IRSHAD HASAN KHAN, J.~This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks a direction to the respondents to consider the application of the petitioner on merits for the post of Secondary School Teacher.
2. The Chief Minister, Punjab, vide Notification No.US (L) (I & C)/ 1- 32/89 dated 13.3.1989 issued by the Government of the Punjab, Services, General Administration and (Information Department, allowed the ministers of the Punjab Government to make appointments in relaxation of the rules from Grade- 1 to 15 except for the following posts already specified in the Government of the Punjab, S&GAD's letter of even number dated 8.3.1989:-
1. Naib Tehsildar.
2. Assistant Sub-Inspector.
3. Traffic Sergeant.
4. Food Inspector.
5. Assistant Food Controller.
6. Labour Inspector.
7. Excise Inspector.
8. Cooperatives Inspector.
9. Food Grain Supervisor.
10. Assistant Superintendent Jail.
11. Assistant District Attorney.
12. Chief Officer.
13. Project Assistant.
14. Ziladar.
15. S.D.O.
16. Sub-Engineer.
17. Secretary Union Council.
In consequence, applications were invited for the posts of Secondary School Teachers from the candidates residing in Gujranwala Division. The petitioner among others applied for the same. The Education Minister, Punjab, vide order dated 28.3.1989 appointed various applicants as ST Teachers in BPS-15 and posted them in various schools of Gujranwala Division on temporary basis. The petitioner was, however, ignored, which led to filing of the present writ petition inter alia on the ground that he has been ignored illegally and malafide.
3. Vide interim order dated 21.4.1990, report was called for from the respondents, which has since been received and forwarded to this court through the Director of Public Instructions (Schools), Punjab vide memo No. 8883/Lit. Dated 8.5.1990 with a copy to the Section Officer (NG-1)
Government of Punjab, Education Department Lahore and the Solicitor to Government of Punjab, Lahore, vide Endt. No. 8884/Lit. Of even date. The Deputy Director (Administration) Directorate of Education (Schools), Gujranwala Division, Gujranwala, has frankly conceded in his report that the application of the petitioner for the post of Secondary School Teacher was not considered because he was not recommended by any political authority. The report reads as under:- (( Urdu Taxts Paragraphs))
4. After perusing the report, my learned brother Ch. Ihsan-ul-Haq J. Admitted the writ petition to a regular hearing by order dated 23.5.1990. It reads thus:- "The report has been received and perused. It is, admitted in the report submitted by respondent No. 2 that the appointments were not made in accordance with the merit list but as per recommendations of the Members of the Assembly. It is admitted that the rules as to appointments stand practically suspended. This was the whole grievance of the petitioner.
Therefore, the matter requires consideration.
2. Admit. Notice....... "
5. It is true that the petitioner has no vested right to be appointed to the post of Secondary School Teacher and it is within the discretion of the competent authority to determine the suitability or otherwise of the applicant, but the discretion is to be exercised on sound judicial principles and not arbitrarily, capriciously and or in violation of the rules in force on the subject matter. Refer Amanullah Khan v. The Federal Government of Pakistan (PLD 1990 SC 1092), wherein the scope of term 'discretion' as explained by Administrative Law by Kenneth Culp Davis (page 94) was reiterated and it was held that "somehow in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalise it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."
6. If all the applications including that of the petitioner had been considered and preference given to those who had Already been selected and appointed over the petitioner by relaxation of rules in genuine and hardship cases, perhaps no objection could have been taken to the course adopted.
Here grave injustice has been done to the petitioner. His application was rejected merely because he had no connection with the Education Minister. Such a conduct cannot be upheld on any moral or legal plane. Section 22 of the Punjab Civil Servants Act and rule 23 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, 'do not permit the Chief Minister to relax all the rules and regulations through an omnibus order to enable a minister to make recruitments.
7. In Muhammad Iqbal Khokkar v. Government of die Punjab (PLD 1991 SC 35), the Supreme Court held that the power of relaxation of rules vested in die Governor/Chief Minister is basically intended to correct serious cases to remove injustice. This power is exercised only in genuine cases to remove injustice and inequity which may stand in the way of a civil servant or an individual.
8. In Ikram Bus Sendee v. Board of Revenue (PLD 1963 S.C- 564), it was held that "even an administrative body ......... is wider legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with the law.
9. In Amanullah Khan (supra), refusal to entertain application under section 5 of the Securities and Foreign Exchange Ordinance (No. XVII of 1969) on extraneous considerations was held to be without lawful authority. It was further held:- "....The registration granted to Amanullah and his Associates/Islamabad Stock Exchange, shall not be of avail to them, and all the applications shall be considered afresh in accordance with the law on the subject by the competent authority."
10. Article 4 of the Constitution provides that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen of Pakistan. Obedience to the Constitution and law is the inviolable obligation of every citizen and of every other person for the the being within Pakistan vide Article 5 (1) of the Constitution. It was, therefore, incumbent upon the competent authority to Have disposed of the application of the petitioner along with all other applications for the post of Secondary School Teachers justly, fairly and in accordance with law.
Failure to do so has not only rendered grave miscarriage of justice to the petitioner, but also violated his constitutional right. Unfortunately, the petitioner failed to implead the persons, who were appointed by the Education Minister on the recommendations of the Members of the Provincial Assembly. In their absence, their appointments cannot be successfully challenged in this petition.
11. The Learned Advocate General was unable to support the impugned action, but made statement at the Bar, on instructions from the Education Secretary that in future, all appointments shall be made strictly on merits and in accordance with law. He also submitted that the Chief Minister's directive issued on 30.3.1989 relaxing the rules in the matter of appointment of Grade-I to IS employees is no longer operative for the last one and a half year. He, however, respectfully submitted that case of the petitioner shall be considered against any future vacancy on merits if he applies for the same. The concession made by the learned Advocate General is rather generous, but I am not impressed by it. This is - no favour to the petitioner. He has a vested right to demand for disposal of his application by the competent authority in accordance with law.
In view of the above, the application already made by the petitioner for the post of Secondary School Teacher shall be deemed to be pending. It shall be disposed of afresh on merits and in accordance with law against any existing/future vacancy along with other applications. To this extent the writ petition is accepted with costs.