JUDGMENT MIAN ALLAH NAWAZ, J.- The validity/propriety of order, passed by learned Single Judge dated 10.7.1988 in two writ petitions namely 14484/94 and 10406/94, is called in question in two Intra-Court appeals bearing No. 1087/99 and 1088/99. Since both of these involve examination of common questions of law and facts so these are being adjudicated through this single judgment.
2. The facts, briefly stated, giving rise to these appeals are these. Capt. (Retd) M. Mazhar Hameed/appellant herein in both the Intra-Court Appeals was appointed as Assistant Director in BPS-16 in the Office of Punjab Small Industries Corporation (referred to as Corporation') on 23.4.1983. He was inducted into service after seeking retirement from Army. Thereafter, he was promoted in BPS-17 on 24.2.1986 and in Grade 18 on 26.6.1993 respectively. With advent of 1994, he started efforts to be appointed as a Regional Director of Corporation in BPS-19. Consequently, he moved an application to Chief Minister, Punjab on 9.4.1994 alleging therein that he was retired from Army as Captain; that he was so entitled to be inducted in Corporation in BPS-17 under Circular of Finance Department Government of Punjab No. FD-SR-III-8-6/78 dated 16'.7.1980; that he had suffered enormously on account of a violation of the above circular and deserved to be compensated in shape of appointment as a Regional Director. On this application, a summary was prepared and sent to Chief Minister Punjab. Pursuant to it, this matter became a shuttle-cock from one officer to another. Suffice it to mention, that it was on 4.9.1994 . When Managing director acceded to his wishes and issued his appointment letter, as Regional Director. This letter runs as follows:-- "The Managing Director has been pleased to appoint Capt (Retd) M. Mazhar Hameed, Joint Director (Admin) PSIC as Director (BS-19) against director quota provision on regular basis with immediate effect in the interest of public service.
The appointment will deem to have been made in context with rule 11(1) of PSIC Act by the competent Authority in its prescribed manner. Posting orders and service terms and conditions to follow: This issues subject to ratification by PSIC Board of Members."
3. Resultantly, this controversy came to High Court in constitution petitions Nos. 14484/94 and 10406/94. These were filed by M/S Abdul Sattar and Afzal Karim Khan respectively. These petitions came up for hearing-before our brother his Lordship Mr. Justice Mushtaq Ahmed Khan (as he then was) who passed the following order on 18.1.1995:- "Resultantly, instead of deciding the writ petitions on merits at this stage and hence to pre-empt the decision of the Board at the cost of causing of prejudice to the parties, it is ordered that the interim stay already issued in both these writ petitions is modified in terms that the Managing Director-respondent No. 2 in this writ petition shall immediately place the case before the Board of Directors who shall take a final decision in the matter within a period of one month i.e.f the date of receipt of this order by respondent No. 2, which decision shall not be implemented till further orders of this Court. Copy of the decision taken by the Board shall be forwarded to Deputy Registrar (Judicial) of this Court to be placed on record of these writ petitions, which shall be fixed for further hearing on 28.2.1995."
4. In pursuance of the aforesaid direction, the Board considered the appointment of Captain M.
Mazhar Hameed and delegated its powers under clause 15 of the Punjab Small Industries Corporation Act (Act XV of 1973) to Managing Director. Resultantly, the Managing Director considered the whole case, found that one post of BPS-19 was available-to accommodate Capt.
(Retd) M. Mazhar Hameed and forwarded a note to the Secretary Industries. Thereafter, a copy of letter was received from Chief Minister Punjab. Dated 17.4.1994 and the case was sent to Managing Director for the purpose of placing it before the Board. It will not be out of place to mention that a summary was also submitted to Chief Minister Punjab on 5.5.1994 who approved it within the terms of note of Secretary Industries. So the stage reached when Managing Director passed order dated 17.10.1994 wherein Capt. (Retd) M. Mazhar Hameed ^vas 'appointed as Regional Director.
Resultantly, this order was put in with petition No. 14484/94 and W.P. No. 10406/94 and these were accepted on 10.7.1998 in following terms:-- "The upshot of this discussion is that by accepting this writ petition the appointment of respondent No. 4 as Director in grade-19 is declared illegal and is hereby set aside with costs. However, it is made clear that this judgment will not have any impact on the service career of respondent No. 4 in grade-18."
5. Against this decision Capt. (R) M. Mazhar Hameed filed two petitions for leave to appeal which came up for limine hearing on 30.7.1998 and sought for interim relief was granted. Ultimately, the petitions were decided on 14.12.1999 by the apex Court. Appellants were directed to i.e Intra-Court Appeals before this Court along with an application under section 14 of Limitation Act for condonation of time consumed in application. This is the whole factual scenario in which these two Intra Court Appeals have reached this Court, learned counsel for appellant strenuously reiterated what was said before the learned Single Judge. It was submitted that Capt. (Retd) M. Mazhar Hameed had retired from Army in 1983, was interviewed for a post falling in BPS-17 but he was inducted into a post which was of grade-16; that he had been caused a grave injustice and had suffered immensely. On the strength of above circumstances it was suggested that the learned Single Judge erred in law in accepting the constitutional petitions. Secondly, the under rule 22 ibid, the Government of Punjab as well as the Board had unfettered discretion to relax the qualifications of post falling in BPS-19; that in this case Chief Minister Punjab had accorded sanction to relaxation and thereafter the Board had rightly appointed Capt. (Retd) M. Mazhar Hameed as Director. On the basis of these arguments it was stressed that the learned Single Judge was required to up hold the above lawful exercise of discretion.
6. On the contrary, the learned counsel for the respondents and Corporation supported the impugned order.
7. We have heard the learned counsel for the parties at a considerable length and have attended to their competing contentions very carefully. Fortunately, there is no dispute as regard the facts of the case. It is not in the contest that Capt. (Retd) M Mazhar Hameed was not qualified to be appointed as Director at the relevant time. The Rules postulated that Director/Regional Directors were to be appointed in Corporation who were the holders of Master Degree in Administration or Economics or B.Sc. Engineering from a recognized University for non-technical post. Undisputedly, Capt. (Retd) M. Mazhar neither had any master degree in Administration nor in Economics nor any B.Sc. Engineering from a recognized University, that he was appointed to a post which was to be fulfilled by initial recruitment. The question which so falls for consideration, is whether the Board/Chief Minister Punjab was competent to relax the above qualification and appoint him as Director in BPS-19 over the head of other person who were qualified to be appointed. Secondly whether such order had been passed by conscious application of mind. The power of relaxation is embodied in Rule 22 of the Punjab Small Industries Corporation Service and Recruitment Rules, 1976. The these Rules were enforced on 8th March of 1979. The said rule reads as follows:- "Any of these Rules may for reasons to be recorded writing may be relaxed in individual cases if the Board or the authorized person in this behalf is satisfied that the strict application of the rules shall cause undue hardship to the individual concerned."
8. From the plain reading of the above rule it becomes clear that the Board or its Authorized person was/is invested with powers to relax any of the rules in an individual case if the Board or authorized Officer comes to the conclusion that strict application of rule will cause undue hardship to individual concerned. This power, as juristically known, falls in the sphere of (discretionary jurisdiction. No doubt, this jurisdiction was/is not liked by the jurists/judges notwithstanding the fact that it was/is inevitable on account of complex nature of human problems. At this stage, we are tempted-to quote a saying of Great English Judge Lord Camden. "The discretion of a Judge is the law of tyrants; it is always unknown; it is different in different men; it is causal, and depends on constitution, temper, and passion. At best it is often caprice, in the Worst it is every vice, tolly and passion to which human nature can be liable". (State Vs. Cummings, 36 MO 263, 278).
9. From the nature of this jurisdiction it clearly follows that this is a power of Administrators to adopt a way or decide the matter according to his on opinions, caprice and prudence. In order to curtail the abuse of this power, the superior Courts have always set down certain principles/parameters to structure the exercise of this power. This problem came up for consideration in Muhammad Iqbal Khokhar and three others Vs. Government of Punjab, Lahore and two others (PLD 1991 SC 35).
In this case, four appellants were recruited directly in 1974 through Public Service Commission as Assistant Engineers in the Service of Building and Road Department. It is to mention that respondent No. 2 was retired from Army, and joined the service in year 1975 by the same process.
On 18th of July 1979 the Secretary Communication and Works Department issued an order in following terms:-- "The governor of the Punjab is pleased to allow Capt. (Retd) Abdul Qayyum, Assistant Engineer, presently posted as SDO, Highway Chiniot to count Army Service (21.10.1969 to 26.2.1975) for the purposes of seniority in his Civil Appointment as Assistant Engineer, in relaxation of rule 8 of the Punjab Civil Servants (Appointments and conditions of Services) Rules, 1974. Consequently, the seniority position of this officer is changed from serial No. 125 of the Provisional seniority list, circulated vide No. SDO (C & W) 4-2/77, dated 15.7.1978, to a place between m/s. Muhammad Faruq Chohan (serial No. 2) - and Mr. Muhammad Ashraf Dogar (serial No. 3) in the said list.
The Governor of the Punjab is further pleased to relax the condition of 5 years service in the Department as Assistant Engineer, for promotion to the post of Executive Engineers Class-I) Rules, 1967, by considering his service rendered in the Army as service in the Department.
The Governor of the Punjab is also pleased to allow the officer the benefit of his any service towards pay and pension."
10. Feeling aggrieved, the appellant challenged that order before the Service Tribunal unsuccessfully. Feeling dissatisfied, they preferred civil appeal No. 53 of 1980 which was allowed by the apex Court and it was held that the power of relaxation could not be exercised to the detriment of the others. Speaking for the bench his Lordship Mr, Justice Shafi-Ur- Rehman's (as he then was) said:~ "The only question that remains to be examined is whether the power possessed by the Governor under section 22 of the Punjab Civil Servants Act, to which the provisions in the Rules on the same subject are subordinate, justify the conferment of seniority retrospectively in a manner to violate provision of rule 8(1 )(a) of the Appointment Rules and 15(l)(a) of the. Service Rules of 1967 in a manner to prejudicially and adversely affect the vested rights of the appellants and many others, the dispensation under^ section 22 of the Punjab Civil Servants Act is individual and is limited and controlled by a proviso which establishes the supremacy of that and the Rules. The relaxation can be beneficial to the civil servants without being prejudicial to. Any one on even to the civil Servant who is granted relaxation or exemption. On that principle the impugned order of the Governor is ultra vires of the Punjab Civil Servants Act in so far as it grants the respondent No. 2, seniority for the period 21st October, 1969 to 26th Feb. 1975 and refixes the-seniority accordingly. The allowance to an officer the benefit of his Army service towards pay and pension and relaxation of i.e years service in the department as. Assistant Engineer for promotion for the post of. Executive Engineer do not by themselves prejudicially affect any one, and are therefore, not in violation of the law but in relaxation of it. Therefore, they are declared to that extent to be valid and proper."
2. Rustam S. Sidhwa, J., who was then the member of the Bench, rendered a separate not/explaining discretionary jurisdiction/power with special reference to Rule 22 of Punjab Civil Servants Act, (VIII of 1974) and recruitment) Rules, 1974. He said:- However, it appears towards the end, the department misdirected the learned Governor to resort to section 22, which was highly improper if not highly unjust and unfair. The Department could have advised the Governor to grant seniority to respondent No. .2 amongst the direct recruits of the 1975 batch, by virtue of his long and special experience, which action may have passed as just and equitable. The grant of seniority or promotion under section 22, unless it meets the strict test of being just and fair, can only be a colourable violation of the law under the guise of its exercise., which cannot be permitted. Discretion, even where outwardly appearing as absolute, will always be treated as qualified by the terms and spirit of the provisions in which it occurs and by the object of law. See Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1959 SC 166), where the president of Pakistan exercise of discretionary powers under Article 58 (2)(b) of the Constitution where struck down for violating the terms and spirit of the ' Article. The order of the learned Governor in the instant case not only violates the law declared by this Court, which strikes down retrospective regulations, but directly contravenes rule 8 of the 1967 and 1974 Rules and adversely affects the seniority and rights of the promotion of 1974 batch of direct inductees and I would, therefore, with profound respect to the learned Governor, declare that the same Reserves to be set aside."
12. Applying these principles to/the facts and circumstances of the case in had, we have no difficulty in reaching the conclusion that the decision rendered by the learned Single Judge is eminently correct for number of reasons. Firstly, it is not a dispute that Capt. M. Mazhar at the' relevant time was not qualified to be appointed as Director in BPS-19 by initial recruitment. Neither he had master degree nor he possessed a degree of B.Sc. Engineering. From he record it is clear that order dated 9.4.1994, did not contain any reason, whatsoever, for relaxation of the above given basic qualification of above post of BPS-19. The further study of the case reveals that he had moved directly to Chief Minister Punjab who routed the matter through the Chief Secretary. The impugned orders clearly show that neither the Chief Minister nor the Board took into consideration the circumstances vital to exercise the power of relaxation. It was not at all examined that his would lead to infraction of rights of so many who- possessed the requisite qualifications and were simply ignored. Honourable Supreme Court at number of occasions held that the statutory Corporations were not competent to fill the posts by initial recruitment without affording opportunity to all concerned to compete it. Decision, thus, rendered by Managing Director was in and of favoritism and so was rightly struck down by the learned Single Judge. The impugned decision is therefore, eminently just and does -not suffer from any jurisdictional or factual error calling for interference by this Court.
4. As regards the question of limitation, we are not inclined to examine it in the context of our findings on merits. For whatever has been stated above, we do not find any merit whatsoever in the above appeals and the same are dismissed. The appellant shall bear the cost proceedings throughout.