' The brief facts out of which present writ petition arises are that the respondents-department invited the applications for the post of drivers through advertisement in daily Jang dated 18-11- 2002. The petitioner and respondent ,No,3 alongwith 12 others submitted their applications in obedience of the aforesaid advertisement for the said post. The respondents-department selected respondent No,3 and issued him an appointment letter dated 1-2-2003. The petitioner being aggrieved filed this writ petition.
2. The learned counsel of the petitioner submits that the respondents-department selected and issued appointment letter to respondent No,3 in violation of conditions prescribed in the advertisement under the influence of Naib-Nazim who is real brother of respondent No,3.
3. The learned Law Officer submits that respondent No,3 has been appointed by the respondents- department as driver against the post of driver at Union Council Dailywali/Rokhari, Mianwali, who fulfilled the requisite qualification for the post in question and also being suitable candidate was selected as driver. He further submits that the Committee found respondent No,3 (Shaukatullah Khan) eligible/suitable for the post of driver, hence he was selected on merits by the Committee without being influenced by any Naib Nazim of the area.
4. Learned counsel for the respondent No,3 submits that respondent No,3 fulfilled the basic qualification in accordance with advertisement of the respondents-department. The basic qualification mentioned in the advertisement, was literate, holder of LTV, age must be between 25 to 45 years r/o concerned Union Council. Respondent No,3 also fulfilled one preference prescribed in the public notice that he was a married person at the time of submitting his application.
Although, the petitioner has no experience of three years as driver after securing L.T.V. But respondent No,3 has experience of driving before securing licence of L.T.V. On 26-11-2003. He further submits that respondent No,3 was selected by the Committee without any influence of his brother, who happens to be Naib Nazim of the area. The Committee consisting of 4 members, has awarded high marks 9 to respondent No,3 on account of good performance during the test; whereas other candidates did not perform well.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce conditions prescribed by the respondents-department in the advertisement and result of selection by the Committee to resolve the controversy between the parties:--{{URDU TEXT}} INTERVIEW/MERIT LIST FOR THE RECRUITMENT OF THE DRIVERS {{TABLE}} S.No, Name/NIC Card Father's name Address Driving Date of Marks No, Licence Birth I Umar Farooq M. Aslam Khan Moh LTV 2-4-80 A Khan Muknezy Sanaullah Khan Ahdul Khaliq Moh Miru LTV 6-10-68 6
3. Muhammad Sultan Dailwali LTV 0-0-69 7 Nawaz Mchmood 4 Arshad Ali Khan Muhammad 12-4-73 A Alam 5 Muhammad lqbal Nawab --do-- LTV 21-1(1-64 5 6 Muhammad Seh Rasool R/o Samundwala LTV 0-0-1970 Sharif 7 Fida Hussain Mian Sultan Mohallah Pir 30-11-66 A Shah Dust 8 Amanullah Khan Ghulam Qasim P.O. Rokhari 5-7-70 6 9 Shaukatullah Ghulam Soucy 15-7-74 9 Khan Hussain Monewala 10 Samiullah Khan Hahibullah Rokhari 20-12-76 4 I I Qamar Nawaz Hamidullah Dailwali -1977 7 Shah 12 Muhammad Ghulam Isa -1965 6 Ramzan 13 Muhammad Sardar Khan Rokharimore -1968 A Anwar 14 Muhammad Muhammad --do-- -1969 5 Rafique Siddiq Date of securing the licence of LTV by the Candidates Sr.No, Name of Candidates Date of LTV Umar Farooq Khan 2-2-2003 Sanaullah Khan 7-10-1987 Muhammad Nawaz 24-2-1999 Arshad All Khan 17-10-2001 Muhammad Iqbal 30-9-1999 Muhammad Sharif 19-6-2002 Fida Hussain Shah 17-3-1987 Amanullah Khan (petitioner) 2-11-1993 Shaukatullah Khan 26-11-2003 Samiullah Khan 18-11-1997 Qamar Nawaz Shah 15-11-2000
12. Muhammad Ramzan 00-00-1988
13. Muhammad Anwar 2-6-2002
14. Muhammad Rafique 25-10-2002 {{TABLE}}
7. In case, the aforesaid condition and marks secured and experience, are put in a juxtaposition then it is crystal clear that respondent No,3 was not selected/appointed by the respondents- department on merit as respondent No,3 secured LTV licence after advertisement for the pest in question on 26-11-2003. Mere comparison of the secured marks and experience show that it is a classic example of nepotism and favoritism and is in violation of conditions prescribed in the public notice and the committee did not mention a single word qua ineligibility of other candidates, who had more experience as compared to the petitioner. It is better and appropriate to reproduce meaning of the word "experience" and preference to resolve the controversy between the parties:-- "Experience" means practical wisdom gained by personal knowledge, feeling and action, and also the course or process by which one attains knowledge or wisdom as defined in Black's Law Dictionary Sixth Edition at page No,578.
' It further means of knowledge or skill gained according to Kitabistan's twenty century practical Dictionary page No,258.
' The word "preferably" is interpreted by the Division Bench of this Court in University of Punjab and others v. Rehmatuliah (PLD 1982 Lah. 729) in the following terms:-- ' "The word preferably' does not denote complete exclusion. It means worthy to be preferred, more desirable. It thus signified that other things being equal, applicants who were Government and Semi-Government employees would be put up in front of others or preferred. The act of complete exclusion of everyone else though otherwise higher on merit and fulfilling all the conditions of admission was therefore, illegal and arbitrary."
8. It is settled principle of law that mere submitting an application in obedience of advertisement of the respondents-department undoubtedly no law confers a right to the petitioner to be appointed by the respondents-department, but the petitioner surely has right to demand that the respondents-department, who determined their application in accordance with law, fair play, reasonably and equitably. In arriving to this conclusion, I am fortified by the law laid down by the superior D Courts in the following judgments: "Ikram Bus Service v. Board of Revenue and others" (PLD 1963 SC 564); "Shahnaz Maqbool v. Province of Sindh and others" (PLD 1979 SC 32) and "Muhammad Iqbal Niazi v. University of the Punjab" (PLD 1979 SC 1)
' The Honourbale Supreme Court has also laid down the following principle by interpreting the Article 25 of the Constitution in "Shaukat Nawaz's case" (PLD 1997 SC 342). The relevant observation is as under:-- "We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egalitarian society based on Islamic Concept of fairplay and social justice.
The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to anyone any cause of complaint on account of discriminatory treatment or otherwise.
While discharging official functions, efforts should be made to ensure than to one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. It is hoped that the petitioners who had been earning livelihood for considerable long period on the basis of licences granted by the Railways will be treated fairly."
' Section 24-A is added in the General Clauses Act, wherein the public functionaries are duty bound to act justly, farily, equitably and reasonably without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution, as per principle laid down by the Honourable Supreme Court in "Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others" (1998 SCMR 2268). It is observed with regrets that respondents allowed their authority to be mis-used by Naib Nazim, who had no such powers. The Punjab Civil Servants Act or the Rules made thereunder did not authorize the influence of Politicians to pass such-like orders for appointment of respondent No,3, therefore, official respondent acted without lawful authority as it was a case of dictatorial exercise of powers and not independent discharge of function. Such an exercise of powers under the dictate of public representatives has been held to be invalid in a number of judgments decided by the superior Courts of Pakistan and outside. In this regard, reliance can be placed on the following judgments:-- ' Ghulam Mohy-ud-Din's case (PLD 1964 SC 829). Orion Paper Mill's case (AIR 1970 SC 1498). Sacm Labour Union's case (1946 All ER 201). Ghulam Murtaza's case 1998 PLC (C.S.) 274).
' It is pertinent to mention here that the dictum of Supreme Court of Pakistan is binding on every organ of the State by virtue of Articles 189 and 190 of the Constitution of Pakistan. The abovementioned series of judgments reveal that the Honourable Supreme Court has on each occasion, declared the actions of the authorities without lawful authority which are passed in violation of the law, Constitution and amounts to usurpation of authority of other functionaries.
9. In view of what has been discussed above, this Constitutional petition is accepted with no order as to costs and the appointment made by respondents-department of respondent No,3 is set aside. The respondents-department is directed to fill the post in question afresh after recalling the aforesaid 14 Candidates for interview and test in terms of aforesaid direction without fear, favor, nepotism and in accordance with law preferably within one month.
10. In view of the aforesaid circumstances, let a copy of this order be sent to the Chief Secretary, Government of the Punjab and the Secretary, Local Government and Rural Development Department, who are directed to formulate policy with the concurrence of the competent authority and issue necessary instructions to the public functionaries to act in accordance with law that the public functionaries shall discharge their duties within frame work of law and Constitution, as per principle laid down by the Honourable Supreme Court in the following j udgments: "Zahid Akhtar's case" (PLD 1995 SC 530)
"Ch. Zahoor Elahi's case" (PLD 1975 SC 383).