1. SHAH JEHAN KHAN YOUSUFZAI, J.---This Constitutional petition assails the legality of the order dated 1-8-1995 passed by the Executive Engineer, Public Health Engineering Division, Bannu, respondent No.4 herein, whereby the respondent Zahid Ali has been appointed against the post of Mechanic (B-7) which had fallen vacant on the retirement of one Nooruddin. The prayer made by the petitioner Muhammad Din is to the effect that the impugned order of appointment of respondent No. 5 may be declared as illegal, without lawful authority and void ab initio with direction that irrespective of the recommendation of the Minister or any Other authority the issue may be decided strictly on merits.
2. 2.The facts giving rise to the instant writ petition are that on the retirement of one Nooruddin father of the petitioner Muhammad Din a post of Mechanic (B-7) in the Public Health Engineering Division, Lakki Marwat had fallen vacant. The post was advertised in the daily newspaper inviting applications and after fulfilling the requisite formalities a date i.e. 23-4-1995 was fixed for interview which was later postponed to 25-4-1995, on which date the petitioner and four other candidates were interviewed. The respondent No, 4 recommended the petitioner vide letter dated 31-5-1995 to respondent No. 3 placing him as No. 1 on the merit list having secured highest marks in the aforesaid interview, mainly on the grounds, firstly, that he belonged to Lakki Marwat where the post had fallen vacant in view of retirement of his father Nooruddin and: secondly, that on account of practical field experience with his father while in service vide certificate issued by the S.D.O., Public Health Engineering Development Sub-Division, Lakki Marwat. Meanwhile, the Minister for Public Health Engineering Department, N.W.F.P., Peshawar forced respondent No. 4 to substitute his letter of recommendation and include the name of respondent No. 5 for interview. Consequently, another letter of recommendation vide No. 18 dated 6-7-1995 was issued by respondent No.4 placing the name of respondent No.5 therein at No.6. In the said letter it has been specifically stated in the remarks column that "respondent No. 5 herein did not appear for interview, however, was tested later on the recommendations." Nonetheless, respondent No. 4 in utter disregard of the legal requirements and the earlier recommendations made by him vide letter dated 31-5-1995 passed the impugned appointment order in favour of respondent No.5.
3. 3.Respondents Nos. 1 to 4 in their joint comments filed on 10-9-1995 took a very vague stand saying that respondent No.5 was found most competent in the Trade test/interview among all the candidates and further maintained that the appointment of respondent No. 5 was made under the order of the competent Authority and was legally correct. A rejoinder to the comments of the respondents was filed by the petitioner wherein the allegations were entirely refuted.
4. 4.The learned counsel for the petitioner contended before us, firstly, that the petitioner was eligible to be appointed as Mechanic (B-7), for, he had applied for the same in response to the advertisement in the newspaper and had appeared for interview on the crucial date; secondly, that respondent No. 5 neither applied for the post within the prescribed period nor attended the interview on the date fixed; and, thirdly, that the petitioner was strongly recommended by respondent No. 4 in his letter dated 31-5-1995 in view of the experience certificate and the merits' position but respondent No. 5 was appointed on the post as a result of illegal interference of the Minister for Public Health Engineering Department, N.W.F.P., Peshawar. In this context, reliance was placed by the learned counsel for the petitioner on the case reported as Munawar Khan etc. v. Niaz Muhammad and others (1993 PLC (C.S.) 797).
5. 5.The learned counsel appearing for respondents Nos. 1 to 4 flatly conceded that vigorous irregularity has been committed by issuing the impugned order dated 1-8-1995 and showed his inability to defend the said order.
6. 6.Before going through the contentions of the learned counsel for the petitioner, it will be pertinent to mention here that Ayub Gul, XEN of the concerned Department (respondent No: 4), who was summoned for today to appear in person and apprise the Court of the factual position that when respondent No. 5 did not appear for interview on the crucial date how he was appointed, stated at the Bar that although respondent No. 5 did not appear on the date of interview but subsequently since the Minister for Public Health Engineering Department, N. W . F. P.Peshawar recommended him only for interview and not for appointment, therefore, the appointment of respondent No. 5 was made by independent mind without any force or pressure.
7. 7.We have given our anxious consideration to the contentions raised by the learned counsel for the petitioner and have perused the available material on file. Admittedly, the post of Mechanic (B-7) in the Public Health Engineering Division, Lakki Marwat came into existence on the retirement of father of the petitioner. After the completion of the legal requirements the petitioner and four other candidates were called for interview out of whom the petitioner was strongly recommended by respondent No. 4 placing him at Serial No. 1 in the letter of recommendation dated 31-5-1995 (Annexure 'C') keeping in view of his fitness and field experience certificate. However, the appointing authority later slipped from the legal track and ignored the service laws when the Minister of the Department concerned recommended the respondent Zahid Ali merely for interview.
8. This at speaks of inefficiency and insufficiency on the part of the said authority. In the Munawar Khan v. Niaz Muhammad etc. (1993 PLC (C.S.) 797) relied upon by the learned counsel for the petitioner and to which we are also inclined it has been observed by their Lordships of the Supreme Court as under:-- ...Service laws designate, in the case of all appointments, a departmental authority competent to make such appointments, whose judgment and discretion has to be exercised honestly and objectively in the public interest and could not be influenced or a subordinated to the judgment of anyone else including his superior."
9. What we have noticed in the case which is under consideration before us is that the appointment of the respondent Zahid Ali was made clearly in violation of the recruitment rules. There is a procedure prescribed for appointment to be made on a post by the Government functionary and every body is to follow the same. Article 27 of the Constitution of Pakistan, 197A is indicative of the legal position that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of such appointment. In the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 the Minister or M.N.A. Or Senator or M.P.A. Is nowhere figured in the appointment of a civil servant. In a way the responsibility of public representative is greater than the others to see that the relevant law is not violated by an at/omission of an appointing authority. He is under an oath to discharge his duty in accordance with the Constitution and the law.
10. 8.For the aforegoing reasons, while accepting this writ petition, the order of appointment of the respondent Zahid Ali issued by respondent No. 4 on 1-8-1995 is declared as unconstitutional and illegal ab initio and as such is struck down with costs to be recovered from the pocket of the Executive Engineer, Public Health Engineering Division, Lakki Marwat who had issued the subsequent letter of recommendation dated 6-7-1995 under the influence of directive of the Minister concerned and the aforesaid order of appointment was issued. It is further directed that by ignoring all the subsequent recommendations further order be made on the basis of the earlier recommendation dated 31-5-1995 strictly in accordance with law.