1. This judgment shall dispose of Writ Petitions Nos. 11737/92, 11738/92, 6845/94, 202/95 and 5039/95 as all of them involve same question of law and facts.
2. Facts briefly for the disposal of these Constitutional petitions are that the petitioner Tariq Javed started his career as A.S.-I. In F.I.A. On 22-9-1975 while Sh. Mumtaz on 12-11-1976. The respondents Malik Subah Sadiq, Muzafar Khan, Khalid Rehmat at Azeem Hussain also started their careers as A.S.-Is. On 22-9-1975, 9-10-1976, 18-11-1976 and 9-12-1976 respectively. An advertisement appeared in the daily papers in October, 1976 for the recruitment of Sub-Inspectors in F.I.A. The educational qualification according to the advertisement required for recruitment was B.A. II Division.
3. Aforementioned contesting respondents who were already in F.I.A. Service as A.S.-Is. Applied for aforesaid posts. Their examination/interviews were held in January, 1977. All the contesting respondents except Shaukat Mehmood respondent No. 3 of Writ Petition No. 5039/95 failed to qualify the examination and were thus not selected. It is pertinent to mention at the very outset that Shaukat Mahmood who was not in service candidate was, however, taken as S.-I. Learned counsel for writ petitioners Syed Jamshed Ali has candidly not pressed his claim against Shaukat Mehmood for the reason that in case of acceptance of this writ petition, he would be thrown on the road while the other contesting respondents who appeared in the examination and failed to qualify the same would only lose their seniority secured by them through orders impugned in these Constitutional petitions. In view of this categorical statement of the learned counsel, the claim of the petitioners against Shaukat Mehmood respondent is dismissed as not pressed.
4. It so happened that on a representation of Malik Subah Sadiq respondent, an order was passed on 21-10-1989 by a Committee headed by Additional Director-General of F.I.A. Alongwith to members appointing him as S.-I. With effect from 12-1-1977 on the ground that in the examination conducted in the year 1977 for this post, the marking was irrational. It was further directed that he would only get benefit of seniority as S.-I. With effect from 12-1-1977 without arrears of pay as he did not actually work as S.-I. For this period. Getting strength from the order of Malik Subah Sadiq passed on 21-10-1989, the other contesting respondents who also failed in the examination held in January, 1977 made similar representation and they to were appointed as S.-Is. With effect from 13-5-1977 on the analogy of the case of Maiik Subah Sadiq on 8-8-1992. Hence the petitioners through these Constitutional petitions have taken exception to the orders dated 21-10-1989 and 8-8-1992 inducting/appointing respondents as S.-Is. With retrospective effect after a period of more than 12 years.
5. I have considered the contentions and have gone through the documents appended with this petition. It is admitted and not denied that the qualification requirement for the post of S.-I.
6. According to the advertisement was B.A. IInd Division and no document worth consideration has been placed on record by the respondents whether they were given any relaxation. Their reference to the letter dated 26-11-1976 emanating from the Ministry of Interior would not advance their case any further as it has got no relevance with the appointments of respondents. The aforesaid letter is in the following terms: "Sub:Appointment of S.-Is. In the F.I.A. (Cases of Central Zone and that of Mr. Shakil Ahmad Sir, I am directed to refer to the correspondence resting with your Letter No. M/42 (Cz-P)/Adorn- 1/76/1971, dated 26th August, 1976 and your Letter No. Misc. /A-2/Admn-1/2764, dated 27th October, 1976, on the subject noted above end to say that all the relaxations proposed by you are hereby granted."
7. The reading of this letter demonstrates that it pertains to some relaxation resting with letter-dated 26-8-1976 which certainly pertains to a period before the issuance of the advertisement where the qualification requirement B.A. IInd Division was specifically mentioned. Learned counsel has failed to produce any record to establish any nexus of this letter with the case in hand. The other argument of the learned counsel for the respondents that since they were allowed to participate in the examination as such the relaxation would be impliedly presumed has also got no force. Rule 30 of the Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975 provides as under: "30. The appointing authority may, in the recommendation of 'the Departmental Selection Committee, relax the upper age limit and physical requirements regarding height end chest as laid down in Schedule III in suitable cases of persons otherwise highly experienced in the field in which the post exists, and the requirements of educational qualifications may be relaxed provided that persons possessing the requisite qualifications are not available and prior approval of the Federal Government is obtained for such relaxation; Provided that the Director-General may relax any of the conditions laid down in Schedule III in respect of posts below Grade-16."
8. Before relaxation it has to be made clear that the other qualified persons were not available and the same is to be secured with prior approval of the Federal Government. As already stated no document has been placed on record from which it is reflected that the qualification requirement was relaxed by the competent Authority for the recruitment of S.-Is. In F.I.A. Apart from this it was incumbent upon the authorities to re-advertise the post in case of general relaxation so as to enable the other persons who were also having third Division B.A. To enter the arena. It has been held in Kuldip Singh Gill v. State of Punjab and others (1972 SLR Punjab and Haryana High Court) that: "No relaxation can be granted when an advertisement has been issued inviting applications and persons possessing the qualifications advertised are available and submit their applications. If a relaxation has to be allowed, the advertisement should be issued, again so that all eligible persons, in view of the relaxation to be allowed should be able to apply for the job. Once the qualifications have appeared in the advertisement inviting applications, those qualifications cannot be changed and the selection has to be made out of the candidates possessing those qualifications."
9. A further reference may be made to SLR 1981(1) Jammu and Kashmir High Court in a case titled "Muhammad Maqbool Pandit v. Chairman, District Recruitment Board and others"), where it was held as under:- - "Before me, the sole point urged on behalf of the petitioner was that the petitioner fulfilled the prescribed qualification and not so respondent No. 6 and, as such, selection of respondent No.6 is vitiated, being contrary to. Article 16 of the Constitution. In support of this argument reliance was placed on the decision of the Supreme Court in Sawaran Lata v. Union of India, (1979) 1 S.L.R. 710, Subash Chend Jain v. Delhi Electric Supply Undertaking and others, (1979) 1 S.L.R. 306 as also on a decision of the Punjab and Haryana High Court in Kuldip Singh Gill v. State of Punjab 1972 S.L.R. 706.
10. The rationale of these decisions and, it has been expressly stated so in the case of Subash Chand Jain (supra) is that qualification for a particular post is a rational differentia under Article 16 of the Constitution. Where qualification has been prescribed and duly notified in the advertisement inviting applications, the State cannot obliterate the same by appointing persons who do not possess the prescribed qualification as against those who possess that qualification, provided of course, there is no provision for relaxation of qualification in the advertisement notice. "
11. In cases in hand as already stated no document worth consideration has been placed on record showing that the educational qualification requirement was ever relaxed.
12. The examination in this case was held in January, 1977 and the result of the same was declared illegal and irrational by a Committee in case of Malik Subah Sadiq on 21-10-1989. This is the basic order on the strength of which the subsequent order dated 8-8-1992 was also passed. I have gone through the order dated 21-10-1989 which is in slipshod manner and does not inspire any confidence. No plausible reason has been given therein to declare the earlier result illegal. The respondents have failed to produce the record and a plea has been taken on the strength of Letter No. 10/12/945--Estt.11-Government of Pakistan, Ministry of the Interior dated 26-1-1995 that the record had already been destroyed. I fail to understand that the record was available in the year 1989 after more than 12 years of the examination and again on 8-8-1992 when the impugned orders were passed, but at this juncture the same has been destroyed. I do not want to dilate further on this issue but I am sorry to observe that the reason advanced by the respondents does not fit in the circumstances of the present case.
13. The order dated 21-10-1989 in case of Malik Subah Sadiq which is a basic one is fanciful, arbitrary and devoid of any justifiable reason.
14. The bar created under Article 212 of the Constitution of Islamic Republic of Pakistan would not be applicable to the present writ petitioners as they seek determination of eligibility of respondents to hold the post respecting which the Service Tribunal has got no jurisdiction as the question of appointment/induction into service of respondents other than appellants is involved. It has been held in Muhammad Afzal etc. v. Government of Baluchistan etc. 1995 PLC (C.S.) 567 that induction/appointment into service is not appealable before Service Tribunal as a civil servant can seek relief only in respect of terms and conditions of his own service. Even -otherwise the order is palpably void and the same cannot be allowed to remain in the field. It has generated frustration, disappointment and despondency among civil servants who are standing in the quene and looking for next step. It has got no sanction of law as the learned counsel for the respondents have failed to produce any law or rules whereby the executive order qua induction in service can operate retrospectively. It has been held in Farman Ali and others v. Muhammad Ismail-and others (1990 SCMR 1216) as under: "There is no principle whereby the executive authority can be held inverted in the matter of direct appointment to make the appointment retrospective from a date earlier to the selection in accordance with law. This had to be shown by reference to the law because it would amount to interference with the vested rights of the civil servants who on the basis of earlier selection and regular appointment get seniority over others selected later. No such law is shown whereby such a retrospective regularization of the direct recruits could be ordered by the Executive authority."
15. Reference may also be made to Rustam Khan and others v. Government of N.-W.F.P. Education Department (1994 SCMR 1957). Apart from this there is also some force in the argument of the learned counsel for the petitioners that it - is a fit case for the issuance of writ of quo warranto which remedy is completely distinct and different from appeal provided before Service Tribunal under the Service Tribunals Act, 1973. The only requirement/condition for the issuance of the same is that it has to be established on. Record that a public office has been illegally usurped by a person without any sanction of law. Here in this case as already stated the respondents in clear violation of law and rules have been inducted into service as S.-Is. With effect from January/May, 1977 after a period of more than 14 years in spite of the fad that they earlier failed to qualify the examination. A Resultantly, the writ petitions are accepted and the appointments of the respondents as S.-Is. Through orders dated 21-10-1989 and 8-8-1992 are declared to have been made without lawful authority and of no legal effect. This judgment, however, shall not disturb their seniority, which they have acquired on the basis of their initial induction as A.S.-Is. There shall be no order as to costs.