The case of the petitioner is that after completing his educational career and having followed the due process, he was appointed as Assistant Director (Labour Welfare) Government of the Punjab, Labour and Manpower Department in 1975 and has since worked in various capacities. He was nominated in 1987 by respondent No. 1 for the award of a fellowship of the British Council. He was also awarded a post graduate Diploma in Employment laws and certificate in Industrial Relations, Health and Safety at Work by the Sussex University, England. The Minister of State for Foreign and Common-Wealth Affairs of the British Government had also granted to the petitioner a certificate on the successful completion of a Course of Instruction of in labour studies. After these achievements the petitioner was promoted as Deputy Director and has all along worked as such.
The petitioner came to know in 1992 that respondent No. 3 intended to fill some vacancies of Community Welfare Attaches from amongst the officers of the Federal a. Well as the Provincial Governments. He applied for one on deputation basis. The Special Selection Board of the Federal Government recommended the petitioner's name as a principle candidate for posting at DOHA (QATAR) but no necessary action was taken thereon; for quite sometime. Meanwhile the Government changed and a Caretaker Government was formed who, "in supersession of the previous selection, finalised arbitrarily a new list of Community Welfare Attaches. On induction of the new Constitutional Government in 1993, the previous list was cancelled and the Department Selection Committee, headed by the Federal Minister for Labour, called the candidates for interview for the purpose in the month of June, 1994. The petitioner was placed at Serial No. 5 of the Punjab merit list. Thereafter the number and the alternate candidates were interviewed by Special Selection Board comprising four Federal Secretaries and the petitioner's merit was retained at No.
5. Under the Rules of Business a summary was to be sent to the Prime Minister for approval soon after the twice taken interviews and it was so submitted. Originally 16 posts of Community Welfare Attaches were to be filled but later this number was reduced to 14. According to the province/region-wise quota 10% for N.-W.F.P., 11.4 % for Sind (Rural), 7.6% Sind (Urban), and 3.5% ft Baluchistan. The said 14 posts were allocated to the merit an provinces/regions as under:-- Merit 2 Punjab 7 N.-W. F. P, 1 Sindh (Rural)2 Sindh Urban1 Baluchistan Nil because one post was already filled by Baluchistan. The approval by respondent No. 4 was granted to the Punjab merit Nos. 1 to and 7 omitting Punjab merit Nos. 5 and 6. Such approval did not fulfil the legal requirement of Punjab quota of 7 posts. Learned counsel for the petitioner urged that the impugned order dated 2-2-1995 has categorically changed the inter Provincial/Regional quota and is thus ultra vires the Fundamental Rights enshrined in Articles 25 and 27 of the Constitution. The said quotas once having been established and finalised for the benefits of all the Provinces/Regions it could not be unilaterally changed by respondent No.4 without taking the affected province into confidence and without the specific written assent given thereto by the so-affected province. As such as the assent has not been given, the impugned order is against the Constitutional provisions. It is also urged that the Government of the Punjab rather represented to the respondent No.4 vide D.O. Dated 14-2-1995 that the petitioner as Punjab candidate appearing at merit No. 5 had been ignored and that he should be given his rightful and that the said letter has not even been responded to.
2. Learned counsel for the respondents has objected to the writ petition on the ground that the matter relates to terms and conditions of a person in service and that the exclusive jurisdiction in such matter lies with the Service Tribunal. In my view, the objection is not valid because the matter before this Court is that of "section" for which no appeal is provided under section 4 of Service Tribunals Act, 1973, which reads as under:-- "S. 4. Anneals to Tribunals.---(1)Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or with six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal).
Provided that:
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, (LXXI of 1973), or any rules against any such order, no appeal shall lie to Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was not preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any the before the 1st July, 1969.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred;
(a) in the case of a penalty of dismissal from the service, removal from service, compulsory retirement or reduction to a lower post or the-- scale, or to lower stage in a the-scale of a Tribunal referred to in subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to in subsection (7) of that section. "
3. Furthermore, the petitioner does not fall within the definition of civil servant being a provincial officer as per section 2(b) of the civil Servants Act, 1973. Still further the Punjab Administrative Tribunal Act, 1974, does not apply to the Federal Government. There is no denying the fact that the petitioner is at merit No. 5 of Punjab Province candidate.
4. The learned Standing Counsel has taken the stand that the Provincial /Regional quota is only applicable on fresh recruitment/initial appointment and that no such quotas for posting of CWAs have been prescribed. This is not a valid stand as the guidelines for the recruitment to the post of Communities Welfare Attaches as contained in Circular No.12-1(11)/82-Estt. Dated 25-9-1983 issued by the Government of Pakistan, Ministry of Labour, Manpower and Overseas Pakistanis (Manpower Division), negates it. The relevant Extract is reproduced as under:-- "During the course of interviews held on 28-11-1982 for the posts of Community Welfare Attaches the necessity of revising the qualifications/Recruitment Rules for these posts was felt. Accordingly draft Recruitment Rules for the posts of Community Welfare Attaches were prepared by this Division and forwarded to the Establishment Division for approval. The Establishment Division have not agreed to the framing of formal Recruitment Rules for the posts of Community Welfare Attaches on the ground that the posting of Community Welfare Attaches involves appointment on tenure basis which, not being one of the regular methods of appointment (namely promotion, initial appointment or appointment by transfer), cannot be made part of Recruitment Rules.
According to the Establishment Division if one of the regular methods of appointment is prescribed in these Recruitment Rules it will frustrate the intentions behind the President's directive No.57.1 CMIA of 20th May, 1982. The Establishment Division have, however, observed that a post of Community Welfare Attaches can be filled by posting of Government servant on tenure basis under section 10 of the Civil Servants Act, 1973 or by deputation of a Provincial Government employee or by appointment on contract and in doing so the guidelines contained in the Establishment Division (Training Wing)'s O.M. No. 4/7/81-T.IV, dated 28-12-1981 should be observed.
The posts of Community Welfare Attaches would be tenable by officers in Grades 17, 18 and 19 or by a person employed on contract for a period up to to years and the selected persons should possess 3 to 5 years experience in Management/field work in Labour/Manpower Administration and laws or matters relating to emigration and welfare of Pakistanis living/working abroad."
5. The Establishment Division (Training Wing)'s O.M. No. 4/7/81-- T.IV, dated 28-12-1981 was as under:-- "The undersigned is directed to say that the President has been pleased to approve the following guidelines for selection of officers for posting abroad in Pakistan Missions:
(1) Posts will be filled on the basis of detailed job descriptions to be prepared by the controlling Ministry.
(2) The controlling Ministry will
(a) Prepare a panel of suitable officers for the post on the basis of job description from amongst the officers working in or controlled by the Ministry.
(b) ask the Establishment Division for a panel of suitable names of officers working in other Ministries/Divisions and Provincial Governments.
(3) This pane be considered by a Committee in the Ministry/Division which exercises administrative control of the posts to be filled. The Committee shall include a representative of the Establishment Division.
(4) The Committee will select after due scrutiny, a panel of three officers against each post, taking into consideration the following factors:
(a) The selectee fulfill the requirements of the post and detailed in the job description.
(b) The selectee is in the same grade as the post to be filled. Officers from higher or lower grades will not be considered.
(c) The selectee has an overall good record of service particularly during the last five years of service.
(d) The selectee is at least a Graduate or possesses the technical qualifications required for the job.
(e) Persons within promotion zone within the next 2 years should not be considered.
(f) Those likely to retire during the next 4 years should not be considered.
(g) An officer should not be posted abroad more than once.
(5) The panel of three officers selected by the Committee on the above criteria will be submitted to the Special Selection Board for final selection including interview.
(6) The recommendations of Special Selection Board shall be submitted to he President for approval.
(2) The Ministries/Divisions are requested to strictly follow this procedure in future, while recommending officers for posting abroad in Pakistan Missions."
Serial Nos. 27 and 33 of the ESTACODE states that in all cases of recruitment to be made subsequent to the issue of the Establishment O.M. No.8/9 72-TRV, dated 31-8-1973, the revised merit and the Provincial/Regional quotas as laid down therein, should be followed strictly.
6. With reference to the Establishment Division O. M. No.8/9 72-TRV, dated 31-8-1974 it was directed that steps should be taken to ensure that Bahawalpur gets its due share in all fields including services. It is clearly in violation of Article 27 of the Constitution which safeguards against discrimination in services and reads as under:-- "27(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth: Provided that, for a period not exceeding (twenty) years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan.
Provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex if such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex.
(2) Nothing in clause (1) shall prevent any Provincial Government, or any local or other authority in a Province, from prescribing, in relation to any post or class of service under that Government or authority, conditions as to residence in the Province, for a period not exceeding three years, prior to appointment under that Government or authority."
The argument by the learned Standing Counsel that it was done to give participation to the candidates of other Provinces in the light of the principles of Policy under Article 37(f) of the Constitution. This argument is also not valid as in the case of the petitioner this principle has been violated. Section No.37 of the ESTACODE says that adequate representation of Bahawalpur Division should also be ensured out of the Punjab Quota in all fields including services. The petitioner is admittedly a candidate from Bahawalpur Division and he has been ignored in violation of the said instructions. Learned Standing Counsel next contended that the decision of the competent Authority to post to candidates from Sind (R) and Baluchistan of the Punjab Quota was taken due to the fact that there were already to Punjab domiciled officers in position. When confronted with the actual fact that they had succeeded in getting to posts reserved for merit and why for this reason the other candidates' selection in Punjab Quota be penalised, the Standing Counsel had no answer.
7. Section 5 of the Civil Servants Act, 1973, lays down that all appointments shall be made in the prescribed manner and section 2(f) (ibid) says that the word "prescribed" means prescribed under the Rules. Section 25(1) ibid says that the President or any other person authorised by him is the rule-making authority. Section 25(2) ibid says that all instructions, memorandum issued by the Establishment Division or other Ministries shall be deemed to be rules under the Act. Appointments, Selection and other matters are governed and administered by the Federal Government by to methods:--
(a) Under the specific available provision of the Act and regulations and rules framed where applicable; and
(b) Where no specific provisions are available, the Establishment Division and concerned Ministry issue necessary instructions and Memos under Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, read with section 25(2) of the Act.
8. The petitioner is admittedly qualified for appointment in the Services of Pakistan and has undergone the prescribed process of "selection" and his merit has been ignored only for having domicile of Punjab and given to a candidate belonging to other Province, without first amending the rules regarding the merit and the provincial quotas and even after the representation of the Province to give the petitioner his right and even not replying such written request proves mala fide of the administrative action.
9. In this view of the matter, the writ petition is allowed and the impugned order dated 2-2-1995 is declared without lawful authority and of no legal effect. The respondents are directed to process the case of the petitioner in accordance with the merit already determined by the Special Selection Board.