' SHAFIUR RAHMAN, J.--- Leave to appeal was granted to examine whether notwithstanding the selection of successful candidates being made from one combined competitive examination the selection could be said to be different and second simply because requisition for recruitment to more posts was received by the N.-W.F.P. Public Service Commission (hereinafter referred to as the Commission) at a subsequent stage.
2. The Commission received the requisitions for filling up the posts by initial recruitment as hereunder:-- POSTS DATE OF REOUISITIONDATE OF RECOMMENDATION
(1) EACs 14 DSPs 7 S.Os 13
(2) DSPs 7 13-7-1988 16-6-1998
(3) EACs 3 29-8-1988 31-8-1988
(4) SOs 3 29-8-1988 18-9-1988
(5) ETO 1 3-8-1988 18-9-1988
(6) EAC 1 18-10-1988 6-10-1988
(7) SO 1 19-10-1988 31-10- 1988
(8) DSPs 2 27-11-1988 5-12-1988
3. On receiving the first requisition for recruitment to the post of 14 EACs., 7 DSPs. And 13 Section Officers (the date of requisition not disclosed anywhere on the record), the Commission advertised the vacancies inviting applications by 31-12-1986. The posts required to be filled, the zones from which they were to be filled were all indicated in the advertisement. The competitive examination was held, the merit list was prepared and the recommendations were made by the Commission on 16-6-1988. The appointment letters against these recommendations to the recommended candidates were issued on 22-10-1988. In the interregnum followed a number of supplementary requisitions for more vacancies; on 13-7-1988 for 7 DSPs followed by 3 EACs on 29-8-1988, 3 Section Officers on 29-8-1988, one EAC on 3-8-1988, one more EAC on 18-10-1988, one Section Officer on 19- 10-1988 and 2 DSPs on 27-11-1988. A few of the candidates recommended failed to join. A question arose as to how the vacancies reported to the Commission, after it had forwarded its recommendations whether due to non-joining of those selected or availability of new posts, were to be filled up. Guidance was sought from the Establishment Division of the Federal Government. A number of meetings were held and ultimately the Commission disclosed its practice and procedure in the matter in the letter dated 8th of January, 1989 which is reproduced hereunder in extenso:-- "I am directed to refer to your letter No,SORI(S&GAD) 1-23/85 dated 24-12-1988 on the subject noted above and to state that the system as in vogue in the Federal Public Service Commission is somewhat different to the procedure followed in this Commission. The Federal Public Service Commission makes re-allocation only in the cases where the original nominees fail to join the post.
Therefore, this readjustment is only in limited cases and the new requisitions which are received thereafter are carried over to the next year examination which is their yearly feature. In our case, we do not hold yearly examinations but instead maintain a waiting list of the qualified candidates, out of which recommendations are made against any new requisition received from the Government. The waiting list is normally valid for six months after the communication of the original recommendations, but can be revalidated by the Government, if additional requisitions are received after six months. Any requisition received after the earlier recommendations have been sent is treated as a separate requisition and is dealt with as such. This has been a consistent policy of the Commission. Any changes from this will create innumerable administrative and legal anomalies. To illustrate, in the instent case the Commission received six new demands with the following communications and it was not practically possible for the Commission to alter their recommendations on six occasions in all the cadres i.e, EAC, DSP and Section Officer keeping the zonal allocations in each cadre:--
(1) SO(P.I)3-13/83/3439 dated 13-7-1988 for 7 posts of DSP.
(2) SOS-II(S&GAD)2(9)73 dated 10-8-1988 for substitute of Mr. Fakhri Alam.
(3) S0S-II(S&GAD)2(9)73 dated 29-8-1988 for 3 posts of EAC.
(4) SOS-II(S&GAD)2(9)73 dated 29-8-1988 for 3 posts of SOs.
(5) SOS-II(S&GAD)2(9)73 dated 19-10-1988 for substitute of one SO arid one EAC (Dr. Tashfeen).
(6) SO(P-I)HD/3-13/83/15767 dated 27-11-1988 for substitute of 2 DSPs.
2. Every selection which is made subsequently is in fact a later selection, and such selectees are considered junior to the original selectees as prescribed in the Service Rules for different cadres.
Therefore, reallocation at a subsequent date would have interfered with the original order and given birth to intractable seniority problems.
3. Regardless of the Commission's established policy in this respect the respective administrative Departments will face practical difficulties in withdrawing candidates from Specialised training institutions (and in some cases after their training is over) and substituting them with fresh candidates. This will be further complicated by legal implications where the Government's earlier notification had established the right of individuals in certain cadres, making a revision of this policy at this stage well-nigh impossible.
4. In view of the foregoing, the Commission considers that reallocation of the selectees is not only inadvisable but unsuited to the recruitment policy in the Province."
4. The result of the implementation' of this policy was that a number of persons higher on the merit list were relegated to third options while those far lower in the merit list to them were upgraded in the matter of allocation of services. Three Constitution petitions were filed in the High Court challenging the policy,of the Commission of recruitment on various grounds. The three appellants who are now before us were amongst other writ-petitioners in Writ Petition No,335 of 1989. All these three appellants are serving as Section Officers in the Secretariat having been denied appointment as EACs or DSPs which rank higher to the Section Officers.
5. The High Court after examining the merits of the claim held as hereunder:-- "Such being the case, we feel that the learned counsel for the petitioners' apprehension that requisition of piecemeal posts and absorption of candidates from the waiting list on the newly- created posts, apart from being an unhealthy practice, would create serious doubts in the minds of those who though superior on merit in the examination have not been accommodated on post according to their preference. For example, Khawaja Wajihuddin, petitioner herein, at Serial No,14 of the merit list was brought to his third choice while those at Serial Nos.28, 54, 67 and 91 were given first and second preference of service on the creation and requisition of new posts on the basis of the same competitive examination. In the instant case, piecemeal requisitions of posts were made on three different occasions within six months of the competitive examination which were filled from the impugned waiting list without re-allocation. No urgency was shown by the respondent Government nor any pointed out by the learned counsel for the respondent for such an exercise and even if there was any urgency, that could have been met by appointment of suitable persons on contract basis for a period of six months or less pending selection of candidates on the basis of examination to be conducted by the Commission. Furthermore, there could have been made ad hoc appointment or the post could be filled by transfer of officers already holding posts on regular basis on equated grade under Provincial or the Federal Government till such time when the competitive examination was to be held as provided under Rule 4 of the N.-W.F.P. Public Service Commission Function Rules, 1974."
' However, the writ petitioners who are now the appellants were non-suited on the following grounds:-- "Be that as it may, we are of the view that the present writ petitions are not maintainable as the petitioners are not "aggrieved persons" within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. No vested right of the petitioners recognised by law stands invaded or denied to them. Undoubtedly, petitioners appeared in the competitive examination for the limited posts advertised and after they qualified the examination a merit list was published to which the petitioners never raised any objection. They were offered posts in different cadres according to their preferences within the limited posts. The petitioners accepted such offers and joined service without any grievance and reservation. They have, therefore, been left with no vested right to ask for re-allocation and redetermination of their preferences on the creation and requisition of new posts. In the absence of any law, rules, or policy for re-allocation of posts on the creation of new posts, after the competitive examination, no grievance can be raised."
6. It was also held by the High Court for denying relief to the appellants/writ petitioners that the matter of their selection was a past and closed transaction, the learned Judge observing as hereunder:-- "It was not denied by the learned counsel for the petitioner that no grievance was raised by the petitioner to the allocation of posts in accordance with merit in the first selection and the petitioner joined service without any reservation, it, therefore, can be safely held that their selection is a past and closed transaction."
7. Functioning of the Commission is governed by certain instructions acnd policy decisions which have neither been consolidated nor printed in the Compendium for restricted circulation and official use so as to acquaint all concerned and those dealing with the matters including the Courts and the lawyers with the parameters of their functioning and the rationality of the practice and procedure adopted or prevalent the norms and the expediency governing them. Such a secrecy affects the transparency of the administration and leaves the aggrieved persons totally confused, uninformed and suspicion and distrust abounds. An extract has been placed before us from "Procedure to be observed by Administrative Departments and Attached Departments of the Government of West Pakistan in their dealings with the West Pakistan Public Service Commission".
Instruction 2.13 reads "Ordinarily, every post to be filled by direct recruitment should be advertised".
This requirement has been considered by this Court to be so fundamental and mandatory that an interim order in the following terms had been issued by this Court in Abdul Jabbar Memon's case (Human Rights Case No,104/1992) in the following words:-- "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession.
' Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith.
' Steps shall immediately be taken to rectify, so, as to bring the practice in accord with the Constitutional requirement."
' This interim order was confirmed on 19-1-1993.
8. In the case of posts vacated by non-joinder of selected candidates or subsequent requisitions received the ordinary course for the Commission and the Government should be to readvertise it.
The only exception and the most unusual would be as pointed in the same instructions referred to in paragraph 7, instruction 2.12 which reads as hereunder:-- " The Department, while sending a requisition, may mention the number of vacancies at the time and any additional number of vacancies that are likely to occur in the near future so that the Commission may take the opportunity to select more candidates than the number of actual vacancies at the time of reference and recommend them later when a reference is made for filling additional new vacancies."
9. In an exceptional situation such additional vacancies subsequently reported to the Commission would get assimilated to the vacancies already advertised and the selection will take place from the result of the combined competitive examination as a single selection.
10. It is also advisable for the Government and the Commission to consider or not whether it is more fair, proper and regular to have annual or once in two years a combined competitive examination instead of keeping the practice erratic and uncertain. A practice of holding combined competitive examinations once a year or once in two years would end to certain extent the frustration and the disappointment that prevails in the fresh graduates who are eligible to take such examinations and to compete but are denied the opportunity to do so.
11. The practice of keeping a waiting list in a competitive examination system is actually introducing a contradictory concept. The waiting list is maintained in a qualifying examination while in a competitive examination all vacancies are filled up in one go. Even if the filling up is staggered the competitive examination is one and has to be treated as one selection for the purposes of recruitment and it cannot be divided into subsequent selection and prior selection the competitive examination remaining one and the same. Besides, the system which has prevailed in the Province is highly manipulative and unfair. Observation of the High Court on merits reproduced above shows that it came to the conclusion that the practice of the Commission was unfair, created apprehension in the minds of the candidates, was manipulative in the hands of those dealing with the candidates and was the cause of heart burning in the persons affected and working in the Government service. The practice in the matter of recruitment, promotion etc. Has always to be such so as to foster competence, discipline and efficiency in public service. Not only these objects should be advanced but they must appear manifestly to .Be advanced. If the system is arbitrary, capricious, unfair, leads to abiding heart burning and litigation then it is derogatory of the laudable objects for which the public service is required to be, established.
12. As regards the locus standi of the appellants, two decisions of this Court favour them. The first is Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223 and the second is Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144. The latter decision lays down the law that it is not the criteria prevailing at the date of advertisement which have to be taken into consideration but those existing when the posts are being actually filled up. If that criteria is to be adopted, then on 22-1011988 when the appointments were made the appellants and the respondents should have got precedence over them should stand in one category and the selection should have been made out of them.
13. So far as the Commission's policy and practice spelt out in the letter dated 8th January, 1989 reproduced in the judgment is concerned, there are certain legal objections to it. In the first place, the examination being competitive, there could be no practice of maintaining a list of qualified candidates for six months or its revalidation by the Government for a longer period. Requisitions made cannot be adjusted out of such lists without proper advertisement. As held by this Court in the case of Abdul Jabbar Memon (Human Rights Case No,104/1992) it would otherwise be a violation of the Fundamental Rights of the citizens and not condonable on any ground of expediency or administrative convenience.
14. As for the receipt of subsequent requisitions from the Government, the options open to the Commission are two. Firstly, it can keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment. Considering the extent of frustration and uncertainty prevailing in the qualified youths of the country, the latter course may be beneficial in the long run and help in evolving a system of regularly holding the competitive examinations each year, or once in two years or once in three years. When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case.
15. In the circumstances, we allow the appeal, set aside the judgment of the High Court and hold that the three appellants were entitled subject to two important conditions of their suitability already determined and the zonal allocation, to preference over those junior to them and already adjusted. They shall be restored to their options subject to these conditions and given their due seniority. We find from the list that the appellant No,3 (Muhammad Aslam) has been adjudged unfit both for the police and for the post of EAC. If this be correct, then he would not be entitled to adjustment in services for which he has been found unsuitable notwithstanding his merit and his option. This is a matter, however, for the verification by the Commission and the Government because it was never a matter in issue either in the High Court or before us. No order is made as to costs.