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Petitioner: Muhammad Saleem Shaikh & others VS Respondent: Province of Sindh & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Abdul Maalik Gaddi Title: Muhammad Saleem Shaikh & others vs Province of Sindh & others Case No.:C.P.Nos.D-228 of 2004, 2157 of 2008, 2576 of 2009, 2353 of 2009, 2354 of
2009, 2355 of 2009, 2356 of 2009, 2596 of 2010, 2559 of 2010, 218 of 2010, 104 of 2011, 2963 of 2011, 104 of 2012, 4429 of 2012, 2252, 2473 of 2014 & 797 of 2018 Date of Judgment:2020-02-13 Reported As:KLR 2021 Labour & Services Cases 56, 2020 PLC (C.S.) 1156, PLJ 2021 Karachi 1, 2020 SHC 150 Result: Petitions disposed off Judgment Muhammad Ali Mazhar , J. The aforesaid Constitution Petitions have been filed to challenge the result of Combined Competitive Examination 2003 . The result was declared and published on 10.04.2004 in print media and successful candidates were called upon to appear in viva voce. According to the petitioners, some serious irregularities and illegalities were committed in the examination and due the sheer favoritism, blue-eyed candidates were declared successful and many successful candidates were declared failed. 2. The composite momentary facts are as follows:- An advertisement was published by Sindh Public Service Commission in the newspapers dated 27.07.2003 for inviting applications to the posts of BPS-16 and 17 through combined competitive examination. The petitioners applied to join the process and appeared in the written test scheduled from 31.12.2003 to 12.01.2004. Total 2555 candidates appeared in the examination out of which 531 candidates were declared successful. The result was declared and published on 10.04.2004 in print media and successful candidates were called upon to appear in viva voce. The final result was announced on 27.06.2004 by which 77 candidates were declared successful and recommendations were sent to respondent No.1 (Government of Sindh). It is significant to note that Sindh Public Service Commission was silent with regard to the marks obtained by each candidate. Due to hectic efforts the petitioner , Salim Shaikh got the marks certificate on 02.08.2004 after the lapse of two and half months which disclosed that he got 726 marks out of 1150 marks so he should have been declared successful but due to serious fraud and tampering with the record of Sindh Public Service Commission, his name was not included in the successful candidates. He obtained
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201 marks in viva voce test out of 250 marks. Somehow or the other , the similar grievances have been brought forward by some other petitioners too who have also alleged serious fraud and tempering in the record and result to favor and give preferentiality to the blue-eyed. In C.P.No.D-2157/2018, SPSC filed the comments and made a request to allow time to scrutinize the result. They expressly admitted that the result of many candidates were manipulated and tampered intentionally . The candidates who failed in one or more subjects were shown qualified and their roll numbers were inclu ded in the final result/press release. An enquiry report of the committee, constituted under the direction of chairman, SPSC on combined competitive examination was also submitted. Another inquiry was conducted by Anti-Corruption Establishment based on the FIR No.GO-08/2009 of ACE Hyderabad, lodged against Muhammad Umar Zaur , the then Controller of Combined Competitive Examination of SPSC and others. According to the reports, massive tampering took place and the Controller of Exam was involved in the forgery and alteration in the answer sheets and result 2003-2004. A recast result was submitted vide statement dated 14.01.2015 in C.P.No.D-2355/2009 which shows that all available answer copies of candidates have been rechecked in order to remove discrepancies. The report shown some interpolation in the mark sheets as well as in the final result, therefore the members recommended for fresh interviews. 3. The minutiae of the bunch of petitions do show that various petitioners as an individual or in league challenged the above competitive process and also arrayed various private and official respondents. Virtually , in all these petitions the Combined Competitive Examination 2003 is under challenge. During pendency of these petitions, many miscellaneous applications have been filed under Order 1 Rule 10 CPC for and against by various persons for impleading them proper and necessary parties. The net calculation of such applications available on record is 41. Two applications were dismissed for non-prosecution but the applicants filed their applications for restoration. The rudiments of CMAs are as follows: (1) CMA No.1 1973/2009 filed by Saeed Ahmed Bhutto for impleading as Petitioner . (Allowed on 3.1 1.2010) (2) CMA No.10251/2009 filed by Ms.Mamona Shah for impleading her as Respondent. (Allowed on 3.11.2010) (3) CMA No.10157/2009 filed by Syed Khalid Muneer for impleading as petitioner . (Dismissed on 30.08.2010) (4) CMA No.10009/2009 filed by Aamir Zia for impleading as Respondent. (Allowed on 3.1 1.2010) (5) CMA No.10156/2009 filed by Shoaid Ahmed Kerio for impleading as Respondent. (Allowed on 3.1 1.2010) (6) CMA No.10252/2009 filed by Ahyan Mustafa Bhutto for impleading as Respondent. (Allowed on 3.11.2010) (7) CMA No.1 1404/2009 filed by Nasir Mehmood & 05 others for impleading as petitioners. (Allowed on 3.11.2010) (8) CMA No.41 15/2010 filed by Azizullah Chandio & another for impleading as petitioners. (Allowed on 3.11.2010) (9) CMA No.9779/2010 filed by Ibrahim Memon & 11 others for impleading as Respondents. (Allowed on 3.11.2010) (10) CMA No.574/201 1 filed by Iftikhar Ali for impleading as petitioner (Not listed). (11) CMA No.1692/201 1 filed by Riaz Ahmed Dahar & 14 others for impleading as Respondents. (Allowed on 07.04.201 1) (12) CMA No.2991/201 1 filed by Abdul Rehman Khawaja for impleading as petitioner . (Allowed on 07.04.201 1) (13) CMA No.20684/2013 filed by Zame er Ahmed for impleading as petitione r (Allowed on 18.07.2013) (He has also filed Statement for withdrawal of application) (14) CMA No.20824/2013 filed by Imdad Hussain Siddiqui for impleading as petitioner . (Allowed on 18.07.2013) (15) CMA No.20826/2013 filed by Imdad Ali Patoojo for impleading as petitioner . (Allowed on 18.07.2013) (16) CMA No.22085/2013 filed by Muhammad Asif & 07 others for impleading as petitioners. (17) CMA No.33023/2013 filed by Abdullah Hanjrah for impleading as petitioner .
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(18) CMA No.537/2015 filed by Asadullah for impleading as petitioner (19) CMA No.33022/2013 filed by Abdul Hakeem for impleading as petitioner . (20) CMA No.2636/2014 filed by Saleem Akhter for impleading as petitioner . (21) CMA No.3503/2014 filed by Ghulam Mohiuddin for impleading as petitioner . (22) CMA No.33443/2014 filed by Muhammad Ali Unar for impleading as petitioner . (23) CMA No.34281/2014 filed by Awais Ahmed T alpur for impleading as petitioner . (24) CMA No.3190/2015 filed by Salahuddin for impleading as petitioner . (25) CMA No.30200/2015 filed by Muhammad Rizwan for impleading as petitioner . (26) CMA No.35248/2015 filed by Abdul Sattar Malik for impleading as petitioner . (27) CMA No.2476/2016 filed by Ghulam Ali for impleading as petitioner . (28) CMA No.8071/2016 filed by Muhammad Amin for impleading as petitioner . (29) CMA No.81 14/2016 filed by Abdul Sattar Malik for impleading as petitioner . (30) CMA No.6379/2017 filed by Zeeshan Ahmed Phulpoto for impleading as petitioner . (31) CMA No.5768/2017 filed by Aurangzeb Mughal for impleading as petitioner . (32) CMA No.6706/2017 filed by Muneer Ahmed Seehar for impleading as petitioner . (33) CMA No.23165/2017 filed by Abdul Hafeez & Ghulam Abbas for impleading as petitioners. (34) CMA No.25202/2017 filed by Muhammad Muslim Shaikh for impleading as petitioner (35) CMA No.17123/2018 filed by Sultan Qureshi for impleading as petitioner (36) CMA No.36936/2018 filed by Sarfraz Ahmed Lakho for impleading as petitioner . (37) CMA No. 27219/2013 filed by Faqir Muhammad for impleading as petitioner in CP .No.D-2354/2009 (38) MA No.481/2006 filed by petitioner to implead Ghulam Murtuza as respondent in CP .No.D-228/2004 (39) MA No.608/2009 filed by petitioner to implead Muhammad Nawaz Soho as respondent in CP.No.D- 228/2004 (40) CMA No.4876/2010 for restoration of Order 1 Rule 10 CPC application filed by Shabbir Ahmed Awan (41) CMA No.7565/201 1 For restoration of Order 1 Rule 10 CPC application filed by Syed Khalid Munir . 4. The multifactorial upshot of arguments move forward by the learned counsel for the petitioners and the petitioner Salim Shaikh in person is that in the competitive examinations conducted by the Sindh Public Service Commission/respondent No.4, the results were manipulated to favour some candidates and deprived the petitioners from selection on merits. The candidates who had passed the examination were shown to have failed and candidates who failed were shown to have passed the examination, therefore the appointments made on the forged examination results be declared null and void. The learned counsel referred to the Enquiry Report dated 25.7.2009 submitted by SPSC with the comments filed in C.P. No.D-2157/2008 and also admitted the manipulation in the result. The gist of the inquiry report explicates that after carrying out phys ical scrutiny of each and every answer sheet of all subjects of 75 candidates, the committee observed that almost 57% of the result of the combined competitive examination, 2003 was tempered. It was further stated that colossal and capricious tampering has been made in the paper of History of Sindhi Literature and the marks of 13 selected candidates were altered which upset the merit. The committee concluded that out of 77 selected candidates, after scrutinizing each and every copy of answer sheets of 75 candidates, the tampering with mark sheets, face sheets and result sheets in case of 47 candidates was found which almost 57% of the final result. The large scale tampering was done intentionally and deliberately . The learned counsel also relied on paragraph 33 of the report and argued that based on the above report, FIR No.GO-08/2009 was lodged against the culprits and an Enquiry report was compiled by the Anti-Corruption Department. 5. It was further averred that the beneficiaries were appointed in violation of merit and the petitioners and other qualified individuals were denied their right to be appointed on merits. They relied on the judgment of Apex Court (2014 SCMR 949) rendered in the case of illegal appointments in EOBI whereby an internal fact findin g committee was formed which submitted its report highlighting illegal appointments. The court held that unanimous report speaks volumes about the mismanagement, corruption, nepotism and politicizing of the disputed appointments in a mala fide manner , thereby crushed the merit criteria in a public owned establishment of the Government. It was
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further held by the apex court that if petitions are allowed substantial hardship is likely to be caused to many of the appointees who will lose their jobs because of the illegalities in their respective appointments committed by EOBI, but the fact remains that such ill-gotten gains cannot be protected under any cannon of law or even on humanitarian considerations, such gains availed by the illegal appointees were at the cost of other deserving candidates who had applied for these posts with a legitimate expectation that they would be able to seek appointment on the basis of their eligibility-cum- merit criteria. Moreover , the hon'ble Supreme Court in another case reported in 2017 SCMR 637 found that the SPSC had committed large-scale illegalities in conducting the examinations of 2013 and held that the results of the said test were not free, fair or transparent and therefore set aside the result. The illegal appointees filed a review against the said decision, which was dismissed and order in review is reported in 2017 SCMR 1519 . In the said review application, the appointees took the stance that a vested right accrued in their favour , they should not to be penalized for the wrong doings of the SPSC and by virtue of the de facto doctrine their appointments are protected. However , such stances were rejected by the Supreme Court and the court held that "The question before this Court is not whether one or the other set of candidates had resorted to unfair means and illegal acts in order to gain employment, the real question relates to fairness, integrity and transparency of the process and procedure adopted by the Chairman and Members of the Commission to undertake the selection process. This Court has found serious flaws in the process of selection which point towards lack of transparency to facilitate nepotism and favoritism that cannot be condoned or countenanced. We are not persuaded by the argument of the learned counsel that the de fecto doctrine is attracted to the facts and circumstances of this case, which suggest that the very appointments of the Chairman and Members of the Commission suffered from serious defects and flaws. However , the matter did not end there. The process and procedure adopted by the then Chairman and Members for undertaking the exercise of selection was replete with illegalities, departure from recognized norms and deviation from the law, rules and procedure which we have found hard to overlook or sidestep." 6. It was further contended that the apex court held in 2006 SCMR 1876 that individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer , therefore not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had right to be served by the best. It was further averred that it is a settled principle of law that no person can claim a right obtained in violation of law. [PLD 2013 S.C. 829; 2011 SCMR 408] Similarly if the order is illegal, perpetual rights cannot be created [2000 SCMR 907]. The hon'ble Supreme Court in the past in particular with regards to the issue of police promotions in violation of law demoted such police officials despite them having rights. [2013 SCMR 1752 ; 2015 SCMR 456]. Hence, the beneficiaries of such fraudulent and manipulated exams are not entitled to retain their respective posts as no right has accrued in their favour . So far as plea of laches from other side, the learned counsel argued that plea of laches would not be applicable in case of recurring cause of action or if it defeats the ends of justice. The Supreme Court in its judgment reported in PLD 2013 SC 268 held that "No Court would dismiss a lis on the ground of laches if it defeats the cause of justice and thereby perpetuates an injustice. Even otherwise, bar of laches cannot be over emphasized in the cases where the relief claimed is based on recurring cause of action." It may be noted that the petitioners filed petitions in this court in relation to the fraud in the Combined Competitive Examinations, 2003. During the pendency of such proceedings, the respondent No.1 constituted a three members committee for purposes of investigating the Combined Competitive Examinations, 2003. There are three reports on record i.e. the inquiry report, the re-cast result and the inquiry report by Anti-Corruption that confirm widespread illegalities and tampering committed in the result. 7. The learned counsel for the private respondents in nutshell argued that the petitions suffer from laches and liable to be dismissed on this account alone. The process of Combined Competitive Examination was started by publication in newspaper on 27.07.2003, the final result was announced on 27.06.2004 and the successful candidates were appointed and posted in 2004. The functions of the Sindh Public Service Commission cannot be challenged by filing of writ petitions. The petitioners have other alternate adequate remedies available to them under the SPSC laws which they have failed to avail. The petitions are also barred in view of the Sindh Public
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Service Commission Act and the rules and regulations framed thereunder . The new management of SPSC submitted para wise comments against the petition of Saleem Shaikh and in this Constitutional Petition partly admitted the allegations of illegalities/tampering leveled by Saleem Shaikh against the result of Combined Competitive Examination 2003; while it had earlier denied the allegations of tampering/illegalities in 2003 Combined Competitive Examination in CP No.D-228/2004 filed by Nabi Bux Sathio. The partly admission of new management of SPSC in the instant CP is based on mala fide intention. The SPSC Enquiry Report is sheer violation of principle of natural justice inasmuch as the successful candidates were never provided any opportunity of hearing by the new management of SPSC before recommending adverse action against the successful candidates. The SPSC did not enquire examiners who were related to alleged tampering. They only conducted so called enquiry in favour of petitioners to show their so called performance before superior and creating pretext for recasting the result. Moreover , the Committee was constituted without any mandate of law and composed of such members having no specialty in relevant subjects who unlawfully attempted to re-check, reassess and re-examine the answer copies which were already assessed by subject specialists. The recast result was prepared after conducting enquiry team of five members but it was not signed by all members which rise to strong presumption that other four members did not agree with such report. The selection of private respondents was given effect by the Government of Sindh, therefore, even Government of Sindh is not competent to undo it. The notification of appointments cannot be withdrawn or rescinded after taking legal effect and acted upon. The reliance was placed on the doctrine of locus poenitentiae and referred to the case of Chief Secretary Government of Sindh vs. Sher Muhammad Makhdoom (PLD 1991 SC 973). It was further contended that the suo motu case reported in 2017 SCMR 637 is not applicable in the instant case as suo motu action was initiated by the Supreme Court regarding eligibility of Chairman and Members of Sindh Public Service Commission which was allowed by Supreme Court and appointment of Chairman and Members were held to be unlawful as they were lacking the required eligibility and qualification and the examination conducted by them was also declared as illegal as sufficient record was placed before the supreme Court for adjudication of large scale illegalities and discrepancies committed by the Chairman and its Members while in this case, the eligibility of commission is not under challenge. 8. It was further contended that the petition is hit by doctrine of laches. No legal right has been agitated by petitioner to enforce, particularly after lapse of considerable period. The new management of SPSC partly admitted the allegations of illegalities and tampering in the result of Combined Competitive Examination, 2003, while it had earlier denied the same allegations. Under the SPSC Act and its rules, the role of SPSC is to conduct test and examination, whereas SPSC initiated enquiry in Combined Competitive Examination, 2003 on its own. The inquiry reports were prepared in violation of principle of natural justice. Some of the private respondents on gaining knowledge of the petition approached for impleading them as party which were allowed but still large number of candidates declared successful are not before this court nor they have been heard. No law authorizes SPSC to recheck, reassess and re-examine the result. Disputed question or factual controversy between SPSC Enquiry report and Recast result report cannot be resolved under constitutional jurisdiction. 9. The learned A.A.G argued that one Nabi Bux Sathio on 19.8.2004 filed C.P.No.D-228/2004 in the Sindh High Court at Circuit Bench Hyderabad against respondent No.1 and 2 for challen ging the combined competitive examination 2003-04. The respondent No.2 in its parawise comments supporte d the successful candidates of combined competitive examination 2003. This petition has been tagged with C.P.No.D-2157/2008. On 26th May, 2008, S.N. Abbasi along with nine other members including Mr.Abrar Hussain Mirza, Mr.Nawaz Ali Leghari and Shah Mansoor Alam were appointed in the Sindh Public Service Commission. After the change of the management of SPSC Mr.Muhammad Saleem Shaikh on 18.10.2008 after lapse of more than four years filed C.P.No.D- 2157/2008 although he was in possession of his marks sheet since 2.8.2004. The first para of recasting result states that for the purpose of re-casting result, all available answer copies of the candidates have been re-checked minutely in order to remove every discrepancy that was left over and manipulation and tampering made in previous assessment of answer copies. The task of re-checking of answer copies was entrusted to the members of the Sindh Public Service Commission. There is a difference in the number of Answer Books and nearly 1688 answer Books have been misplaced under the control of the Member Examination Mr. Abrar Hussain Mirza thus making
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the two reports of Respondent No.2 contradictory . The learned A.A.G further argued that the petitions are hit by laches. No case of issuances of writ of mandamus is made out. The petitions do not fulfill the requirements of writ of Quo-W arranto. The enquiry report and recast report were prepared incompetently . He referred to 2004 SCMR 1299 , 2014 PLC (CS) 1292 , 2017 SCMR 369 , 1999 SCMR 2405 and 2005 SCMR 445 10. Heard the arguments. To start with, we would like first to refer to an order dated 26.03.2010 passed by the learned Division Bench of this court in the leading petition (C.P. No.D-2157/2008) which shows that the respondent No.2 (Sindh Public Service Commission) submitted their comments and also sought three months' time for completing the detailed scrutiny of result of Combined Competitive Examination 2003. The learned Division Bench shown displeasure that comments were filed on 12.06.2009, neither detailed scrutiny report was compiled nor submitted in the court. The learned A.A.G. requested for further two weeks' time to make available the scrutiny report in court. The order dated 30.08.2010 echoes that the learned A.A.G. produced a copy of inquiry report in respect of only 70 candidates, whereas the total number of candidates who appeared were more than 700 thenceforth this court returned the report to the A.A.G. with the directions to bring it on the next date of hearing. The order dated 21.08.2013 displays the statement of the learned A.A.G. that pursuant to the directions of this court, the inquiry was duly conducted and reports were submitted in the office. In the same sequence the order dated 27.05.2015 exhibits that A.A.G. was direc ted to place on record two inquiry reports and supply the copies of such reports to the petitioners as well as couns el for the respondents with the right to file objections. We have examined the first inquiry report which unveiled the blatant tampering and mess around the record and data with clear intention of fraud and also smacks sham and dishonesty in the whole examination process, so the entire process was considered as deceptive with further observation that the fabricated result has lost credibility and has been issued without any legitimate basis. For the ease of reference, the recommendations made in inquiry report are reproduced as under: Recommendations in the Inquiry Report:- "43. In view of the facts and position elucidated in the forgoing paragraphs and to meet the justice and transparency in selection of 77 candidates for various posts through the Combined Competitive Examination, 2003 it is proposed that: i) The answer sheets of every candidate must be available in the record room of the (Examinations) branch until and unless accounted for any shortfall by the authorized person in whose custody such is kept. Removal or missing of answer sheets point towards manipulation in the reco rd with ulterior motives. Such candidates must not be declared successful in the final list and should not be recommended for appointment. If recommendation has been done for such candidates, their candidature may be declared ineligible and their recommendation should be withdrawn. ii) Each answer book must be signed by the actual examiner (where it is required mandatory) else the result of that candidate may be treated as null and void. iii) The assessment made by the examiner if found tampered, the result on that answer sheet may be treated as null and void. iv) Overwriting on the face sheet of a candidate is liable to cancellation of result. v) Award of marks mentioned on the face sheet of answer sheet must corresp ond with the…
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