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Petitioner: MASHOOQ ALI VS Respondent: SENIOR MEMBER, BOARD OF REVENUE BALOCHISTANHonorable Justice Qazi Faez IsaZahoor-ul-Haq Chishti and Kamran Murtaza
2011 PLC (C
2011 PLC (C.S.) 548
[Quetta High Court]
Before Qazi Faez Isa, C.J.; Syeda Tahira Safdar and Ghulam Mustaf Mengal, JJ
MASHOOQ ALI
Versus
SENIOR MEMBER, BOARD OF REVENUE BALOCHISTAN and others
Constitutional Petition No.S-23 of 2009, decided on 1st July, 2010.
Per Qazi Faez Isa, C.J.; Syeda Tahira Safdar and Ghulam Mustafa Mengal, JJ. agreeing and adding their notes.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Civil service---Petitioners challenged appointments of Assistants and Stenographers made by Provincial Board of Revenue contending that said appointments were made in violation of merit---Validity---Candidates who failed or even absented in the written examination were appointed to the posts---Departmental Selection Committee did not award marks to candidates at the interview, instead, made certain notings/signs against each candidate making the merit list an impossibility, as such. list could not be prepared unless marks obtained at the interview were added to the marks obtained in written examination---Candidates' skill in shorthand and typing was not evaluated either---Members of the Departmental Selection Committee denied any wrongdoing; submitted false affidavits but later tendered apologies to the court---Senior Member of the Provincial Board of Revenue admitted the violation of merit---In view of statements of the Chairman and Members of the Departmental Selection Committee as to violation of prescribed merit criteria, the appointments could not be sustained---Material discrepancies marred the appointment process---Fairness and merit having been sacrificed at the altar of favouritism and corruption, the appointments were not sustainable either in fact or in law---Whole appointment process was a facade and a fraud played at the expense of precious resources of the State---High Court observed that Government was duty bound to make the selection process transparent, as violation of merit led to bad governance and promoted culture of corruption---Petitioners' application to withdraw petitions in order to spare the appointees their jobs could not be allowed as gross irregularities and illegalities committed in appointments to government positions was not merely a private matter---Directions as to initiation of disciplinary action against Chairman and the Members of Departmental Selection Committee were issued by the High Court---Appointments were held/declared to be illegal, unconstitutional and without any legal effect conferring no right, title, interest benefit or privilege in the appointees---Provincial Government was directed by High Court to circulate to all Ministries and heads of all departments and Member of Selection Committees the relevant paragraph of the judgment which is to the effect that:
"Appointments to government posts are highly prized and sought after. The government is obliged to ensure complete transparency in the process of selection and appointment and anything less is unacceptable. If qualified and competent individuals are appointed in government service their performance and work would be far superior to those who have come through the back door by having the right connections or by other- nefarious means. The latter category would also not be motivated to work like those who had earned the privilege. Consequently the public would suffer, and continue to suffer till the person illegally appointed retires. Even thereafter the helpless taxpayer would continue to bear the burden on account of payment of pension and other benefits. The appointments made on considerations other than merit perpetuate bad governance and a culture of corruption, nepotism and sifarish. Betrayal of responsibility occurs not just the day when an incompetent or less qualified person is chosen, it continues each and every day such appointee continues to hold the position that another was better qualified to. By making appointments contrary to merit and for extraneous considerations the Government's credibility is eroded, its overall performance adversely affected and the public made to suffer. Whenever a post is advertised those given the responsibility to select suitable candidates exercise an important trust. They must acquit themselves honestly, to the best of their ability and without any fear or favour. They must not tolerate interference from any source, including from Members of Parliament or from Ministries. And if they do, or make recommendations on the basis of fear or favour and or breach applicable rules or violate prescribed criteria they would be accountable and inter alia be subject to disciplinary action."?
Per Syeda Tahira Safdar, J. agreeing with Qazi Faez Isa, C.J.
Disciplinary action was required against Senior Member, Board of Revenue, Chairman and the Members of Departmental Selection Committee for misleading the court by submitting false affidavits and committing illegalities in selection process.
Per Ghulam Mustafa Mengal, J., agreeing with Qazi Faez Isa, C.J.
----Selection process having been carried out by the Departmental Selection Committee, the Senior Member, Board of Revenue only approved the recommendations of the Committee---Disciplinary action was not required against the Senior Member, Board of Revenue as he was not directly concerned with conducting written examination and the interview.?
Zahoor-ul-Haq Chishti and Kamran Murtaza for Private Parties.
Abdul Rahim Mengal, Asstt. Advocate-General.
Date of hearing: 30th March, 2010.
JUDGMENT
QAZI FAEZ ISA, C.J.--- Through this common judgment we propose to dispose of C.P.(S) No.23 of 2009 and C.P.(S) No.57 of 2009, as vide order, dated 22-10-2009 it had been ordered that "both matters to be decided together". The petitioners have assailed appointments made in the Board of Revenue department of. the Government or Balochistan alleging that the same were not made on the basis of merit and have sought to have the same declared illegal, unlawful and of no legal effect.
2. Brief facts of the case are that the Board of Revenue Baochistan through advertisement placed in daily JANG of 6th August 2008 inter alia invited applications for the post of Assistants (in grade B-14) and Stenographers (in grade B-12). The requirement for the post of Assistant was for applicants to possess a Bachelors' degree from a recognized university and to be able to type at the minimum speed or 30 words per minute. It was also mentioned that those possessing computer skills would be given preference. As regards the post of Stenographers applicants were required to posses an Intermediate degree from a recognized institution have the ability to write in shorthand at minimum speed of 100 words per minute and be able to type at a minimum speed of 40 words per minute. The advertisement further stated that applicants possessing computer skills would be given preference. The said advertisement stipulated that time date of test and interview will be subsequently announced. Pursuant to the aforesaid advertisement another advertisement was placed in daily JANG of 18th December 2008 setting out the dates vide serial numbers for the written exam, which ranged from 1st January 2009 through to 5th January, 2009. Thereafter vide advertisement published in daily Jang on 5th February, 2009 interviews for the post of Assistants and Stenographers were scheduled for 23rd and 24th February, 2009. As per the comments filed by the official respondents about 912 applications were received, out of which 79 applicants cleared the written test.
3. It would be appropriate to reproduce order, dated 22-10-2009.
"This case was called earlier today when the learned Additional Advocate-General filed comments on behalf of respondent Nos.2, 3, 4, 5 and 6 but surprisingly with such comments the merit list in respect of the posts of Assistants and Stenographers in the Board of Revenue Department was not attached. We had accordingly directed learned Additional Advocate-General to send for the merit list from the concerned department as the petitioner apprehended that if further opportunity is granted the same will be prepared or tampered with. Now Mr. Javed Iqbal, Law Officer, Board of Revenue has appeared before us and. slates that the directions of this court were communicated to Secretary Admin. Board of Revenue Department, but despite such communication he has come empty handed and without merit list. This raises serious concerns, accordingly we appoint Mr. Jehangir Alam, Judicial Magistrate to accompany Mr. Javed Jabal, Law Officer read go to the office and take into his custody the merit list."
It is regretful that the official respondents did not voluntarily proved the facts which were required for the determination of this matter and which good governance, transparency and justice demanded.
The original record that was taken into possession revealed that the persons who were given jobs for Assistants received following marks in the written test:---
S. No.
Name/Father's Name
Marks
1.
Abdul Rab son of Abdul Karim
20
2.
Qutab Khan son of Taj Muhammad
4
3.
Wali Khan son of Taweez Khan
12
4.
Ahmedullah son of Khan Alam
22
5.
Muhammad Din son of Haji Mubeen
4
6.
Tahir Khan son of Kamal Khan
19
7.
Abdul Hadi son of Haji Abdul Sattar
24/18 Two papers
8.
Bismillah son of Ubaidullah
13
9.
Muhammad Shafiq son of Inayatullah
20/20 Two papers
10.
Bashir Ahmed son of Khair Muhammad
2
11.
Jameel Ahmed son of Agha Muhammad
19
12.
Abdul Bari son of Muhammad Hashim
Paper not available
13.
Naseebullah son of Haji Abdul Samad
6
14.
Ahmed Yar son of Haji Khair Jan
18
15.
Mir Adam Babar son of Sher Muhammad
20
16.
Harneedullah son of Mehboobullah
20/19 Two papers
17.
Mir Zaman son of Sultan Khan
11
18.
Wall Muhammad son of H. Akhtar Muhammad
28
19.
Alam Khan son of Muhammad Islam
16
20.
Ahmed Nawaz Bugti son of Mir Hassan
21
21.
Par Moth Kumar son of Raj Bahadur
Paper not available
22.
Wali Muhammad son of Agha Muhammad
14
23.
Mehmood Ahmed son of Khair Muhammad
23
24.
Allah Bakhsh son of Saleh Muhammad
22
25.
Saghir Ahmed son of Abdul Hakeem
9
26.
Zafarullah son of Bakhtiar
Paper not available
27.
Shah Khalid son of Kia Khan
21/13 Two papers
. 28.
Hassan Ali son of Muhammad Siddiq
13
29.
Shoukat Ali son of H. Allah Bakhsh
Paper not available
30.
Fazal Mehmood son of Noor Ahmed
Paper not available
31.
Mehhoob Ahmed son of Muhammad Hanif
17
32.
Abdul Samad son of Raza Muhammad
Paper not available
33.
Habib-ur-Rehman son of Abdul Samad
11/18 Two papers
34.
Muhammad Arif son of Noor Muhammad
Paper not available
35.
Gh lam Mustafa son of Allah Dina
22
36.
Ratiq Ahmed son of Din Muhammad
22
27.
Abdul Khaliq son of Abdul Ali
15
38.
Haji Khan son of Rahim Bakhsh
12
Surprisingly persons, who got 2, 4 and 6 marks were also appointed and even those who did not take the test. There were also a number of candidates who got considerably more marks than the appointed individuals but were ignored.
The written test for the said posts constituted 60% marks and the viva constituted 40% marks. Four persons constituted the Departmental Selection Committee namely, Nasrullah Tareen, Secretary (Admin) Board of Revenue, Sheikh Asmat Ullah, Secretary (Revenue), Mehfooz Ali, Assistant Secretary (Admin) Board of Revenue and Aziz-ur-Rehman, Assistant Secretary (L.U.), Board of Revenue. The same persons also conducted the viva. The original record taken into possession revealed that no marks were given by any of the said four interviewers to the candidates and instead the following noting was made against their names:---
"VV" "P", "C" "Clear". "+-+" or "Pass"
It is thus unascertainable as to the number of marks obtained by the candidates. It was only after such marks were awarded that the same could have been added to the marks obtained in the interview to arrive at a total, which would have enabled the preparation of the merit list, showing what each applicant had scored. In the instant case no merit list was prepared, nor could the same have been prepared, as no marks in respect of the interview (which constituted 40% of the total marks) were awarded.
As regards stenographers the tests revealed that a written test was given but no test to gauge the shorthand or typing ability was conducted.
6. In view of the fact that many of the successful candidates were not arrayed as parties vide order, dated 5-11-2009 the office was directed to issue notice to them. Vide order, dated 16-11-2009 it was notified that the petitions will be disposed of on merits. Messrs Bashartullah, Muhammad Aslam Chishti and Mazhar Ilyas Naqi, Advocates were appointed as Amicus, however in view of his ill health Mr. Basharatullah could not render assistance. The matter was then heard at length. Though certain questions regarding the scope of the Balochistan Public Service Act, 1989 were formulated, however, as the matter can be decided on the basis of existing material, it was not necessary to touch upon the same in the instant petitions.
7. The members of the Departmental Selection Committee, who were arrayed as respondents filed comments denying any wrong doing. The said comments were supported by affidavits. However, in view of the material and evidence that came on record the affidavits appeared to be false. Accordingly on 5-11-2009 it was ordered, that:-
"In view of the original record that has been taken into possession, such comments appeared to be blatantly false. The comments are supported by affidavits of senior officers. The learned Advocate General states that the whole exercise appears to be tainted and that strict action should be taken against the persons filing false affidavits. We agree with the learned A.G. and issue show-cause notice to Nasarullah Tareen, Secretary (Admin) Board of Revenue, Sheikh Asmat Ullah, Secretary (Revenue), Mehfooz Ali, Assistant Secretary (Admin) Board of Revenue and Aziz-ur-Rehman, Assistant Secretary (L.U.), Board of Revenue and Shahbaz Khan Mandokhail, Senior Member Board of Revenue as to why action should not be taken against them for filing false comments and affidavits."
8. Sheikh Asmat Utah, Secretary (Revenue), Mr. Aziz-ur-Rehman, Assistant Secretary (L.U.) and Mr. Mehfooz Ali, Assistant Secretary (Administration) Board of Revenue filed one reply dated 14-11-2009 to the show-cause notice, wherein they stated that they only conducted interviews of candidates who were short-listed by the Chairman of the Departmental Selection Committee and had no concern with the written tests. They further stated that the original papers of the candidates were in "exclusive custody of the Chairman."
Additional identical affidavits were filed on 7-12-2009 in the following terms:---
"At the very outset the deponent begs to tender unconditional apology for the inconvenience caused to this honourable Court and places himself at the mercy of this honourable Court, in relation to comments and affidavit filed by him. The deponent cannot conceive of misleading this honourable Court. The deponent had no previous experience of conducting interviews etc and has proceeded in the mater in good faith.
The Government of Balochistan has already cancelled the appointments made on the basis of said examination and interviews and have also directed holding of departmental inquiry against all concerned."
9. Mr. Nasrullah Khan Tarcen Secretary (Administration) Board of Revenue Chairman of the Departmental Selection Committee filed affidavit dated 18-12-2009 in the following terms:---
"At the very outset the deponent tenders unconditional apology before this honourable Court in relation to issuance of simple list of successful candidate rather than exhibiting a merit list containing the marks obtained by each candidate in the overall test and interview. The irregularities committed in the recruitment process were due to inexperience in holding the test and interviews for the first time.
I place may self at the mercy of this honourable High Court humble prayer for withdrawal of show-cause notice."
10. That Mr. Nasir Mehmood Khosa, Chief Secretary, Government of Balochistan and Mr. Ali Zaheer Hazara Secretary, S&GAD filed the following statement on 16-11-2009.
"That after having knowledge of lack of transparency and fairness during recruitment process of Board of Revenue Balochislan, Chief Secretary Balochistan, with the approval of Chief Minister Balochistan has taken the following actions to ensure transparency in recruitment process:
(i)???????? Recent recruitments made in the Board of Revenue has been cancelled with immediate effect and the process will be initiated afresh after seeking orders from the Honorable High Court.
(ii)??????? In BOR and all other departments, order to ensure transparency, representatives of the S&GAD and Finance Department will be associated in the selection process.
(iii)?????? Departmental and disciplinary action will he initiated against all those officers/officials who committed transgressions in the process.
11. The Chief Secretary also issued the following notification dated 14th November, 2009:--
"Subject: Recruitment Through Departmental Selection Committees.
The undersigned is directed to refer to the subject noted above and to say that recruitment in B-1 to 15 posts is being made in all departments/attached departments through Departmental Selection Committees. These Committees are constituted under Rule 5 of the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009. The Competent Authority is of the view that in majority of the departments the criteria for recruitment is not being observed, therefore, concerned candidates and public-at-large shown their dissatisfaction on the process of selection. Moreover recently the honourable High Court of Balochistan has also taken serious notice of this situation. On the other hand the media has strongly criticized Government of Balochistan on account of transparency and fairness in selection process in Government Departments.
(2) In order to ensure transparency, the Competent Authority has directed lo reformulate the Departmental Selection Committee(s) by including the following members in each Committee.
(i) Representative of S&GAD.
(ii) Representative of Finance Department.
(3) The undersigned is, therefore, directed to request you to forward proposal to this Department for reconstitution/reformulation of the Departmental Selection Committee(s), after obtaining the name of representative of Finance Department.
(4) The above instruction may kindly be strictly adhered to in letter and spirit."
It may be mentioned that Notifications dated 25-11-2008 and 4-12-2008 removed the representatives of the Finance and Services and General Administration Departments from the Departmental Selection Committee, leaving the representatives of the Board of Revenue alone to undertake the tests and interviews. The said two notifications gave no reason as to why the Departmental Selection Committee was reconstituted by removal of the representatives of Finance and S&GAD Departments.
12. That the Senior Member Board of Revenue stated on 16-11-2009, which statement was incorporated in the order of the same date, that, "appointments in his department were not made properly and merit was by-passed." Earlier on 5-11-2009 the learned Advocate-General stated that, "the whole exercise appears to be tainted.
13. In view of the aforesaid statements including statements made by the Chairman and Members of the Departmental Selection Committee on record the appointments that were made are clearly not sustainable. We have also noted the following material discrepancies in the appointment Process:--
(1)? Test papers of many of the candidates, who were appointed, were not available. As no explanation was offered by anyone where these papers went it may be presumed that they never took the test.
(2)? Many candidates failed in the written test, some getting abysmally low marks (2, 4, 6 and 9), yet they were appointed.
(3)? Even those who failed the written test were invited for the interview in violation of the prescribed procedure which stipulated that only those who passed the test would be invited for interview.
(4)? No marks were awarded in the interview. Since the test commanded 60 marks and the interview 40 marks it was only once the marks obtained in the test were added to those obtained in the interview that determination of the best qualified for appointment could be made. However, as no marks were awarded for the interview there was no way of determining the total marks obtained by the applicants.
(5)? No test to determine the ability to type was conducted despite the fact that typing skills was a stipulated requirement for both posts, which in the case of the post of Assistants was a minimum speed of 30 words per minute and in the case of Stenographers was a minimum speed of 40 words per minute.
(6)? The advertisement for both posts (Assistants and Stenographers) stipulated that those possessing computer skills would be given preference, but the applicants' computer skills were not checked.
(7)? Stenographers were required to possess ability to write in shorthand at a minimum speed of 100 words per minute, but no test was conducted to ascertain the applicants' ability in this regard.
(8)? No merit list was prepared, which in any case was impossible to prepare in view of the aforesaid deficiencies:
The learned counsel for the private parties respectively Mr. Zahoor-ul-Haq Chishti and Mr. Kamran Murtaza did not dispute the aforesaid facts and simply stressed that the persons were properly appointed. We also heard a number of private respondents in person but they too did not dispute the said facts.
14. Therefore it is reasonable to presume that the appointments that were made either on the basis of favoritism, nepotism, influence and or corruption and by sacrificing truth and merit. Such appointments are not sustainable in fact or in law. Those possessing the requisite qualification and skills were entitled to compete, and as per the comments filed, 912 applicants wanted to do so, but they merely wasted their time, money and effort. The resources of the State too were wasted in futile exercise of placing advertisements in the national press. The whole exercise as it turned out was a charade and the entire process nothing but a hoax and fraud. The fact that holders or grade B-12 and B-14 posts may eventually on account of seniority attained, be promoted to higher echelons of Government Service makes the duty cast on the Government, and those through whom such duty is exercised, all the more important. Regretfully in the instant case this duty was observed only in the breach.
15. Appointments to government posts are highly prized and sought after the Government is obliged to ensure complete transparency in the process of selection and appointment and anything less is unacceptable. If qualified and competent individuals are appointed in Government Service their performance and work would be far superior to those who have come through the back door by having the right connections or by other nefarious means. The latter category would also not be motivated to work like those who have earned the privilege. Consequently the public would suffer, and continue to suffer till the person illegally appointed retires. Even thereafter the hapless taxpayer would continue to bear the burden on account of payment of pension and other benefits. The appointments made on considerations other than merit perpetuate bad governance and a culture of corruption; nepotism and Sifarish. Betrayal of responsibility occurs not just the day when an incompetent or less qualified person is chosen, it continues each and every day such appointee continues to hold the position that another was better qualified to. By making appointments contrary to merit and for extraneous considerations the Government's credibility is eroded, its overall performance adversely effected and the public made to suffer. Whenever a post is advertised those given the responsibility to select suitable candidates exercise an important trust. They must acquit themselves honestly, to the best of their ability and without any fear or favour. They must not tolerate interference from any source, including from Members of Parliament or from Ministries. And if they do, or make recommendations on the basis of fear or favour and or breach applicable rules or violate prescribed criteria they would be accountable and inter alia be subject to disciplinary action.
16. It may be mentioned that alter we had taken cognizance of the matter the petitioners, through their attorney, submitted an application (C.M.A. No.228 of 2009) on 8-12-2009 seeking withdrawal of the petitions as he was not prepared to suffer adverse consequences if the…
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