MALIK JAVID IQBAL WAINS, J.:- This Intra-Court Appeal (ICA) under Section 3 of the Law Reforms Ordinance, 1972, has been filed by the appellant, Hafiz Muhammad Atif Mumtaz, challenging the judgment dated 09.09.2024, whereby the learned Single Judge in Chamber dismissed W.P.No.10689 of 2024.
2. The facts relevant for adjudication are that the Assistant Commissioner, Saddar Multan (Respondent No.3), advertised the post of Patwari, inviting applications from eligible candidates residing in District Multan. The appellant, being a resident of Tehsil City, Multan, applied for the said post but was declared ineligible on the ground that the vacancy pertained to Tehsil Saddar, Multan, and only residents of that Tehsil were eligible for appointment.
3. The appellant challenged this rejection through a constitutional petition, asserting that the post should be opened to all residents of District Multan, rather than being Tehsil-specific. However, the learned Single Judge in Chamber dismissed the petition, upholding the stance of the official respondents.
4. Learned counsel for the appellant contends that the judgment, under appeal, passed by the learned Single Judge in Chamber, is unsustainable in law inasmuch as the instructions issued by the Board of Revenue dated 23.02.2021, which have the effect of Rules in terms of Section 23 of the Punjab Civil Servants Act, 1974, have been erroneously disregarded while applying inconsistent Punjab Revenue Department (Revenue Administration Posts) Rules, 2009 ('2009 Rules'). He maintains that even otherwise, '2009 Rules' do not specifically reserve applicability of the said Rule to all vacancies in the service on the basis of belonging to the Tehsil concerned. It is further contended that the judgment under appeal has been passed in disregard of the earlier order dated 18.04.2024 passed in W.P.No.11477 of 2023. He adds that the fault, if any, in erroneous advertisement is not attributable to the appellant, who could not be deprived of the benefit of appointment in such case. Learned counsel emphasized that denial of issuance of appointment letter to the appellant at almost end of completion of the entire process of appointment violates legitimate expectations of the appellant.
5. Conversely, the learned Law Officer has supported the impugned judgment for reasons stated therein.
6. Arguments heard. Record perused.
7. This intra-court appeal has been filed against the judgment of the learned Single Bench, whereby the appellant's claim for appointment was dismissed. The pivotal issue for determination in this case revolves around the applicability of Punjab Civil Servants (Appointment & Conditions of Service) Rules, 2009 and the eligibility criteria outlines in the advertisement.
8. The appellant has relied upon the instructions dated 23.02.2021 issued by the Board of Revenue while terming those to be enforceable having the status and effect of Rules framed under Section 23(2) of the Punjab Civil Servants Act, 1974 ('Act'). The aforementioned section reads as follows:- Section 23(1)...............
(2). Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act".
(Emphasis supplied by us).
Undisputedly, the instructions dated 23.02.2021 were issued after promulgation of the Act. While subsection (2) of Section 23 of the Act saves application of any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before commencement of the Act i.e. 04.06.1974 so long as those are not inconsistent with the provisions of the Act, however, the said provision does not apply to any executive instructions issued after promulgation of the Act. Any executive instructions issued subsequent to enactment of the Act cannot take precedence over the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 2009 which were duly prescribed by the Governor. By now it is well settled that rules framed under statutory authority have the force of law and any executive instructions in contradiction thereto are without legal effect. The executive must abide by and obey the command of the Legislature. If it fails to do so, the Court will be obliged to step in and ensure such obedience. Reliance in this regard is placed on the judgments of the Supreme Court in the case of Muhammad Yasin vs. Federation of Pakistan through Secretary Establishment Division, Islamabad & others (PLD 2012 SC 132).
9. It is aptly noted by the learned Judge in Chambers that there is an apparent contradiction between the 2009 Rules prescribing the post of Patwari as Tehsil specific and the instructions issued by the Board of Revenue on 23.02.2021 which require mentioning of the domicile district- wise, therefore, in view of the aforementioned settled legal position, no effect can be given to such executive instructions over and above the statutory rule.
10. It is equally well-established principle of service jurisprudence that the executive branch has no inherent power to make appointments outside the legal framework provided under the Constitution, the Act, and the Rules. Section 4 of the Act and the 2009 Rules explicitly prescribe the method and conditions of appointment. The aforementioned Rules mandate that the post of Patwari shall be Tehsil-specific, and any appointment made beyond this framework is without lawful authority.
11. It is further observed that the appellant cannot claim a vested right to appointment based on any alleged mistake in the advertisement. The Supreme Court of Pakistan in the case of Punjab Public Service Commission & others vs. Husnain Abbas & others (2021 SCMR 1017), has categorically held that an advertisement error does not override statutory provisions or confer an enforceable right to appointment. A mistaken or misleading job advertisement cannot be a ground for bypassing the statutory rules governing recruitment. An erroneous advertisement cannot create a legal right contrary to the law. A public authority cannot be bound by an erroneous act if it contradicts legal provisions. Moreover, in the case in hand, the advertisement explicitly demonstrated that the recruitment process would be conducted as per the Punjab Recruitment Policy. Therefore, it is crystal clear that the applicant and all other candidates who applied were bound by the terms and conditions set forth in the recruitment rules.
12. By now it is well settled that mere participation in a selection process does not confer a vested right to appointment unless the candidate fulfills all eligibility criteria prescribed by law and rules.
The doctrine of legitimate expectation does not apply where the statutory provisions or eligibility conditions are not satisfied. The selection process, including written tests, interviews, or any other procedural steps, serves as a mechanism to assess eligible candidates, not to override statutory qualifications. Eligibility conditions must be fulfilled before participation in the selection process, and failure to meet these conditions renders the process non-conclusive for the candidate. The Hon'ble Supreme Court of Pakistan in case reported as Secretary Finance and others vs. Ghulam Safdar (2005 SCMR 534) held in paragraph No.10 as under:- "Be that as it may, it is difficult to sustain the prayer of the respondents since mere selection in written examination and interview test would not, by itself, vest candidates with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court.
Admittedly, the appellants had not issued any offer of appointment to the respondents and their appointment was subject to clearance by the Establishment Division under the Centralised System of Recruitment till it was discontinued in November, 1996, which again coincided with the imposition of ban on fresh recruitments, which could not be safely ignored by the appellants...".
13. It is trite law that no estoppel can operate against a statute or rules framed under it, and an ineligible candidate cannot claim benefits merely because they were erroneously allowed to participate in the recruitment process. Even if certain candidates were appointed in violation of the rules in the past, it does not create a legal precedent for further illegality. The principle of estoppel cannot be invoked against the mandatory provisions of law. Estoppel cannot be used to perpetuate an illegality. The procedural participation does not cure the defect of ineligibility, and an appointment made in violation of eligibility norms is liable to be set aside. No estoppel can be pleaded against statutory provisions. Ensuring strict compliance with rules is essential to uphold the rule of law and maintain institutional integrity.
14. Public sector employment is not a private contract but a matter of public trust, requiring strict compliance with the prescribed legal framework. Any appointment that deviates from the constitutional and statutory mandate violates the fundamental rights of other eligible candidates under Article 25 of the Constitution of Pakistan, which ensures equality before the law. It has been held by the Supreme Court in the matter of Suo Motu Action regarding eligibility of Chairman and Members of Sindh Public Service Commission, etc. (2017 SCMR 637) that appointments in civil service must be made strictly in accordance with the Constitution. Public appointments cannot be made arbitrarily or outside the framework of rules. Any deviation from the prescribed procedure vitiates the appointment and renders it without legal effect. Such unlawful appointments not only violate the rights of deserving candidates but also erode public trust in the system.
15. The Hon'ble Supreme Court has consistently held that any appointment outside statutory rules is void and illegal, and courts must ensure that recruitment in public service remains transparent and in accordance with law. Granting relief to the appellant would set a dangerous precedent, opening the floodgates for unlawful appointments. Appointments made in violation of service rules cannot be upheld, as they undermine the principles of merit, transparency, and fairness in public service. Such appointments not only contravene legal provisions but also set a precedent for arbitrariness and favoritism, leading to inefficiency and injustice.
16. The appellant has failed to point out any legal infirmity or jurisdictional error in the judgment of the learned Single Bench warranting interference with the impugned judgment dated 09.09.2024.
This appeal is accordingly dismissed being devoid of any merit.