' AFTAB AHMAD (MEMBER).-.--Khalid Pervaiz Butt, the appellant joined Water and Power Development Authority (WAPDA) in January, 1975 as Junior Engineer. In. August, 1981 he was promoted as Senior Engineer and in the same capacity was posted as Regional Store Manager, Area Electricity Board, Quetta, in May, 1984. On 23-1-1990, a charge-sheet was served on him for misappropriation in stores. The charge-sheet reads as under:-- "CHARGE-SHEET ' You, Mr. Khalid Pervaiz Butt, the then Stores Manager, Regional Stores (AEB), Quetta (now absconding), are hereby charge-sheeted as under on the basis of report of Enquiry Committee constituted by the Authority to probe into misappropriation in Regional Stores, Quetta: --
(1) During the period of posting as Stores Manager, Regional Stores, Quetta from January, 1985 to May, 1989, following deficiencies/surpluses were observed during physical verification carried out in June, 1989:--
(a) Deficient items, valued at Rs,2,274.
(b) Surplus items, valued at Rs,1,292,071.
(2) You failed to maintain the stores and record in accordance with Authority's instructions.
(3) You failed to take action on the recommendations of previous stock verification reports carried out by the teams of General Manager (P&IC) and Chief Auditor, WAPDA in 1987-88.
(4) You allowed the Storekeepers to issue the GRNs to the Manufacturers/Suppliers, without receiving the material, or after partial receipt, in contravention to authority's instructions.
(5) You issued GRNs to the Suppliers without signatures of Value Ledger Keeper and Stock Clerk.
(6) You did not ensure that corresponding entries are made on Stock/Ledger Cards after issuing GRNs/signing store requisition, in contravention to the instructions of Deputy General Manager (Finance Distribution).
(7) You issued 25 Transformers to various Line Superintendents without getting store requisitions in contravention to procedure laid down in Distribution Stores Manual. You also failed to maintain a transformer control register in contravention to instructions.
(8) You failed to arrange proper stock taking and handling over of material to the Storekeepers, when Mr. Zahid Ali Khan, Senior Storekeeper, absconded from duty in 1987.
(9) You failed to produce stock and value cards to the Committee constituted for physical verification of Stores when Mr. Zahid Ali Khan absconded from duty during 1987.
(10) You disobeyed orders/instructions of Authority and orders of your Senior Officers while performing your official duties.
(11) You have absented yourself from duty since 31-6-1989 except on 4/5 and 24/25th June, 1989.
' If the above allegations are proved you will be guilty of 'misconduct' as defined in "The Pakistan WAPDA Employees (E&D) Rules, 1978". You are required to put in your defence within fourteen days from the receipt of this charge-sheet as to why one or more penalties and described in Rule 4
(ibid) should not be imposed upon you for the abovementioned acts of omission and commission.
Also state if you desire to be heard in person.
' If no defence is received within the stipulated period of fourteen days, it will be presumed that you have no defence to offer and ex parte action will be taken against you.
' Second copy of this charge-sheet duly acknowledged under your date signatures may be returned to this office as to token of having received the original Statement of allegations is attached herewith.
(Sd.)
(S.M. ARSHAD BOKHARI), GENERAL MANAGER (POWER) WAPDA, WAPDDA HOUSE, LAHORE."
2. Statement- of allegations was also provided to the appellant alongwith the charge-sheet which is also reproduced hereunder for reference:-- STATEMENT OF ALLEGATIONS ' Mr. Khalid Pervaiz Butt while posted as Stores Manager, Regional Stores (AEB), WAPDA, Quetta (now absconding) during the period from January, 1985 to May, 1989, committed the following irregularities which were observed during physical verification carried out in June, 1989.
(a) Deficient items, valued at Rs,2,690,274.
(b) Surplus items valued at Rs,1,292,071.
' He failed to maintain the stores and record in accordance with Authority's instructions. He failed to take action on the recommendations of previous stock verification reports carried out by the terms of General Manager (P & TC) and Chief Auditor, WAPDA in 1987-88. He allowed the Storekeepers to issue the G.R.Ns. To the Manufacturers/Suppliers without receiving the material or after partial receipt, in contradictions to Authority instructions. He issued G.R.Ns. To the Suppliers without signatures of Value Ledger Keeper and Stock Clerk. He did not ensure that corresponding entries are made on Stock/Ledger Cards after issuing GRNs/signing store requisitions. In contravention to the instructions of Deputy General Manager (Finance) Distribution. He issued 25 Transformers to various Line Superintendents without getting store requisitions in contravention to procedure laid down in Distribution Stores Manual. He also failed to maintain a transformer control register in contradictions to instructions. He failed to arrange proper stock taking and handling over of material to the Storekeepers, When Mr. Zahid Ali Khan, Senior Storekeeper absconded from duty in 1987. He failed to produce stock and value cards to the Committee constituted for physical verification of stores when Mr. Zahid Ali Khan absconded from duty during 1987. He disobeyed orders/instructions of Authority and order of his senior officers while performing his official duties.
He has absented himself from duty since 31-5-1989. Except on 4/5th and 24/25th June, 1989. He is held guilty of misconduct as defined in Rule 2(5) of the Pakistan WAPDA Employees (E&D) Rules, 1978.
(Sd.)
(S.M. ARSHAD BOKHARI), General Manager (Operation), WAPDA. WAPDA House, Lahore."
3. The appellant submitted a detailed reply to the charge-sheet refuting all the charges levelled against him. It was further submitted that the charges mentioned in the charge-sheet were vague and of general nature and that it was not possible for him to submit any reply to the allegations unless the charges were made clear by quoting specific reference to the particular transaction or documentations etc. An interim reply was, however, submitted by the appellant refuting the charges. Thereafter it appears that the appellant was examined by Mr. Khaliq Baig, C.E. Who had been appointed as Enquiry Officer in the case the statement of the appellant in question answer form was recorded by the Enquiry Officer on 14-3-1991 and thereafter the enquiry was adjourned with the following remarksnote of the Enquiry Officer: "The interrogation is adjourned for recalling the accused on any subsequent date if need be."
(Sd.)
Enquiry Officer 14-3-1991."
' The record shows that a show-cause notice was then issued to the appellant in December, 1991 alongwith the copy of enquiry report. The reply to the show-cause notice by the appellant did not find favour with the Departmental Authority and the appellant was resultantly removed from service vide order dated 15-6-1994. The appeal filed by the appellant to the Departmental Authority was also rejected by order dated 2-11-1994 and accordingly the present appeal was filed before the Tribunal on 14-11-1994.
4. The respondent-Authority filed objections inter alia submitting that the enquiry had been conducted in accordance with the rules and that the removal from service of the appellant vide order dated 15-6-1994 was just and legal.
5. Mian Mehmood Hussain, Advocate appearing on behalf of the appellant at the hearing pleaded that there had been no enquiry in the case except the statement in question/answer form of the appellant recorded by the Enquiry Officer on 14-3-1991 and that the Enquiry Officer had based his report mainly on the fact finding inquiry previously conducted by the GM(P&IC). It was argued that the fact finding report could not be used against the appellant for penalizing him and that rule 6 of the Efficiency and Discipline Rules. 1973 required that after the issuance of the charge-sheet there should be an enquiry with issuance of the charge-sheet there should be an enquiry with which the accused official should be associated and allowed to cross-examine the witnesses adduced during the enquiry. It was pleaded that any procedure adopted in violation of the rules would vitiate the entire proceedings and the order passed therein.
6. The learned counsel for the appellant further submitted that the appellant was transferred from Regional Store to the Office of the Chairman, Area Electricity Board as Deputy Director (Transport) on 26-5-1989 and was asked to hand over the charge of huge stores forthwith. The appellant made a reference to the Chairman, A.E.B., WAPDA, Quetta that immediate transfer of the charge of the huge store of innumerate items specially when certain transactions were pending was not possible. The appellant accordingly requested through letters available on file to give sufficient time for proper handing and taking over of the charge of the stores. The Chairman, A.E.B. WAPDA, Quetta, however, did not pay any heed to the genuine request of the appellant and Mr. Hamid Hassan was made to assume charge of the stores on 31-5-1989 without any handing/taking over of the charge. The counsel for the appellant submitted that since there had been no handing/taking over the appellant could not be held responsible for any shortage if any that were found during his absence. He further argued that in September/October, 1988 annual 100% stock verification of the regional store had been carried out by the GM (P & IC) wherein nil shortage was shown therefore the exorbitant shortages shown in May, 1989 during the absence of the appellant was unimaginable.
7. Mr. Fida Hussain, Advocate arguing the case on behalf of the respondent-Authority pleaded that the enquiry had been conducted in ' accordance with the rules and regulations of the Authority and that the penalty imposed on the appellant was justified and legal.
8. We have thoroughly examined the record and given our anxious thought to the arguments advanced by both the parties. The appellant is said to have been transferred from the seat of Regional Store Manager, WAPDA, Quetta on 25-5-1989 (it may be mentioned that neither the appellant nor the respondent-Authority has placed on record the transfer order of the appellant) and Mr. Hamid Hussain assumed the charge of Regional Stores on 31-5-1989 under the order of the Chief Engineer, A.E.B., Quetta. It is an admitted fact that there had been no handing/taking over of the charge of huge stores. It is on record that the appellant made serval written requests to the Chairman, A.E.B., Quetta to allow him few days to accomplish with some of the pending works before handing/taking over of the charge. It is, however, surprising that the appellant was not allowed few days' time as requested by him to complete the record before handing over the charge to his successor Mr. Hamid Hussan was made to assume charge without any handing/taking over. If the department suspected any shortage or irregularity in the stores and wanted some other officer to take over from the appellant then it was rather necessary for the respondent-Authority to allow time to the appellant to complete his records and to arrange proper handing over of the charge to avoid any allegations by the appellant that there had been no handing over of the charge by the appellant to his successor and that shortages were noticed after the taking over of the new incumbent the appellant had been Regional Store Manager for over five years and it is not understood that why he was not given five few days' time and then to arrange proper handing/taking over. If the appellant had been given time to arrange proper handing/taking over of the charge then of course he could have been charge-sheeted for shortages or irregularities that might have been noticed at that time.
9. The charge-sheet served on the appellant on 23-1-1990 reproduced above shows that it was absolutely a vague charge-sheet it did not disclose or gave to the appellant sufficient knowledge of the charges to enable him to submit a proper reply thereto . Similarly the statement of allegations attached With the charge-sheet, is supposed to contain details of the incident to give the accused full background/details of the charges leveled against him. In this case, however, the statement of allegations which has also been reproduced in preceding paragraph shows that it was verbatim copy of the charge-sheet with the only difference that in the charge-sheet the charges were numbered whereas in the statement of allegation the charges were given in narrated form. The appellant had all-along been agitating to the authority that the charges contained in the charge-sheet were vague and of general nature and that it was not possible for him to give a reply to those allegations unless those were made clear by quoting specific references to the particular transaction or documentation. It, however, appears that no heed was paid to his submissions and the Inquiry Officer decided to proceed with the matter in his own way.
10. Now we come to the most important factor of the case i,e, the inquiry conducted by the Inquiry Officer. The record shows that the Inquiry Officer examined the appellant on 14-3-1991 in a questionnaire form and then adjourned the inquiry with the remarks that the interrogation is adjourned for recalling the accused on any subsequent date if need be. The record further shows that the accused officer was thereafter never called for any further inquiry nor was any witnesses were examined in his presence or any document/evidence checked/scrutinized in his presence and he was allowed to cross-examine or submit his comments on that document/evidence. The Inquiry Officer mainly based his report on the preliminary inquiry conducted by the General Manager (M&S) in August, 1989 and the examination, of the record of the Regional Store. It is, however, an admitted fact that the preliminary inquiry conducted by the General Manager (M&S) was conducted at the back of the appellant who was never associated with it at any stage.
Similarly the record of the regional store was also examined in the absence of the appellant who was not given chance to explain any irregularity or deficiency that might have been noticed by the Inquiry Officer. It would thus be seen that no inquiry as contemplated by the E&D Rules, 1973 was conducted by the respondent-department and the material collected by the department during the preliminary inquiry conducted in August, 1989 before the issuance of charge-sheet in January, 1990 was utilised against the appellant to justify his removal from service Rule 6 of the Government Servants (E&D) Rules, 1973 requires that after framing the charge the Inquiry Committee or the Inquiry Officer as the case may be shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him. The record shows that the only inquiry conducted by -the Inquiry Officer after the issuance of charge-sheet with which the appellant was associated was the interrogation of the accused/appellant himself in March, 1990. It has been held by the ilon'ble Supreme Court that inquiry proceedings conducted by way of questionnaires without examining the witnesses are of no legal effect and are inconsistent with the requirement of rule. In this respect we are fortified by the judgment of the Hon'able Court reported as 1993 SCMR 1440. It has also been held in a number of cases that fact finding inquiry conducted before the issuance of charge-sheet could only be utilized for taking disciplinary proceedings but could not form the basis for finding the appellant guilty of the charges.
11. For the reasons discussed above we feel that inquiry procedure adopted by the Department was not in accordance with the procedure as laid down by the law and that the appellant was not given adequate opportunity to defend himself. We, therefore, set aside the order of removal dated 15-6-1994 and remand the case to the departmental authority to initiate fresh proceedings against the appellant in accordance with the law. If such fresh proceedings are not initiated and completed within next four months the appellant shall be deemed to have been reinstated in service with all back benefits.
12. No order as to costs.
13. Parties are informed.
Order accordingly.
1997 PLC (C.S.) 356 [Lahore High Court] Before Tassaduq Hussain Jilani, J AZIZ AHMAD versus CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA Writ Petitions Nos. 17021 of 1995 and 1733 of 1996, decided on 29th May, 1996.
(a) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)--- ----Ss. 18 & 32---Constitution of Pakistan (1973), Art. 199---Appointments made by Chairman, Board of Intermediate and Secondary Education against vacancies in BS-1 to BS-15---Validity--- Government in utter disregard to the mandate of their calling, in flagrant violation of relevant law, the recruitment policy and requirements of merit, issued appointment letters in respect of those individuals who had neither applied in time for the posts in question nor they appeared in test and interview---Those who appeared in test and interview and found their names on merit list received rude shock to discover that certain other persons had been appointed in their place---High Court set aside appointment of those persons who had neither applied nor were examined or interviewed by the relevant Recruitment Committee and directed Authority to make fresh merit list amongst those persons who had applied, appeared in tests and interview and were placed on merit list and make appointments strictly on merit. [p. 371] A Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350=1996 PLC (C.S.) 927 and Muhammad Hussain Munir and others v. Sikandar and others . PLD 1974 SC 139 ref.
(b) Maxim--- ----"Audi alteram partem"---Essentials---Before any order was passed affecting right and privilege of any person, it would be necessary to hear him and provide him opportunity of contradicting any material point or circumstances which was sought to be produced against him.
[p. 372] B University of Dacca through Vice-Chancellor and Registrar, University of Dacca v. Zakir Ahmed PLD 1965 SC 90; University of Ceylon v. Fernando in Russel v. Duke of Norfolk (1949) 1 All ER 109; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatulla Farukhi PLD 1969 SC 407; Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and others v. Jalaluddin PLD 1992 SC 207; Human Rights Case No, 104 of 1992; Munawar Khan v. Niaz Muhamamd and 7 others 1993 SCMR 1287; Channabasavaih and others v. State of Maysore and others AIR 1965 SC 1293 rel.
(c) Constitution of Pakistan (1973)--- ----Art. 18---To enter a profession, a job or a trade in accordance with law is one of the Fundamental Rights guaranteed by the Constitution. [p. 374] C
(d) Constitution of Pakistan (1973)- ----Preamble---Object and scope of the Constitution stated. The Constitution of a country is a kind of "social contract" which binds a people, society and a State. The terms of the contract foster feelings of interdependence, of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of a system. Feelings of patriotism do not sprout out of a big arsenal. These are not born in the battle fields where warring camps shed colossal human blood in the name of narrow nationalism, not in the "Chambers of politics" where high sounding cliches are supun out to inflate one's ego and innuendoes are hurled to humble the opponents. These are born in schools which impart good education, in the fields where tiller gets wages for his blood and sweat, in factories where the labourer gets a fair deal, in the hospitals which provide medical care to the sick, in the Courts which dispense justice and in a socio-political system where merit reigns supreme. If one wants a system to be stable and the people to defend the system one has to create conditions where they feel that the system protects their fundamental rights which were recognized in the social contract.
A people fight for something which is worth fighting for, worth living for and worth dying for.
Contemporary history is testimony to the fact that systems have collapsed less on account of foreign invasion and more on account of internal mismanagement and on account of betrayal to the social contract. [p. 375] D
(e) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)--- ----Ss. 18 & 32---Constitution of Pakistan (1973), Art. 199---Recommendations of Recruitment Committee---Validity---Interviews conducted by Recruitment Committee headed by Commissioner of Division, for appointment on various posts in the Board of Intermediate and Secondary Education, and merit list prepared pursuant thereto, would have no sanctity in law for appointments in BS-1 to BS-15 in Board of Intermediate and Secondary Education could only be made by Recruitment Committee constituted vide Notification of specified date framed by the Board of Intermediate and Secondary Education. [p. 375] E
(f) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)--- ----S. 18---Constitution of Pakistan (1973), Art. 199--Irregular appointments made by Chairman, Board of Intermediate and Secondary Education-Validity-Appointment orders issued in favour of specified persons by Chairman, Board of Intermediate and Secondary Education without recourse to prescribed procedure admittedly at the asking of Commissioner were illegal and, thus, were set aside. [p. 376] F
(g) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)--- ----Ss. 18 & 32---Constitution of Pakistan (1973), Arts. 18 & 199---Appointment against vacancies in"BS-1 to BS-15---Petitioner had applied pursuant to advertisement given in specified newspaper and having cleared written test appeared before Recruitment Committee and their names had appeared in merit list---High Court directed that fresh merit list be prepared on basis of marks obtained in those interviews and their previous written test and to make all appointments strictly on merit--Such exercise was to be confined to those candidates who had applied in pursuance to advertisement, had cleared written test, were interviewed and whose names had appeared on merit list---Chairman, Board of Intermediate and Secondary Education was directed to ensure that such matter was not prolonged any further; he was also directed to further ensure compliance of Court's order within a period specified in the order---Copy of judgment of Court was sent to Controlling Authority/Secretary of Education for information and compliance. [p. 376] G, H & I Allah Ditta Naseem for Petitioner.
Ch. Ijaz Ahmad for Respondents Nos. 1 and 2.
Shabbar Raza Rizvi, Addl. A.-G. For Respondents Nos. 3 and 4. Mazhar Ali Naqvi for the Appointees.
Date of hearing: 17th March, 1996.
' This judgment shall dispose of Writ Petition No, 17021/95 and Writ Petition No,1733/96 as common question of law are involved.
2. Through these Constitutional petitions, the petitioners have challenged the vires of the appointments made by the Chairman, Board of Intermediate & Secondary Education, Gujranwala Division, Gujranwala against vacancies in BS 1 to BS 15. The petitioners who were also candidates for some of these posts have prayed that the respondent authority should be directed to issue appointment letters in their favour as junior clerks in term of tl?e merit list prepared by the Board.
3. Brieffacts giving rise to the instant petitions are that the Board of Intermediate and Secondary Education, Gujranwala through advertisement dated 24-2-1995 published in the daily 'Jang' invited applications for 89 posts in various scales (from BS-1 to 15). The petitioners applied for the post of junior clerks. Applicants were subjected to written test and interview. A merit list was prepared accordingly in which petitioner (in W.P. No,17021/95) figured at Serial No,37 (total posts of junior clerks were 43). Notwithstanding the merit list appointment letters were issued in favour of 36 persons who neither applied for the posts in question nor they ever appeared for written test or interview.
4. On 20-12-1995, Secretary of the Board of Intermediate and Secondary Education, Gujranwala and Superintendent of Commissioner's Office, Gujranwala both appeared in Court and admitted that none of the petions mentioned in the merit list was appointed against the vacancies for which applications were invited and that some other 36 persons were appointed who did ;lot apply for the posts in question. In view of this admission by the respondent authorities, notices were issued to the 36 appointees. The Commissioner, Gujranwala Division, Gujranwala who was Chairman of the Divisional Recruitment Committee, in his parawise comments, did not deny the aforereferred factual position but merely submitted that the petitioner (in W.P. No,17021/95) did not appear for the English type test which was mandatory and on that account he was not selected as junior clerk. He reiterated his stand that the Recruitment Policy of the Government was fully observed while making the appointments.
' Chairman of the Board of Intermediate and Secondary Education, Gujranwala admitted that the petitioners appeared in the test and interview and a merit list was prepared which was sent to the Commissioner, Gujranwala Division, Gujranwala, however, on receipt of a list of 36 applicants from Commissioner's Office he issued appointment letters in favour of 36 of those applicants and out of them only 21 joined the service. He further admitted that these 36 applicants did not figure anywhere in the merit list.
' They appeared in response to the notice issued by this Court and were represented by their learned counsel Mr. Mazhar Ali Naqvi, Advocate who did not file any written statement but adopted the arguments of Mr. Ijaz Ahmed Chaudhry, the learned counsel appearing for respondent No,1 (Chairman, Board of Intermediate and Secondary Education, Gujranwala).
5. In support of his petitions, learned counsel for the petitioners has made following submissions:--
(i) That the appointments against various posts have been made in utter violation of the recruitment policy and in derogation to the merit list prepared by the Divisional Recruitment Committee.
(ii) That the appointments have been made on the recommendations of Member of the National and Provincial Assemblies. These Members have no privilege to interfere in the recruitment process.
(iii) While conceding that the Chief Minister had the authority to relax the rules. He, however, added that in the instant case no relaxation was made by the Chief Minister in favour of the appointees and, therefore; their appointments are void, and
(iv) That the orders of appointments are violative of Article 4 of the Constitution of Islamic Republic of Pakistan and, therefore, not sustainable.
6. Mr. Ijaz Ahmed Chaudhry, learned counsel for Board of Intermediate and Secondary Education, while defending the impugned appointments, submitted as under:--
(i) That the petitioners are basing their claim on the merit list prepared by the Divisional Recruitment Committee. The procedure adopted by the Divisional Recruitment Committee was not in consonance with the Board of Intermediate Act and, therefore, the merit list prepared had no sanctity in law.
(ii) That the appointment letters were issued in favour of 36 persons by the Chairman of the Board of Intermediate and Secondary Education who is competent Authority to make such appointments.
There being no jurisdictional defect in the orders no exception can be taken to these appointments.
(iii) That a merit list was prepared but no appointment order had been issued in favour of the petitioners and no right having been created, the competent Authority had the power to review/rescind the earlier order and the merit list. In support of this argument he relied on a judgment of the Hon'ble Supreme Court reported in Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407).
(iv) That pursuant to appointment letters issued 21 persons have already joined the service and lawful rights having once been created cannot be interfered with. Reliance was placed on Director, Social Welfare N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350=1996 PLC (C.S.) 927:
(v) That no mala fides can be attributed to the respondents as such allegations call for proof which exercise cannot be undertaken in a Constitutional petition. Reliance is placed on Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 Supreme Court 139).
' The learned Additional Advocate-General Punjab while defending the impugned appointments submitted that the petitioner was not appointed as he did not appear in English typing test and that notwithstanding the procedural defect the appointment have been made by the Chairman of the Board who is the competent Authority. He further submitted that as the authority of the Recruitment Committee which prepared the merit list is doubtful the petitioners cannot derive any benefit out of the same.
7. I have heard learned counsel for the parties and have gone through the precedent case-law cited at the Bar.
8. Admittedly the applications were invited for recruitment to various posts through advertisement published in the daily 'Jang' dated 24-2-1995. Recruitments were to be made in the light of the Recruitment Policy issued to all administrative departments by the Government of the Punjab through a Circular, dated 10th August, 1993 which reads as under:-- {{URDU TEXT}}
9. On 8-2-1995 another notification was issued wherein Selection Committees were constituted for recruitment to the posts in BS 1 to BS 15 "in or under Departmental Offices within the meaning of sub-rule (1) of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974". This Notification is being reproduced for ready reference:-- ' SUBJECT: REVIEW OF RECRUITMENT POLICY FOR INITIAL RECRUITMENT TO THE POSTS IN BS-1 TO 15 UNDER THE PURVIEW OF THE DEPARTMENTAL RECRUITMENT COMMITTEES.
Sir, I am directed to refer to this Department's Circular Letter No,SORIII-2/94, dated 30-10-1994 on the above subject and to state that Recruitment to different available posts has been unnecessarily delayed. In order to facilitiate and to finalize entire recruitment procedure within 45 days from the date of issue of this circular letter, the following Committees are constituted to coordinate and accelerate the recruitment within the given time:--
1. For Divisional/Regional/Circle Cadre Posts.--Selection Committee for the purposes of making selection for all appointments by initial recruitment to all posts in BS 1 to 15 in or under Departmental Offices within the meaning of sub-rule (1) of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974.
(a) Divisional Commissioner Chairman
(b) Appointing Authority concerned. Member
(c) Two officers to be nominated concerned by the Admn.
Department concerned. Member
(d) Addl. Commissioner (Coord). Member/Secretary
2. For District and Below Cadre Posts.
(a) Deputy Commissioner Chairman
(b) Appointing Authority concerned Member
(c) One officer of the Department Member concerned.
(d) Additional Deputy Commissioner (General). Member/Secretary
2. To provide a fair chance of competition to all those candidates who have not been able to apply earlier in response to the advertisements given by the respective departments, last date of receipt of applications has been extended by 15 days. The entire Recruitment process shall be completed within 45 days in accordance with time schedule as detailed below:--
(1) Last date for receipt of applications Up to 23-2-1995
(2) Time for scrutiny/process of the applications so received. Up to 12-3-1995
(3) Selection appointment to various posts of suitable candidates. Up to 27-3-1995
(3) The above Schedule lays down that the Committees shall finalize recommendation/appointment of suitable candidates against all available posts from BS-1 to 15 excluding those falling within the purview of Public Service Commission, within a period of 45 days.
All circulars/notifications and relevant provisions of the Department's Letter No,SOR-III-2-1/94, dated 30-10-1994 stand amended to the extent to the contents in this circular letter.
(4) All Administrative Secretaries of the concerned departments shall intimate the names/designations of the officers deputed to be members of the abovesaid Recruitment Committees to the Commissioner/Deputy Commissioner concerned within seven days from the receipt of this circular letter.
' Your obedient servant, (Sd.) (MUHAMMAD SADIQ), DEPUTY SECRETARY (RULES), SG&I DEPARTMENT."
10. Not realizing that the aforereferred Committees were constituted merely for recruitment in Departmental office stipulated in the notification and not for the Board, a Recruitment Committee was constituted with following members:--
(i) Commissioner, Gujranwala Division, Gujranwala Chairman.
(ii) Chairman of the Board. Member
(iii) Director of Schools (EE) Member
(iv) Director of EdUcation (C) Member
(v) Addl. Commissioner (coord) Member
11. After conducting tests and interviews of the applicants a merit list was prepared and sent to the Commissioner. It is further admitted in the comments that notwithstanding the merit list, a list of 36 applicants was sent by the Commissioner to the Chairman of the Board and the Chairman issued appointment letters in favour of the 35 applicants out of these 36 but only 21 out of 35 joined the service. In ground (f) of the comments it had been unequivocally admitted as under: "(f) The Board received, firstly, a list of 19 applicants, secondly, a list of 2 applicants, thirdly, a list of 10 applicants, and, fourthly, a list of 5 applicants from the Commissioner/Chairman/Divisional Recruitment Committee, Gujranwala Division for appointment as junior clerks. The Chairman of the Board of Intermediate and Secondary Education approved the recommendations made by the Divisional Selection Committee for appointment as Junior Clerks. The Board issued appointment letters to 35 applicants out of 36. It is worth mentioning here that out of 35 only 21 joined the service of the Board. (Approval of Chairman for appointment is enclosed as Annexures R-1 to R-8). It is pertinent to mention here that, as mentioned in the order of this Honourable Court, these 36 applicants were figured nowhere in the merit list. The appointment letters were issued to these 36 persons in compliance of the order of the Commissioner."
12. To examine the vires of the circular letter dated 8-2-1995 and the Recruitment Committee constituted pursuant thereto which conducted the test and interview as also the appointments made by the Chairman of the Board which are impugned herein it necessary to refer to some provisions of the Punjab Boards of Intermediate and Secondary Education Act, 1976. The expression 'Government' had been defined in section 2(g) of the afore referred Act which reads as under:-- 'Government' means the Government of the Punjab.'
' Section 11 of the Act stipulates that 'Government shall be the Controlling Authority of a Board."
' The powers of the Controlling Authority have been spelt out in section 12 of the Act which is being reproduced for reference:-- "(1) The Controlling Authority shall have the power to inspect and cause an inspection to be made, by such person or persons as it may direct, of the offices, activities and funds of and the conduct of examinations by a Board, and to cause an enquiry to be made in respect of any matter concerning a Board, or the discharge of functions by the members, officers and employees of the Board.
(1-A) The Controlling Authority may at any time suspend a member, an officer or an employee of the Board.
(2) The Controlling Authority may communicate to a Board the result of such inspection or enquiry and may advise a Board to take such action and within such period as may be specified.
(3) The Board shall report to the Controlling Authority the action taken on such communication.
(4) Where a Board does not, within a specified time, take action to the satisfaction of the Controlling Authority, the Controlling /authority may, after considering any explanation made by a Board, issue such directions as it thinks fit, and the Chairman shall comply with such directions.
(5) If the Controlling Authority is satisfied that any proceeding of a Board or a Committee is not in conformity with the provisions of this Act, or regulations or Rules framed thereunder or in public interest, the Controlling Authority may, without prejudice to the foregoing provisions of this section, by order in writing, annul such proceeding: ' Provided that before making any such order, the Controlling Authority shall, through the Chairman, call upon the Board or the Committee, as the case may be, to show cause why such an order should not be made.
(6) The Controlling Authority may, from time to time, direct a Board to conduct its affairs and to perform its functions in such manner as may be specified.
(7) The Controlling Authority may require a Board to furnish it with:--
(i) any return, statement, estimate statistics or other information regarding any matter under the control of the Board, or
(ii) a report on any such matter, or
(iii) a copy of any document in the charge of the Board, and the Chairman shall comply with every such requisition.
(8) Notwithstanding anything to the contrary contained in this Act, the Controlling Authority may:--
(i) place the services of any of the officers or other employees of any Board at the disposal of this Government or any other Board or Institution for such period and on such terms and conditions as may be detemined by him provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer;
(ii) make appointment to any post in the Board in any capacity from persons in the service of Pakistan or from officers or other employees of any other Board, and
(iii) make regulations concerning efficiency and discipline of officers and other employees of the Board;
(iv) the Controlling Authority may remove from service any employee of a Board, provided that no such employee shall be removed from service without being given an opportunity of being heard, provided further that where the Controlling Authority has initiated any such proceedings against any such employee, no other person including the Board shall have power to initiate any proceedings or take any steps in the matter."
' Section 18 pertains to the constitution of the Committees and for the purpose of appointments.
Subsection (2), item (ii) refers to "The appointments Committee" and section 19 of the Act envisages that "The constitution, functions and duties of committees shall be such as may be prescribed by regulations".
' The power to make regulations are with the Board and section 20 is relatable to the said power which reads as under:-- "(1) A Board may, subject to the approval of the Government, frame regulations, not inconsistent with the provisions of the Act, to carry out the purposes of this Act provided that--
(i) a Board, shall not propose draft of regulations affecting the constitution or power of any authority of the Board until such authority has been given an opportunity of expressing an opinion in writing upon the proposals;
(ii) the draft of Regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority, and
(iii) a Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government.
(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for--
(a) the terms and conditions of service of the employees of a Board, including matters relating to grant of leave and retirement of such employees.
' Explanation.--The terms and conditions should be in conformity with rules applicable to Government servants carrying equivalent pay scales and other benefits;
(b) the constitution of pension or provident fund or both for the benefit of the officers and other employees of a Board;
(c) the admission of institutions to the privilege of recognition and the withdrawal of recognition;
(d) a general scheme of studies, including the total number of subjects to be taught and the duration of courses, and
(e) all other matters required under any of the provisions of this Act to be prescribed by regulations."
As per section 32 of the Act, the regulation set out in the Schedule shall be deemed to be the first regulation framed by the Board under section 20 of this Act.
Regulation 4 of the afore referred regulations deals with the Appointments Committee which originally provided as under:-- "(1) The Appointments Committee shall consist of--
(i) the Chairman of the Board;
(ii) the Vice-Chancellor of the University or his nominee;
(iii) one Director of Education by rotation from amongst Directors of Education, and
(iv) two nominees of the Controlling Authority.
(2) The Appointments Committee shall recommend the appointment, confirmation and scale of officers and employees of the Board whose scales of pay carry an initial pay of four hundred rupees or more per mensem.
(3) The members of the Appointments Committee other than the ex-officio members, shall hold office for two years,
(4) The quorum for a meeting of the Appointments Committee shall be three:"
' Clause (2) of the aforereferred regulation was, however, subsequently amended vide Punjab Board of Intermediate and Secondary Education (Amendment) Ordinance XXIII, 1992 and the same was substituted with the following:-- "(2) The Appointments Committee shall recommend the appointments/confirmation and scales of officers and employees of the Board in BS 16 and above."
13. The procedure for appointment to posts in BS-1 to 15 it appears was left open. It was precisely for this reason that the Board exercising its powers under section 20(1) of the Act constituted Recruitment Committee which was approved by the Minister of Education vide Letter No,S.O.
(Boards) 1-48/92, dated 20-4-1994 which is being reproduced below:-- "Sub: Approval of Recruitment Committee: {{TABLE}} (2)
I. Kindly refer to the subject noted above. The Education Minister, Punjab has been pleased Recruitment Committee for BISE, Punjab as under:-- RECRUITMENT COMMITTEE (BS-1 to BS-4) to approve the
1. Secretary of the Board. Convenor
2. Deputy Director (Colleges) Member
3. Deputy Director (Secondary Schools) Member II. RECRUITMENT COMMITTEE (BS-5 to BS-15).
1. Chairman of the Board Convenor
2. Director of Education (Coll.) Member
3. Director of Education (EE) Member (Sd.)
(SHABBIR A- RANA), SECTION OFFICER (BOARDS)."
14. It appears that the Government was subsequently reminded of the lacuna in the aforereferred notification inasmuch as that the Education Minister who approved the constitution of the Recruitment Committees was not 'Government' and the ' Controlling Authority' within the meaning of sections 2 and 11 of the Act. This lacuna was, therefore, removed vide teleprompter Message No,S.0.(Boards)1-48/92, dated 27-3-1995 wherein para.2 of the earlier letter (dated 4-4-1994) was substituted with the expression "The Controlling Authority of the Punjab Boards of Intermediate and Secondary Education had been pleased to approve the Recruitment Committee for BISE Punjab".
The subsequent letter is also being reproduced for perusal:-- "SUB: APPROVAL OF RECRUITMENT COMMITTEE.
KINDLY REFER TO THE SUBJECT NOTED ABOVE(.)
2. THE CONTROLLING AUTHORITY OF THE PUNJAB BOARDS OF INTERMEDIATE AND SECONDARY EDUCATION HAS BEEN PLEASED TO APPROVE THE RECRUITMENT COMMITTEES FOR BISE, PUNJAB AS UNDER: I. RECRUITMENT COMMITTEE (BS-1 TO BS-4).
1. SECRETARY OF THE BOARD CONVENOR
2. DEPUTY DIRECTOR (COLLEGES) MEMBER
3. DEPUTY DIRECTOR(SE) MEMBER II. RECRUITMENT COMMITTEE (BS-5 TO BS-15).
1. CHAIRMAN OF THE BOARD CONVENOR
2. DIRECTOR OF EDUCATION (COLL.)
OR HIS NOMINEE MEMBER
3. DIRECTOR OF EDUCATION (EE) MEMBER EDUCATION SECTION:"
15. A bare reading of the Notification dated 8-2-1995 issued by the Government of the Punjab whereby Selection Committee for recruitment of posts in BS-1 to BS-15 were constituted (referred to in para. 9 above) indicates that the Committees so constituted were relatable to recruitment in departmental offices within the meaning of sub-rule (1), rule 4 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and were not meant for recruitment for the posts in the Board of Intermediate and Secondary Education. For the purpose of recruitment in the Board the 'Government' or the 'Controlling Authority' had constituted Recruitment Committee vide Notification conveyed through Teleprinter Message No, SO (Boards) 1-48/92, dated 27-3-1995 which has been reproduced in para. 14 above. The holding of interviews and the preparation of merit list by the Committee which was not authorised under the Board of Intermediate and Secondary, Education Act and the Regulations framed thereunder were, therefore, patently without lawful authority. The merit list so prepared has no sanctity in law. However, a still more serious aspect of the matter is that notwithstanding the merit list for the preparation of which the Commissioner, Gujranwala Division, chaired the Recruitment Committee, he asked the Chairman of the Board of Intermediate and Secondary Education to issue appointment letters in respect of 36 applicants (only 21 out of these joined service) whose applications had been marked to him by the Chief Minister's Secretariat. While appearing in Court, the Commissioner neither referred to any specific official who sent those applications to him nor he referred to any order of the Chief Minister in their favour. The Chairman of the Board of Intermediate and Secondary Education in his parawise comments admitted having appointed the afore referred persons at the asking of the Commissioner. It is unfortunate that highly placed Government officials in utter disregard to the mandate of their calling, in flagrant violation of the relevant law, the Recruitment Policy and the requirements of merit issued appointment letters in respect of those individuals who had neither applied in time for the posts in question nor they appeared in test and interview. One can appreciate the anguish and agony of petitioners and several others who appeared in the test and interview, found their names on the merit list but received a rude shock to discover that certain other persons had been appointed. Perhaps the famous poet, Tennyson, was voicing the sentiments of such individuals, when said:-- "Ah what shall I be at fifty, should nature keep me alive: If I find the world so bitter: when I am but twenty-five."
' The aforereferred persons who procured appointment orders through the back doors were not impleaded as respondents by the petitioners, However, keeping in view the golden principle of audi alteram partem this Court issued notices to them as one of the basic principles of natural justice is that before an order is passed affecting the right or privilege of a person it is necessary to hear him and provide him an opportunity of contradicting any material point or circumstance which is sought to be produced against him. This is in line with the celebrated judgment of the Hon'ble Supreme Court in The University of Dacca through its Vice-Chancellor and The Registrar, University of Dacca v. Zakir Ahmed PLD 1965 Supreme Court 90 where at page 103 it is observed as under:-- "What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the Judicial Committee in the case of the Unviersity of Ceylon v. Fernando. Tuker, L.J., said in Russel v. Duke of Norfolk (1949) 1 All ER 109 the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth. ' Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the 'elementary and essential principles of fairness' as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case 'to correct or controvert any relevant statement brought forward to his prejudice.' Of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the persons accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words, ' in order to act justly and to reach just ends by just means' the Courts insist that the persons or authority should have adopted the above 'elementary and essential' unless the same had been expressly excluded by the enactment empowering him to so act."
16. In response to the notice, the appointees appeared and despite the opportunity given and despite having engaged a counsel they did not choose to file a written statement. Their learned counsel while defending the impugned appointments took recourse to a judgment of the august Supreme Court in Pakistan through The Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 Supreme Court 407 to contend that order having once been passed cannot be withdrawn or rescinded once it has taken a legal effect of certain rights created in favour of any individual.
' The aforereferred judgment of the Hon'ble Supreme Court is based on the principle of locus poenitentiae and the mandate of section 21 of the General Clauses Act. The facts in the said case are distinguishable. In a later judgment, the Hon'ble Supreme Court has held that if the order is illegal then it cannot be perpetuated. In The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and others v. Jalaluddin PLD 1992 Supreme Court 207 while discussing the extent and scope of this word, the Hon'ble Supreme Court, at page 210, observed as under:-- "Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made to the respondent had no sanction of law. Locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order."
17. The appointment orders, therefore, cannot be permitted to remain in the field as besides violative of the Recruitment Rules these are repugnant to Articles 4 and 18 of the Constitution of Islamic Republic of Pakistan. The Hon'ble Supreme Court took a serious note of the appointments made in derogation to the merit policy in an unreported Human Rights Case No,104 of 1992 and passed order to the following effect:-- "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 Rights (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 was reiterated in yet another judgment of the august Supreme Court in Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287 wherein at page 1294 it was observed as under:-- "What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisement, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Rights Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitments had to take place.. This will, however, not apply to short-term leave vacancies or to contingent employment."
' A similar concern is expressed in a judgment of the Indian Supreme Court in C. Channabasavaih and others v. State of Maysore and others AIR 1965 Supreme Court 1293 wherein while setting aside the appointments of those who did not even apply it observed at page 1296:-- "It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing."
18. To enter a profession, a job or a trade in accordance with law is one of the Fundamental Rights guaranteed by the Constitution of the Islamic Republic of Pakistan. Article 18 of the Constitution reads as under:-- "18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by licensing system, or
(b) the regulation of trade, commerce or industry in the interest of free competition therein, or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service, to the exclusion, complete or partial, or other persons."
19. The Constitution of a country is a kind of "social contract" which binds a people, society and a State. The terms of the contract foster feelings of interdependence, of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of a system. Feelings of patriotism do not sprout out of a big arsenal. These are not born in the battle fields where warring camps shed colossal human blood in the name of narrow nationalism, not in the "Chambers of Politics" where high sounding cliches are spun out to inflate one's ego and innuendoes are hurled to humble the opponents. These are born in schools which impart good education, in the fields where tiller gets wages for his blood and sweat, in factories where the labourer gets a fair deal, in the hospitals which provide medical care to the sick, in the Courts which dispense justice and in a socio-political system where merit reigns supreme. If we want a system to be stable and if we want the people to defend the system we will have to create conditions where they feel that the system protects their fundamental rights which were recognized in the social contract. A people fight for something which is worth fighting for, worth living for and worth dying for. Contemporary history is testimony to the fact that systems have collapsed less on account of foreign invasion and more on account of internal mismanagement and on account of betrayal to the social contract.
20. In view of the foregoing analysis of the facts and law this Court is of the considered opinion:--
(i) That the interviews conducted by the Recruitment Committee headed by Commissioner, Gujranwala Division, Gujranwala for appointments on various posts in the Board of Intermediate and Secondary Education, Gujranwala and the merit list prepared pursuant thereto has no sanctity in law as appointments in BS-1 to BS-15 in the Board of Intermediate and Secondary Education could only be made by the Recruitment Committee constituted vide I E Notification dated 27-3- 1995 referred to in para. 14 above.
(ii) That the appointments orders issued in favour of 36 applicants by the Chairman, Board of Intermediate and Secondary Education without recourse to the prescribed procedure admittedly at the asking of the Commissioner are illegal and the same are set aside.
(iii) That all those applicants who applied pursuant to the advertisement given in the daily _fang' dated 24-2-1995 and cleared the written test shall appear before the Recruitment Committee constituted by the Notification dated 27-3-1995 referred to in para. 14 above. A fresh merit list shall be prepared on the basis of the marks obtained in these interviews and in their previous written test and all the appointments shall be made strictly on merit. This exercise shall be confined to those applicants who had applied during the cut update, and
(iv) That the Chairman of the Board shall also ensure that the matter is not prolonged any further.
He shall further ensure compliance of this order within a period of one month from the date of announcement of this judgment.
21. Consequently, Writ Petitions Nos. 17021 of 1995 and 1733 of 1996 are allowed in the terms noticed above with no order to costs. A copy of this judgment shall be sent to the Secretary Education, Government of the Punjab Controlling Authority of Board of Intermediate and Secondary Education, Gujranwala for information and necessary compliance.