1. ' SAEEDUZZAMAN SIDDIQUI, J.---This petition under article 199 of the Constitution is filed by the petitioner with the following prayer:-- "(a) declare that the failure of the Respondent No,1 Government to appoint the petitioner as Assistant Electric Inspector in spite of his having been selected by the Public Service Commission is unlawful, unconstitutional and not warranted by the Sindh Civil Servants Act, 1973 and the relevant Rules made thereunder;
(b) declare that the failure of the respondent No,1 to appoint the petitioner is unlawful and unconstitutional and in violation of the Fundamental rights guaranteed by the Constitution of Pakistan to the petitioner.
(c) direct the respondent No,1 to appoint the petitioner as Assistant Electric Inspector (BPS-17) on the basis of the results of the respondent No,2.
(d) prohibit the respondent No,1 from appointing any other person to the vacancy of the Assistant Electric Inspector BPS-17 for which only the petitioner had been declared qualified.
(e) grant costs. Any other relief which this Hon'ble Court deems just and proper in the circumstances of the case."
2. ' The admitted facts in the case are as follows: ' On 2nd March, 1988, respondent No,1 through respondent No,2 invited applications for filling in vacancy of Assistant Electric Inspector (BPS-17). The petitioner alongwith 47 other candidates appeared in the competition test presented by respondent No,2 and was declared successful on 12-12-1988. The result of the above test was communicated by respondent No,2 to respondent No,1 by letter dated 19th December 1988 in which petitioner was recommended for appointment against the post of Assistant Electric Inspector (BPS-17). The petitioner was, however, not appointed by respondent No,1 and in his place another person who was holding ad hoc appointment against the post of Assistant Electric Inspector (BPS-17) has been appointed according to the statement made by the learned Assistant Advocate General Sindh before us.
3. ' The learned counsel for the petitioner contended before us that the petitioner having appeared before the Public Service Commission in response to the advertisement and having passed the test prescribed by the Commission was entitled to appointment as Assistant Electric Inspector (BPS-17) in view of the decisions in the cases of Muhammad Farooq Memon v. Government of Sidh (1986 CLC 1408) and Manthar All Jatoi v. Government of Sindh 1988 PLC (C.S.) 344., The learned counsel for the respondents, on the other hand, contended that the recommendations made by respondent No,2 were only of advisory nature which did not bind respondent No,1, and as such petitioner could not claim any vested right for appointment against the post of Assistant Electric Inspector on the basis of the recommendation of respondent No,2. In support of this above contention the learned counsel for the respondents placed reliance on the case reported as Dr. Habibur Rehman v. West Pakistan Public Service Commission Lahore and four others (PLD 1973 SC 144). The case relied by the learned counsel is quite distinguishable on facts. In the above cited case the petitioner had challenged before the Court the recommendation formulated by the Public Service Commission in evaluating the merits of various candidates interviewed by it. It was urged before the Court that the recommendations made by the Public Service Commission were in violation of instructions issued by the Government in that regard. The Court though agreed with the contention of the petitioner in that case that the instructions issued by the Governor to the Commission regarding assessment of the merits of competing candidates were in the nature of statuory service rules which would be ordinarily binding on Public Service Commission but the Court refused to issue the writ on consideration that the recommendations of Public Service Commission were only advisory in nature in view of the language of Article 188 of the Constitution of 1962 which gave discretion to the appointing authority not to accept the recommendation of the Commission. From the facts as stated in the report of the above cited case, it is quite clear that firstly the above case was decided with reference to the language of article 188 of the Constitution of 1962, while there is no such similar article in the present Constitution. Secondly, there was no such contention before the Court in the above cited case that on the basis of the recommendation of the Public Service Commission, the Government cannot refuse to appoint a person.
4. ' In the comments filed on behalf of the department in the case before us it is admitted that initial appointments to all posts in BPS-16 to 22 are required to be made through selection by the Public Service Commission. The relevant service rule in this regard is rule 10 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 which reads as follows:-- "10. Initial appointment to posts in Grade-16 to 22, shall be made if the posts,
(a) fall within the purview of the Commission on the basis of examination or test to be conducted by the Commission;
(b) do not fall within the purview of the Commission, in the manner as may be determined by Government."
5. From reading of the above rule it is quite clear that all initial appointments to the post in Grade-16 to 22 have to be made on the basis of the examination and test to be conducted by the Public Service Commission, if such post fell within the purview of the Commission. It is not disputed before us that the post of Assistant Electric Inspector Civil and Mechanical (BPS-17) fell within the purview of Commission. In these circumstances only such candidate could be appointed to the post of Assistant Electric Inspector (Civil and Mechanical) BPS-17, who had passed the test prescribed by the Public Service Commission and was recommended for appointment by the Commission on the basis of merit. It is an admitted position in the case that petitioner alongwith 47 others appeared in the test prescribed by the Commission for selection against the post of Assistant Electric Inspector Civil and Mechanical (BPS-17) and petitioner was the only candidate out of 48 who was selected on merits and recommended by the Public Service Commission for appointment. In these circumstances we are of the view that the refusal of the respondent No,1 not to appoint the petitioner on the basis of recommendation of Public Service Commission amounted to violation of rule 10 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974. The learned counsel for the respondents, however, also referred to the provisions of Sindh Civil Servants (Regularization of Ad hoc Appointment) Act, 1989, and contended that as the ad hoc appointee against the above post was already there since October, 1988, he was entitled to get an appointment against the above post in preference to the right of the petitioner. We are unable to accept the above contention for two reasons. Firstly, Act VII of 1989 relied by the learned counsel for the respondents was enacted on 22nd May, 1989 and section 3 thereof clearly shows that it was prospective in its operation. Secondly, on the date the petitioner was recommended by the Commission for appointment against the post of Assistant Electric Inspector BPS-17, Act VII of 1989 was not in the Statute Book and as such reference to the provisions of Act VII of 1989 by the respondents is wholly misconceived. In any case on 20th February, 1989 ad-interim stay in the above petition was granted by the Court restraining the respondents front making any appointment against the vacancy of Assistant Electric Inspector BPS-17 which was confirmed on 16-1-1990 and as such the question of appointment of any other person to the above post, therefore, does not arise. The learned counsel for the petitioner has relied on two decisions of this Court reported as Muhammad Farooq Memon v. Government of Sindh (1986 CLC 1408) and Manthar Ali M. Jatoi v. Government of Sindh (1988 PLC (C.S.) 344). In the above cited two cases this Court took the view that upon recommendation of a candidate by the Public Service Commission for appointment against a vacancy such person acquires a vested right to such appointment. In the last mentioned case a similar argument as is raised before us in the present case was repelled as follows:-- "11. Under Rule 10 of the Sindh Civil Servants (Appointment, Promotion and Transfer Rules, 1974) initial appointment to posts in Grades 16 to 22, is required to be made if the posts, (a) fall within the purview of the Sindh Public Service Commission, on the basis of examination or test to be conducted by the Commission. Although the appointment has to be made by the competent authority but under the provisions of the aforesaid rule appointment has to be made on the recommendation of the Public Service Commission. The competent authority in order to refuse to accept the recommendation of Public Service Commission should have acted under some rule or at least for some cogent reason. In the present case both seem to be absent. Moreover, under Article 4 of the Constitution, petitioner is entitled to be treated in accordance with law. We may reproduce herein below Article 4 of the Constitution for the sake of ready reference:-- "4.-(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may by, and of every other person for the time being within Pakistan.--
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
6. ' The petitioner, therefore, could not have been dealt with arbitrarily.
7. ' The competent authority may have discretion in the matter still then the discretion has to be exercised on well-settled principles that is, it should be exercised in good faith having regard to all relevant considerations and for public purposes and in accordance with law and it should be exercised justly, fairly and reasonably. It should not be exercised arbitrarily or capriciously. NW, may here quote a passage from 'Judicial Review of Administrative Action' by SA. De Smith, page, 252, third edition, which reads as follows: "The relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is-vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations (emphasis supplied) and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously (underlining is ours). These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly exercised because irrelevant, considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, as will be shown is it possible to differentiate with precision the grounds of invalidity contained within each categoiy."
8. We are in respectful agreement with the view expressed in the above cited case and accept the petition. Respondent No,1 is directed to appoint the petitioner on the basis of the recommendation of the Public Service Commission Sindh if he otherwise does not suffer for any disqualification.
9. ' There will be no order as to costs.