IJAZ ANWAR, J. In this and in the connected writ petitions, the petitioners, pursuant to the advertisement issued by the respondent-Authority, have applied either for the post of Assistant Director (Food Safety) (BPS-17) or Food Safety Officer (BPS-16) or for both the posts but were not selected and they have questioned either the eligibility of the respondents who were appointed on the said posts or have questioned the selection process carried out in violation of the recruitment rules. Since the eligibility of the candidates has mostly been questioned, as such, it would be appropriate to reproduce the relevant qualification and experience mentioned in the advertisement as under:- Name of PostQualification & Experience M.Sc. (Hons)/M.Phil/MS in Food Science & Technology/Food Safety & Quality Management/Food Safety and Control/Food Nutrition & Science from HEC recognized University. OR Masters/B.Sc (Hons)/BS in Food Science & Technology/Food Safety & Quality Management/Food Safety and Control/Food Nutrition & Science from HEC recognized University with two years experience in food standards after acquiring qualification. OR Masters/B.Sc (Hons)/BS Biological Sciences with one-year Post Graduate Diploma in Food Safety & Control from HEC recognized University with two years experience in food standards after acquiring qualification. Assistant Director (Food Safety)
(BS-17)
Food Safety Officer (BS-16)Masters/B.Sc (Hons)/BS in Food Sciences & Technology/Food Safety & Quality Management/ Food Safety and Control/Food Nutrition & Science from HEC recognized University. OR Masters/B.Sc (Hons)/BS Biological Sciences with one-year Post Graduate Diploma in Food Safety & Control from HEC recognized University.
Writ Petitions No.4241-P/2020, No.4986-P/2020, No.20- B/2021 and No.4440-P/2020
2. In all these petitions, the petitioners have applied either for the post of Assistant Director (Food Safety) (BS-17) or Food Safety Officer (BS-16) or for both the posts and after going through the selection process, they were called for interview but were not selected while the private respondents who were having irrelevant qualifications were issued appointment orders. They have questioned the eligibility of the candidates appointed against the said posts.
3. The Government of Khyber Pakhtunkhwa in order to provide for the safety and standard of food including Halal food and to promote their inter provincial trade and commerce and processes and to establish the Khyber Pakhtunkhwa Food Safety and Halal Food Authority in the Province of Khyber Pakhtunkhwa promulgated the Khyber Pakhtunkhwa Food Safety and Halal Food Authority Act, 2014 (hereinafter to be referred as "the Act"). Under Section 3 of "the Act", 'Food Safety and Halal Food Authority' has been established, the composition of which has been provided under Section 4 of "the Act". The powers and functions of the Food Safety and Halal Food Authority are provided in Section 8 of "the Act". Section 8 of "the Act", being relevant, is reproduced as under:- "8. Powers and functions of the Food Safety Authority:- (1) The Food Safety Authority shall regulate and monitor the food business in order to ensure provision of safe food.
(2) Without prejudice to the provisions of sub-section (1), the Food Safety Authority may,
(a) formulate or adopt standards, procedures, processes and guidelines in relation to any aspect of food including food business, food labeling, food additive, and specify appropriate enforcement systems; (a-i) develop policies, plans and programmes for ensuring compliance of Halal articles and processes with the Halal Standards and for promotion of their inter provincial trade and commerce in Halal articles and processes; (a-ii) develop and authorize use of Halal logo for Halal articles and processes; (a-iii) may operate as a certification body after obtaining due accreditation from the National Accreditation Body;
(b) specify procedures and guidelines for setting up and accreditation of food laboratories;
(c) formulate method of sampling, analysis of samples and reporting of results;
(d) specify licensing, prohibition orders, recall procedures, improvement notices and prosecution;
(e) determine terms and conditions of service of its employees; 09 provide scientific advice and technical support to the Government in matters relating to food;
(g) collect and analyze relevant scientific and technical data relating to food;
(h) establish a database and information system of network of food operators and consumers to facilitate food safety and quality control;
(i) organize training programmes in food safety and standards;
(j) promote general awareness about food safety and standards;
(k) levy fee for registration, licensing and other services; (1) certify food for export;
(m) establish safe limits (maximum permissible limits--MRLs) for processing residues in the foods;
(n) implement rules and regulations relating to:
(i) genetically modified foods;
(ii) irradiated foods;
(iii) fortified foods;
(iv) organic foods;
(v) foods for special dietary needs;
(vi) functional foods;
(vii) nutraceuticals;
(viii) health supplements;
(ix) proprietary and noval foods;
(x) beverages;
(xi) Ordinary foods;
(o) regulate matters relating to "Halal Food" etc;
(p) prepare periodic technical reports/gazette on situation offood safety in the province; and
(q) perform any other function, if any, assigned to it by Government to carry out the objects of this Act.
(3) Subject to sub-section (1) and (2), the Food Safety Authority shall exercise its functions, as far as possible, in accordance with the well established scientific principles and international best practices".
4. Thus, as already referred, its main aim and object is to provide for the safety and standard of food/Halal Food for the people of this Province. In the hierarchy of the Halal Food Authority, the post of Food Safety Officer is of much significance whose main duties are provided in Section 14 of "the Act" which are enumerated as under:-
14. Powers of Food Safety Officer. (1) A Food Safety Officer may:-
(a) take sample of any food including Halal food, or any substance or material used in any article or process, from any premises, godown and market, which appears to him to be intended for sale, or has been sold as food or Halal food in relation to which Halal logo has been used;
(b) seize any food, apparatus or utensil which appears to him to be in contravention of this Act, the rules or the regulations;
(c) enter or seal any premises where he believes any food is prepared, preserved, packed, stored, conveyed, distributed or sold, handled or served, examine any such food and examine anything that he believes is used, or capable of being used for such preparation, preservation, packing, storing, conveying, distribution or sale;
(d) open and examine any package which, he believes, to contain any food into contravention of the provisions of this Act;
(e) examine any book or documents with respect to any food and make copies of or take extracts from the book or document;
(f) demand the production of the identity card, the business registration certificate, licence or any other relevant document from a food operator;
(g) mark, seal or otherwise secure, weigh, count or measure any food or appliance; and
(h) search and seize any vehicle carrying food in contravention of the provisions of this Act".
5. It has been clearly mentioned that the Food Safety Officer shall possesses such qualification as prescribed by the Regulations while in the instant case, the Government, in terms of Section 50 of "the Act", notified the Khyber Pakhtunkhwa Food Safety and Halal Food Authority (Appointment and Conditions of Service) Regulations, 2017 (hereinafter to be referred as "the Regulations"). The qualification and criteria has already been reproduced above. In the instant case, the appointee namely Muhammad Zafar Masood was holding the qualification of BS (Political Science). The merit list has, however, shown that except the qualification of said Muhammad Zafar Masood in Political Science, all the other candidates were holding either MS (Food Science) or BS (Food Science); similarly, the merit list for Zone-IV shows that the appointee namely Muhammad Ibrahim Khan was holding MA (Political Science) and in the said merit list, the candidates having MS (Food Science) were ignored and the said appointee Muhammad Ibrahim Khan was got selected.
6. Learned counsel for the respondents has referred to their other pre-conditions of appointments i.e. 01 year diploma in Food Safety and Control obtained from the Trade Testing Council which is not authorized under the law to grant such diploma which mainly provides trainings for trade skills necessary for factories etc. During the course of hearing, copies of audit objections were produced, wherein, also an audit observation/objection regarding eligibility of the said respondents was raised by the Assistant Accounts Officer (Inspection) for the reasons that the appointees are not holding the prescribed qualifications. Learned counsel for the respondents has, while making reference to the advertisement, stated that in terms of the criteria, any candidate holding Master Degree can apply, however, as we have pointed out the scheme of "the Act" and the purpose of the establishment of the Halal Food Authority and the wording used in the eligibility criteria, specifically mentioned to Master Degrees either in Food Science & Technology/Food Safety & Quality Management/Food Safety and Control/Food Nutrition & Science/Biological Sciences and as such, the interpretation, put forwarded by learned counsel for the respondent Authority, is not legally tenable. In view thereof, these writ petitions are disposed of.
Writ Petition No.4773-P/2020
7. In the instant matter, the candidates selected against the posts of Food Safety Officer (BPS-16) were holding the qualification of either DVM or MBA which apparently seems to be not eligible in terms of the advertisement. In the instant case, we have been informed that the appointees have left their jobs. In view thereof, since their basic appointments were illegal, as such, the respondents are directed to recommend the candidate(s) next in merit against the post of Food Safety Officer (BPS-16) in Zone-III. This writ petition is disposed of.
Writ Petition No.5057-P/2020
8. In this writ petition, the petitioner applied for both the posts of Assistant Director (Food Safety)
(BPS-17) and Food Safety Officer (BPS-16) who, after going through the selection process, was appointed against the post of Food Safety Officer (BPS-16), he was also on the top of the merit list but was not appointed against the post of Assistant Director (Food Safety). He has questioned the appointments of respondents No.4 to 6 against the posts of Assistant Director (Food Safety) (BPS- 17) on the ground that they were not holding the prescribed qualifications as per the advertisement.
9. In the instant matter, the petitioner appears at S.No.6 of the merit list for the post of Assistant Director (Food Safety) (BPS-17), however, he has objected on the eligibility of respondent No.4 namely Muhammad Zafar Masood for not holding the prescribed qualification and also the other appointees namely Khalid Khan and Alif Khan regarding whom, he claimed that they were not included in the tentative merit list, placed at page 15 of this writ petition, after short-listing 36 candidates and that respondents No.5 and 6 subsequently added. In the above paras, we have considered the eligibility of one Muhammad Zafar Masood who was though not holding the prescribed qualification but was allowed appointment, however, regarding respondents No.5 and 6, the comments are silent specifically pertaining to the allegations regarding their non- participation in the initial stage of appointment process. We have observed that the appointment process was dubious and never remained transparent and are of the view that the whole process be reconsidered by a responsible officer. This writ petition is disposed of.
Writ Petition No.5274-P/2020
10. In essence, the petitioner alongwith others applied for the post of Food Safety Officer (BPS-16) and accordingly, appeared in the selection process. Petitioner secured high marks in the overall merit, albeit, was not considered for appointment. He has questioned the eligibility of the private respondents appointed against the post in question.
11. In the instant matter, the objection remained about the ineligibility of the appointees/respondent No.6 and 7. Respondent No.6 was holding the qualification of BS (Geography) which in terms of the eligibility criteria mentioned in the above paras does not come within the purview of the criteria and was thus not eligible in accordance with criteria; while respondent No.7 was though appointed in the open merit but he was holding the qualification of M.Sc (Zoology) and objection has also been on his alleged diploma, which according to the learned counsel for the petitioner, was never from a recognized Institution. An objection was also raised regarding the experience of respondent No.6 which was irrelevant, albeit, in order to bring him within the merit, he was allegedly granted experience marks. It appears that in terms of the advertisement, the qualification as Master in Food Science & Technology/Food Safety & Quality Management/ Food Safety and Control/Food Nutrition & Science/Biological Sciences was mentioned but the appointees were not holding the prescribed qualifications; as such, their appointments are against the law and are liable to be struck down.
This writ petition is disposed of.
Writ Petition No.5423-P/2020
12. In the instant matter, the appointment of respondent No.3 Muhammad Ibrahim Khan is questioned regarding whom, in one of the above writ petitions, there is observation that he is not holding the prescribed qualification, besides, there is also objection on the grant of experience marks added to his merit, because, he was merely holding 02 years experience which allegedly makes him eligible for appointment against the post of Assistant Director (Food Safety) and as such, marks for experience can only be granted when the candidate is holding the experience over and above the requisite criteria, besides, an objection has also been raised regarding the basic requirement of diploma of one year from Trade Testing Council which according to the learned counsel for the petitioner, is not authorized to grant such diploma in Food Safety and Control and has relied upon the judgments passed in the cases titled "DCO/Chairman District Recruitment Committee, Khanewal and others Vs. Kishwar Sultana and others (2016 SCMR 1288)" and "Shah Jehan and others Vs. Government of Khyber Pakhtunkhwa and others (2018 PLC (C.S.) Note 7)".
13. We are of the view that respondent No.3 was not eligible for appointment as he was not holding the prescribed qualification and as such, his appointment against this post of Assistant Director (Food Safety) is struck down. This writ petition is disposed of.
Writ Petition No.5424-P/2020
14. In the instant case, the appointee namely Muhammad Bilal failed to join the post of Assistant Director (Food Safety) while the petitioner claims to be next in merit having 73.75 marks. We have examined the merit list and find that there are 03 candidates having the same score in the merit list, however, one Muzahir Hussain was placed at S.No.09 of the merit list while the names of the present petitioner and one Muhammad Muneeb are placed at S.No.11 and 12 of the merit list respectively. It is the case of the petitioner that since the appointee has not joined the said post, as such, the offer of appointment is to be extended to him. This question has since been settled by the superior Courts and even recently, the Hon'ble Supreme Court of Pakistan in the case titled "Government of Punjab through Secretary Cooperative Societies Department, Lahore and others Vs. Asad Abbas (2022 SCMR 739)", held that "when some of the selected candidates did not join service, and such posts remained vacant, it was imperative for the department to consider the remaining candidates [on the waiting list) for appointment against the said posts because these posts could not be kept vacant till the next process of recruitment, if some selected candidates were still available on the waiting list". Learned counsel for the respondents has, however, objected that the petitioner is overage by 06 years, 08 months and 23 days. In any case, the respondent- Authority is bound to extend the offer of appointment to the candidate(s) next in merit having all the eligibility and fulfills the criteria mentioned in the advertisement. This writ petition is disposed of in the above terms.
Writ Petition No.211-P/2020
15. In the instant case, the eligibility of the private respondents has been questioned on the ground that they are not holding the prescribed qualifications. Learned counsel for the petitioner has referred to the qualification of respondent No.9 who was holding Master Degree in Philosophy while respondent No.10 was holding the qualification of BS in Chemistry; similarly, respondent No.12 was though having the prescribed qualification but after the cut of date, mentioned in the advertisement as 21.12.2019 while respondent No.13 was holding Master Degree in Geography. This Court has settled this issue in the above writ petitions that the main emphasis of "the Act" is to regulate and monitor the food business in order to ensure provision of safe food to the residents of this Province. As such, in terms of the advertisement, the appointees are not holding the prescribed qualification and as such, their appointments are liable to be struck down. This writ petition is disposed of.
Writ Petitions No.5187-P/2020 and No.4142-P/2020
16. In W.P. No.5187-P/2020, the petitioner applied, pursuant to the above advertisement, for appointment against both the posts of Assistant Director (Food Safety) (BS-17) and Food Safety Officer (BS-16) while in W.P. No.4142-P/2020, the petitioner applied for the post of Assistant (BS-16).
They claimed to have better merit in the academic and written test but were outclassed in the interviews.
17. It is by now well settled that this Court, in its constitutional jurisdiction, cannot question marking so made in the interviews and cannot sit as appellate forum over the interviewers unless and until there is recorded minutes of the interviews, because, while sitting at Courts, we cannot infer that what were the questions asked and what were the answers given. Reference can be made to the cases titled "Muhammad Ashraf Sangri vs. Federation of Pakistan (2014 SCMR 157)", "Arshad Ali Tabassum vs. The Registrar, Lahore High Court, Lahore (2015 SCMR 112)" and "Asif Mahmood Chughtai vs. Government Of Punjab (2000 SCMR 966)". In view thereof, these writ petitions are dismissed.
18. It is very unfortunate state of affairs that we have noted and observed in many cases that the appointments to public posts are not made in a transparent manner. Such practice has eroded the public confidence on the selection process and it has become a general perception that the appointments in the departments are not made on merit but either on the direction of the political figures or some influential in the department. The august Supreme Court of Pakistan in the case of "Zahid Akhtar Vs Govt: of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others" reported as (PLD 1995 SC 530) while commenting upon the conduct and attitude of the Government servants observed: "Government servant should comply wily with those orders/directions of his superior which were legal and within his competence--Compliance of illegal or an incompetent direction/order could neither be justified on the plea of same having been issued from superior authority nor same could be defended on Uri; ground that non-compliance thereof, could have exposed concerned Government servant to the risk of disciplinary action--Role of bureaucracy in the administrative set-up highlighted.
Tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order of direction of such elected functionaries without bringing to their notice, the legal infirmities in such order's/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. A Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified 9n the plea that it came from a superior authority nor it could be defended on the ground that its noncompliance would have exposed the concerned Government servant to the risk of disciplinary action."
19. The august Supreme Court of Pakistan in the case of "Roshan Khan Vs. Director Schools and Literacy NWFP, Peshawar and 4 others (2007 SCMR 599)" reiterated the same view and added that:- "It is for quite a long time, that some of the peoples representatives, whose sacred and scholarly job it was to legislate while honourably confining themselves to the dignified mansions of the assemblies, have started undesirable, dishonest and corrupt interference into the purely Executive/ Administrative domain of appointments, promotions and transfers of civil servants.
By now it has turned into a mafia that does not care about Law, Rules, Regulations, Rules of Business and repeated deprecations by the Supreme Court of Pakistan and High Courts. All forces seem to have whittled down before the exploitation and blackmail by some people whose weight, and not legislation, matters. This is bound to destroy the institutions, if not already destroyed."
20. The superior Courts of this country have time and again stressed upon the Executives not to accept any kind of pressure in the matter of appointments and postings and to go by the book what come may, however, it seems that either they are adamant enough not to follow the law or they are so insecure that they always succumb to the extraneous interference. What would be the state of other affairs while running this country when they cannot stand guard while making appointments, postings and transfers. In exactly similar matter, the august Supreme Court of Pakistan in the case titled "Chief Secretary Punjab and others Vs. Abdul Raoof Dasti (2006 SCMR 1876)", while striking down the illegal appointments and promotions, observed as under:- "It is our misfortune that when we are looking for individuals to serve our own-selves, we search for the best of doctors, the best of architects, the best of lawyers, the best of engineers, the best of cooks, the best of butlers and so on but when it comes to selecting similar individuals to serve the public, we get swayed by nepotism, by petty personal interests and by other similar ulterior and extraneous considerations and settle for the ones not worthy of serving the public in the requisite manner. We need to remind ourselves that choosing persons for public service was not just providing a job and the consequent livelihood to the one in need but was a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public. The individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer.
Therefore, we must keep it in mind that not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had right to be served by the best. It is also blatant violation of the rights of those who may be available and whose rights to the said posts are denied to them by appointing unqualified or even less qualified persons to such posts. Such a practice and conduct is highly unjust and spreads a message from ones in authority that might was right and not vice versa which message gets gradually permeated to the very gross root level leading ultimately to a society having no respect for law, justice and fair play. And it is the said evil norms which ultimately lead to anarchic and chaotic situations in the society. It is about time we suppressed such-like evils tendencies and eliminated them before the same eliminated us all".
21. We understand that there is no law in the country giving authority to the public representatives to interfere into the executive and administrative domain even to the extent of recommendation and proposal, albeit, the appointments, so made, is classic example of such interference. We find that the appointment process, so carried out, for the posts of Assistant Director (Food Safety) and Food Safety Officer is not transparent. The basic qualifications for the post of Assistant Director (Food Safety) (BPS-17) and Food Safety Officer (BPS-16) have not been adhered to while considering the candidates for appointments; besides, the merit list, placed on file, depicts that the candidates having qualifications of Master Degrees in Food Science & Technology/Food Safety & Quality Management/Food Safety and Control/Food Nutrition & Science/Biological Sciences were ignored while the candidates having irrelevant qualifications were preferred for appointments. We have further noted that marks were given for the basic requisite experience prescribed for the post of Assistant Director (Food Safety) while experience score can only be given for the experience over and above the prescribed one. It prima facie suggests that in order to raise their merit, such candidates were granted such scores. We have also noted that the basic condition of one year Post Graduate Diploma in Food Safety & Control from a recognized institute were obtained by the appointees from the institutions which were never meant to grant such diplomas nor they were authorized under the law. Reference can be made to the cases titled "DCO/Chairman District Recruitment Committee, Khanewal and others Vs. Kishwar Sultana and others (2016 SCMR 1288)" and "Shah Jehan and others Vs. Government of Khyber Pakhtunkhwa and others (2018 PLC (C.S.) Note 7)".
22. In view of the above, we find that the appointments, so made, to the posts of Assistant Director (Food Safety) and Food Safety Officer require to be reconsidered. As such, we deem it appropriate to refer the matter to the Member Inspection Team of the Provincial Government with direction to scrutinize the appointments, so made, to the posts of Assistant Director (Food Safety) (BPS-17) and Food Safety Officer (BPS-16) pursuant to the above advertisement and thereafter, to scrutinize the credentials and merit of each appointee and to submit his detailed report to the Appointing Authority alongwith his recommendations for necessary action. Copy of such recommendations be also forwarded to the worthy Registrar of this Court for the perusal of the Hon'ble Judges in their Chambers. The Member Inspection Team of the Provincial Government is expected to finalize the process and to submit his recommendation positively within a period of two months.