' MALIK MUHAMMAD QAYYUM, J.---This appeal under section 3 of Law Reforms Ordinance, 1972 arises from an order dated 10-4-1991 of a learned Single Judge of this Court dismissing Writ Petition No, 7473 of 1990 filed by the appellant wherein he had challenged the appointment of respondents Nos. 4 to 9 as Patwaris. The learned Single Judge was pleased to observe that the appellant had failed to spell out any vested right for being appointed as Patwari in preference to respondents Nos.4 to 10.
2. It was alleged in the Constitutional petition that the petitioner possessed necessary qualifications and passed the Patwar Examination in 1984 when his name was brought on register of Patwari candidates; respondents Nos.4 to 10 who had passed the necessary examination much subsequent to him and ranked junior as Patwari candidates have been appointed as Patwaris illegally and unlawfully.
3. In the parawise comments furnished by respondent No,1 it was explained that appointments of respondents Nos. 4, 5, 7, 8 and 10 were made on the recommendations of the Members of District Recruitment Advisory Committee constituted by the Government of Punjab vide Notification dated 17-2-1987 while respondents Nos. 6 and 9 were appointed vide orders of the Minister for Colonies, Revenue Relief and Consolidation, Livestock and Dairy Development.
4. We have heard Malik Saeed Hassan, Advocate for the appellant. He has vehemently contended that the appointment of the respondents as Patwaris was violative of the procedure for appointment laid down in para. 9 of Chapter 3 of Land Reforms Manual according to which the appointment to be made from amongst the candidates whose names appear in the Patwar Register in order of seniority. Learned counsel further emphasised that the appointment of the respondents was contrary to all norms of justice and was made on the recommendation of the local Members of the Assembly who had no such power.
5. As already observed the Constitutional petition was dismissed by the learned Single Judge on the ground that the petitioner has no vested right to be appointed. That may be so, but we are firmly of the view that even in the matters of appointment to public service, a candidate has a right to insist that the selection be carried strictly on merits. Consequently if any prejudice is caused to him on account of failure to follow the prescribed procedure or the impugned appointments are otherwise mala fide or an outcome of extraneous consideration, a Constitutional petition can well be maintained. In order to satisfy ourselves about the legality of impugned selection, we directed the respondent to produce the relevant record which has been perused with the assistance of learned counsel for the petitioner.
6. Both the parawise comments filed by respondents as also the record produced before us prove beyond any shadow of doubt that appointment of respondents Nos.4 to 10 as Patwaris was not made on merits but under the orders passed by the Members of the Provincial and National Assemblies who in law had no jurisdiction to give any such direction. According to the West Pakistan (Northern Zone) Patwar Subordinate Service Rules, 1963 the authority for appointment is the Collector. The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 provides that the appointment to posts in BPS-1 to 15 is to be made by a Departmental Selection Committee. By virtue of proviso to sub-rule (3) of rule 4 and sub-rule (7) of rule 4 the Government is also empowered to set up a Recruitment Advisory Committee, the function of which is to advise the Departmental Selection Committee in the matter of appointment by initial recruitment.
Pursuant to the Government of Punjab Notification No, SOR III-1-16/86, dated 17-2-1987 Recruitment Advisory Committees were constituted for each District, of which the Deputy Commissioner was to be the Secretary. For Kasur District, the District Advisory Committee set up comprised of 9 Members of the Punjab Provincial Assembly, 4 Members of the National Assembly and 1 Member of the Senate.
7. The matter of appointments to the posts of Patwaris which had fallen vacant in the Kasur District was taken up by Committee in its meeting held on 24-2-1988 when it was resolved that the posts be filled in through the Member of the Assembly to whose constituency the post related.
Consequently 8 posts of Patwaris were divided among the Members of the Provincial Assembly and in the manner mentioned in the minutes. Two posts were however reserved for appointment by the Assistant Commissioner.
7-A. It has come as a pleasant surprise to us that the Deputy Commissioner of the District appears to have protested against this decision in the meeting by stating that all appointments should be made on merits after C following the prescribed, procedure. It is a matter of great regret that except for Rana Phool Muhammad Khan all other Members attending the meeting opposed this proposal and overruled it by stating that if the appointments were to be made in the prescribed manner, there was no use of setting up the committees. Pursuant to this decision,, some of the respondents were appointed as Patwaris without following any procedure and without considering the comparative merits of the candidates under the orders dictated by the Members concerned. It is obvious from the above that the appointments were neither made on merits nor after following the prescribed procedure and cannot be countenanced.
8. In Munawar Khan v. Niaz Muhammad and others (1993 SCM R 1287), it was ruled that the allocation of quota to the Members of the Assemblies and Ministers was illegal and unlawful and shocking to the conscience. The same rule was adopted in Abdul Rashid v. Riaz-ud-Din (1995 SCM R 999).
9. Public employment used to be the bounty of State when the "Crown" and its ornamental parts were ruling the sub-continent. The King can do no wrong theory was the rule. No conceivable right was conceded for seeking public employment. The partition of the sub-continent, enforcement of the Constitutions (Pakistan and India) and the Judge made law widened the horizon of rule of law.
The concept of equality of opportunity in public employment was specifically placed as Article 16 in Indian Constitution. In our Constitution, fundamental right in Article 27 and the Principles of Policy enshrined in Articles 37 (0 and 38(b) hint towards this concept. According to Article 240 of our Constitution all appointments inter alia to the services of a province are required to be made by or under the Act of the Provincial Assembly. Pursuant to the aforesaid Article, the Punjab Civil Servants Act, 1974 was promulgated (4-61974). According to section 4 thereof all appointments have to be made in the prescribed manner. The prescribed manner is found in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, supplemented by the instructions issued by the Government of Punjab. Rule 17 thereof governs initial appointment to all posts in Grades 1 to 15.
The two basic requirements are--
(a) examination by appropriate committee;
(b) advertisement of the vacancies.
' The object discernible from the above rule is open competition and comparative evaluation of merit. The aforesaid rule does not spell out any objective criteria to ascertain comparative merits of the candidates. This yawning gap was filled in by the Government of the Punjab Instructions dated 2-4-1975 (P-88-Book-I-ESTACODE-Punjab-1991 Edition) which spell out the criteria of selection for initial recruitment. By virtue of section 23 of the Act and a number of pronouncements of the superior Courts, these instructions have the force of rules and are deemed to be part of the statute. Any infraction thereof can be subjected to judicial review by the superior Courts. The proceedings of the Selection Committee in this case were only a perfunctory ritual as the nominees of the politicians were selected without evaluating comparative merits of the competing candidates. The allocation of the posts to the politicians is contemptuous to the constitution and the law of the land. No law, rule or principle of law could support such an action except rule of lawlessness which must be checked. Although, unlike the Indian Constitution (Article 16) equality of opportunity in public employment is not recognised by our Constitution as a fundamental right yet the combined effect of Articles 27--37 and 38 is that the concept is in-built in Article 25, if the equality clause is to be assigned a meaningful place in our Constitution. The principles of policy, although not as such justiceable can still be pressed in aid of fundamental rights and read in the equality clause. Article 39 (d) for the Indian Constitution (Directive Principles of State Policy) provides equal pay for equal work. This principle was sought to be enforced by a public servant.
The defence was that it was not justiciable. The Supreme Court of India in Randhir Singh v. Union of India (AIR 1982 SC 879) repelled the contention and read the principle in the fundamental right (equality clause) in Article 16 of their Constitution.
10. Keeping in view the facts and circumstances of the case and law applicable we have no hesitation in striking down the appointment of the respondents holding that there has been no selection as such and the appointment of respondents is clearly violative of law.
' In view of what has been stated above, we allow this appeal setting aside the order of the learned Single Judge and declare the appointment of respondents Nos.4 to 10 as Patwaris without legal authority and of no legal effect. The Collector of the District shall now proceed to make fresh appointments strictly in accordance with law.
' Respondents Nos. 4 to 10 shall bear the costs of this appeal as also the writ petition.