CH. MUHAMMAD ARIF, J.---Through this common judgment we intend to dispose of the above appeals with two different leave granting orders dated 23-7-1999 (in C.A. No,1042 of 1999) and dated 4-8-1999 in C.As. N'os.1198 and 1199 of 1999) respectively, which had, in their own turn, arisen out of a common judgment passed by a Division Bench of the Lahore High Court, Lahore on 14-6- 1999 in I.C.As. Nos.1287, 1361 and 1363 of 1998, to consider whether the appellants were denied appointment on legal grounds.
2. Appellant Yousaf Haroon had brought Writ Petition No,7649 of 1998 in the Lahore High Court, Bench Multan and appellants-Nasir Ali Saqib and Shafqat Nadeem as also appellant-Shahid Ikram had brought Writ Petitions Nos.19416 and 18177 of 1998 in the Lahore High Court, Lahore by pleading that Punjab Public Service Commission, hereinafter referred to as the Commission, invited applications for holding written/oral tests for appointment of 300 Inspectors in Punjab Police. In response to an advertisement in Daily Nawa-i-Waqt Lahore dated 28-9-1997 they submitted applications alongwith necessary documents, appeared in written test as well as interview and came out with flying colours. As a result of the above they were recommended by the Commission to the Competent Authority for appointment. On a complaint to the effect that some candidates have manipulated sitting in the examination by securing false certificates regarding their physical standards from Medical Officers which requires recall of the appointment orders, if issued, the Provincial Government constituted Divisional Boards comprising concerned D.I.-Gs/Police Range, Suprintendents of Police and Medical Superintendents of Headquarters Hospitals or their representatives to measure the height and chest of candidates recommended by the Commission. They were examined by the so constituted Boards and were found deficient in height (and chest). In view of the above findings by the Boards, the matter was referred to the Provincial Government for necessary action on 17-8-1998.
3. Appellant Yousaf Haroon filed Writ Petition No,7649 of 1998 in the Lahore High Court, Multan Bench, Multan whereas appellants Nasir Ali Saqib and Shafqat Nadeem Ch. Filed Writ Petition No,19416 of 1998 and appellant-Shahid Ikram filed Writ Petition No,18177 of 1998 in the Lahore High Court, Lahore with the following prayers, respectively:-- W.P. No,7649 of 1998: "PRAYER: It is, therefore, respectfully prayed that this petition may kindly be accepted, and an appropriate order, writ or direction may kindly be issued to respondent No,1 to issue recommendation letter for the appointment of petitioner as Police Inspector in BPS-16, and respondents Nos.2 and 3 may kindly be directed to accept joining of the petitioner immediately. Any other equitable relief, which this Honourable Court deems proper may also graciously be granted.'
W.P.No,19416 of 1998: PRAYER: It is, therefore, respectfully prayed that this petition may kindly be accepted, and the letter of withdrawal of recommendations issued by the Punjab Public Service Commission dated 19-8-1998 may very graciously be declared to have been issued without lawful authority and the subsequent tests arranged by the police after 29-6-1998 as illegal and without jurisdiction. It is further prayed that a direction may kindly be issued to the respondents to include the names of the petitioners in the notification of appointment as inspectors. It is also prayed that till the final disposal of this petition, the petitioners may very graciously be allowed to provisionally join the training required for towards the ultimate posting. Any other writ, relief or direction expedient in the interest of justice may also be issued in vindication of the grievances afore-referred.
W.P.No,18177 of 1998: PRAYER:
1. It is, therefore, most humbly prayed that the petition may very kindly be accepted and the letter of withdrawal of recommendations issued by respondent No,2 (Annexure 'H') may very kindly be declared to have been issued without lawful authority and the subsequent tests arranged by the police after 29-6-1998 are illegal and without jurisdiction.
2. It is also prayed that a direction may kindly be issued to the respondent No,1 to include the names of the petitioner in the Notification of appointment as Inspectors (Annexure F).
3. It is further prayed that till the final disposal of this petition, the petitioner may very kindly be allowed to provisionally join the training likely to be started on 15-9-1998. Any other relief to which the petitioner is found entitled may also very kindly be made available to him."
4. A learned Judge of the Lahore High Court, Multan Bench, Multan heard the arguments of the parties in Writ Petition No,7649 of 1998 and, after noticing (i) the opinion of the Medical Superintendent that if the height of appellant Yousaf Haroon is more than 5'-6-1/2" it would be considered to be 5'-7' but his such opinion was not accepted by the other Members of the Board and case was referred to the Inspector-General Police who, in turn wrote a letter to the Commission for withdrawal of its recommendation which was done vide the impugned letter dated 19-8-1998 as also (ii) the pleadings of the parties that (a) appellant-Yousaf Haroon had been meted out discriminatory treatment inasmuch as one Asif Kamal whose height is also 172 c.m. Has been appointed as, an Inspector and (b) the Inspector-General Police has submitted an evasive reply to ground IV (in the writ petition) by stating that "Asif Kamal was found physically fit as per requirement of Police Rules 12.15", came to the following conclusions: "5. In the Letter No,23811/E, dated 24-6-1998 written by the Deputy Inspector-General of Police, Mutlan, to the Inspector-General of Police in para.3 the height of the petitioner has been mentioned as 5'-6-1/2" and that of Asif Kamal as 5'-6-1/4". It is an admitted fact that Asif Kamal has been found fit, as such, it is a case of clear discrimination with the persons similarly placed.
6. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:--
25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone. It is also a fact that five candidates were granted exemption to four candidates for 2" in deficiency in chest and one Khalid Mahmood Tabassum of Lahore Range deficiency in height by 1" vide Letter No,SE-I/2873-82/E.I./93, dated 16-5-1993 and endorsement No,5169-5233/F.II, dated 18-5-1993 (Mark 'A') by the Inspector-General of Police.
7. In this view of the matter the petitioners are entitled to be treated equally before law and to equal protection of law without any discrimination. The writ petition is allowed with no order as to costs."
5. Similarly, Writ Petitions Nos.(17255), 19416 and 18177 of 1998 were taken up by a learned Judge in Chambers of the Lahore High Court, Lahore and, after noticing, that (i) the admitted position on the record is that there is difference between the scales provided by the Government to the Health Department and those used by the Police Department for measuring the height; (ii) appellants- Shahid Ikram and Nasir Ali Saqib as also Shafqat Nadeem Ch. Have not made any misstatement whatsoever; (iii) the Superior Courts of the country have been insisting to afford opportunity of hearing before any administrative action is taken against a citizen in line with the cases reported as The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed PLD 1965 SC 90; Mrs. Anisa Rehman v. PIAC and another 1994 SCM R 2232 and Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; and (iv) the impugned order had been issued mechanically sans application of mind as it does not point out any deficiency whatsoever, the same were allowed with, inter alia, the following observations: "12. Now coming to the petitioner Muhammad Khalil Malik in W.P. No,17255/98 and Muhammad Khan petitioner No,1 in W.P. No,19416/98. The deficiency has been noticed in respect of the chest.
Respondent No,1 was ill-advised to straightway withdraw the recommendation in respect of them.
The action should have been taken after giving them opportunity of being heard, therefore, the impugned order of the Commission is set aside as being violative of the principles of natural justice. However, the Commission will be at liberty to proceed against these two petitioners in accordance with law as declared by the Hon'ble Supreme Court in the case of Zakir Ahmad (supra).
13. The upshot of the above discussion is that this writ petition is accepted. The result is that the impugned order of Commission is illegal and discriminatory with no order as to costs."
6. The official respondents felt aggrieved of judgments dated 22-101998 (in W.P. No,7649 of 1998) and dated 25-11-1998 (in W.Ps. Nos.19416 and 18177 of 1998) (as also W.P. No,17255 of 1998) and filed Intra-Court Appeals Nos.1287, 1361 and 1363 of 1998. As mentioned above, the I.C.As were taken up together and the learned Members of the Division Bench of the High Court recorded the following pleas raised by the learned Advocate-General, Punjab on behalf of the respondents: "Firstly That the learned Single Judge had erred in law in applying the doctrine of equality as embodied in Article 25 of the Constitution; that respondents in these Intra-Court Appeals were accorded equal treatment by the competent authorities; that all successful candidates including respondents (recommended by the Commission), were subjected to physical test by a Board constituted by the Provincial Government; that their height and chest were measured by the District Health Officer in the presence of D.I.-G. And S.P. On the above line of reasoning, it was stressed that the doctrine of equality was fully adhered to in the case of respondents; that instance of relaxation made in 1993 could not be pressed into service in recruitments of Inspectors in 1998.
Secondly That the physical standards as laid down in rule 12.15 of Police Rules.
1934. Were condition precedent for appointment of an Inspector and his induction in the police force; although the D.I.-G. Was empowered to relax the above standard in special cases; yet relaxation of aforesaid condition was within the discretionary power of D.I.-G. And to be made in special circumstances/event. On this line of approach, it was stressed that the action of the Provincial Government/culminating into withdrawal of the recommendation by the Commission/was unexceptionable.
Thirdly that the rule 12.16 of Police Rules was to be read alongwith rule 12.17 and Appendix 12.16; that the authority of the Surgeon was to give a certificate with regard to height, eye-sight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit. Sub-rule (2) of rule 12.6 even empowered/empowers the Superintendents of Police to reject those candidates whose general standard of physique and intelligence was/is unsatisfactory. This empowerment clearly demonstrated that physical standards were to be checked by Police Authorities and not by Health Authorities whose role was of facilitative character.
Fourthly that learned Single Judge had not correctly construed relevant rules namely, 12.15, 12.16 and Appendix 12.16." The learned Members of the Division Bench of the High Court recounted the arguments of the then learned counsel for the petitioners that: "... ...Under Rules noted above, it was the function of Health Officer/Authorities to measure the height/chest of respondents and this was outside the powers of Police Authorities to do so. On this line of approach it was suggested that the Government had no business to constitute Boards and that the said Boards had no business to measure the height and chest of the respondents. Reliance was placed on Rule 12.15 and Rule 12.16 of Police Rules, 1934.
According to learned counsel, the expression District Health Officer and Civil Surgeon employed in the above rule clearly fix the responsibility of Health Authority to measure the chest and height of recruits. Lastly, it was submitted that under Rule 12.16, the Deputy Inspector-General had Authority to relax the physical standards as set down therein in special cases; that the respondents had appeared in written examination as well as oral tests successfully; that the respondent were Post- Graduates; that on these facts the learned D.I.-G. Should have exercised his discretion of relaxation in their favour and condoned if there was any minor deficiency in chest and height of respondents.
Reliance was placed upon Sheraz Ata Ullah Khan (minor) through his real maternal uncle v. Nasir Ahmad Khan and others 1993 CLC 945; Chairman, Regional Transport Authority, Rawalpindi v.
Pakistan Mutual Insurance Company Ltd. PLD 1991 SC 14; Chaudhary Shujaat Hussain v. State 1995 SCM R 1249 and Abdul Razzaq Rathore v. The State PLD 1992 Kar.
39." and observed: ...
"6. From the foregoing narration of facts, circumstances and arguments of the parties, the following questions arise for consideration:
(1) Was the doctrine of equality, as embodied in Article 25 of the Constitution, applied to the facts and circumstances of the case in hand?
(2) Is/are the Health Authorities namely Civil Surgeon/D.H.O./Medical Officer competent to measure height, chest of successful candidates and Boards, constituted by the Province of Punjab to undertake that exercise were incompetent?
(3) Were the respondents entitled to benefit of relaxation of conditions of height and chest under rule 12.16 of Police Rules?
7. The learned Members of the Division Bench of the High Court considered the doctrine of equality as contained in Article 25 of the Constitution and, after making a reference to Brig. (Retd.) F.B. Ali and others v. The State v. PLD 1995 SC 506; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Aziz Begum v. Federation of Pakistan PLD 1990 SC 899 and I.A. Sherwani v. Government of Pakistan 1991 SCM R 1041, came to the conclusion that on point No,1 above the learned Judge in Chambers in Writ Petition No,7649 of 1998. ...
"....Did apply the rule of equality by assessing into service the examples of relaxation in appointment of Inspectors in 1993 and did not notice that no relaxation had been made in the exercise of recruitment of respondent in 1998 (incorrectly mentioned as 1993) at all. This being the position we are very clear in our mind that the doctrine of equality was not correctly applied. In view of the above, we are not able to uphold the decision of our brother Munir Ahmad Mughal, J. In Writ Petition No,7649/98". While returning the findings against appellants herein on question No,2 the learned Members of the Division Bench of the High Court took notice of rules 12.1, 12.6, 12.8, 12.15, 12.16 and 12.17 of the Punjab Police Rules. 1934 specifying the competent authority to whom power had been delegated for making appointments of Inspectors, S.Is. And A.S.Is. To hold that the power to appoint Inspectors lies with D.I.-G./A.I.-G within the parameters laid down in them i,e, (1) on the recommendation of the Commission, (2) after the Commission has held the examination of candidates, (3) a candidate who possesses good moral character must be 18 to 25 years of age and must be Graduate; and
(4) a recruit shall not be more than 25 years of age or less than 18 years of age at the time of enrollment... ...... "... And shall have minimum height of 5 feet 7 inches and formal chest measurement of 33 inches with an expansion of 1-1/2 inches. It also embodies the power of D.I.-G. To relax the aforesaid condition in case of special castes and classes which supply desirable recruits whose height is less than prescribed standard. It can be safely said that this rule is very important and embodies physical standards for appointment of recruits as Inspectors. Rule 12.16 is also significant. It is as follows:-- "12.16. (1) Every recruit shall, before enrolment, be medically examined and certified physically fit for service by the Civil Surgeon. A certificate, in the prescribed form (No,64), signed by the Civil Surgeon personally, is an essential qualification for enrolment (vide Fundamental Rules)."
"The examination by the Civil Surgeon will be conducted in accordance with the instructions issued by the Medical Department and will test the eye-sight, speech and hearing of the candidate, his freedom from physical defect, organic or contagious disease or any other defect or tendency likely to render him unfit, and his age. The candidate must strip for examination, a loin covering being allowed except when the examination is being completed, and any candidate who refused to do so must be rejected. The condition of police service make it necessary that the medical examination of candidate should be strict. Candidate shall be rejected for any disease or defect which is likely to render them unfit for the full duties of a police officer. " Para. (2). Superintendents are themselves responsible for rejecting candidates whose general standard of physique and intelligence is unsatisfactory; only those candidates should be sent for medical examination whom the superintendent has accepted as being up to the required standard in these respects." It says that every recruit shall, before enrolment, be subjected to medical examination and certified to be physically fit for service by Civil Surgeon. Its sub-rule (2) empowers the superintendents of police to reject the candidates who do not fulfil the physical criterion and do not possess reasonable intelligence. Superintendents of Police are thus, empowered not to send such candidate for medical test. Rule 12.17 applies when a candidate has crossed the above stages. The recruit is sent to Line Officer who shall put him in the charge of Chief Drill Instructor." Para. 10 of the impugned judgment reads thus: "10. From the above analysis, it thus, becomes clear that rules 12.15 and 12.16 clearly lay down the physical standards of a recruit to be inducted to police force as Inspector. Summarily, these rules postulate that height of a recruit be 5 feet 7 inches and his chest must be of 33 inches and his age must be 18 to 25 years. The competent authority to make appointment is Deputy Inspector-General of Police, Assistant Inspector-General/Government Railways Police and Assistant Inspector general/Provincial Additional Police. The aforestated physical condition/standard/criteria are condition precedent for the appointment of successful candidates as recruits/Inspectors. This view is completely fulfilled by rule 12.16 which empowers Superintendents of Police to reject candidate whose standard of physique and intelligence is unsatisfactory, and to send only those candidates for medical examination whom the Superintendent of Police has accepted as being up to the required standard in this respect. It, thus, confers power on Superintendents of Police (not competent authority) of full discretion to assess the physical standards of successful candidates and deny them medical examination. In the face of this rule can it be said that Civil Surgeon/D.H.O./Medical Officer are not only Authorities to measure the height and chest of a candidate and the competent authority is not bound to accept their opinion/result. It is common ground that the competent authority as already noted is D.I.-G. The association of Superintendent of Police and Health Authorities in the task of appointment of Inspectors is of facilitative nature.
Even Superintendent of Police is empowered to reject the candidate on the touchstones of physical standards and intelligence. Seen from the above prospective we are of considered view that it is the competent authority which has to finally weigh/adjudge physical standard required for appointment of a recruit. No doubt, the role of Health Authority is of facilitative nature and is of weight and we are clear in our mind that the Boards. Constituted by the Government of Punjab/comprising D.I.-G./competent Authority/S.P./D.H.O. Were lawful and constituted by Provincial Authority/Government of Punjab. Hence, these Boards, exercised their power within the framework of law and legally found that the respondents did not have the required height and so were not qualified to be appointed as recruits/Inspectors. It is significant to note that these Boards designated competent authority, S.S.P. And concerned Medical Officer." After reiterating the contents of rules 12.15 and 12.16 to the effect that D.I.-G. Of Police/competent authority is possessed of the powers to relax the rules but within strictly circumscribed limits relatable to only special castes or classes and after referring to State v. Cummings 36 MO 263, 278, it was ruled: "....That discretionary jurisdiction is power of Administrative Authority/Judicial Authority to adopt a way or decide a matter according to his own (sagacity) or prudence and opinion. It is true that the Courts have initiated the role whereby this power has been structured within parameters of fairness. Nevertheless, exercise of this power rests upon the opinion of Administrative Judge. Briefly speaking it is not dispensable. The power is given on account of complex nature of the jurisdiction. This is almost an odium. What we find is that competent authority declined to exercise this power and dealt with every successful candidate including respondents with equal treatment. Seen from above spectrum, that the action of Government of Punjab in constituting Boards and the exercise taken by them was clearly legal and no exception can be taken to it.", and the Intra-Court Appeals were allowed, decisions of the learned Judges in Chambers dated 22-10-1998 and 25-11-1998 in Writ Petitions Nos.7649, 19416/98 and 18177/98 set aside and the writ petitions dismissed.
8. Hafiz Tariq Nasim, learned Advocate Supreme Court appearing in support of Civil Appeal No,1042 of 1999 has relied upon Nazar Din and others v. Secretary Rural 1983 SCM R 1188, Punjab Province and others v. Faqir Muhammad and others 1987 CLC 1643, Government of Balochistan v. Azizullah Memon PLD 1993 SC 341, Secretary Finance Division v. Muhammad lqbal Solangi 1993 SCM R 837, Muhammad Yusuf v. Kharian Bibi 1995 SCM R 784 and Irshad Ahmed Hashmi v. General Manager, Pakistan Railways 1999 SCM R 240 and contended that Intra-Court Appeal No,1287 of 1998 was barred by 9 days and that the same was liable to be dismissed as such. Moreso, when even an application seeking condonation of delay was not made by the official-respondents. According to him, mere disposal of a cause without adverting to the question of limitation cannot be equated with condonation of delay by conscious application of mind as observed, inter alia, in Muhammad Raz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 3, Central Board of Revenue, Islamabad v. Messrs. Raja Industries (Pvt.) Ltd. 1998 SCM R 307 and Mst. SiranjunMunira v. Pakistan 1998 SCM R 785. He was also critical of the impugned judgment holding that Article 25 of the Constitution was not attracted to the facts and circumstances of the instant cause. He placed reliance on Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Gatron (Industries)
Limited v. Government of Pakistan and others 1999 SCM R 1072 to contend that preferential treatment meted out to one-Asif 'Carnal could not be excluded from consideration and that too without even so much as observing that his client was not to blame for any of the alleged shortcomings in the process of measurement of his body. He also relied upon Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 to contend that presumption of regularity is attached to official acts and the respondent-authorities had miserably failed to rebut the same. He referred to Multiline Associates v. Ardeshir Cowasjee and others 1995 SCM R 362 and Bashir alias Bashir Ahmad and another v. The State 1998 SCM R 1794 to contend that in the present lis between individuals/citizens on one side and the State on the other, interpretation of all the rules on the subject should be such which is beneficial for the former and not the latter. According to him, his client came to be clothed with many valuable rights after qualifying in the written test, interview, etc. And, to say the least, was entitled to benefit therefrom, in the ensuring service-career. Moreso, when the alleged lapses are of the creation of the respondent-functionaries alone. In support of his above pleas, reliance was also placed on Chairman, Minimum Wage Board, Peshawar and another v. Fayyaz Khan Khattak 1999 SCM R 1004. He concluded his arguments with the submission that the order impugned in the writ petition had been passed without prior notice to his client and that such action in incapable of furnishing any good ground for being sustained in law.
9. Messrs K.M.A. Samadani and Mian Saeed-ur-Rehman Furrukh, learned A.S.Cs. Appearing on behalf of the appellants in C.As. Nos.1198 and 1199 of 1999 were critical of the impugned judgment and Mr. Samadani took the rostrum to submit that: (i) no misstatement whatsoever in relation to the disputed measurements, has been placed at the door-steps of their clients, (ii) the scales utilized for the purposes of measurement at the level of the Health and Police Departments respectively were different one from the other and (iii) the above as also the matter in relation to discriminatory treatment having been meted out to their clients, were rightly removed from the field by the learned judge in Chambers of the Lahore High Court, Lahore. It was argued that the learned Members of the ICA-Bench are in error in not considering that measurements were taken by different functionaries of the respondent-Government through different scales at different times. He also referred to pages 77, 78, 79, 80 and 82 of Paper Book in C.A. 1199 of 1999 to contend that there was nothing wrong with the measurements taken and that exact height having been described as 5'-7" the same did not suffer from any taint whatsoever. If the measurements carried out by the Police Authorities were to be treated as being against their clients, the authorities should have considered the fact that various excerpts appearing at pages 83 to 85, 86, 87, 89 et seqq, 91 and 93 of Paper Book in C.A. No,1199 of 1999 do furnish the points of difference in the respective scales used by the Health and Police Departments and the grant of exemption of 2" each to 4" individuals in the measurement of their chests and of 1" to one individual in the measurement of his height and call for similar treatment have being meted out to their clients. According to him, Khalid Mahmood Tabassum was granted exemption in relation to his height to the extent of 1" and that the shortcoming, alleged by the respondent-authorities in the case of their clients, being only a fraction of an inch and that too on account of the differences in the scales used by the concerned quarters at different times, should have been brought to bear upon the facts and circumstances of this case as well. The authentication of the orders of the official-respondents by the ICA-Bench is sans any support from the case law on the subject that discretion should have been used in favour of the appellants, it was contended by Mr. Samdani.
10. Mr. Arshad Ali learned A.S.C. Appearing on behalf of respondent No,1 in C.A. No,1042 of 1999 took the rostrum to support the impugned judgment.
11. We have considered the arguments addressed at the Bar and have also been taken through the relevant material by the learned counsel for the parties. The respective cases. Of the appellants and the respondent-authorities before the High Court both at the level of the decisions of writ petitions as also the Intra-Court Appeal relate to: (1) the appellants' assertions that they had successfully made it to the point of their induction into service strictly in accordance with law, rules and practice of the respondent-authorities in that behalf and (2) the respondent-authorities entertaining the idea/thought that the disputed measurements have been found to be deficient in law.
12. What floats on the surface is that with a view to completing their documents in all respects, as a preclude to their joining service as Police Inspectors, the appellants had to appear before the respective Medical Superintendent at the District/Divisional levels. They did so and the result- sheets of the measurements in question were appended to the official correspondence of the appellants with the Commission/Government/ respondent-Authorities. It is not the case of anybody that in the matter of obtaining the documents indicating the performance of their official duties/acts by the concerned quarters in terms of the existing/extant procedure, the appellants are to blame to any extent whatsoever. It is also abundantly clear from the record that the result of the documentation was duly reflected in the subsequent stages of the process leading to the filling of vacancies of Police Inspectors in terms of advertisement dated 28-9-1997. Put differently, the appellants complied with all the instructions/directions issued to them by the authorities concerned in the matter of having the measurements taken as above. The results of the measurements taken in relation to the appellants were duly adhered to and pressed into service for being acted upon by the respondent-authorities, by the functionaries of the Health Department with the assertion that the scales provided to them by the Government are not of the same make/details as the ones available at the Headquarters. A perusal of Letter No,4227/AIMH/98 Sialkot, dated 7th August, 1998 addressed by the Capt. Dr. Mukhtar Ali M.S. AIM Hospital Sialkot to the Secretary Health, Government of Punjab, Lahore on the Subject: "show-cause notice", copy whereof is available at pages 86 to 88 of the Paper Book in C.A.1199 of 1999, shows:- "(A) Mr. Shahid Ikram ... On receipt of the show-cause notice, in order to investigate the discrepancy of the various heights, the two scales i,e, of the Hospital and the Police Department, Sialkot were compared and it was found that the inches on both the scales are not equal. The one in the Hospital provided by the Health Department has inches which are smaller than those of the Police Department. This probably is the reason of the difference in the heights on the two scales. This is also supported by the fact that the Divisional Standing Medical Board Gujranwala (Div.
Headquarter Hospital) has also given the same height as from this Hospital (copy enclosed at Annex. 'A') ... ....The Heights measured by the S.S.P. Sialkot and D.I.-G. Gujranwala are not consistent with each other. This also is probably because the scales are not alike. The variation of two scales i,e, of the Hospital and Police Department can be verified by anybody. In case the Health Department, puts reliance on the Police Department Scale then in future the help of the Police Officials will be sought."
13. Viewed in the above perspective, both the situations in relation to the respective cases of the appellants and the respondent-authorities referred to in para.11 above can now be considered with ease. The appellants had meticulously followed the instructions issued to them by the respondent- authorities and they appeared before the concerned quarters for having their measurements taken at the District/Divisional levels. The respondent-authorities went ahead with completing the process of appellants' induction into service on the basis of the measurement of their bodies as reflected in the records of the Health Department to their extent. However, instead of the respondents-authorities proceeding in the cause after recognizing the abovesitutation, they entered into re-examination of the appellants and arranged their tests by the Police, after 29-6- 1998. The learned Judges in Chambers did notice that the alleged deficiency in the height of the appellants-Shahid Ikram, Khalid Hussain, Nasir Ali Saqib and Shafqat Nadeem Ch. Could not furnish any basis for withdrawal of the recommendations for appointment in that the use of official scales by the Health Department in relation to all the 'civil servants and appointees' referred for medical checkup to them was never considered deficient in law, in the past.
14. We find that the learned Judge in Chambers of the Lahore High Court, Mutlan Bench, Multan did consider the import of Article 25 of the Constitution and, after observing the grant of exemption in height to one-Khalid Mahmood Tabassum of Lahore Range by 1" vide Letter No,SE-I/2873-82/E.I.193, dated 16-5-1993 and Endorsement No,5169/ 5233/F.II, dated 18-5-1993 by the Inspector-General of.
Police, rightly held that denial of exemption of 1/4" to appellant-Yousaf Haroon is tantamount to meting out discriminatory treatment to the latter which is violative of Article 25 of the Constitution.
The impugned judgment passed by the ICA-Bench of the High Court cannot be sustained in that it failed to notice the above-peculiarities of the cause in its true perspective. It is not the case of the respondent-authorities that there was any fault on the part of the appellants to present themselves before the District/Divisional/Health Department functionaries or that Khalid Mahmood Tabassum was not granted exemption in height by 1", in the year 1993.
15. Be that as it may, the observations by the learned Members of the ICA-Bench of the High Court that: (1) the action of Government of Punjab in constituting the Special Board by the competent authority i,e, the D.I.-G. Police for checking/re-checking the measurements cannot be taken an exception to and (2) under rules 12.15 and 12.16 (ibid). The ground of relaxation by the competent authority cannot be extended to persons similarly placed as the appellants, are wide off the mark when considered in juxtaposition with the fact that the measurements in question by all the functionaries of the Health Department were akin to each other at their respective levels and that appellants' case for grant of relaxation of fraction of an inch in height was not viewed in its true perspective.
16. There is force in the arguments addressed at the Bar on behalf of the appellants that they were not put under notice when the respondent-authorities decided to 're-check' the measurements in question. The observations by this Court in Zakar Ahmad (supra) that: " Nevertheless, the general consensus for 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 and "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 person 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 person or authority should have adopted the above "elementary and essential principles" unless the same had been expressly excluded by the enactment, empowering him to so act"... ....... ... ... .... ... Go a long way in support of their case in that behalf.
17. We are inclined to consider yet another question which has a great bearing on the instant cause viz., whether the respondent-authorities had any power under any law/rule to undo the effect of the appellants having made it to their induction into service on the grounds, among others, of the measurement of their height by the Health Department? Consideration of this above-question falls in line with the observation made by this Court in Lahore Improvement Trust v. Custodian of Evacuee Property PLD 1971 SC 811 by referring to The Chairman, East Pakistan Railway Board v. Abdul Majid Sardar PLD 1966 SC 725 that before striking down an action of the functionaries of the Government all the avenues for maintaining the same should be explored by the Courts. Further, this question also has a direct nexus with the availability or otherwise of the powers with the respondent-authorities to put spanners in the wheel leading to the induction into service of the appellants. It has been noticed in the above that the action on part of the respondent-authorities in calling upon the appellants to submit to the questioned measurements before the Police Department without first putting the blame atop their shoulders regarding the alleged deficient measurement and/or without calling upon them to put forward their case in that behalf, is tantamount to not following the "elementary and essential principles" laid down by this Court in Zakar Ahmed (supra). The effect is that the result of the alleged acts/efforts of the respondent- Authorities cannot but be held to thwart the smooth conclusion of the process of selection/appointment of the appellants as Inspectors of Police in B-16, which is liable to be struck down. That is exactly what was done by the learned Judges in Chambers of the High Court but such results were not brought to bear upon the facts and circumstances of the instant cause by the learned Members of the Division Bench of the High Court.
18. In view of the above discussion of the case on merits, we are not inclined to resolve the controversy raised on behalf of the appellants in Civil Appeal No,1042 of 1999 by Hafiz Tariq Naseem in relation to Intra Court Appeal No,1287 of 1998 being barred by 9 days before the High Court.
19. For all that has gone before, the appeals are accepted, the impugned judgment dated 14-6- 1999 is set aside and those of the learned Judges in Chambers dated 22-10-1998 (in W,P. No,7649 of 1998) and 25-11-1998 (in W.Ps. Nos. 19416 and 18177 of 1998) are restored, with no order as to costs.