JAWAD HASSAN,J. Through this judgment, we intend to decide the instant Intra Court Appeal as well as Intra Court Appeal No.1412 of 2016 as these appeals are the outcome of impugned order dated 11.10.2017 and order dated 13.05.2016 passed in Writ Petition Nos.7299 of 2017 and 1803 of 2016 by the learned Single Judge whereby aforesaid writ petitions were allowed.
2. Alongwith connected Appeal No.1412 of 2016, the Appellant has also filed application (C.M. No.02/2016) for condonation of delay in filing the Appeal.
3. Though preliminary objection of limitatio n with regard to I.C.A.No.1412 of 2016 was raised by learned counsel for the Respondents yet we propose to decide both appeals through this common judgment therefore, we condone the delay in filing of I.C.A.No.1414 of 2016 in the light of dictums laid down by Hon'ble Supreme Court of Pakistan in "Sheikh MUHAMMAD RASHID Versus MAJID NIZAMI, EDIT OR-IN-CHIEF , THE NATION AND NAWA-E- WAQA T, LAHORE and another" (PLD 2002 SC 514) and "Subedar SARDAR KHAN through Legal Heirs and others Versus MUHAMMAD IDREES through General Attorney and another"( PLD 2008 SC 591) in which it has been held that "where similar questions of law arising out of common judgment were involved in another Appeal and Court had proposed to decide both appeals through single judgment, the delay was condoned in filing other Appeal".
A. BRIEF F ACTS
4. Facts of the case are that the Lahore Electric Supply Company Limited (LESCO) had issued an advertisement in the year 2015 for recruitment of certain posts including 89 posts of Line Superintendent Grade-I (BPS-15) pursuant to which the Respondents had eagerly applied for their selection. They passed written test conducted by National Testing Service and also got interviewed. When their names were not figured in the final list of successful candidates, they firstly approached the Appellant for redressal of their grievance and then came to this Court and filed writ petition challenging process of recruitment for the post applied and that writ petition was allowed with directions to the Appellant to issue appointment letters to the Respondents.
B. APPELLANT'S ARGUMENTS
5. Learned counsel for the Appellant inter-alia contended that the impugned order is liable to be set aside on the grounds that the same is against law and facts; that the impugned order is the result of mis-reading and non- reading of record; that the learned Single Judge has failed to appreciate the fact that the criteria of appointment for the posts was legal and without discrimination as it was set as per job descri ption of the post which was in accordance with the policy; that the selection process of hiring for the posts was completed in accordance with law and as such the Respondents have no vested right of being appointed on the posts; that the criteria for selection of an individual to a particular post is a policy matter and as per policy only graduate engineers are allowed to apply for higher posts and diploma holders are allowed to apply for lower posts; that if directions issued in impugned order are complied with, it will amount to discrimination against the persons having lower qualification and even otherwise are qualified for the posts.
C. RESPONDENTS' ARGUMENTS
6. On the other hand learned counsel for the Respondents controverted the arguments advanced by the learned counsel for the Appellant and prayed for dismissal of Appeal on the ground that the learned Single Judge has rightly passed the impugned judgment by following the dictum laid down by Hon'ble Supreme Court of Pakistan; that there is no illegality or perversity in the impugned order; that having a higher qualification does not disentitle the Respondents to apply and to be appointed on a low scale post as such the Appeal is liable to be dismissed.
7. We have heard arguments of the learned counsel for the parties and perused the record.
D. DETERMINA TION BY THE COURT
8. The Respondents applied for the post of Line Superintendent Grade-I in the Appellant' s Department pursuant to the advertisement inviting applications from eligible candidates. The case of the Respondents is that they applied for the post, passed written test conducted by NTS and also got interviewed but were not appointed whereas candidates having lower qualification have been appointed.
9. In this connection it may be mentioned that in the advertisement for the post issued by the Appellant, essential qualifications mentioned therein were as follows: "Essential: A: Educational: Matric with 3-years Diploma in Associate Engineering (Electrical) with "B" Grade from any Govt.
Poly T echnical Institute.
B: Experience: Three years' experience of trade in any supervisory post in any Electric Concern."
10. As per available record, the Respondents No.1&2 are certified Engineers registered with Pakistan Engineering Council bearing Registration No.ELECT/41387 and ELECT/33334 respectively . At the time of applying for the posts, the Respondent No.1 was having degree of B.Sc Electrical Engineering (Electronics) in Grade-C from Federal Urdu University of Arts, Science and Technology , Islamabad and had almost one year experience as Assistant Engineer in Haseeb Waqas Sugar Mills Ltd whereas the Respondent No.2 was having degree of B.Sc Electrical Engineering (Electronics) in Grade-B+ from University of Engineering & Technology , Lahore however , no experience certificate was attached.
11. It is the argument of learned counsel for the Appellant that although the Respondents appeared in test conducted by NTS and were called for interview yet the pre-requisites of the post of Line Superintendent Grade-I was Matric with 3-years Diploma in Associate Engineering (Electrical) with B-Gra de from any Govt. Poly Technic Institute plus 3-years' experience in trade in any supervisory post in any electrical concern and Graduation/B.Sc was not the requirement hence they were rightly denied for the appointment keeping in view the policy of the department. The argument of learned counsel for the Respondents is that it was nowhere mentioned in the advertisement that candidates having higher qualification would not be entitled to apply but the Appellant appointed less qualified persons ignoring the Respondents having higher qualification hence it is violative to their fundamental rights.
12. It is argued by learned counsel for the Appellant that the department appointed eligible and suitable persons for the post of Line Superintendent Grade-I as per Policy and job description whereas argument of learned counsel for the Respondents is that the Respondents , having higher qualification, cleared NTS test and were got interviewed but discriminatory treatment was meted out with them.
13. In case of " M. NAZIR AHMAD V ersus MUHAMMAD ASLAM and others"( 2013 SCMR 363 ) it was held that "An employer has the discretion to formulate appropriate policy viz.a.viz job qualification and criteria for various positions in line with its peculiar requirements and organizational structure hence no person had a vested right to be appointed on a post rather the author ities made a selection for the post as per criteria set out in Rules/policy and had to find the most suitable candidate for the job who could capably discharge the duties".
14. As already remarked above, it is settled law that on the decisions of authority with regard to a policy matter , Courts will not ordinarily interfere. Howev er, Courts do not abdicate their right to scrutinize whether the policy has been formulated keeping in mind all relevant facts and whether it is beyond the pale of discriminations or unreasonableness on the basis of the material on record. Unless the policy or action is inconsistent with the Constitution and the laws are arbitrary or irrational or there is abuse of power , the Courts will not interfere with such policy matters.
15. Admittedly , an advertisement was published by the Appellant in May, 2015 for recruitment of different posts through National Testing Service. In response to that the Respondent No.1 (Muhammad Shoaib) applied for the posts of Line Superintendent Grade-I as well as Junior Engineer . The Respondent No.2 (Muhammad Waqas) applied for posts of Line Superintendent Grade-I (BS-15), Line Superintendent Grade-II (BS-15) and Sub-Station Operator Grade-II (BS-14). The qualification criterion for the posts, as per advertisement, was as under: Sub-Station Operator Grade-I "Matric with 3-years Diploma in Electrical/Electronic Technology from any Govt. Poly Technical Institution in Grade "B" with 3-year experience in the trade from any Govt. Institute".
Line Superintendent Grade-I "Matric with 3-years Diploma in Associate Engineering (Electrical) with "B" Grade from any Govt. Poly Technical Institute plus 3-years' experience of trade in any supervisory post in any Electric Concern".
Line Superintendent Grade-II "Matric with 3-years Diploma in Associate Engineering (Electrical) with at least "B" Grade from any Govt. Poly Technical Institute".
16. The Respondents are insisting their claims and better qualifications on two grounds, viz. first that they cleared NTS test and had degrees of Bachelor of Science in Electrical Engineering hence the learned Single Judge has rightly allowed their petition and secondly the criteria mentioned by the Appellant in advertisement is not justifiable because other companies required three years Diploma with one year job experience for the same post and has given relaxation of one year to those candidates having higher qualification therefore, they should be treated equally and preference must be given to them having higher qualification.
17. The learned Single Judge in paragraph No.8 of the impugned judgment has observed that "advertisement published by HESCO, SEPCO, FESCO, IESCO etc for recruitment of post of Line Superintendent Grade-I 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 education i.e. degree in Electrical Engineering ". It was further observed that " disparity in setting eligibility criteria for one and the same post by LESCO is not understandable ".
18. Learned counsel for the Respondents has drawn our attention towards several advertisements issued by other companies for the recruitment of same post in which they required three year Diploma in Electrical/Electronics with one year relevant job experience and made relaxation of one year experience if the candidate is holding higher qualification. However , in the present case, the advertisement specifically mentions 3-years' experience of trade in any supervisory post in any Electric Concern. Hence, we cannot add words to the advertisement and it must be read and taken as it is.
19. It is pertinent to mention here that LESCO was established in the year 1998 as a limited liability company and its Board of Director (BOD) was authorized to independently exercise the powers given and conferred upon the BOD of a corporate entity by the Companies Ordinance, 1984, including the powers to appoint and determine the terms and conditions of their employees and as such all the internal matters of the LESCO are being managed under the supervision of the independent BOD appointed and nominated by the Federal Government, which enjoys the ownership of the shares of LESCO. The constitutive document of LESCO confers the power upon the management of LESCO to appoint its employees and to fix their terms and conditi ons of service without reference or recourse to the Federal Government. Since LESCO is an independent corporate entity and is being safeguarded by the law including the Companies Ordinance, 1984, power to appoint and determine the terms and conditions of its employees vests exclusively with the BOD. So post of Line Superintend ent Grade-I was advertised in newspaper by the Appellant in order to ensure a transparent process for appointment of persons having particular qualification as per criteria and definite work experience in the light of advertisement which was explicitly specified therein. It is well-settled principle of law that High Court while exercising jurisdiction under Article 199 of the Constitution, does not interfere in the transparent policy decisions of the executive body , aimed to achieve the best possible results in managing its affairs and the Court has very limited jurisdiction for examining such criteria. Such exercise of power cannot be interfered with.
E. ANAL YSIS BY THE COURT
20. Learned Single Judge has observed that "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 ". No doubt, unemployment is a very big problem and a grave concern for every Government in developing countries but if the persons having better qualification are recruited against a post which prescribes lower qualification, it will deprive a candidate having less but required qualification and then there would be more chaos as it would be difficult for the Government to accommodate the persons having the less qualification and it will result into more unemployment for a class of persons which have limited opportunities to apply for jobs considering their lower academic qualifications. To exemplify , showing all the regards to the medical profession, if a medical expert having the qualification of M.B.B.S. due to his circumstances, applies for recruitment against the post of Dispenser; he cannot be recruited and in case of refusal in the matter , none of his Constitutional rights would stand infringed or violated.
In the instant matter , no constitutional rights of the Respondents were infringed because the Appellant appointed the eligible as well as suitable persons in order to run affairs of the company smoothly . Hence, while passing impugned judgment, learned Single Judge has failed to appreciate assessment of suitability of particular nature of job and its scope in the context of particular employer i.e. LESCO as the Courts cannot prescribe the eligibility or prescribe experience qualifications and work experience as these are matters of policy and best be left to the department. Moreover , the employer could have not appointed overqualified job applicants because the employer might have reasons to believe that overqualified persons would not be willing and ready to perform the filed nature duties which the employer needs them to perform, as the overqualified persons often took jobs of lower scale disproportionate to their higher qualifications just to secure a short term position as a stepping stone to a better job.
21. It was observed by learned Single Judge that "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 ".
22. There is no cavil that the Respondents and other candidates applied for the post of Line Superintendent Grade- I through NTS and many of them might have passed written test and qualified for interview . The learned counsel for the Appellant has emphasized that the Appellant could not have identified specific educational qualification of various applicants, especially over-qualifi ed applicants holding B.Sc Electric Engineering degree at initial stage of scrutiny until the process of interviews of short listed candidates was started and at that stage, all over-qualified applicants were identified and separated from other suitable qualified applicants whose qualifications were in line with the required criteria as advertised by the Appellant considering the nature of job and duties which they were required to perform as line superintendent/field staff. The learned counsel for the Respondents has put much stress on discriminatory treatment with the Respondents by the Appellant under Article 25 of the Constitution. We observe that while passing impugned judgment, learned Single Judge has failed to appreciate assessment of suitability of particular nature of job and its scope in the context of particular employment i.e. LESCO which required suitable persons strictly as per criteria mentioned in the advertisement. However , for valid short-listing of candidates there are two essentials two requirements. i. It has to be on some rational and objective basis. For instance, if selection has to be done on some post for which the minimum essential requirement is a Matric degree, and if there are a large number of eligible applicants, the Selection Body can resort to short-listing by prescribing certain minimum marks in Matric and only those who have got such marks may be called for the interview . This can be done even if the rule or advertisement does not mention only those who have the aforementioned minimum marks, will be considered or appointed on the post.
Thus the procedure of short-listing is only a practical via-media which has been followed by the courts in various decisions since otherwise there may be great difficulties for the selecting and appointing authorities as they may not be able to interview hundreds and thousands of eligible candidates; ii. If a prescribed method of short-listing has been mentioned in the rule or advert isement then that method alone has to be followed.
23. In the present case, no doubt, the Appellant had resorted to an objective and rational criteria mentioned in the advertisement and selected those candidates who have required qualification of Matric with 3-years Diploma plus 3-years' experience. Generally we would not have taken exception to this procedure since it is based on an objective criteria, and ordinarily this Court does not interfere with administrative decisions which the learned Single Judge has over-looked while passing impugned judgment.
24. Moreover , the impugned judgment speaks about discrimination of Article 25 of the Constitution. In case of "ASDULLAH MANGI and others Versus PAKIST AN INTERNA TIONAL AIRLINES CORPORA TION and others"( 2005 SCMR 445 ), the Hon'ble Supreme Court has held that "Equality of citizens" does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility . The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform: It means that among equals the law should be equal and should be equally administered and that ,the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land.
In the aforesaid judgment it was further held as under: "Discrimination always involves an element of unfairness and bias and it is in that sense that the expression as to be understood. The factum of bias could not be substantiated by any convincing evidence. A Court of Law cannot exercise unfettered or unrestricted powers to administer supposed equity not base d on justiciable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the Appellants".
25. In "Brig. (Retd.) F.B. Ali and another Versus The State" (PLD 1975 SC 506), the Court considered the scope of Fundamental Right No.15 of the late Constitution of 1962 in context with Article 25 of the present Constitution, 1973 and made following observations: "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same manner . The phrase `equal protecti on' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty , property , or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner . Besides this, all law implies classification, when it applies for' a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference of distinction. Thus different laws an validly be made for different sexes, for persons in different age groups e.g. minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly , compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community . Indeed the bulk of the special laws made to meet special situations come within this category".
26. In "ISLAMIC REPUBLIC OF PAKIST AN through Secretary , Ministry of Interior and Kashmir Affairs, Islamabad Versus Abdul Wali Khan, M.NA. former President of Defunct National Awami Party" (PLD 1976 SC 57), the Court while dealing with reference made by the Government against National Awami Party , touched upon the question of protection of law and made following observation "What is unreasonable in one given set of circumstances may well be reasonable in another different set of circumstances. In order to test the reasonableness of such restrictions, therefore, no general standard exists. It will depend upon a variety of circumstances including the interest and urgency of the action proposed and the nature of the safeguard, if any , provided to prevent possibilities of abuse of power .
27. For what has been discussed above, the impugned order are not sustainable and calls for interference by this Division Bench; consequently the instant Intra Court Appeal as well as connected Appeal are hereby allowed and the impugned judgments are set aside .