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Petitioner: FATIMA VS Respondent: FEDERATION OF PAKISTAN through Secretary M/O Commerce JUDGMENT
Court Name: Balochistan High Court Judge(s): Naeem Akhtar Afghan, Muhammad Kamran Khan Mulakhail Title:FATIMA vs FEDERATION OF PAKISTAN through Secretary M/O Commerce
JUDGMENT
Reported As: PLJ 2018 Quetta 59 Result: Order Accordingly. Judgment JUDGMENT Muhammad Kamran Khan Mulakhail, J.--Brief facts leading to file the instant petition are that in the backdrop of Prime Minister's directives, the Cabinet Secretariat/Establishment Division Government of Pakistan had issued office memorandum F.No, 1- 11/2009/DS(Coord:) Islamabad, the 4th April 2014, to .the effect that the "Prime Minister has been pleased to desire that all posts under Aghaz-e-Haqooq-e-Balochistan (AHBP) lying vacant in all Federal Ministries/Divisions/Autonomous Bodies, should be filled with in one month." It was also observed that "according to data available with the Establishment Division, they have 3055 position (BS-1 to 22) lying vacant as on 03.04.2013, as per laid down quota (6% of Balochistan)", while in compliance of the said directives a schedule was also stipulated, i,e, for advertisement, (April 5-6, 2013) tests and interview (April 16, 2013) preferably at Quetta, scrutiny of papers/finalization (April 17-25, 2013) of the candidates followed by issuance of offer letter/joining (April 26-30 of 2013) with further direction that for the positions within the purview of Federal Public Service Commission (FPSC), requisition of the same may be sent to FPSC and progress reports as on 15th April and 30th April 2013 was, also directed to be submitted to the Prime Minister's Secretariat. The Respondent No, 1 (Ministry of Commerce) directed the Respondent No, 2 the State Life Insurance Corporation of Pakistan (the "Corporation") to ensure the implementation of the instructions of the Prime Minister. The Respondent No, 2 floated an advertisement and invited the applications against the vacant posts, which was published in the 'Daily Jung Quetta' on 19th April 2013. In the afore referred advertisement applications for the post of Manager (legal) were also invited, wherein the candidates having LLB degree with five years working experience with the
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upper age limit of 40 years were eligible to apply for the post. The petitioner appeared in the test and interview and finally a merit list was displayed in the office of Respondent No, 3 wherein the petitioner stood at S. No, 1 by securing 68 marks. 2. Meanwhile, the "State Life Insurance Employees Union" (CBA) through its general secretary filed a petition before the Member, National Industrial Relations Commission (NIRC), Quetta Bench, Quetta, whereby initially the restraining order was passed against the Respondent No, 2 by directing him to stop the recruitment process. However, vide order dated 8.5.2013 the petition was dismissed as withdrawn. The petitioner on securing highest marks was expecting to receive the appointment letter, when a complaint under Section 33(6) of the Industrial Relation Act, 2012, was filed before the worthy Chairman NIRC at principle seat Islamabad, wherein it was mainly contended that the NIRC has already passed a restraining order against the recruitment in the Corporation on 16.1.2013, therefore for willful defiance of the NIRC's order, passed by the Karachi and Lahore Benches of NIRC, a contempt proceeding was solicited. In pursuance whereof, a Show-Cause notice dated 20.5.2013 was directed to be issued to the Respondent No, 2 to the effect "as to why action should, not be taken against him for violation of injective orders of the Commission". The Respondent No, 2 submitted his reply to the show-cause notice, averring therein that posts were advertised in pursuance of directive of the Cabinet Secretariat/Establishment Division vide office memorandum dated 4th April, 2013 for recruitment under Aghaz-e-Haqooq-e-Balochistan package; approved under the Act of Parliament. It was further contended that the said advertisement was for the province of Balochistan only, in order to provide employment to the deprived and unemployed youth of the province. It was also asserted that the similar nature of case filed by the CBA union before the NIRC Quetta Bench has already been dismissed as withdrawn vide order dated 8.5.2013. 3. However, the petitioner continued to approach the Corporation for issuance of her appointment letter, when she finally learnt that the case related to new recruitments has been stayed by the NIRC's Commission, therefore on order of appointment can be issued till final disposal of the aforesaid case. The matter remained pending before the NIRC when vide order dated 22.5.2013, Show-Cause notice was discharged after recording the Corporation's stance and with consent of the parties to the following effect: "The learned counsel for the respondent corporation in the back drop of the deprivations of the people of the Province of Balochistan and in the peculiar circumstances, and in view of the special package; applications against the vacancies have been invited through advertisement in Daily Jang Quetta need be filled in by selection on merit. The president of the federation when confronted to this aspect of the matter being processed pursuant to the directive of the Prime Minister, he submitted that the petitioner shall not grudge the selection and appointments against the vacancies meant for the workmen subject to the condition that in case the petitioner is successful in substantiating the claim of 33% of the vacancies reserved for the children of workmen being enforceable; the respondent-corporation steal without any reservation or exception appoint on merit the children of the workmen from Balochistan, keeping in view the number of appointments made pursuant to the advertisement in daily Jang, Quetta as per allocated quota. This offer is categorically accepted on behalf of the respondent-corporation by Mr. Shahid Hashmi (Assistant Manager) under instruction from Dr. Ghazala Nafeez, GM/Disisional Head obtained on telephone a couple of mimutes before and this offer being reasonable is accepted Order accordingly. 9. Reply to the show-cause notices has been filed on behalf of the respondents. Consequently in view of the above noted position show-cause notices dated 20.5. 2013 issued in terms of order dated 17.5.2013 stand discharged." However since the complaint was clubbed with the main case, which was still pending
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adjudication before the worthy Commission, and was finally disposed of, vide order dated 25.11.2014 in the following manner: 2. The learned counsel for the respondents submitted that the State Life Insurance Employees Federation of Pakistan (petitioner/complainant) is no more in existence and the complainant federation stands extinct consequent upon having obtained the registration an industry wise trade union Moreover, the body (officers) who instituted the complaint, is no more in existence hence; the matter is not being pursued for having lost the interest for the afore-stated reason. In view of the above stated position, this matter since canna proceed further, therefore, the same is disposed of accordingly." 4. The petitioner soon after having come to know about final disposal of the lis before the Hon'ble Commission, again submitted a representation dated 2.3.2015 before Respondent No, 2 with request for issuance of her appointment order as Manager (Legal) in the Balochistan zone of the Corporation. The needful could not be done, therefore, the petitioner filed the instant Constitutional Petition before this Court on 9.5.2015. 5. On receipt of notice, the respondent entered appearance and after availing the copy of petition on 18.6.2015, filed a reply/parawise comments on 29.6.2015, while learned Deputy Attorney General appearing on behalf of the Respondent No, 1 stated that he does not intend to file para-wise comments and would rather rely on the comments already filed by the Respondent Nos, 2 and 3. The case remained pending, due to lack of attendance of the parties or their respective counsel. Therefore vide order dated 19.12.2.015 again a notice was sent to the Respondent No, 3 to ensure the appearance of its counsel. The counsel for Respondents No, 2 and 3 appeared on 22.12.2015 and filed a miscellaneous application along with certain additional document's, copies whereof were supplied to the other side. On 8.3.2016 the counsel for the petitioner filed reply/objections to the Miscellaneous Application filed by the respondents and also partly argued the case. Mr. Baz Muhammad Kakar (martyred) learned counsel for the petitioner regularly appeared and advanced arguments in this case. After his said demise/martyrdom in the Quetta Civil Hospital suicide bombing of 8th August 2016, the arguments were further posthumously carried on by Mr.Abdul Ghani Khilji, Advocate. The . learned counsel contended that after the advertisement for the post of Manager (Legal), the petitioner having the requisite qualification applied for the same; that being shortlisted amongst other candidates, she appeared in the test and interviews and was placed at S.N. 1 of the merit list issued on 13.5.2013 after securing the highest marks, therefore, under the doctrine of legitimate expectancy she deserved to be appointed as a Manager (Legal) in the Corporation. Arguing further the learned counsel contended that the petitioner was less than (40) forty years old during the selection process, however when the time came and the injunctive/interlocutory order was passed by NIRC, she became over-aged; that in case, she is not appointed against the said position, she will not be eligible to apply for any other public sector post/position in future; that the official respondents took a categorical stance before the NIRC in reply to the Show-Cause notice of contempt proceedings; that the post advertised by them was related to special package in pursuance of Aghaz-e-Haqooq-e-Balochistn Package, therefore, the shows cause notice issued by the NIRC was discharged. He contended that after completion of selection process, the petitioner has got a vested right to be appointed as Manager (Legal) in the Corporation; that the manner and procedure adopted by the official respondents is an amazing example of probate and reprobate, when on the one hand just to save them selves from the operation of law and from a possible initiation of contempt proceedings, they took a categorical stance before the NIRC that the advertised post relates to special package known as the Aghaz-e- Haqooq-e-Balochistan but on the other, final disposal of the proceedings before the NIRC, they are reluctant to issue the appointment order of the petitioner. He states that under the principle of locus ponitentiae when decisive steps have already been taken and the petitioner was finally
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selected for appointment, the Executive Authority was not empowered to withhold the appointment order of the petitioner. He in support of his contention placed reliance on following precedents; Dr. Marvi Shah and nine others v. Province of Sindh (2009 PLC (C.S 182). Dr. Shoukat Pervez v. Federation of Pakistan (2010 PLC (C..S) 26). Muhammad Ismail v. Secretary Education, Government of Punjab and another, 2000 PLC (S.C) 112). Imran Hussain v. Water and Power Development Authority (2011 PLC (C.S) 116). Munir Ahmed v. Minister Home and Tribal Affairs, Government of Balochistan, Quetta and others. (2007 PLC (C.S) 679). Muhammad Asghar Wassem v. Secretary, Local Government (2009 PLC (C.S) 586). 6. Mr. Fayyaz Aslam Dar, Advocate appearing on behalf of Respondent No, 2 and 3, strongly opposed the contention and reiterated his stance, ag agitated in para-wise comments submitted by the official respondents. He propounded that the question of appointment cannot be agitated and raised before this Court as a part of vested right of the petitioner; that the recruitment and appointment of a new selectee falls within the domain of administrative authority for which no writ can be issued; that the petition is hit by the principle of latches; that the official respondents cannot be held responsible for not appointing the petitioner due to restraining orders passed by the different Benches of the Hon'ble NIRC. He urged with vehemence that petitioner is not entitled for the relief claimed for, therefore, petition is liable to be dismissed. To support his arguments the learned counsel placed reliance on the judgments in the cases of Muhammad Bilal and Seven others v. Government of Khyber Pakhtunkhwa (2014 PLC (C.S) 769), Mst.. Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi (2015 PLC (C.S) 1519) and Federal Public Service Commission v. Altaf Hussain (2015 SCMR 581). 7. On query posed by the Court that after discharging a show-cause notice relating to contempt of Court proceeding before the NIRC and thereafter on final disposal of the lis, why no plausible reason has been furnished in para-wise comments for not appointing the petitioner, on which the learned counsel sought time to address the query and to file certain leftover documents. 8. The case was fixed on 22.3.2016, when the Court posed the following questions: (i) whether process of recruitment against the post of Manager (legal) initiated earlier has been withdrawn at any stage? (ii) what is the guideline issued by the Cabinet Secretariat/Establishment Division? In response to the said questions the learned standing counsel as well as learned counsel appearing for the respondents once again sought time to assist the Court, During pendency of the petition the respondents filed certain letters of Establishment Division, and propounded that on account of ban on recruitment process in Federal Ministries, Divisions Autonomous Bodies, Corporations, vide letter dated 20th June, 2013 and 25th July 2013, with further clarification vide Office Memorandum dated 6th February, 2014, and 14th March' 2014, the appointment letter of the petitioner could not be issued. It was further averted that on account of said ban a guideline was solicited by the corporation vide letter dated 25th July 2013, it was also asserted that vide Office Memorandum dated 25th July 2013 though the ban was lifted but with the stipulation that separate guideline will be issued in this regard by the Cabinet Secretariat/Establishment Division, Again a query was posed to the learned counsel that reply/para-wise comments in the instant case were filed on 29.6.2015, whereas the office memorandum relating to ban on fresh recruitments was issued in the year 2013 and 2014, how come the para-wise comments do not speak of such ban-- The learned counsel did not make any categorical statement and stated that the Corporation is waiting for the final guidelines. 9. The learned DAG adopted the arguments advanced by the learned counsel for the Respondent Nos, 2 and 3, however, he added that without issuing of appointment letter, no vested right has been created in favour of the petitioner, therefore a writ in terms of mandamus cannot be issued
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her favour. 10. We have heard the learned counsel for the parties and have gone through the record with their able assistance. Since the maintainability of this petition has seriously been disputed by the respondents, therefore before adverting to the resolution of aforesaid question, it is worth noting that the question of lathes raised by the respondents, may not detain us any longer because in the para-wise comments filed by the respondents they themselves pleaded that on account of restraining order .passed by different Benches of Hon'able NIRC, the respondents' Corporation was not in a position to issue appointment order to the petitioner. It was also asserted that the respondents' corporation was facing a contempt proceeding before the NIRC and since the main case of the Corporation's CBA Union was subjudice before the NIRC, therefore they could not take any decisive step in respect of appointment of the petitioner or anyone else. The record shows that the lis pending before the NIRC was finally disposed of vide order dated 25.11.2014, According to the petitioner she was regularly approaching the respondents' Corporation for issuance of her appointment order but on their failure to pay any heed, she had finally filed a representation on 2.3.2015 and again on respondent's failure to respond to her representation, she filed the instant petition on 9.5.2015, therefore we are of the considered opinion that the petition is not hit by the principles of lathes. 11. The respondents further stated that the recruitment of any citizen falls within the administrative domain of the respondent's Corporation and on the strength of principle of policy, same cannot be assailed before this Court. We are afraid that contention raised by the respondents is misconceived and under Article-199 of the Constitution . of Islamic Republic of Pakistan, 1973 this Court is competent enough to issue a writ against any public entity, which functions in connection with the affairs of the federation, a province or a local authority, subject to the Constitution any order can be issued by this Court for enforcement of any of the fundamental right conferred by Chapter 1 of part-II of the Constitution, therefore the right of individual to be dealt with in accordance with law (Artilce-4) equality of citizen (Article-25) and safeguard against the discrimination in services (Article-27) are inalienable rights of any citizen of Pakistan and this Court under Article-199 of the Constitution can pass any order to give a material effect and to protect the aforesaid rights of any citizen. Therefore the objection raised by the respondents in respect of the maintainability of the petition being based on wrong notion is overruled. 12. The grievance of the petitioner is that she has been denied the benefit of appointment, which was completed in all respects, except the issuance of appointment order in her favour; that no valid reasons have been shown for withholding the petitioner's appointment, rater she has arbitrarily been victimized which is an exemplary abuse of authority. It is established law that once the process of selection is completed in an ordinary manner, it cannot be upset in an arbitrary manner. The process of the recruitment was completed and all decisive steps had been taken for petitioner's appointment, thus any lapse or delay in executing, a simple clerical or inconsequential formality would not render such process incomplete as a right had accrued to the petitioner for job against vacancy for which she had been selected. It would be seem that the process of selection starting form inviting application from various candidates, which culminate with the display of merit list, which was displayed after completion of requisite process. Indeed a right was created in favour of the petitioner by displaying a merit list and no powers of locus poenitentiae were left with the respondents to retract their, steps: 13. During the course of the arguments the learned counsel for the respondents was asked time and again to satisfy the Court that wither said post has been abolished or at least, if he can place- any documents on record to show that the executive authority has altered the requisite qualification for the post of Manager (Legal) or whether the Board of Directors of the corporation
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have decided to re-advertise the post and if son, the minutes of the board meeting shall be placed on record, but these questions were not attended and the earlier stance was reiterated that selection of the petitioner does nor confer any vested right upon her for appointment against the vacant position. Thus in view of above discussion, it is held that the respondents could have retracted their. steps till such time that the merit list had not left the fold of their office. But once, it had been made public thereby creating right in favour of the petitioner and the respondents' power to withheld the same had been taken away by the law. In the circumstances, it is obvious that issuance of appointment letter is only consequential step which at the best be termed to be ministerial, because on completion of selection process a valid and tangible vested right has been accrued in favour of the petitioner. 14. The Hon'able Supreme Court .of Pakistan in the case "Regarding Pensionary Benefits of the Judges of Superior Courts" (PLD 2013 SC 829) while rendering the interpretation of the "Doctrine of Legitimate Expectation" observed as under. "As far as the rule of legitimate expectation is concerned, such rule is not a part of any codified law, rather the doctrine has been coined and designed by the Courts primarily for the exercise of their power of judicial review of the administrative actions. As per Ilalsbury's Laws of England, Volume 1(1), 4th Edition, Para 81, at pages 151-152, it is prescribed: "A person may have a legitimate expectation of being treated in certain way by an administrative authority even though he has on legal right in private law to receive such treatment. The expectation may arise from a representation or promise made by the authority including and filled representation or from consistent past practice. In S. u. Secretary of State of Transport Exporte Greater London Council (1985)3 ALL . ER 300, it is propounded that:-- "Legitimate, or reasonable, expectation may arise from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. The expectation may be based on some statement or undertaking by or on behalf of the public authority which has the duty of taking decision." In the judgment reported as Union of India u. Hindustan Development Corporation (1993)3 SCC 499 at 540, it has been held: "The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or established procedure followed in regular and natural sequence. It is also distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense." It is thus clear from the above that the doctrine only has nexus to administrative decisions and actions. 15. Once the petitioner has been selected after securing the highest marks and her name was placed at S.No, 1 of the merit list, she develops legitimate expectation to be considered for appointments as soon as the lis before the NICR attained finality, denial appointment to the petitioner for which no valid reason and implicit justification was rendered, when neither the requisite qualification for the vacant post was altered not the post was abolished by the public authority. Moreover, when the official respondents have patently failed to give any valid reason for denying the appointment of the petitioner. The public authority under the 'Doctrine Of Promissory Estoppel' was also bound to fulfill its promise to the citizen in respect of her inalienable right protected under the Constitution and she on having been selected for the post of Manager (Legal) is rightly expecting the legitimate expectation under the rule of prudence. Denying the appointment to petitioner for no valid reasons amounts to offend her legitimate expectations in
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view of Articles 4.18 and 27 of the Constitution. 16. Mr.Justice Fazal Karim Khan in his renowned book "Judicial Review of Public Action" at Pages 1365 to 1367 defines the `Doctrine of Legitimate Expectation' in the following manner. "Chapter 7. Legitimate expectation; promissory estoppels Their relationship The justification for treating 'legitimate expectation' and `promissory estoppel' together as grounds for judicial review is one, that they both fall under the general head `fairness'; and two, that 'legitimate expectation' is akin to an estoppels. As was explained by Simon Borwn LJ in R.v. Devon CC, the various authorities show "that the claimant's right will only be found established when there is a clear and unambiguous representation which it was reasonable for him to rely. Then the administrator or the other body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with, the statutory duties imposed upon it". The relationship between them is more clearly brought out by what Bingham LJ stated in Rv. IRC exp IMK: "If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often- be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it If in private law a body would be in breach of contract in so…
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