' QAZI EHSANULLAH QURESHI, J.---The captioned Writ Petitions Nos. 1412 of 2001 and 645/002 have been moved by the petitioners Kaleem Arshad Khan and Muhammad Saeed Khan respectively, challenging the appointment and selection of Additional District and Sessions Judge, Judges from the Bar, whereby the appointment of four Additional District and Sessions Judges, respondents Nos.4 to 7 herein was made vide No,92-J bearing Ends: No,6446-73/ Admn/Bri, dated 21-9-2001.
Since in both, same question and prayed is involved, hence disposed of through this single judgment.
2. The learned counsel for the petitioner argued with zeal and zest that the petitioner joined the legal profession on 12-9-1991 and was practising law. He joined the judicial service as Civil Judge- cum-Judicial Magistrate on 19-9-1995 on contract basis vide Notification bearing No,SOS-II (S&GAD) 2-11/95-A, dated 31-8-1995. He performed his duties vigilantly, honestly with full dedication and to the entire satisfaction of his superiors in recognitions to which the Registrar, Peshawar High Court, Peshawar, respondent No,3 awarded him certificate vide D.O. No,2360, dated 14-10-1998 that his performance as Civil Judge/Judicial Magistrate was spotless and there was no complaint against him whatsoever during his tenure as a Judge; that after relinquishment from his assignment as Judge on expiry of contract on 18-3-1998 he rejoined the legal profession.
3. The Peshawar High Court, Peshawar through its Registrar asked for recommendation of the suitable lawyers for the appointment of Additional District and Sessions Judges from the concerned District and Sessions Judges in the N.-W.F.P. In order to fill the vacancies of the said posts from the lawyer quota. The learned District and Sessions Judge, D.I. Khan very graciously recommended the name of the petitioner for the above post.
4. Consequent upon the recommendation from the District and Sessions Judges of the Province the Honourable Chief Justice of Peshawar High Court, Peshawar was pleased to call the petitioner along with others for written test. The petitioner stood first in the written test and called for interview. The petitioner appeared before the Selection Committee and again ranked at the top as whole on the merit list as per information supplied to the petitioner by respondent No,3. The Governor N.-W.F.P. Being appointing authority under section 5 of the N.-W.F.P. Civil Servants Act, 1973 delegated the appointment powers vested in him to the Honourable Chief Justice of Peshawar High Court, Peshawar vide Notification No,SOR-IV (E&D) 3-11/2001 dated 28-8-2001. Despite top ranking position in test and interview and recommendation by the Selection Committee, the petitioner was subsequently excluded from the selected candidates, resultantly respondents Nos.4 to 7 were appointed as Additional District and Sessions Judge, ignoring the petitioner for the unknown reasons. It was further argued that the Selection Committee comprising of three Honourable Judges of the Peshawar High Court, Peshawar prepared the merit list placing the petitioner at Serial No,1 so the development taken later amounts to gross neglect of standards of merit, ability and eligibility besides arbitrary and violative of the fundamental rights guaranteed under the Constitution of Islamic Rerublic of Pakistan, 1973; that after qualifying written test and interview a vested right also accrued to the petitioner.
5. As far as the previous record to the petitioner as Civil Judge from 31-8-1995 to 18-3-1998 is concerned there exist no single adverse entry or remarks against him. The learned counsel for the petitioner referred Estocode which provides that the character and antecedents of the candidates is to be verified on his first appointment in Government service. The character and other antecedents were verified when the petitioner was appointed as Civil Judge/Judicial Magistrate.
During the tenure in judicial service till 18-3-1998 no complaint whatsoever from any corner was lodged against the petitioner. Similary nothing black and white appears during the period from 19- 3-1998 till 30-3-2001 when the petitioner appears in the written test; that the eligibility and test of the petitioner can be very well ascertained from the fact that the petitioner was considered fit for appointment of Additional District and Sessions Judge and thus was recommended for the job. The ACRs of the petitioner depicts his performance upto the mark. No adverse remarks were ever conveyed to the petitioner; that there is nothing on record as to misconduct or malpractice which could disqualify the petitioner for the said post.
6. That the Honourable Chief Justice of this Court has made the appointment as delegate of Governor and in administrative capacity that the present petition is as such competent and very much come within the purview of Article 199 of the Constitution.
7. It was also alleged that the respondent No,5 was involved in a criminal case at Karachi but on contrary the petitioner was discriminated on the hearsay reports of the agencies without any substantial proof.
8. The learned counsel however, concluding his arguments submitted that the petitioner has no grudge with respondents Nos.4 to 7 nor intend to disturb any of them. The petitioner as only fighting for his own rights and requests to be accommodated against the existing vacancies.
9. Reliance was placed on the following authorities:-- ' PLD 1995 Supreme Court 314, PLD 1965 Supreme Court 352, PLD 2002 Lahore 1811, 2004 TC (Service)
21 at page 23, PLD 1998 Supreme Court 103, PLD 1996 Supreme Court 324, 2002 CLD 1, AIR 1968 Andhra Pradesh 22, AIR 1994 Supreme Court 2595, 1999 SCMR 1605, 1998 PLC (C.S.) 1260, 2000 PLC (C.S.) 1260, 1998 PLC (C.S.) 344, 2000 PLC (C.S.) 373, PLD 1995 Peshawar 164, 2000 SCMR 1720, 1984 PLC (C.S.) 1569, 1999 PLC (C.S.) 46. 2001 PLC (C.S.) 1080. PLD 1986 Supreme Court 162,1999 PLC (C.S.)
60, AIR 1983 Supreme Court 374, 2001 PLC (C.S.) 1253, 1999 SCMR 2144.
10. Learned counsel for the respondents opposed the arguments as advanced by the learned counsel for the petitioner very strenuously terming the same as frivolous, absurd, whimsical based on misinformation. He argued that the powers to appoint are the discretion of the appointing authority, which has been exercised fairly. The petitioner has no right/or locus standi to question the appointment/selection at it is a choice of the competent authority.
12. He also objected to the maintainability of the writ petition that under Article 199 of the Constitution the petitioner is not an aggrieved person. The petitioner stand that his period as Civil Judge was clean and transparent is misconceived, as a matter of fact he was dropped on this very ground that he was no commanding good reputation as Judicial Officer. There was allegation against him of this involvement in financial as well as moral corruption which reports received by the High Court through different agencies.
13. As to the recommendation of the petitioner for appointment as Additional District and Sessions Judge by the District and Sessions Judge D.I. Khan, it is said that it was a routine recomendation and it does not confer a good character certificate to the petitioner.
13-A. The petitioner claim that he stood first in written test and also topped the merit list as a whole is a matter of record and subject to strict proof which is not admitted. This is hearsay information and also denied by respondent No,3. It was further argued that the Honourable Chief Justice after receipt of the recommendation of the. Selection Committee was pleased to appoint respondents Nos.4 to 7 as Additional District and Sessions Judges in the best interest of judicial service and the best amongst all. The appointments have been made fairly honestly and in a transparent manner, which is unquestionable. It is a gross misconception on his part. No right accrued to him even if he was recommended and dropped on the reports of the agencies. All the more the competent authority did not deem it fit to appoint the petitioner as Judge in view the enough material before him as being the Head of Institution.
14. Last but not the least the learned counsel for the respondents also submitted that the petitioner had badly failed to bring on record anything adverse against the selectee Judges except some documents against respondent No,5 which are subject to proof and cannot be entertained by the Court in writ jurisdiction. He however, stated at the Bar that respondents Nos.4 to 7 would have no objection if the petitioner is adjusted against the available vacant post less disturbing them.
15. In support of his arguments the learned counsel for the respondents Nos.4 to 7 referred the following authorities- ' 2003 SCMR 817, 1999 SCMR 1605, PLD 1994 Supreme Court 539, PLD 1970 Dacca 85, 1999 CLC (C.S)
1368, PLD 1998 Supreme Court 103, 1998 PLC (C.S.) 1260, PLD 1976 Supreme Court 315, PLD 2000 Supreme Court 179, PLD 1999 Lahore. 350, 1999 PLC (C.S.)' 201.
16. In exercising the right of rebuttal the learned counsel for the petitioner made written submissions that the denial of respondents Nos.4 to 7 to the effect that the petitioner had not secured first position is of no importance and can safely be ignored on the ground that the said respondents are interested parties; that they are neither the custodian of record nor they have direct information; that verification of antecedents are as per Government instructions are necessary to be made before the appointment and that toe is to be restricted to criminal record and is to be conveyed during the probationary period of a candidate, referred Serial No,4, page 129 ESTACODE N.-W.F.P. Volume. 1 of 2000; that admittedly the petitioner was placed on merit list at Serial No,1 and he was not considered due to his so-called ineligibility because of reports of the agencies. The question of eligibility is always amenable to writ jurisdiction on the basis of dictum laid down in the case of Muhammad Rahim Khari v. Chief Secretary N.-W.F.P. Reported in 1999 SCMR 1605, 1999 PLC (C.S.) 549 that a flagrant violation and deliberate disregard of law and relevant rules would attract power of judicial review vested superior Courts. The case-law referred by the learned counsel for the respondents Nos.4 to 7 has not nexus or any relevancy to the question involved in the case in hand, these cases relating to the fitness only whereas, the petitioner was selectee and crossed the hurdles of fitness and he was denied the appointment only on the so-called reports of the agencies but no on the question of ineligibility.
17. Under section 24-A of the General Clauses Act any authority, office or person shall exercise his powers reasonably, fairly, justly and for the advancement of the purpose of enhancement and in the event of authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the persons affected prejudicially.
18. As to the question of maintainability, the learned counsel for the petitioner relied on PLD 1998 Supreme Court 103 that Bar contained in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 does not attract invoking of Constitutional jurisdiction when Judge of the High Court or Supreme Court acts as personal designate.
19. In the present case the very Notification of appointment impugned herein indicates that it has been passed by the Honourable Chief Justice being authorized by the Governor N.-W.F.P. Meaning thereby that order of the Chief Justice was that the Order of Governor and was not passed as Chief Justice on behalf of the High Court but as a administrative authority.
20. The cases referred by the learned counsel for respondents Nos.4 to 7 i,e, PLD 1999 Lahore 350 are wholly distinguishable. Secondly that the Lahore High Court has failed to consider in the said judgment the dictum of law laid down by the Supreme Court of Pakistan. Referred PLD 1958 Supreme Court 333, PLD 1966 Supreme Court 1 and PLD 1976 Supreme Court 315. The aforementioned judgment passed by the Lahore High Court reported in PLD 1999 Lahore 350 ignoring the Supreme Court decision loses the efficacy in view of law laid down in PLD 1997 Karachi 62.
21. We have heard the learned counsel for the parties very carefully at length and gone through the case-law cited at the Bar and also perused the relevant record in Chamber.
22. The record reveals that the petitioner secured 119 marks in the written test held on 2-4-2001 while Muhammad Saeed secured 114, Tariq Yousafzai 113, Sardar Muhammad Irshad 111. Jamaluddin 110, Muhammad Zubair 108, Muhammad Muqtada 107, Mah Talat 107 and Shaiber Khan 105 out of 68 canidates appeared in the written test. Total 20 candidates were qualified including Kaleem Arshad Khan and Muhammad Saeed Khan petitioners for interview. In the comments respondent No,3 admitted as correct vide para. 8 that the petitioner ranked at top in the test and interview. It is astonishing to note that result of viva/interview is missing and not available on the relevant record.
23. On page 293 of File P(a) 31-D-2000. Recruitment of Additional District and Sessions Judge from the Bar Quota the then Honourable Chief Justice observed as follows:-- "From amongst the candidate recommended by the Honourable Committee, one Mr. Kaleem Arshad Khan, had already remained as Civil Judge till his non-clearance by the Public Service Commission, N.-W.F.P. He as a Civil Judge, was unfortunately not commanding good reputation of a Judicial Officer. There were allegations of his involvement in financial as well as moral corruption, about which reports were received in this quarter, which were subsequently confirmed by two different agencies i,e, Intelligence Bureau and Special Branch.
' In these circumstances, the appointment of Mr. Kaleem Arshad Khan would neither be in the interest of justice nor in the interest of Judiciary, regard being had to the importance that the post carries. Resultantly, the following successful candidates are appointed in order of seniority as Additional District and Sessions Judges:--
(1) Mr. Tariq Yousfzai.............................. Mardan
(2) Sardar Muhammad Irshad Khan......... Abbottabad
(3) Mr. Shaiber Khan............................... Shangla.
(4) Miss Mah Talat................................... Peshawar (Sd). Chief Justice 15-9-2001"
24. As elucidated above the petitioner was recommended by the Selection Committee but dropped and excluded just on the information communicated and passed on to the Honourable Chief Justice by the two agencies relating to the tenure of service of the petitioner from 1995 to 1998 as Civil Judge-cum-Judicial Magistrate posted at Mansehra and Bannu, but regarding Muhammad Saeed petitioner there is no comments D whatsoever which means that he was never recommended at all by the Selection Committee as gathered from the above office record plus observations by the then Honourable Chief Justice where the name of Muhammad Saeed Khan as selected is not mentioned except Kaleem Arshad Khan petitioner.
25. The ACRs of the petitioner while posted as Civil Judge are also examined. All the three ACRs concerming the service period are marked as good in pin picture column there is no adverse remarks and no such allegation of commanding bad reputation has been incorporated by the Reporting Officer (District and Sessions Judge) and the same are countersigned by the then Honourable Chief Justice including three Senior Judges of this Court. The report of the agencies also confined to the period of petitioner's service i,e, from 1995 to 1989 (past service).
26. On the one hand the Reporting Officer i,e, District and Sessions Judge, the Honourable Chief Justice and three. Senior Judges of the High Court acknowledged the good conduct and efficiency of the petitioner and on the other hand the agencies ventilated the negative reports pertaining to the same period that too after three years of relinquishment of service by the petitioner i,e, 2001 when the petitioner was practising as a lawyer the agency had never supplied any such negative report when the petitioner was in service. Furthermore after the non-clearance of the Public Service Commission Examination from 1998 to 2001 as a lawyer the petitioner was recommended by the District and Sessions Judge for the post of Additional District and Sessions Judge.
27. Confronted with this situation it is incumbent upon us to streamline that which yardstick would be just, fair and equitable, whether we go after the reports of agencies received at a much latter and, belated stage in conflict with annual confidential record of this Court.
28. ESTACODE N.-W.F.P. Volume-I, 2000 serial No,4, clearly envisaged that verification of antecedents of a candidate shall be made before the appointment and that too, is to be restricted to criminal record only and is to be conveyed during the probationary period of a candidate. The candidate however to be medically examined by a Medical Standing Board before his appointment orders are issued. So it is also not understandable that in the case of respondents Nos.4 to 7 the process of verification was carried out after the issuance of appointment letter but in this case it appears that the verification has taken place after the Selection Committee has recommended him.
29. So in this view of the matter we are unanimous on the issue that the ACRs of the relevant period has to be taken into account and be given preference over the agencies hearsay reports and could be ignored safely. Such reports are just an opinion which has no biding force and cannot be considered as gospel truth. It is upto the entire satisfaction of the competent authority to consider if it is possessed with sufficient and convincing material.
30. No doubt the learned counsel for the petitioner attacked respondent No,5 that be has been involved in a criminal case at Karachi and also been declared as Proclaimed Offender by the competent Court of jurisdiction as being fugitive from law but we at this juncture in exercise of writ jurisdiction cannot sit as an inquiry Court and verify the authenticity and veracity of the document herein placed before as not it is the issue nor the petitioner prayed as such. The question for determination before this Court whether the petitioner deserves to be appointed as Additional District and Sessions Judge or not.
31. Principal of legitimate expectancy also demands that respondents Nos.4 to 7 were selected by the competent authority and appointed by the Honourable Chief Justice as delegate of the Governor N.-W.F.P. They have rendered meritorious service for about two years, in recognition to which they have awarded with certificate of merit and cash prizes. As such they cannot be disturbed on any score.
32. Question of maintainability as advanced we are clear in mind that the appointments in question are made as delegate having wielded administrative authority, and are not a judicial decision by the competent authority sitting as a Court. Even the appointments of superior Courts Judges at time have been made subject to judicial scrutiny and petitions therein were entertained and adjudicated upon the competent Court on merits. And the rational behind was that the appointment of Judges, their seniority in exercise of its administrative functions. Guidance is sought from the judgment of the august Supreme Court of Pakistan in Al-Jihad Trust v. Federation of Pakistan and others (PLD 1996 Supreme Court 324) and Habib-ul-Al-Khairi and others v.
Federation of Pakistan and others (PLD 1995 Lahore 2) (PLD 1998 Supreme Court 103) (2002 CLD, 1) and (AIR 1994 Supreme Court 2595).
33. So far as the case of connected Writ Petition No,645 of 2002 of Muhammad Saeed petitioner is concerned, there is no denying the fact that he stood second in the written test securing 114 marks but as indicative from the record we could not find his name in the recommendees' list by the Selection Committee. The note of appointment of the then Honourable Chief Justice regarding the appointment in question postulate the name of Kaleem Arshad Khan who was also recommended to the post of Additional District and Sessions Judge and the name of Muhammad Saeed petitioner is nowhere figures.
34. As sequel to above discussion we are constrained to allow the Writ Petition No,1412 of 2001, filed by Kaleem Arshad Khan petitioner as prayed for with the direction to the concerned authority to appoint and accommodate the petitioner Kaleem Arshad Khan as Additional District and Sessions Judge on the available seat while the connected Writ Petition No,645 of 2002 filed by Muhammad Saeed petitioner is hereby disallowed.