1. ARBAB MUHAMMAD TAHIR, J: Through the instant writ petition, petitioner namely Raja Kamran Khan impugns order dated 04.01.2017, passed by the President, Islamic Republic of Pakistan ('respondent No.2') whereby representation in terms of Article 12 of the Establishment of the Office of Wafaqi Mohtasib ('Ombudsman') Order, 1983 (Order, 1983), filed by the Ministry of Railways ('respondent-department') was allowed in following terms:- "3. The Agency has assailed the said decision of the Wafaqi Mohtasib reiterating its stance pleaded earlier. It is an admitted fact that the grievance of the complainant pertains to a matter which is inextricably linked to his service in the Agency. Such issues have categorically been excluded from the jurisdiction of the Mohtasib under Article 2 of the P.O. No.1 of 1983. The higher judiciary has consistently endorsed this statutory ex-position. Reliance in this regard is placed on the Supreme Court of Pakistan's judgment cited as 2007 SCM R 1313; its judgment in Civil Petition No. 2007/2016 and Islamabad High Court's decision in Writ Petition No. 1156/2015. Even otherwise, the allegation of tempering of recruitment record involves controversy of disputed facts which could only be settled through the examination of documentary evidence/witnesses by the court of competent jurisdiction. In such circumstances, the impugned original findings dated 15.04.2015 as well as revised findings dated 17.11.2015 of the Wafaqi Mohtasib have been passed without jurisdiction and as such are liable to be dismissed. the Honorable President of Pakistan has been pleased to accept the representation of the Agency for the reasons stated above. The complainant, if so desires, may approach the relevant judicial forum for redresssal of his grievances."
2. 2- Tersely, facts, relevant and essential for adjudication of instant writ petition are that the petitioner applied for a class-IV post as Naib Qasid in the respondent-department in the year 2009 in response to an advertisement dated 14.03.2009 and vide minutes of the meeting dated 06.07.2009, his name was placed at Serial No.(ii) of the waiting list for a period of six months. The Minutes of the Meeting are part of record, as Annexure-C, Page-18 of the instant writ petition.
3. 3- It is necessary to mention that father of the petitioner namely Meharban Khan had also served the respondent-department for about 42 years as a Class-IV employee, Naib-Qasid, and stood retired on 03.03.2015.
4. 4- The grievance of the petitioner had been to the effect that vide minutes dated 06.07.2009 there were only two candidates on waiting list i.e. the petitioner at serial No. (ii) and one Aftab Khan at serial No. (i). The latter succeeded to get job in another department and it was only the petitioner, left in the waiting list, but despite availability of the vacancy, to be filled in from the candidate in waiting list, he had been deprived and at his place one Muhammad Pervaiz had been appointment. The petitioner alleged that name of said candidate had been mentioned by committing forgery and manipulation in the minutes, by putting name of said candidate at serial No.(i), the name of Aftab Khan at serial No. (ii) and that of the petitioner at serial No. (iii). The said forgery and tempering had allegedly been committed by the then member/s of the Committee.
5. 5- The father of the petitioner, filed a complaint before the Ombudsman on 09.03.2015 which was disposed of vide Findings dated 09.04.2015 with following recommendations:- "4. It is recommended that:- a) An enquiry should be conducted in the case of tempering record and action should be initiated against the delinquent officer/officials, who are involved in this forgery. b) Raja Kamran Khan son of Raja Meharban Khan should be appointed from the waiting list as according to the record there are only two candidates in the waiting list, Mr. Aftab Ahmad Khan and Raja Kamran Khan. c) Reportedly Mr. Aftab Khan standing at Serial No.1 has been appointed elsewhere.
5. Compliance is to be intimated to this office within 30 days of receipt of copy of these findings or reasons for not doing so, in terms of Article 11(2) of President s Order No.1 of 1983."
6. 6- The respondent-department pursuant to above directions, conduced an inquiry and filed a review petition before the Ombudsman with the contention that in inquiry, the charges were found baseless and that the complainant never filed any complaint with the authorities as long as he remained in service in the Ministry of Railways from 20.07.2009 to 03.03.2015. The Ombudsman turned down the review petition vide Revised Findings dated 07.11.2015 by observing as under:- "5. The examination of the inquiry report submitted by the agency showed that the TORs of the inquiry were not those as ordered by the Wafaqi Mohtasib in the findings. The inquiry concentrated on whether any tempering has been done in the record and to confirm the evidence pertaining to the complaint. This was not desired by the Wafaqi Mohtasib in the findings and it look like an obvious attempt exonerate the agency officers of wrong doing. Even a cursory examination would show that tempering has been done to the minutes by handwritten insertion and change of the serial number. It is quite unfortunate that the agency is trying to defend an obvious forgery. The agency has attempted to present a concocted report to hoodwink the Wafaqi Mohtasib. The review petition is therefore, dismissed. The agency is advised to immediately proceed as per recommendations of the original findings."
7. [Emphasis supplied] 7- The respondent-department then assailed the original and revised findings of the Ombudsman through a representation before the learned respondent No.1 which was allowed in terms noted in paragraph-01 above, hence instant writ petition.
8. 8- The learned counsel for the petitioner argued that the impugned order is against the law and facts; that in case of maladministration, the Ombudsman retains authority to pass the impugned directions; that forgery and tempering is floating on record and has also been established through the detailed report tendered by the FIA; that at the time of filing of the complaint, the father of the petitioner has already been retired while his complaint was very much competent, therefore, impugned order is liable to be set aside. It is added that, even otherwise, the petitioner had been deprived of his vested right by committing forgery, therefore, his petition before this Court is very much competent.
9. 9- On the other hand, learned counsel for the respondent-department cannot be resolved in writ petition; that the father of the petitioner remained quiet for a period of more than five years, never agitated his grievance within the department during his service period; that the complaint filed by father of the petitioner was not maintainable being hit by Article 9(2) of the Order of 1983 being related to service matter and that the impugned order is in accordance with law on the subject, therefore, petition is liable to be dismissed.
10. 10- Heard the learned counsel for the parties and examined the record with their able assistance.
11. 11- It is well settled principle that fraud vitiates most solemn proceedings and thus period of limitation would not embargo a justiciable claim directed against fraud. To respond to the objection upon maintainability of the complaint filed by the father of the petitioner before the Ombudsman, reliance is placed upon case of "Capital Development Authority through Chairman and another v. Zahid Iqbal and another" (PLD 2004 SC 99) wherein the Hon'ble Apex Court held that:- "The complaint filed by the father of the petitioner before the Ombudsman alleges maladministration on the part of the respondent-department. The object of establishing the Office of Wafaqi Mohtasib was to diagnose, investigate, redress and rectify any injustice done to a person through maladministration on the part of the Agency. The purpose was, thus to undo administrative excesses from within the administration so that justice could be made available to the wronged persons without such persons being forced to knock at the doors of the Courts of law.
12. Therefore, wide powers had been conferred on the Ombudsman through Section 9 of the President's Order No.1 of 1983 and the only matters which were kept out of his jurisdiction were the matters which were sub judice before some Courts or Tribunal etc. of competent jurisdiction; matters which related to the external affairs of Pakistan or matters which related to or were connected with the defence of Pakistan."
13. 12- In the present case, the complaint filed by the father of the petitioner had been on the allegations of maladministration and fraud/forgery and there was no matter pending in this respect before any court or Tribunal, therefore, the jurisdiction of the Ombudsman in the matter is not barred in terms of Article 9(2) of Order of 1983.
14. 13- On the claim of the petitioner being entitled to be considered for appointment as being next in waiting list, reliance is placed upon case of "Government of Punjab through Secretary Cooperative Societies Department, Lahore etc. ( CP No. 1948-L of 2021 ) wherein the Hon'ble Apex Court refused leave to appeal against the decision of the Hon'ble Lahore High Court wherein writ was issued to the department to redress grievance of the petitioner who stood next in waiting list. It was held that "the learned High Court has rightly relied upon the judgment of this Court passed in Government of NWFP vs. Qasim Shah (2009 SCMR 382) wherein this Court has candidly held that when some of the selected candidates do not join the service, such posts remain vacant and it is imperative for the department to consider the remaining candidates for appointment against the said posts because said posts cannot be kept vacant till the next process of recruitment."
15. 14- In the present case, the petitioner had a legitimate right to be appointed as being sole candidate in waiting list, but allegedly been deprived of his right by employing forgery and tempering in official record. The Hon'ble Apex Court in the case of "Uzman Manzoor etc. vs. Vice Chancellor Khushal Khan Khattak University and others" (CP No. 2913, 3224 & 3628 of 2021) held that:- "
12. The doctrine of legitimate expectation connotes that a person may have a reasonable expectation of being treated in a certain way by administrative authorities owing to some uniform practice or an explicit promise made by the concerned authority. In fact, a legitimate expectation ascends in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of government or a public authority. When such a legitimate expectation is obliterated, it affords locus standi to challenge the administrative action and even in the absenteeism of a substantive right, a legitimate expectation may allow an individual to seek judicial review of a wrongdoing and in deciding whether the expectation was legitimate or not, the courts may consider that the decision of public authority has breached a legitimate expectation and if its proved then the court may annul the decision and direct the concerned authority/person to live up to the legitimate expectation. This doctrine is basically applied as a tool to watch over the actions of administrative authorities and in essence imposes obligations on all public authorities to act fair and square in all matters encompassing legitimate expectation.".
16. 15- Adverting to the allegation of forgery as noted in the successive orders by the Ombudsman, during pendency of the instant writ petition, the matter was also referred to the FIA with direction to collect the relevant documents from the respondent-department and the petitioner as well and conduct impartial inquiry in the light of the recommendations of the Ombudsman and submit a comprehensive report. The said report has since been placed on record, perusal whereof reveals that besides recording statements of all the concerned, the statements of the then members of the recruitment committee have also been recorded while the signatures of the members of the Committee were also got verified through Forensic Report. As per the statements of the two members of the Committee namely Javed Akhtar and Farrukh Yousaf, they have signed the original minutes dated 06.07.2009 vide Para-04 wherein only two candidates were at waiting list.
17. They further stated that another minutes of meeting were prepared on same date 06.07.2009, having affixed their signatures in which vide para-04 three candidates were placed on the waiting list valid up to six months are not genuine and as per their version, their fake/bogus signatures were used by someone for ulterior motives. The Forensic Examination of the two documents i.e. original minutes of the meeting and Para 32(i) in the noting file confirms the fact that the original minutes contain genuine signatures of the three members while in the minutes prepared subsequently in noting file, the signatures of one member of the Committee Muhammad Saleem, the then AD Admin. IV, MOR matched while that of two other members namely Javed Akhtar, the then Dy. Director Admin.I MOR and Farrukh Yousuf, the then Assistant Director T-II MOR did not match with their corresponding routine handwriting. This aspect, prima facie, reflects foul play on the part of the officials/officers of the respondent department, holding positions at the relevant time. The report concludes that "the Ministry of Railways Islamabad held a recruitment procedure for the post of Naib Qasid in 2009. Tempering was done in the candidate's waiting list for the term of 6 months in the noting file of the above recruitment."
18. 16- Every public functionary is under obligation to exercise its powers in a fair and transparent manner. Appointment in public sector is a trust in the hands of public functionaries and it is their moral duty to discharge their trust with zeal, efficiency and fairness as per law. Public authorities cannot be allowed to play disaster with the fate of the masses. The discretion vested in the public authorities should be exercised with reasonableness and nobody can be left uncontrolled to play with the future of the selected/recommended candidates. The impugned action, on the face of it, is worst example of maladministration and offensive to fundamental rights guaranteed under Article 9, 18, 25 and 27 of the Constitution.
19. 17- In view of above, the instant writ petition is allowed, impugned order dated 04.1.2017 passed by the learned respondent No.2 is set-aside, consequently, the Original Findings dated 09.04.2015 and Revised Findings dated 07.11.2015 of the Ombudsman are restored. Copy of this judgment shall be transmitted to the respondent No.1 with direction to comply with the recommendations/findings of the Ombudsman, referred to above, in letter and spirit. In addition to recommendation 4(a) of the Original Findings of Ombudsman dated 09.04.2015, criminal action shall also be initiated against the delinquent/s in due course. Needful shall be done within a period of one month from the receipt of this judgment. Compliance report shall be submitted through the learned MIT of this Court for perusal in Chambers.