' Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks declaration of the policy prepared by the Government of Punjab whereby allegedly 75 per cent. Quota in papers and factually 100 per cent. Quota of recruitment has been placed at the disposal of Elected Representative/Ministers being unconstitutional, arbitrary, unfair without jurisdiction, based on political victimization and the appointments be made purely on merit basis.
2. The respondents have filed joint written statement wherein they have categorically stated that Government has no policy, whereby 75 per tent. Quota or 100 per cent. Quota, as alleged, in the petition is being given or has been given to M.PAs./M.NAs.
3. Learned counsel for the petitioner mainly relied upon the statements of elected representative published in various newspapers from time to time i,e, statement of Ch. Akhtar Ali, M.NA. Published in "Daily Pakistan" dated 25-4-1995 and of Members of Provincial Assembly, namely, Aman Ullah Khan, Tariq Bashir Cheema, Sikandar Hayat, Iqbal Ghurki published in daily "Jang", Lahore dated 25-4-1995 and also the statement of Rai Ejaz Ahmed, Advisor to the Chief Minister, Punjab published in daily "Jurat" Lahore dated 25-4-1995. Further relied upon a news published in daily "Pakistan 'times'. Dated 27-4-1995.
4. The contention of learned counsel has been vehemently rebutted by the learned Advocate- General who stressed firstly that the petition is frivolous and baseless as the petitioner has no grievance; further the petition is premature as the orders have not yet been passed by the Recruiting Committee; next contended that the Government of Punjab vide its policy approved in the Cabinet has decided that all the appointments will be made strictly in accordance with the instructions as laid 'down in the policy; whereby 20 per cent. Of the marks for interview; would be made strictly on merits in accordance with the principles followed by the Provincial Public Service Commission and Federal Public Service Commission. Also submitted that the Government has no policy whereby 75 per cent. Or 100 per cent. Quota is being given or has been given to M.PAs./M.NAs.
5. I have heard the arguments of learned counsel at length and have perused the documents produced on record with their able assistance.
6. The contention of learned Advocate-General that the petition in the present form is not maintainable as the petitioner is not an "aggrieved person" within the meaning of Article 199 is devoid of merits in the light of A observations made by their Lordships of Supreme Court in case Munawar Khan v. Niaz Muhammad and 7 others (1993 SCM R 1287) holding the question of law involved in writ petition being of public importance.
7. It would be appropriate to reproduce that statements of the elected representatives for ready reference. Ch. Akhtar Ali, M.N.A. (Muslim League Junejo Group) stated that:-- "There is big notice of giving Government jobs but in reality one NaibQasid cannot be appointed without the consent of a Minister and the Ministers have prepared the list of even sweepers."
The members of Punjab Assembly, namely, Aman Ullah Khan, Tariq Bashir Cheema, Sikandar Hayat, Ghulam Sarwar Khan, Rana Aftab Rashid Bhatti and Iqbal Ghurki and other participants of parliamentary party as reported in news published in daily "Sang" dated 25-4-1995; not only criticized the policy of appointment by the Punjab Chief Minister but stated that appointments have become Jagir of Junejo League and all jobs would go to Junejo League as their runner-up candidates are most powerful than the Ministers. Rai Ejaz Ahmad, Advisor to the Chief Minister, Punjab alleged as reported in daily "Jurat" Lahore dated 25-4-1995 that Mr. Fatiana, Education Minister, Punjab has appointed two thousand people of his constituency area in the Education Department deviating and by over-passing the so-called merit policy of Government of Pubjab; the daily "Pakistan Times" dated 27-4-1995 published a news under head notes on .Front page captioned as "Job distribution plan finalized", which is reproduced as under:-- "It is learned that only a total of 3500 jobs would be filled on merit whereas Prime Minister Benazir Bhutto has been allocated 10 per cent. Of the rest of the job gale. According to the well placed sources the Prime Minister will be given a free hand in making appointments on 2600 jobs whereas Punjab PPP jobs to be filled on their discretion.
' The rival PML-3 in the PDF coalition has been allocated 26 per cent. Job quota standing at 6800 jobs. It is also learned that the 10 per cent. Job quota allocated to the Prime Minister would also be utilized by the PPP bigwings. The sources claimed that ruling PPP has succeeded in chipping of 60 per cent. Job boon from a total 26,000 recruitment going to be made in the Province."
8. The statements made by the aforementioned elected representatives of Treasury Benches and published in the newspapers; particularly in Pakistan Times, which is supposed to be Government Gazeteer; cannot be taken as lightly as taken by the learned Advocate-General and cannot be ignored as hearsay evidence in the light of Supreme Court decision in case Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad Applicant/Referring Authority v. Abdul Wali Khan, M.NA., former President of Defunct National Awami Party (PLD 1976 SC 57) as the truthfulness of the statements attributed to elected representatives of the treasury Benches have neither been contradicted by the authors of statements nor any rebuttal to the said allegations by the members was issued at the appropriate time or separate and specific affidavits have been filed by the respondents refuting the allegations made aforementioned. None of the political party has taken any action against the said members who have made the statements referred above.
' The learned Advocate-General could not refute the allegation of continuous interference into working of recruitment committees particularly the manner in which the delay was condoned and the candidates were called for interview in the presence of Annexure B, a note, with the subject "Condonation of delay for receipt of applications after due date" written by the Provincial Coordinator, EMIS, Punjab, Lahore dated 23.4-1995 and also Annexures B/I and B/II, the applications of Ghulam Murtaza and Tahir Saleem. Paras 2, 3 and 4 of Annexure B may advantageously be reproduced:-- "Call letters have been issued to the candidates whose applications were received within specified time limit whereas application received beyond due date were not considered and had been rejected.
' The schedule for test and interview has already been announced and conveyed to the eligible candidates. At this point of juncture 54 applications (17 for DIOs, 2 for Drivers and 36 for Naib- Qasids, Chowkidars and Sweeper) were delivered to me at my residence at 5-30 p.m. By PS to Education Minister. All the applications contain the following orders of the worthy Education Minister: "Delay condoned, please enlist and call for interview"
' As a matter of fact, applications received after the date cannot be entertained. And if at all there is a need for that last date for receipt of applications can be extended by the competent Authority and that too with wide publicity but unfortunately under the present circumstances it is not possible. Call letters for test and interview have been issued to eligible candidates and cancellation/postponement of this process at this stage is not at all advisable. But for all that the issue is there and needs to be sorted out. The worthy Education Minister has himself talked to me on telephone and has dearly pointed out that he was competent authority to condone delay and as such had desired that his order be implemented without any hesitation.
' The order dated 27-4-1995 transferring Mr. Bashir Ahmed Vaseer Project Director, EMIS is also of significance in the facts and circumstances of this case. It will also be not out of place to mention that on the request of the learned Additional Advocate-General on 27-4-1995, the order dated 6-4- 1995 was modified to the extent that interviews/test may be held but no final order shall be passed pending disposal of the writ petition but the Education Minister was annoyed by all the process and vide order dated 30-4-1995 directed the recruitment process in the Punjab EMIS Centre be stopped forthwith till further orders.
All that has been discussed above is sufficient to prove interference by the Minister of Education into affairs of the Recruitment Committees and exerting influence which is contrary to the merit policy approved by the Provincial Cabinet rather renders it redundant and supports the version of the petitioner as well as the fear of elected representatives that only those candidates would be appointed who would prefer to serve under the Jageer of the Education Minister. The procedure and the policy as desired by the Education Minister if acted upon, would not only sabotage the crusade initiated against the illiteracy by the Chief Executive of the Province of Punjab at large scale rather would increase corruption which is not a hidden secret from any one.
' Now the question comes as to whether the policy letter dated 22-11-1994 has any legal sanctity and is in consonance with the merit policy laid down by the Government of the Punjab? For resolution of the question, reproduction of the operative part of the letter will be helpful, which reads as under:--
(1) Before issuance of appointment letters an NOC will be required to be obtained from the Education Minister in each case.
(2) The recruitments will be made strictly in accordance with the procedure/policy laid down for the purpose.
(3) After finalizing the codal formalities, Provincial Head of each Directorate of Education will personally bring the list of the candidates finally selected for approval of the Education Minister.
The NOC will be given after examining the list on case-to-case.
(4) The Provincial Heads will be personally responsible for any violation in this respect.
A bare perusal of above-quoted instructions itself is sufficient to demonstrate that these are contrary to the merit policy adopted by the Government of the Punjab rather render the policy as redundant. In the merit policy it is clearly provided that there will be selection committee made at Divisional and Provincial level which will consist of a Chairman (competent C appointing authority) and two officers of the department to be nominated by the Minister concerned and on the recommendation of the Departmental Selection Committee, the competent Authority will issue the appointment letter/order. The concerned Minister has only the authority to hold an inquiry in case there is complaint with regard to recommendations of the Departmental Selection Committee and appointment letter issued by the competent appointing Authority.
' It is very much necessary to mention here that a copy of the merit policy adopted by the Government of the Punjab was forwarded to all the Ministers and Advisors to the Chief Minister.
Viewed in this context, I have no hesitation in holding that letter No,PAIDS(Admn) 05/94 Government of the Punjab Education Department dated 22-11-1994 is in violation of the merit policy laid down and followed by the Government of the Punjab having the approval of the Provincial Cabinet. The same is, therefore, declared to be without lawful authority and of no legal effect with the natural corollary that all appointments made in the Department of Education after 10-8-1993 will be rendered illegal, ab initio void and of no legal consequences being offensive to the merit policy.
' Even otherwise the Minister is not a creature of the statute and has also under the Rules of Business, no authority to interfere into the internal working of the department what to talk of appointments and that too in violation of the merit policy of the Government. The service laws designate in the case of appointments, a Departmental Authority to make such appointments, which have been made subservient to the NOC to be issued by the Minister of Education which amounts to usurpation of powers delegated to the Departmental Selection Committees.
Next is the question of giving 75% quota in papers and really 100% to the MNA/MPA/Minis' ter. I need not go into the legality or otherwise of this question in view of the authoritative judgment of the Hon'ble Supreme Court of Pakistan in the case of Munawar Khan v. Niaz Muhammad and 7 others (1993 SCM R 1287). The Hon'ble Judges of the Supreme Court while dealing with the issue of quota observed as under:-- "8. As regards the allocation of quota of posts to the M.P.As. Or M.NAs. For recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of any one else including his superior. In the circumstances, allocation of such quotas to the Minister/MNAs/MPAs and appointments made thereunder are illegal ab initio void and have to be held so by all Courts."
It may be observed for the benefit "of all concerned that any decision of the Supreme Court deciding a question of law or enunciating a principle of law shall be binding on all other Courts in Pakistan. This is the command of Article 189 of the Constitution of Islamic Republic of Pakistan. In the case of Ashiq Hussain v. The State (PLD 1994 SC 879) it was observed by their Lordships of the Supreme Court:-- "By this judgment we intend to strike a note of warning to the subordinate Courts in the country that they are legally bound to follow the principles of law enunciated by the Supreme Court and if they do not follow it then serious view of the matter can be taken against the delinquent as and when the misconduct comes or is brought to the notice of this Court."
' This being the position of law, I could not dare to add or substract any word. The remedy being available to the petitioner, he can have a resort to it.
' The next contention of learned counsel for the petitioner that the procedure adopted for carrying out selection by the committees constituted by the Government of Punjab to award 20% marks out of 100 marks on the basis of interview/viva voce is not countenanced by law nor can as high a percentage of 20% be reserved for performance of the candidates in the interview without laying down any criteria or guidelines in its policy circulated to the concerned committees for assuring the merits of the candidates which has rendered the selection to be purely subjective in nature is not without force. In the parawise comments nothing has been mentioned about the record of interviews and the manner in which the marks would be allotted to each candidate. Even the learned Advocate-General conceded that no record about the interviews is maintained with regard to the questions asked by the members of the committees and replied by the candidates except that 20% marks have been allocated for interview. He, however, submitted that it is in consonance with principle followed by the Federal and Punjab Public Service Commissions. It therefore, follows that the selection made by the committees are subjective in nature and possibility of the same having been tainted with mala fide and misuse of powers cannot be ruled out, as agitated by the elected representatives. The same as such is liable to be struck down being discriminatory and arbitrary. There is long string of discussion on the basis of which I am convinced that if excessive marks are reserved for interview, the method is discriminatory and is liable to be struck down. In the case of Sri Ashok alias Sommana Gowda and another v. State of Karnataka and others (AIR 1992 SC 80) the Supreme Court of India struck down recruitment to the posts of Engineers on the ground that allotment of 33.3% of the total marks in interview was not justified.
Similarly, in the case of Mohindar Sain Gerg v. State of Punjab and others reported as (1991) 1 SLR546, it was observed that reservation of 25% marks for viva voce test was excessive and arbitrary and vitiated the selection to the post of Excise and Taxation Inspectors. Same view was taken by the Indian. Supreme Court in the case of Ajay Hasie etc. v. Khalid Mujib Suhravardi and others (AIR 1981 SC 487), Ashoke Kumar and others v. State of Haryana and others (AIR 1987 SC 454) and Vicram Singh and another v. The Subordinates Services Selection Board, Haryana and others (AIR 1991 SC 1011). This question also came under consideration in the case of Syed Muhammad Raza v. General Manager, WAPDA and others (1994 M LD 1647) wherein it was held:-- "One of the reasons for striking down the selection on the basis of interview is that no record of reasons for awarding marks in the interview is maintained as it based purely on the subjective assessm ent by the Selection Committee during the course of which the misuse of powers cannot be ruled out. For this reason also, the impugned selection cannot be upheld."
' In so far as contention of the learned Advocate-General that the selection is carried out by the committees at different level and not by an individual and it cannot be said that any unfairness has taken place or would take place is concerned, I am of the view that it is not the committee but the method adopted. As already observed, no record on the basis of which the marks of interview have been or would be awarded is maintained by the committees. This itself makes the procedure doubtful.
' In the case of Miss Benazir Bhutto v. Federation of Pakistan and 2 others (PLD 1988 Supreme Court 416) it was observed by their Lordships of the Supreme Court that if the statute was ex facie discriminatory and capable of being misused, it is liable to be struck down irrespective whether any discrimination has, in fact, taken place or not.
In these circumstances, I find myself unable to agree with allocation of 20% marks for interview but I am purposefully abstaining myself from giving any comments in view of the crusade initiated against the illiteracy by the Chief Executive of the Province for the first time at large scale. It is, however, directed that selection of first 50 per cent. Candidates would be made purely on the basis of academic qualification and rest 50 per cent. Would be made according to the policy laid down by the Government of the Punjab wherein 20 per Cent. Marks have been allocated for interview.
This is in keeping with the national interest when the standard of education is deteriorating day by day and to fill this national gap, it becomes the national duty of each one in authority, particularly in the case in hand the Recruitment Committees to adopt the method which should not only meet the requirements of objectivity but it must also obviate any possibility of misuse of powers, sepotism and arbitrariness. The authorities are, therefore, required as repeatedly committed by the Chief Executive of the Province to the public to set fairly, justly and equitably. The principles of equality and social justice are guaranteed by Article 2A of the Constitution of Islamic Republic of Pakistan while Article 27 provides safe-guards against discrimination in service. It is also utmost important duty while selecting candidates to various posts that there should not be any due favour and arbitrariness.
' For all that has been discussed above, this writ petition is allowed leaving the parties to bear their own cost.