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Petitioner: MUHAMMAD ASIF JAN VS Respondent: CHAIRMAN SELECTION through ChairmanHonorable Justice Qazi Faez IsaSyed Nazeer Agha,Syed Ayaz Zahoor, Kamran Murtaza
2013 P L C (C.S.) 502
[Balochistan High Court]
Before Qazi Faez Isa, C.J., Abdul Qadir Mengal and Muhammad Hashim Khan Kakar, JJ
MUHAMMAD ASIF JAN and others
Versus
CHAIRMAN SELECTION through Chairman and others
Constitutional Petitions Nos.525, 569, 570, 573, 597, 711, 713 and 800 of 2011, decided on 16th August, 2012.
Per Qazi Faez Isa, C.J.; Abdul Qadir Mengal and Muhammad Hashim Khan Kakar JJ agreeing [Majority view].---
(a) Constitution of Pakistan---
----Arts. 18, 25, 27 & 199---Constitutional petition---Civil service---Recruitment---Transparency---Discrimination---Petitioners assailed appointments ---Plea raised by petitioners was that appointments were made on the basis of nepotism and political influence by disregarding merit---Validity---Appointments were made to posts in question by contravening applicable rules, through non-transparent process by resorting to nepotism and by unduly, unjustly and unfairly favouring candidates of a particular area---Appointments were made by violating fundamental rights of all other applicants as it infringed equal opportunity to compete guaranteed to them by Arts.18 & 25 of the Constitution and they were discriminated against---Such appointments were illegal and unconstitutional and the same were of no legal effect and created no right title, interest, benefit and or privilege in the appointees---Chairman and members of Departmental Selection Board did not check whether those selected by them had stipulated skills---Failure to prepare merit lists, preparing a 'Resultant' list and appointing persons thereon, by not conducting tests in respect of certain posts and also by not preparing any merit list in respect of them demonstrated that they were not fit to serve on Departmental Selection Committee---High Court set aside appointments made by Departmental Selection Committee and also directed the authorities to pay cost in respect of each petition---Balochistan Service Tribunal, under the circumstances, did not have any jurisdiction, therefore, appointees could not assail their termination from service before Service Tribunal---Constitutional petition was allowed in circumstances.
C.Ps. Nos.23 and 57 of 2009 ref.
Per Abdul Qadir Mengal, J
(b) Constitution of Pakistan---
----Art. 242---Balochistan Public Service Commission Act (II of 1989), S.3---Public Service Commission---Branches, constitution of---Principle---Government was not debarred to constitute branches of Public Service Commission in Chairmanship of the Chairman of Balochistan Public Service Commission, who could conduct test and examinations for initial appointments and in case of officers contesting on merits, their examinations to be held at their Divisional Headquarters, then by Provincial Public Service Commission at Capital City Quetta---High Court, for the sake of general public interest recommended the Provincial Government to immediately set up branches of Balochistan Public Service Commission at Divisional Headquarters by enhancing manpower of members of the Commission, who would sit at Divisional Headquarters, conduct tests and examinations for initial appointments purely on merits and stop bad governance, culture of corruption, nepotism, favoritism on every level and further fully carry directions in respect of quota of backward areas and bring them at par with developed districts of the Province, so no individual of the Province could feel deprived of his rights.
Petitioner in person (in C.P. No.525 of 2011).
Syed Nazeer Agha for Petitioners (in C.Ps. Nos.569 and 570 of 2011).
Syed Nazeer Agha and Syed Iqbal Shah for Petitioners (in C.P. No.573 of 2011).
Khushnood Ahmed for Petitioners (in C.P. No.597 of 2011).
Syed Nazeer Agha for Petitioners (in C.Ps. Nos.711, 713 and 800 of 2011).
Syed Ayaz Zahoor, Kamran Murtaza for Respondents and A.-G. for Respondents.
Date of hearing: 11th April, 2012.
JUDGMENT
QAZI FAEZ ISA, C.J.--- Through this common judgment we are deciding eight constitutional petitions, i.e. C.Ps. Nos.525, 569, 570, 573, 597, 711, 713 and 800 of 2011; as all these petitions are based on similar facts, pertain to the same acts of the official respondents and raise same questions of law. Appointments were made by the Director General, Excise and Taxation, Balochistan in the Excise and Taxation Department of the Government of Balochistan to the posts of Excise (and Taxation) Inspectors (grade/pay scale B-14), Assistants (B-14), Junior Scale Stenographers (B-12), Assistant Computer Operators (B-12), Junior Clerks (B-7), Constables (B-5), Drivers (B-4) and Naib Qasids (B-1) (hereinafter "the said posts'') and the appointments made to the said posts have been assailed in these petitions.
2. Applications to the said posts were solicited through three advertisements published by Director-General Excise and Taxation Balochistan. The first advertisement was published in the Daily `Mashriq' newspaper of May 30, 2010 seeking applications for the posts of Assistant Computer Operators, Assistants, Stenographers, Junior Clerks and Drivers and required submission of applications by June 10, 2010. The second advertisement was published in the same newspaper on January 28, 2011 seeking applications for the posts of Excise Inspectors, Junior Clerks, Constables and Naib Qasids and required applications to be submitted by February 10, 2011. The third advertisement was published on February 6, 2011 by way of an amendment to the earlier advertisement and stated that applications for the posts of Assistant Excise and Taxation Officers (B-16), Assistant Computer Operators (B-12) and Constables (B-5) were also sought. None of the advertisements disclosed the number of posts required to be filled-in nor whether the same were to be filled-in on the basis of the zonal quota stipulated by the Government or instead on provincial merit basis.
3. That vide notification dated June 14, 2010 a Departmental Selection Committee was constituted in respect of recruitments to posts in pay scale B-15 and below, comprising of the following:---
(1)
Mr. Muhammad Qasim Baloch Director General Excise and Taxation.
Chairman
(2)
Mr. Abdul Waheed Khan Secretary (E&T), Board of Revenue.
Member
(3)
Mir Muhammad Anwar Baloch Director (Headquarters) Excise and Taxation.
Member
(4)
Mr. Ghulam Sarwar Assistant Secretary (E&T), Board of Revenue.
Member/Secretary
4. The appointments to the said posts were made pursuant to the following:---
(1) Order Nos. 4348, 4355, 4363, 4371, 4379, 4387, 4395, 4402, 4409, 4416, 4432, 4424, 4440, 4448, 4456, 4464, 4471, 4487, 4495, 4511, 4519, 4527, 4535 and 4543 / Estt:/S.G. all dated July 22, 2011 in respect of 24 Inspectors (B-14);
(2) Order No.5034 /Estt:/S.G. dated July 25, 2011 in respect of 1 Inspector (B-14);
(3) Order No.5653 /Estt:/S.G. dated July 30, 2011 in respect of 1 Inspector (B-14);
(4) Order No.5864 /Estt:/S.G. dated August 5, 2011 in respect of 2 Inspectors (B-14);
(5) Order No.3493 /Estt:/S.G. dated June 24, 2011 in respect of 40 Inspectors (B-14);
(6) Order No.3500 /Estt:/S.G. dated June 24, 2011 in respect of 4 Assistants (B-14);
(7) Order No.3512 /Estt:/S.G. dated June 24, 2011 in respect of 8 Assistant Computer Operators (B-12);
(8) Order No.3506 /Estt:/S.G. dated June 24, 2011 in respect of 13 Junior Scale Stenographers (B-12);
(9) Order No.3517 /Estt:/S.G. dated June 24, 2011 in respect of 37 Junior Clerks (B-7);
(10) Order No.3523/Estt:/S.G. dated June 24. 2011 in respect of 109 Constables (B-5);
(11) Order No.3529/Estt:/S.G. dated June 24, 2011 in respect of 3 Drivers (B-4); and
(12) Order No.3535/Estt:/S.G. dated June 24, 2011 in respect of 28 Naib Qasids (B-1).
It may be mentioned that the aforesaid information was initially not provided by the Department in its comments but provided subsequently after issuance of a specific direction by the court. That though the post was advertised it appears that no one was appointed to the post of Assistant Excise and Taxation Officer (B-16). The documents that were filed disclose that the following appointments were made:---
Post Number appointed Excise Inspectors (B-14) . . . . 68 Assistants (B-14) . . . . . . 4 Junior Scale Stenographers (B-12) . . 8 Assistant Computer Operators (B-12) . . 13 Junior Clerks (B-7) . . . . . . . 37 Constables (B-5) . . . . . . . 109 Drivers (B-4) . . . . . . . . . 28 Naib Qasids (B-1) . . . . . . . 3 Total posts: 270
5. The appointments to the said posts have been assailed by the petitioners on the following grounds:---
(a) The said posts were filled-in on the basis of nepotism and political influence and by disregarding merit;
(b) Most of the appointees were appointed on the behest of Mr. Muhammad Amin Umrani, the Minister for Excise and Taxation;
(c) Some of the appointees did not have the stipulated educational qualifications;
(d) The Departmental Selection Committee did not check whether those selected by them had the stipulated skills, for example knowing short hand at 60 words a minute and typing at the speed of 30 words a minute in respect of Junior Scale Stenographers and having a typing speed of 30 words a minute in respect of Junior Clerks;
(e) Many appointees did not have the required skills;
(f) Merit lists were neither prepared nor subsequently displayed after the conduct of the tests and or interviews of the applicants;
(g) The merit lists were prepared and produced only because of the order of this court and then too only in respect of some of the posts;
(h) The merit lists that were produced were prepared after the appointments were made and are fictitious;
(i) A 'Resultant' list was prepared and persons on such list were also appointed, despite the fact that there is no legal provision for the same;
(j) Residents of Sindh Province were also appointed, despite the fact that all the posts were required to be filled-in by locals or domicile holders of Balochistan Province;
(k) Members of the Departmental Selection Committee prepared the test papers, checked papers and interviewed candidates despite the fact that some of their relatives had applied for such posts, and who were subsequently appointed;
(l) The members of the Departmental Selection Committee whose relatives had applied did not disclose this fact to the Government of Balochistan;
(m) The advertisements dated January 28 and February 6, 2011 did not state whether the zonal quota, women's quota, minorities quota and disabled persons' quota was to be observed or not;
(n) The stipulated zonal quota, women's quota, minorities quota and disabled persons' quota was not observed;
(o) The number of available posts that were required to be filled-in were not disclosed;
(p) Most of the appointees were the relations, friends, and or tribesmen of Mr. Muhammad Amin Umrani, the Minister for Excise and Taxation; and
(q) Most of the appointees belong to the area/constituency (Nasirabad District and Division) of Mr. Muhammad Amin Umrani, the Minister for Excise and Taxation.
6. On July 25, 2011 we had directed the Director-General and Director, Excise and Taxation Department to produce the merit lists on the next date of hearing, but on the next date of hearing the same were not produced. Accordingly, on August 3, 2011 the following order was passed:---
'Respondents Nos.3 and 4 are present and have brought with them documents which they state are merit lists though the same are entitled 'Selected Candidate for the Post of Excise and Taxation Inspector (B-14)" and 'Detailed Marks of the Candidates for the Post of Assistant (B-14) respectively'. The documents produced cannot be categorized as the Merit List(s). List(s) should be filed which disclose the numbers obtained by all the candidates. Learned counsel for respondents Nos.1, 3 and 4 seeks time to file comments/counter-affidavit.
Surprisingly respondents Nos.1, 3 and 4 have engaged private counsel and as the said two respondents who admittedly were members of the departmental selection committee have appointed respectively their brother and son it would be appropriate if the notice of this petition be sent to the Chief Secretary, Government of Balochistan who may file his separate comments/counter affidavit to ensure that the interest of the Government of Balochistan is protected."
Vide order dated March 7, 2012 we noted that, "In view of the fact that the Department's position was not clearly stated, we gave an opportunity to the representative of the Department. Mr. Muhammad Anwar, Director, who was present to record his statement regarding the matters involved in these petitions." During his examination the Director stated that he did not know the total number of persons who were appointed. It was also revealed that a 'Resultant' list was prepared, and when we inquired from the Director what the term resultant meant, he stated that it meant that, "those posts that would be subsequently sanctioned by the Finance Department." In other words persons were selected to posts that did not even exist, and these 27 persons (on the 'Resultant' list) were subsequently appointed. Some of the questions and answers make a distressing read:---
Q.No.11. Can you produce the document in respect of the twenty seven persons (on the 'Resultant' list] that show marks awarded to them on the date they appeared for interview?
Ans. There is no such document with the Department.
Q.No.12. Was the Government of Balochistan Recruitment Policy, 1991 followed in respect of the appointment under dispute regarding zonal quota?
Ans. The Zonal Quota Policy was not followed, as summary was received by the Chief Minister, in which the 1991 Policy was relaxed.
Q.No.13. Why was it relaxed?
Ans. In our Department right from the beginning all appointments have been made on merit and not on the basis of Zonal Quota.
Q.No.15. Was Raziq Kurd, one of the Inspector appointed, any relation of the Chairman of the Department Selection Committee?
Ans. Mr. Raziq Kurd son of Haji Khan Muhammad, who was selected as Inspector, was the brother of Director-General, who was the Chairman.
Q.No.16. Whether any other Member was related to any of the other appointees?
Ans. I am not aware whether any relations of other Members of the Departmental Selection Committee were appointed. In the list of forty candidates Basham, who was in the list of 'Resultant' candidates, is my son. I may add that he was however appointed as an Assistant and not as an Inspector, and I did not participate in the interview of my son in respect of his appointment as Assistant.
Q.No.25. How Many Junior Clerks were appointed?
Ans. I don't know.
Q.No.26. Was any merit list prepared showing the respective marks obtained by them [Junior Clerks] in the test and interview?
Ans. No such document was prepared for the Junior Clerks. There was no test and only interview was conducted by the Departmental Selection Committee and marks were given.
Q.No.29. Was any test conducted in respect of Constables?
Ans. No, only interview was conducted.
7. That the Excise and Taxation Department and its representative had stated that the zonal quota had been relaxed by the Government, however, the Secretary, S&GAD Government of Balochistan contradicted this. Therefore, in the interest of justice (vide order dated April 11, 2012) we gave an opportunity to the Director General, Excise and Taxation Department to clarify the position and also to attend to the discrepancies in the different replies submitted by him. His answers demonstrated a cavalier attitude in running an important department of the Government and the high-handed manner in which appointments therein were made:---
Q.No.1. Do you agree with the Statement filed by the Secretary S&GAD today?
Ans. I agree with the statement submitted by the Secretary S&GAD, however, I want to state that a Note dated June 4, 2011 was written by Mr. Muhammad Amin Umrani, Minister for Excise and Taxation to the Chief Minister seeking relaxation of the quota policy and the same was approved by the Chief Minister.
Q.No.2. Was the Note submitted through the Secretary of your Department, Secretary S&GAD and or Chief Secretary. Government of Balochistan or directly by Minister Excise and Taxation to the Chief Minister?
Ans. It was directly submitted by the Minister.
Q.No.3. Was this in accordance with the Government of Balochistan Rules of Business, 1976?
Ans. It was not in accordance with the said Rules, but was in relaxation of the said Rules.
Q.No.4. Were you aware at the time the vacant posts were advertised and when they were filled that such Note had been sent by the Minister for Excise and Taxation Department?
Ans. Yes.
Q.No.5. In the advertisement placed by the department was the same disclosed?
Ans. No, it was not disclosed.
Q.No.8. Were any of the Members [of the Departmental Selection Committee] relatives appointed?
Ans. Yes, my brother namely Razzia Kurd was appointed as Inspector.
Q.No.9. Was a relative of any other Member of the Selection Committee also appointed?
Ans. Yes, the brother of Anwar Baloch Director Excise and Taxation, who was the member of Selection Committee was also appointed as Assistant.
Q.No.10. If your and Mr. Anwar Baloch's brothers had submitted applications for consideration of appointment, did you or Mr. Anwar Baloch write to the Government of Balochistan disclosing that two of the applicants were related to the Members of the Selection Committee?
Ans. No, we did not do so.
Q.No.11. Can you explain why a very large number of persons, who were appointed, belong to Naseerabad Division?
Ans. It is the practice of the Ministers, because they are elected and they put forward the people of their areas.
Q.No.12. Which area does your Minister hail from?
Ans. Mr. Muhammad Amin Umrani, my Minister, hails from Naseerabad Division.
Q.No..19. What is meant by the term 'Resultant' that finds mention in some of the documents filed by you?
Ans. By 'Resultant' it is meant that those persons who were kept for consideration alter the sanction posts had been filled.
Q.No.20. Were any of the 'Resultant' people also appointed?
Ans. Yes, some of them were appointed.
Q.No.21. Are you saying that persons were appointed subsequently despite the fact that at the relevant time such number of posts were not available?
Ans. Yes.
8. Learned counsel for the petitioners stated that the appointments were made on the basis of favoritism, nepotism, influence, corruption and or illegally and without observing the applicable rules and requisite formalities. Reliance was also placed upon a divisional bench judgment dated July 1, 2010, passed by this Court in C.Ps.Nos.(S) 23 and 57 of 2009. On the other hand the learned counsel for the respondents and Mr. Amanullah Kanrani, the learned Advocate-General, stated that the appointments were properly made, however, the discrepancies and points raised by the learned counsel for the petitioners (reproduced above in paragraph 5) were not satisfactorily explained.
9. Since the Excise and Taxation Departments and its officers had engaged private counsel, without permission of the Government, we issued notice to the Chief Secretary, Government of Balochistan so that the interest of the Government was safeguarded. The Chief Secretary filed his comments stating that the allegations levelled by the petitioners are of a serious nature and that the Government of Balochistan is initiating a fact finding inquiry into the matter.
10. That after hearing these petitions we had reserved them for judgment when an application was submitted through the learned Advocate-General stating that the appointments to the said posts had been cancelled by the Government of Balochistan and in this regard he placed on record Notification No. Estt:8-E&T/BOR/1396-1405 dated April 23, 2012, which is reproduced hereunder:---
"Consequent upon the findings of enquiry held into the selection/appointment process finalized by the Directorate of Excise and Taxation, Government of Balochistan held during the month of June, 2011, the Competent Authority has been pleased to cancel all such appointments and the selection made by the Directorate of Excise and Taxation in all cadres from B-1 to B-15 with immediate effect on following grounds:---
(1) Gross violation in observance of appointment and recruitment rules during the recruitment process.
(2) Violation of maintenance of zonal quota.
(3) Violation of quota meant for women, minorities and disabled"
11. That the representatives of the Excise and Taxation Department stated that the applicable zonal quota had been relaxed and in this regard placed reliant upon the 'Note for the Chief Minister' dated June 14, 2011 written by Mr. Muhammad Amin Umrani, Minister for Excise and Taxation, which is reproduced hereunder:---
"REQUEST FOR RELAXATION OF ZONAL QUOTA FOR RECRUlTMENT AGAINST VARIOUS POSTS IN EXCISE AND TAXATION DEPARTMENT BALOCHISTAN
Posts of various categories are lying vacant in Excise and Taxation Department Balochistan and required to be filled. The details are as under:---
(1) Excise and Taxation Inspectors (B-14)
(2) Office Assistants (B-14)
(3) Assistant Computer Operators (B-12)
(4) Junior Scale Stenographers (B-12)
(5) Junior Clerks (B-7)
(6) Constables (B-5)
(7) Drivers (B-4)
(8) Naib Qasid (B-1)
(2) The Excise and Taxation Department has not been devolved under the Devolution Plan. If these posts are filled according to the quota policy, there is apprehension that many districts may not get a single post. The people of those districts will raise hue and cry. To avoid such situation Honourable Chief Minister Balochistan may kindly allow to fill these posts on open merit, as was done in the past."
Under the legend 'Chief Minister' on the 'Note' is written -- "as proposed in para 2 for one time only," presumably by Chief Minister. The anxiety of the Minister for Excise and Taxation in submitting the 'Note' was, that, if the zonal quota policy is followed, "many districts may not get a single post," therefore, he desired that the posts should be filled "on open merit" Before we come to the question of the legal purport of the said 'Note', let us examine to what extent the apparent objective of giving representation to all districts of Balochistan was realized. The Department's representatives on our direction submitted information about the division and district to which appointees to the said posts belonged. Out of the total of 270 persons who were appointed 98 are from Nasirabad Division and as many as 72 of these from Nasirabad district alone, which belies the stated object of having representation from all the districts of Balochistan. And the fact that from the said area, bordering the province of Balochistan, such a large number of persons belonged seriously undermines the stated aim of filling the posts on open merit as we can take judicial notice of the fact that open merit is favoured by the people of Balochistan's capital city Quetta, which has better educational facilities than other areas of the Province. It thus emerges, that, the object of the 'Note' was not to appoint people from every district of Balochistan but from a particular area, incidentally the area/constituency of Mr. Muhammad Amin Umrani, Minister for Excise and Taxation. And as regards the commendable object of propagating open merit the same was a smokescreen to ensure that appointments could be made as per the choice of the Minister and Chairman and Members of the Departmental Selection Committee.
12. We now examine whether the said 'Note' constituted a decision of the Government of Balochistan and therefore could be relied upon by the Department. Sub-Article (2) of Article 139 of the Constitution of the Islamic Republic of Pakistan requires that rules have to be made to specify the manner in which orders and instruments in respect of the conduct of the business of the Provincial Government is required to be carried out. Pursuant to the said provision of the Constitution the Government of Balochistan Rules of Business, 1976 ("the Rules") have been made. The Rules detail the manner in which summaries are to be submitted to the Chief Minister and by whom. In the light of the Rules the said `Note' did not constitute a summary, was not submitted by an authorized person and the purported noting by the Chief Minister thereon was not an official decision of the Government of Balochistan; therefore, no reliance could be placed on the said 'Note' and the purported decision of the Chief Minister thereon. These are matters which the representatives of the Department, being government servants, must have known, but they still relied on the said 'Note.' Acting as they did the Chairman and Members of the Departmental Selection Committee not only violated the applicable rules but also degraded their office and the prestigious government service. They appear to think that they are the servants of the political party in…
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