Dr. Khurshid Iqbal, J.
1. The petitioner (Israr Ahmad) has invoked our constitutional jurisdiction under article 199 of the Constitution, 1973, for issuance of an appropriate writ to the respondent (the Police Department) to pass his appointment order as a constable. In September, 2020, the respondent-Department offered employment opportunities. In response, the petitioner made an application for the position of constable. He participated in the recruitment process. He stood amongst the successful candidates. However, the respondent-Department refused to recommend him for appointment.
The reason for his non-recommendation was that during his character verification process ahead of the issuance of the appointment order, on the basis some intelligence report it was found that his brother had affiliation with a terrorist organization. The petitioner submitted an application to the Deputy Inspector General of the Malakand Division (respondent 3). In response to that application, the District Police Officer of Swat (respondent 4) sent a report. While the report shows that the petitioner was otherwise able to have qualified for recruitment, his name was dropped on the basis of police character verification. The relevant portion of the report is worth perusing: "In order to further verify the case of the instant applicant from intelligence agencies i.e. Special Branch and District Security Branch, the same was marked to them on 06.12.2021 for obtaining fresh report. The intelligence agencies stated in their reports that the applicant is neither involved in any sort of anti-stage activities nor any case is registered against him. However, his family members were remained stern supporters of militants during insurgency in district Swat and were also working for them as spies."
2. The respondents No. 3 and 4 (Deputy Inspector General of Police and District Police Officer, Swat) submitted their Para-wise comments. In their comments, they stated that the local police on its report regarding verification of the petitioner noted that his brother remained what they called a close supporter of the militants, who was also killed in an encounter with the law enforcement agencies.
3. We have heard arguments of learned counsel for the petitioner and the learned Assistant Advocate General, for the respondents and perused the record.
4. The Petitioner submitted an application to the DIG, Malakand Range (respondent No. 3), requesting that if at all, he was a student of class-5 during the days of militancy in the District of swa t and that his late brother had no affiliation whatsoever with any terrorist organization. Further to that, an inquiry was conducted by the DPO, Swat, who vide his letter No. 25764/Legal dated 27.12.2021, submitted a report. Perusal of the letter shows that the Petitioner himself was not found to have involvement with a terrorist organization, nor has any criminal case been registered against him. The report, however, notes that brother of the petitioner was involved in anti-State activities. Undeniably, brother of the petitioner has been reportedly killed in an encounter with the law enforcement agencies. He is no more in this world. Regarding the rest, there is no such information about the petitioner or even his other close relatives. It would not be just and proper if the petitioner is deprived of the right to earn his livelihood as a Police Constable for any fault of his brother who has passed away.
5. To begin with, the core question before us is that whether the success of the petitioner in the recruitment process creates a vested right of him for his appointment. The phrase "vested rights" is not defined in any statute. We would refer to its dictionary meaning thus. In the Black's Law Dictionary, it is defined as: "[V]ested right. A right so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent [Black's Law Dictionary, Ninth Edition p1438, full reference]."
6. This definition has been adopted by our courts. Reference may be made to PLD 1969 SC 407 at 412; PLD 1970 SC 439 at 444; PLD 1996 Karachi 1; PLD 2000 Karachi 154 (DB); 2002 CLC 1027 Lahore; and 2002 MLD 1608 Karachi. From a close reading of the case law, a vested right may be understood as one that crop up from a contract, a statute or operation of law and free from any contingencies; it enjoyment in any eventuality becomes the property of a person. In Ahmad Sarwana (2002 MLD 1608 Karachi), the court observed that a vested right could not be abolished by an exclusive action.
7. In the context of the case in hand, however, mere passing of certain test and interview for a position does not create any vested right of a candidate for his/her appointment against the position for which appointment process was initiated. In the case of Sajid Raza,[1]he claimed that after having passed successfully the test and interview and verification of character antecedents, the Department concerned issued his appointment letter. His grievance was that his posting order was not issued for what he contended "accommodating of influential persons". The Department, on the other hand, contended that in compliance with a policy of the government of Sindh, 20 additional posts were awarded to all women applicants, due to which petitioner failed to retain his position in the merit list. The petitioner denying the contention argued that the policy was not disclosed to him. The court relied on Assadullah Mangi in which august the Apex Court held that an offer simpliciter [...] cannot be equated to that appointment."[2] In the case of Zakaullah Bajwa, the petitioner qualified the examination conducted by the Public Service Commission. The post was offered to the petitioner subject to verification of his academic qualification and information submitted by him. Later on, it came to light that the petitioner had not disclosed the information that earlier in some service in which he was proceeded against under disciplinary proceedings and awarded penalty. The petitioner lost his case for the reason that mere offer of appointment did not confer a vested right for him.[3]
8. Next, we would consider whether the advertisement the respondent-Department published for filling of the positions could be seen as an implied promise on its part form which it can't turn aside on the pretext of the intelligence agency's report. In other words, whether a promissory estoppel could be said to have come into play. According to Black's Law Dictionary, "Promissory estoppel" is a principle that a promisor should have reasonably expected the promise to his on her detriment.
4. It depends on the exercise of a contractual obligation, as such, presupposes the entry of both the parties in an express contract. It could be used a defence not as shield.[5] It protects a right that already exists.[6]
9. Then, as compared to "Promissory estoppel", the doctrine of locus poenitentiae may be seen to have an application in the circumstances of the case. In Azhar Hayat, the hon'ble Sindh High Court held that the doctrine of locus poenitentiae applies in case of vested right.[7] The court rule: "In order to take benefit of the principle of locus poenitentiae, the employee had to have a vested right in the job, which had accrued by issuance of appointment letter and not before and any award of benefit to issuance to a person in violation of law would not attract principle of locus poenitentiae."
10. In the instant case, as discussed above, no vested right has accrued to the petitioner as no appointment letter was issued to him. Reliance is placed on the cases titled as Ghulam Rasool v.
Secretary, Government of Pakistan, Ministry of Defence and others (2011 SCMR 994); Contempt Proceedings Against Chief Secretary, Sindh and others (2013 SCMR 1752 and 2014 PLC (C.S) 82); and Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q)
Rawalpindi and others (2015 SCMR 1418).
11. We would now consider the application of the doctrine of legitimate is a potential or expected benefit and not a right. It exist between 'no claim' and 'legal claim'.[8] It is not a right but could be translated into a right while judicially reviewing administrative actions of public authorities. For its proper juristic understanding, we would study its definition offered in the Halsbury's Laws of England: Legitimate expectations: A person may have a legitimate expectation of being treated in a certain way by an administrative authority even through he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice.
The existence of a legitimate expectation may have a number of different consequences; it may give locus standi to seek leave to apply for judicial review; it may mean that the authority ought not to act so as to defeat the expectation without some overrding reason of public policy to justify its doing so; or it may mean that, if the authority proposes to defeat a person's legitimate expectations, it must afford him an opportunity to make representation on the matter (emphasis added).[9]
12. The doctrine of legitimate expectation has been followed in a number of cases by our higher Courts. Reference may be made to the case of Khan M. Mutiur Rahman; It cannot be overlooked that even in the absence of strict legal right there is always a legitimate expectancy on the part of a senior, competent and honest career civil servant to be promoted to a higher position which can only be denied for good and proper reasons. As held by the Honourable Supreme Court in Independent Newspaper Corporation v. Chairman, Fourth Wage Board and Implementation tribunal (1993 SCMR 1533), conferment of statutory power on a public functionary itself implies a restraint in operating that power and excessive use of lawful power is itself unlawful.[10][emphasis added]
13. Another relevant case is that of Salman Adi Siddiqui in which it was observed: With profound respects, we are unable to uphold the view that the recommendations of the Public Service Commission are meant to be utterly meaningless unless approval is accorded by the appointing authority at his sweet will and pleasure in his own time. Though such recommendations may not create the strict vested right at least they give rise to a legitimate expectation and it is well settled that the commendations of such a body ordained by the Constitution cannot be brushed aside expect for very good reasons as repeatedly held by the superior Courts.[11] [Emphasis added]
14. Coming to the case in hand, the success of the petitioner in the entire recruitment process created legitimate expectation of his appointment notwithstanding of the fact it does not create a vested right. A legitimate expectation is not required to be propped up by law. As one commentator on the subject argues, while an expectation may be legitimate and/or reasonable or illegitimate and/or unreasonable, however, there could be gain saying the fact that if a court of law terms it legitimate, it can only be refused on the ground of overwhelming public interest.[12] Moreover, if an expectation is legitimate, it well be willy-nilly reasonable. Thus, despite being short of right, where an administrative authority has initiated a process as a matter of its consistent past practice, and an individual has joined that process with an express interest, it would be reasonable or, so to say, legitimate for that individual to pin a positive expectation on the process in the hot pursuit of his interest. Obviously, the pursuit of the interest would become more demonstrable and even entrenched if the process moves detrimental to the avowed interest of the individual. The doctrine of legitimate expectation could thus be invoked as a check on administrative authorities to act fairly and honestly while dealing with the Public. Thus, in the case of Makhdoom Muhammad Mukhtar, the Lahore High Court ruled against the closing of a financially approved project for road widening.[13] It may be added that it is not the rule of thumb to grant all types of expectations. The legitimate expectations can be denied if against the statute or there are overriding public considerations based on objective reasons.
15. A bare perusal of the response of the DPO would candidly show that the petitioner has never been found having a link with militants. He could not be, if at all his brother had some connection with militants, held accountable. Till date, the petitioner has never been associated with the intelligence report that apparently speaks about his brother's, and not his, affiliation with the militants. The report of the respondent No. 4, reproduced in para 1, above reflects that the intelligence agencies have not found the petitioner involved in any anti-state activities or any case has been registered against him. It was on the basis of what the report notes, stern support of his family members to the militants and their spy activities what was used as obstruction in the way of petitioner's appointment. The petitioner having been individually found clean, he shall be treated equally and treated according to law. Dependence on intelligence reports in the process of recruitment has been examined by the courts in many cases. In a 1986 case, while considering the issue of misconduct of a civil servant, the Supreme Court abhorred the practice of covert reports in which intelligence agencies speculative and whimsical comments on the integrity of officials.[14] Referring to a report of the special Branch about the alluding of financial position of the official beyond his means, the Hon'ble Court wondered if a fair minded individual would believe that such a report and such material proves the charge of misconduct. In a relatively recent case came up before the Court in 2012, the Court ruled that reports of intelligence agencies based on simple conjectures could be not be relied upon.[15]
16. Lastly, we deem it pertinent to observe that equality of opportunity is necessary element of the right to work. 'Work' may be understood as "the provision of a service for and under the direction of another in return for remuneration".[16] Interchangeably, it may be defined as the right to employment in the present context. Article 18 of our Constitution envisages the right to work: : [s]ubject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business [...]." While every individual has a human right to work, it must be said that: firstly, there is no guarantee of employment; and secondly, no one shall be forced to work. Thus, article 11 absolutely prohibits subjecting an individual, including most particularly a child below 14 to slavery and all forms of forced labour and human trafficking. Article 11, however, lays down such exceptions as compulsory service pursuant to punishment for an offence against any law, or one required by any law for the public purpose which shall not be of cruel nature or incompatible with human dignity. Article 27 provides that if an individual is otherwise qualified for appointment in the service of Pakistan, he/she shall not be discriminated on the basis only of race, religion, caste, sex, residence or place of birth. Certain other fundamental rights may be seen as having demonstrable linkage to the right to work. They are the right to non-discrimination under article 25, stating that all citizens are equal before law and are entitled to equal protection of law. Next, the right to life recognized under article 9. The right to work is also enforceable as part of the principles of policy laid down in Chapter-2 of the Constitution. Article 37(f) and (e) and 38(a), (d) and (e) appear to spell out what we may term key strands of the right to work: firstly, just and humane conditions of work including non-employment of children and women unsuited to their age or sex or maternity benefits for women; secondly, ensuring employment as a tool of participation in national activities; thirdly, securing decent standard of living and provision of basic necessities, such as, food clothing, housing education and medical relief, for all such citizens without discrimination ; and, fourthly, reducing income disparity of all including those in the service of Pakistan.
17. Here we may also refer to article 23(1-3) of the Universal Declaration of Human Rights (UDHR), 1948, and articles 6 and 7 of the international Covenant on Economic and social Rights (ICESCR), 1976. Article 23 (1-3) of the UDHR provides: "Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemploym ent.
Everyone, without any discrimination, has the right to equal pay for equal work. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family and existence worthy human dignity, and supplemented, if necessary, by other means of social protection."
18. Citing from Mathew Craven, Prof. Smith argues that the right to work has three elements: access to employment, freedom from forced labour and security in employment.[17] Referring to national obligation under the ICESCR, Prof. Smith notes that States have duty [T]o adopt appropriate strategies and implement policies which aim at ensuring work is available for those who wish to be employed. It is these policies and the success or failure thereof that the Committee on Economic, Social and Cultural Rights scrutinizes when considering State reports.[18]"
19. We are the view that the right to employment needs to be understood in the broader context of fundamental rights as well as the principles of policy and international human rights law, creating obligation for the State to respect, protect and fulfil such a right.[19] The first category requires the State to refrain from any interference with the rights of the individual. The second category mentions the duty of state to prevent violation of rights by third parties. The last category obligates the State to formulate a board-based policy that includes 'appropriate legislative' administrative, budgetary, judicial and other measures towards the full realization of such rights'. The first two categories, i.e., the obligation to respect and the obligation to protect or ensure, can be grouped as perfect obligation and the last category, i.e., the obligation to fulfil or provide, can be one of imperfect obligations, to which can be added also the obligation to promote.[20] The imperfect obligations to fulfil or provide involve policy formulation, as the Maastricht Guidelines have noted.
20. We have reached to the conclusion that the process of recruitment in which the petitioner participated and emerged successful, though did not create a vested right, it did engender his legitimate expectation for appointment against the position he applied for. The respondents have not treated him according to law and their refusal to offer appointment to him has led to his discrimination within the purview of article 25 of the Constitution. Resultantly, we allow the instant petition and direct the respondents to consider the petitioner for appointment against the post of constable in District Swat.
1. Sajid Raza and 17 other v. Executive District Officer (Education and Literacy) Noushero Feroz and 3 Others 2015 PLC (C.S.) 108 [Sindh High Court].
2. Assadullah Mangi and Others v. Pakistan International Airlines Corporation and other 2022 PLC (C.S) 771.
[3]Zakaullah Bajwa v. Government of the Punjab through Secretary, Public Prosecution Department, Lahore, 2013 PLC (C.S.) 344.
4. Black's Law Dictionary... p631.
5. State of Punjab v. Nestle India Ltd. And another [(2004) 6 SCC 465] cited in Southern Petrochemical Industries Co. Ltd v. Electricity Inspector E.T.I.O. (2007 4 MLJ 723 (SC)
6. Qaiser Abbas, 'Doctrine of Legitimate Expectations: Prospects and Problems in Pakistan' 2008 Pakistan Law Journal Magazine, 448-460 (Abbas, PLJ).
7. Azhar Hayat v. Chairman Karachi Port Trust and 2 Others 2017 PLC (C.S.) 632
8. Abbas, PLJ 2.
9. Haslbury's Laws of England, Fourth Ediditon, 1989, Volume 1 (1) p. 151 [10]Khan M. Mutiur Rahman and Others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others, 2006 PLC (C.S)
564
11. Salman Adil Siddiqui v. Province of Sindh 2008 PLC (C.S.) 220.
12. Abbas, PLJ, 9.
13. Makhdoom Muhammad Mukhtar, Member Provincial Assembly, Punjab v. Province of Punjab through Principle Secretary to Chief Minister, Punjab, Lahore and 2 Others PLD 2007 Lahore 61.
14. Government of the Punjab and another v. S. Tassadaq Hussain Bokhari PLD 1986 SC 162)
15. Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice, Islamabad v. Sindh High Court Bar Association through president and another PLD 2012 Supreme Court 1067.
16. Rhona K. M. Smith, Textbook on International Human Rights, Oxford University Press, 6th Ed. 2014.
P318 (Smith).
17. Smith, 320.
18. Ibid
19. The Maastricht Guidelines on Violation of Economic, Social and Cultural Rights, Human Rights Quaretly 20, 1998, 691-704 at 693-4.
20. Stephen Marks, The Human Rights Framework for Development: Seven Approaches' in Arjun Sengupta, et al. (ed.), Reflection on the Right to Development, New Delhi, Sage, 2006, pp321-49. 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.