and others v. Secretary, Communication and Works Department, Government of Balochistan Quetta and others (2015 PLC (C.S.) 1182).
16. The act of respondent department, in the present case, has depicted discriminatory treatment, which cannot be recognized under the law and the Constitution. All similarly placed citizens were to be treated equally and not otherwise. Right to be treated equally is one of the fundamental rights granted by the Constitution. All persons are equal before the law and are entitled, without any discrimination, to equal protection of law. Petitioners have been subjected to hostile discrimination, which is forbidden by Article 25 of the Constitution. Non-appointment of petitioners to the post in question on the ground of being over-qualified, treating it as disgrace, amounts to discrimination as they were qualified for the post. Reference in this regard can be placed upon Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefits Institutions
(EOBI) through President of Boara, Board of Trustees and others (2014 SCMR 949).
17. No doubt "laws" could restrict human rights, but only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests. Any restriction of human rights not only needs a constitutionally valid reason but also needs to be proportional to the rank and importance of the right at stake. "Reasonable restriction" or any sub- constitutional limitation or law on a constitutional fundamental right must also flow from the Constitution to protect lawful rights and interests of the others or the society at large. The "law" or "reasonable restrictions" in pith and substance must promote and advance fundamental rights of the community at large in order to qualify as a limitation to override the fundamental rights guaranteed to an individual under the Constitution. The "law" or the "reasonable restrictions" must be fashioned to uphold the constitutional themes of democracy, freedom, equality, tolerance, social justice and advance the principles of policy under the Constitution. The roots of sub- constitutional limitation must be grounded in the Constitution itself, only then they can possess the constitutional character and strength to take away the fundamental rights of an individual.
18.Petitioners, in circumstances, seem to be the victims of unreasonable and irrational approach of the authorities, disabling them to seek appointment on the ground of being over-qualified, which ultimately was going to be beneficial to the respondent-department. Even otherwise, there seems to be lack of uniform criteria / policy, equally applicable to all similarly situated persons..
Different policies/criteria in the respondent institution under the administrative control of WAPDA negate the rationale and objective behind the provisions of Articles 4 and 25 of the Constitution.
Concept of equality before law and that all were equal before law, had its genesis in Islamic fundamental principles elaborately propounded by the Holy Prophet Muhammad (P.B.U.H) in the Last Sermon. Provisions of Articles 4, 25, 26 and 27 of the Constitution were also in line and consistent with the "equality of all" as enshrined by Islam. Not only that the Principles of Policy laid down in Article 37(C) of the Constitution also enjoined on the State to observe the same.
Reliance in this regard can be placed upon Mrs. Surraya Khanum v. Medical Superintendent, Punjab Institute of Cardiology, Lahore and 3 others (PLD 2006 Lahore 469).
19. The impugned criteria/policy of the respondent department being subordinate legislature could not control or override law and the Constitution. The criteria/policy could be challenged if the same is in conflict with law or fundamental rights of a citizen. Where a provision of law/rule/criteria/policy/instruction is offending against spirit of Article 8 of the Constitution or it has the effect of invasion upon rights of citizens by anybody, no matter by a private individual or public functionary, it cannot be justified on any scale.
20.For achievement of laudable object contained in Articles 4, 18 and 25 of the Constitution, this Court is entitled to strike down any rule/ instruction if it is obnoxious to the constitutional guarantee provided by Chapter of Fundamental Rights of the Constitution. Laudable objects contained in Articles 4, 18 and 25 of the Constitution, cannot be achieved until actions of departmental authorities are in accordance with law impartial, transparent and without discrimination. Provisions of Articles 4, 18 and 25 are the anchor sheet of the Constitution and their violation can be brought under scrutiny of judicial review of this Court. Reference in this regard can be made to Messrs Al- Raham Travels and Tours (Pvt.) Ltd. and others v. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others (2011 SCMR 1621), Muhammad Tanveer v. Government of Pakistan and others (2012 PLC (C.S.) 807) and Salahuddin Dharaj v. Province of Sindh through Secretary, Local Government Department and 4 others (PLD 2013 Sindh 236).
21.Needless to observe here that Constitution being a living document, interpretation of its provisions must be dynamic rather than strategic, and elastic rather than rigid. Right guaranteed under the Constitution cannot be taken away by ignoring any provision of the Constitution including Article 38 thereof, casting responsibility upon the State to secure the well being of the citizens and to promote and protect employment. Limitation can be imposed but such limitation must be rational and proportionate to end sought to be achieved. Such limitation, if imposed, must stand test of constitutionality by not being in violation of the Constitution or fundamental rights guaranteed thereunder. Such limitation, if imposed through delegated legislation, then additional test of same not being uncertain, not unreasonable or ultra vires parent statute and not in conflict with any other law would apply. Such limitation, if imposed through an executive action, then such action must necessarily be taken in exercise of powers conferred by law or in accordance therewith, without offending any other law or Constitution or fundamental rights guaranteed thereunder. On the face of it, there is no law backing the impugned departmental instruction/criteria/policy, thus the same is not sustainable in the eye of law. Reliance in this regard can be placed upon Messrs Shaheen Cotton Mills, Lahore and another v. Federation of Pakistan, Ministry of Commerce through Secretary and another (PLD 2011 Lahore 120).
22. Resultantly instant petition is hereby allowed the impugned orders are declared to be illegal and without lawful authority. Consequently, respondents are directed to issue appointment letters to petitioners within a period of 30-days from today, without disturbing any other person employed, due to the impugned acts of respondents. Compliance report shall be furnished to this Court through Deputy Registrar (Judicial).