Full Judgment Text & Judicial Ruling

2011 P L C (C

2011 P L C (C.S.) 116

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

IMRAN HUSSAIN---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA and 4 others-Respondents

Writ Petition No.6210 of 2010, decided on 15th July, 2010.'

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---State owned companies are amenable to constitutional jurisdiction under Art.199 of the Constitution.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 fol.

(b) Constitution of Pakistan---

----Arts. 4, 18 & 25---Public sector company--Master and servant, principle of---Applicability---Scope---Mode and manner of recruitment followed by a public sector company---Objection regarding application of the principle of "master and servant" in the matter was misconceived as matter in question was not the `terms and conditions of service'---In the present case, it had been agitated that the Recruitment Policy had been violated; that in spite of public advertisement, sham interviews had been conducted without any common and prefixed objective criterion to transparently judge and evaluate the candidacy of the applicants; and that the process adopted by the public sector company and its Selection Board was blatantly devoid of due process and deprived the applicants of their right to lawful employment and livelihood and discriminately ousted the petitioners from the recruitment process in violation of Arts.4, 18 & 25 of the Constitution---Held, objection regarding application of principle of `master and servant', was misplaced and without force.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Recruitment---No objective criterion was framed for the purposes of conducting interviews for recruitment---Constitutional petition in circumstances, was maintainable.

(d) Discretion---

----Administrative discretion has to be structured, reasoned, rational, logical and objective---Principles.

Administrative discretion has to be structured, reasoned, rational, logical and objective. One of the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought-out, carefully deliberated objective standard. This helps test various faculties of the interviewees especially those, which the institution concerned requires. The standard can, therefore, cover experience, alertness, initiative, general aptitude, behaviour, knowledge, dependability, etc. which forms a uniform yardstick, gauge, scale or criterion for the exercise of discretion. Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human subjectivity, which is inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and painfully illogical. The administrative compulsion and wisdom to structure discretion (in the present case by providing a well-thought out objective criterion/test or a score card) is to remove human subjectivity from exercise of discretion.

On an institutional level, structuring the discretion is to protect the institution and the public from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and volatility attached to human behaviour, translated into human dissection. These vices are a breeding ground for corruption, nepotism and favourtism. These vices are like termites and if permitted to exist, weaken the foundations of democratic public institution.

Wherever wide worded powers conferring discretion exist, there remains always the need to structure the discretion. Structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open finding, open reasons, open precedents and fair informal procedure. Somehow, in the context of Pakistan, the wide-worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities tail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at time.

Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It has no internal check to ensure uniformity and objective application of mind across the board. It, therefore, extends unequal treatment to equals. Absence of an objective criterion in exercise of discretion especially in a case where thousand of candidates had applied is therefore, discriminatory and hence violative of Article 25 of the Constitution.

Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Chairman, Regional. Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.

(e) Civil service---

----Recruitment of employees---Good governance and institutional building---Requirements.

Good governance and institutional building require that the requirements, demands and needs of the institution are tailored into the objective criterion/test so that the best suited human resource is selected for the post. The proposed criterion can sub-divide total marks into areas like; experience, skill, aptitude, educational background, intellect, extra-curricular, personality, ethics, etc. so the interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity from clogging them the minds.

The Letter issued by Managing Director of a public sector company changing the Recruitment Policy at the behest of Minister besides offending fundamental right reflects of poor and reckless governance.

(f) Civil service---

----Recruitment of employees---Appointment process solely based on interview---Demerits.

B. Ramakichenin alias Balagandhi v. Union of India and others 2008 (1) SCC 362; Madhya Paradesh Public Service Commission v. Navnit Kumar Potdar and another AIR 1995 SC 77; Ajay Hasia and others. v. Khalid Mujib Sehravardi and others AIR 1981 SC 487 and Ashok Kumar Yadav and others v. State of Haryana and others AIR 1987 SC 454 ref.

(g) Constitution of Pakistan---

----Arts. 4, 18, 25 & 199---Civil service---Public sector company---Recruitment of employees---Career and future prospects of employment and livelihood of the applicants for appointment was subjected to an unstructured, unchecked, unguided and unfettered exercise of discretion---Such process put the fragile career of the applicants hostage to corruption, political opportunism and nepotism resulting in constitutional breach of Articles 4 and 18 of the Constitution---Letter issued by Managing Director of the public sector company changing the Recruitment Policy at the behest of Minister, besides offending fundamental rights, reflected of poor and reckless governance--Impugned recruitment and appointment of candidates was declared to be unconstitutional, illegal, without lawful authority and therefore set aside---High Court directed that all the said posts shall be deemed to be vacant and filled again in terms of present judgment and the Recruitment Policy unless the same was lawfully amended or modified---Public Sector Companies, in the present case, had played fraud with the legitimate expectations of hundreds of people who innocently applied desiring a decent lawful employment, however, instead of carrying out transparent recruitment process and giving meaningful employment, these institutions failed to perform their public duty and had abused the public trust reposed in them by the people of Pakistan---Such situation called for strict accountability of the public functionaries involved in the process including the Board Members of the companies who seemed to have taken no note of such large-scale breach of trust---High Court, therefore, directed the Chairman WAPDA to inquire into these unlawful appointments and to identify the real beneficiaries of unlawful recruitment process--Chairman, WAPDA shall also hear and incorporate the views of the candidates who were rejected as well as the ones whose appointment had been set aside through the present judgment---Such report shall be placed before. High Court within five months from the date of present judgment.

(h) Constitution of Pakistan---

----Arts. 4 & 199---Due process of law---Civil Service---Recruitment of employees---Administrative discretion---Scope---Article 4 of the Constitution provides for due process of law and mandates that everyone is to be treated in accordance with law---Administrative discretion which is structurally unfettered and unchecked cannot be said to have been exercised in accordance with law and therefore fails to pass the test of "due process" under Art.4 of the Constitution---Walk-in-interviews, in the present case, were devoid of any objective criterion, therefore, violative of "due process" and fundamental rights of the applicants---Such interviews were declared to be ab initio unconstitutional and unlawful creating no right whatsoever in the successful candidates.

(i) Company---

----Public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the people of Pakistan---Higher standard of governance stricter fiduciary duty and an institutional collegiality in decision making process is an expected operational benchmark of a public sector company---Principles.

A public sector company is not only to look after the interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the people of Pakistan. Higher standard of governance, stricter fiduciary duty and an institutional collegiality in decision making process is an expected operational benchmark of a public sector company. The trusteeship of the members of the Board of Directors of such company create a sacred obligation to ensure that company is run and managed through the Board, which is an independent and. an autonomous body constituted to safeguard the interest of the public and of company and at all times to firewall against political or bureaucratic opportunism. A Minister under the Rules of Business is to provide the macro policy and fashion the vision of the Department according to the political agenda of the Government in power. It is not the role or the business of the Minister to interfere with the operational working of autonomous body like a public sector company. In the present case, the Minister could have stressed the urgency to employ manpower in various companies but could not have gone further to suggest and direct the temporary modification of the Recruitment Policy unless the company after due deliberation at the Board level and after giving reasons felt that such a modification is required in the larger interest of the company and in public interest. Government and its autonomous institutions are spread out in layers, every tier having its own independent role and scope of operations and there is no room for dictation or pressure. Unless the structure of governance laid out in the Rules of Business read with the constitutional principles, is protected, the system of public administration will come crashing down, replacing public interest with personal avarice and greed. This cannot be permitted.

Public sector companies shall take collective decision in their Board Meetings, giving reasons as required under section 24-A of the General Clauses Act, 1897, a Board Resolution through circulation, if there is urgency. Only in grave emergency, which has no room for delay, the Chief Executive Officer may act singly in the welfare of the company and in public interest, supported by written reasons for its urgency and the same must be ratified by the Board of Directors within the shortest possible time. Board of Directors must also give reasons for allowing the Chief Executive Officer to take such a decision and must give reasons for its ratification.

Public sector company is an independent public company with its autonomous Board of Directors. Decisions of Managing Director or the Board of Directors of the company are required to be placed before Board of Directors of the company in order to take a decision. The autonomy of the company and the independence of the Board of Directors is merely fictional if directions issued by individuals namely: Managing Director (without seeking the approval of the Board of Directors) are carried through by the management without having received the blessing of its Board of Directors.

Public Institutions (company) can only contribute to national interest and welfare of the people if they are run as an institution and in the public interest without any fear or favour. If the Board Members are bypassed and are simply used to ratify orders passed single handedly behind closed doors and without any plausible reasons, the future of public institutions is bleak. In order to ensure independence, autonomy, national interest and interest of the institution, the members of the governing bodies will have to vigilantly and actively play their roles. To be on the Board of a public sector company is to perform a public duty in the public interest of the people of Pakistan. This role has to be performed with full responsibility, vigilance, courage, wisdom and for no other reasons.

Public institutions can prosper and progress and materially serve the people of Pakistan only if the public functionaries incharge of running these institutions fearlessly guard their powers and remain undeterred by extraneous pressure and influence.

Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285 distinguished.

Ameer Abdullah Khan Niazi for Petitioner.

Nasim Kashmiri, Dy. Attorney-General, Muhammad Ilyas Khan, Aurangzeb Mirza, Shahid Karim, Kh. Ahmad Tariq Raheem, Shahzad Shaukat, Muhammad Munir Khan, Mian Abdul Qaddus, Sarfraz Ahmad Cheema and Alia Ijaz for Respondents.

Muhammad Arshad Javed, Ch. Ahmad Saif Ullah Khathana, Muhammad Arif Pervaiz Butt, Azhar Iqbal and Zia Shahid for Appointees.

Tanveer Safdar Cheema, Chief Executive FESCO. Ch. Muhammad Ashraf, Director (HR) FESCO. Shabbir Ahmad, Senior Manager L&W PEPCO.

Dates of hearing: 29th April, 8th 12th, 13th and 15th July, 2010.

JUDGMENT

SYED MANSOOR ALI HAH, J.--- This consolidated judgment shall also decide writ petitions mentioned in Schedule A along with the titled petition. Petitioners had applied for the posts of Assistant Lineman (ALM), Meter Reader, Commercial Assistant and Naib Qasid. All these petitions air the same grievance and raise identical questions of law and facts and are, therefore, being decided through this consolidated judgment.

2. Brief facts of the case are that Faisalabad Electric Supply Company ("FESCO'") publicly advertised vacancies in 22 different categories of posts, including the above posts, in Urdu and English dailies namely: "Jang" and "Daily Express" on 2-11-2008. The said public advertisement was restricted for candidates domiciled in Districts Bhakkar, Faisalabad, Toba Tek Singh, Mianwali, Sargodha and Khushab.

3. Petitioners eagerly applied for the abovementioned posts under Direct Quota and Employees' Children Quota along with their testimonials. Petitioners were issued Interview Call Letters and thereafter they appeared to be interviewed by the concerned Selection Board of the area. The requirement of written test was dispensed with, as is described more fully later in the judgment. Principal grievance of the petitioners is that the Selection Boards simply marked their presence as they went in for the interview. No question was asked and they were told that the interview has been concluded. The mode and manner of conducting interviews lead the petitioners to assume that FESCO is not interested to fill the said vacancies. However, the petitioners later on found out to their dismay that all the posts had been filled. Petitioners allege that they have been deprived of their long awaited chance to a lawful employment and what has aggravated their injury is the skewed and selective appointments based solely on political favourtism, disregarding merit. It is vehemently and somewhat poignantly contended by the petitioners that appointments were even made from outside the group of districts mentioned in the advertisement. It was submitted that the entire recruitment process was the work of a hidden political hand, which successfully orchestrated the recruitment process to its own advantage by dictating, autonomous public sector companies to violate their own recruitment policy. It was argued that the appointments were made in violation of the Recruitment Policy, 1992 which was heartlessly and unlawfully modified to achieve the desired benefit for the concerned quarters.

4. Messrs Muhammad Ilyas Khan, Khawaja Tariq Rahim, Aurangzeb Mirza, Shahid Karim, Mian Abdul Qudoos, and Muhammad Shahzad Shaukat, Advocates interchangeably appeared on behalf of FESCO, as well as, Pakistan Electric Power Supply Company ("PEPCO"). Muhammad Ilyas Khan Advocate, one of the counsel for FESCO, vehemently, raised preliminary objections to the maintainability of the instant petition.

5. His objections were that writ petition against FESCO does not lie as it is merely a company incorporated under the Companies Ordinance, 1984. He further submitted that the principle of "master and servant" applies in the present case as the petitioners are not governed by any statutory rules of service and lastly, the instant matter involves factual inquiry and therefore, writ is not an appropriate remedy. Learned Counsel placed reliance on Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar Dost Khan and others 2006 SCMR 1630, Almas Ahmad Fiaz v. Secretary Government of the Punjab, Housing and Physical Planning Development, Lahore and another 2006 SCMR 783 and Maqbool Ahmad v. Pakistan Agricultural and others 2006 SCMR 470.

6. On merits, counsel for PEPCO/FESCO submitted that as the last date for receipt of applications was 15-3-2009. On the said date 86,102 applications were received, however, only 44,656 candidates appeared in the interview under the Direct Quota out of which 1306 were appointed and only 1100 joined the said posts. Under the Employees' Children Quota, 3,477 candidates applied, 2,464 appeared in the interview and only 313 candidates were appointed while only 247 joined the service. Therefore, a total number of 1,347 candidates joined the posts and out of this 101 candidates were not domiciled from the group of advertised districts.

7. It was submitted that the recruitment was initiated on the basis of Recruitment Policy, 1992 framed by WAPDA and adopted by the Board of Directors of PEPCO and FESCO independently. The Recruitment Policy, 1992 was prepared in line with the "GOP [Government of Pakistan] Policy Parameters like open advertisement of the vacancies in the National Press and conducting written tests and interviews of the eligible candidates." After the public advertisement for the vacant posts on 2-11-2008, Managing Director ("M.D.") PEPCO issued Letter dated 15-10-2009 on the direction of the Minister for Water and Power, whereby deviation was made in the Recruitment Policy, 1992 and the requirement of written test was dispensed with, replacing it with only a Walk-In Interview.

8. The marks for the written test (65 marks) were added into the interview marks making the total marks allocated for the Walk-In Interview to be 90, while 10 marks were to be awarded for higher qualifications. Counsel for FESCO/PEPCO submitted that 11 (eleven) Selection Boards were constituted to conduct the Walk-In Interviews at various centres located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha. It is contended that the appointments were made strictly in accordance with law and on the basis of merit.

9. When counsel for the respondents were asked whether there was any objective criterion framed for the purposes of carrying out interviews by PEPCO, FESCO or the Selection Boards, the counsel candidly submitted that no objective criterion was framed and the interviews were conducted purely on discretionary basis. Chief Executive Officer ("CEO"), LESCO appeared in person and was directed to place on record the interview proceedings/workings of the Selection Boards so that the Court could assess and satisfy itself regarding the uniform basis and parameters employed by all the Selection Boards while interviewing candidates for the posts. Chief Executive Officer categorically submitted that no record of proceedings of the Selection Boards was available, Chief Executive Officer made a statement to this effect in writing before the Court, which is dated 12-7-2010 and has been placed on the record as mark "A" which states:---

"The undersigned had checked from the head of all Selection Boards constituted for selection of FESCO employees in various categories. They informed that after the induction/consolidation of the selection results at FESCO Headquarters, Faisalabad, the Officer Incharge of Selection Board of various centres did not retain the record of the proceedings of Selection Board, since they had signed consolidated computerized results and as a record was not required to be retained under any rules."

10. The CEO also confirmed that no objective criterion was framed for the purposes of the interviews by FESCO or the Selection Boards.

11. Counsel for PEPCO was asked how MD, PEPCO single handedly modified Recruitment Policy, 1992, dispensing with the requirement of the written test which is provided for in the Government of Pakistan Policy parameters for recruitment and whether the Board of Directors of PEPCO had authorised the MD, PEPCO to issue letter dated 15-10-2009? Counsel for PEPCO sought time and on the next date of hearing placed on record the extracts of the Board Resolution passed by the Board of Directors of PEPCO dated 24-5-2010 whereby ex-post facto ratification was granted to the letter dated 15-10-2009 issued by MD, PEPCO. He further submitted that PEPCO has to follow the Government Instructions, which have been noted in letter dated 15-10-2009.

12. On 8-7-2010, Mr. Abid Ali Chaudhry, Assistant Registrar (Criminal-II) of this Court was appointed as a Local Commissioner who was directed to immediately leave for the Head Office of FESCO, Faisalabad and to undertake the following tasks:--

(1) To obtain a copy of the Recruitment Policy/notification followed by FESCO for the present appointments.

(2) To obtain a copy of the notification/letter through which Selection Boards were appointed, showing the names of the members of the said Selection Boards.

(3) Letter/notification showing the objective criterion framed by FESCO for the' purposes of carrying out interviews or the appointments in the present cases.

(4) The local commission will take up 10 cases at random of the petitioners (maintained by respondent FESCO) and place his stamp and signatures on all the pages of the said files. He will do the same by taking 10 cases at random of the persons appointed by FESCO and place his stamp and signatures on all the pages of the said files.

(5) In case any of the above is missing and FESCO fails to furnish the same to the satisfaction of the local commission, he will record the statement of Director, HR&A to that effect and procure the signatures of the said Director on the said statement."

13. The Report of the Local Commission dated 12-7-2010 has been placed on record. No written objections have been filed against the said Report and none of the counsel controverted the contents and findings of the said Report during their arguments.

14. On 29-4-2010, FESCO was directed to issue notices to all the candidates who were appointed as Assistant Lineman, Meter Readers, Commercial Assistants and Naib Qasids so that their presence before the Court is ensured. Notices were duly issued to all the appointees in the above category out of which 65 appointees appeared before this Court through counsel. Counsel for the appointees submitted that they…

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