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Petitioner: AZIZ AHMAD VS Respondent: CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA
1997 P L C (C
1997 P L C (C.S.) 356
[Lahore High Court]
Before, Tassaduq Hussain Jilani, J
AZIZ AHMAD
versus
CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA
Writ Petitions Nos. 17021 of 1995 and 1733 of 1996, decided on 29th May, 1996.
(a) Punjab Board of Intermediate and Secondary Education Act (XM of 1976)---
‑‑‑‑Ss. 18 & 32‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Appointments made by Chairman, Board of Intermediate and Secondary Education against vacancies in BS‑1 to BS‑15‑‑‑Validity‑‑‑Government in utter disregard to the mandate of their calling, in flagrant violation of relevant law, the recruitment policy and requirements of merit, issued appointment letters in respect of those individuals who had neither applied in time for the posts in question nor they appeared in test and interview‑‑‑Those who appeared in test and interview and found their names on merit list received rude shock to discover that certain other persons had been appointed,' n their place‑‑‑High Court set aside appointment of those persons who had neither applied nor were examined or interviewed by the relevant Recruitment Committee and directed Authority to make fresh merit list amongst those persons who had applied, appeared in tests and interview and were placed on merit list and make appointments strictly on merit.
Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Director, Social Welfare, N.‑W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350-1996 PLC (C.S.) 927 and Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.
(b) Maxim---
‑‑‑‑"Audi alteram partem"‑‑‑Essentials‑‑‑Before any order was passed affecting right and privilege of any person, it would be necessary to hear him and provide him opportunity of contradicting any material point or circumstances which was sought to be produced against him.
University of Dacca through Vice‑Chancellor and Registrar, University of Dacca v. Zakir Ahmed PLD 1965 SC 90; University of Ceylon v. Fernando in Russel v. Duke of Norfolk (1949) 1 All ER 109; Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and others v. Jalaluddin PLD 1992 SC 207; Human Rights Case No. 104 of 1992; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; Channabasavaih and others v. State of Maysore and others AIR 1965 SC 1293 rel.
(c) Constitution of Pakistan (1973)‑
‑‑‑‑Art. 18‑‑‑To enter a profession, a job or a trade in accordance with law is one of the Fundamental Rights guaranteed by the Constitution.
(d) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Preamble‑‑‑Object and scope of the Constitution stated.
The Constitution of a country is a kind of "social contract" which binds a people, society and a State. The terms of the contract foster feelings of interdependence, of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of a system. Feelings of patriotism do not sprout out of a big arsenal. These are not born in the battle fields where warring camps shed colossal human blood in the name of narrow nationalism, not in the "Chambers of politics" where high sounding cliches are supun out to inflate one's ego and innuendoes are hurled to humble the opponents. These are born in schools which impart good education, in the fields where tiller gets wages for his blood and sweat, in factories where the labourer gets a fair deal, in the hospitals which provide medical care to the sick, in the Courts which dispense justice and in a socio‑political system where merit reigns supreme. If one wants a system to be stable and the people to defend the system one has to create conditions where they feel that the system protects their fundamental rights, which were recognized in the social contract. A people fight for something, which is worth fighting for, worth living for and worth dying for. Contemporary history is testimony to the fact that systems have collapsed less on account of foreign invasion and more on account of internal mismanagement and on account of betrayal to the social contract.
(e) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)‑‑
‑‑‑‑Ss. 18 & 32‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Recommendations of Recruitment Committee‑‑‑Validity‑‑‑Interviews conducted by Recruitment Committee headed by Commissioner of Division, for appointment on various posts in the Board of Intermediate and Secondary Education, and merit list prepared pursuant thereto, would have no sanctity in law for appointments in BS‑1 to BS‑15 in Board of Intermediate and Secondary Education could only be made by Recruitment Committee constituted vide Notification of specified date framed by the Board of Intermediate and Secondary Education.
(f) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)‑--
‑‑‑‑S. 18‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Irregular appointments made by Chairman, Board of Intermediate and Secondary Education‑‑‑Validity‑‑‑Appointment orders issued in favour of specified persons by Chairman, Board of Intermediate and Secondary Education without recourse to prescribed procedure admittedly at the asking of Commissioner were illegal and, thus, were set aside.
(g) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)‑--
‑‑‑‑Ss. 18 & 32‑‑‑Constitution of Pakistan (1973), Arts. 18 & 199 Appointment against vacancies in BS‑1 to BS‑15‑‑‑Petitioner had applied pursuant to advertisement given in specified newspaper and having cleared written test appeared before Recruitment Committee and their names had appeared in merit list‑‑‑High Court directed that fresh merit list be prepared on basis of marks obtained in those interviews and their previous written test and to make all appointments strictly on merit‑‑‑Such exercise was to be confined to those candidates who had applied in pursuance to advertisement, had cleared written test, were interviewed and whose names had appeared on merit list‑‑‑Chairman, Board of Intermediate and Secondary Education was directed to ensure that such matter was not prolonged any further; he was also directed to further ensure compliance of Court's order within a period specified in the order‑‑‑Copy of judgment of Court was sent to Controlling Authority/Secretary of Education for information and compliance.
Allah Ditta Naseem for Petitioner.
Ch. Ijaz Ahmad for Respondents Nos. 1 and 2.
Shabbar Raza Rizvi, Addl. A.‑G. for Respondents Nos. 3 and 4.
Mazhar Ali Naqvi for the Appointees.
Date of hearing: 17th March, 1996.
JUDGMENT
This judgment shall dispose of Writ Petition No. 17021/95 and Writ Petition No.1733/96 as common question of law are involved.
2. Through these Constitutional petitions, the petitioners have challenged the vires of the appointments made by the Chairman, Board of Intermediate & Secondary Education, Gujranwala Division, Gujranwala' against vacancies in BS 1 to BS 15. The petitioners who were also candidates for some of these posts have prayed that the respondent authority should be directed to issue appointment letters in their favour as junior clerks in term of the merit list prepared by the Board.
3. Brief facts giving rise to the instant petitions are that the Board of Intermediate and Secondary Education, Gujranwala through advertisement dated 24‑2‑1995 published in the daily 'Jung' invited applications for 89 posts in various scales (from BS‑1 to 15). The petitioners applied for the post of junior clerks. Applicants were subjected to written test and interview. A merit list was prepared accordingly in which petitioner (in W.P. ho.17021/95) figured at Serial No.37 (total posts of junior clerks were 43). Notwithstanding the merit list appointment letters were issued in favour of 36 persons who neither applied for the posts in question nor they ever appeared for written test or interview.
4. On 20‑12‑1995, Secretary of the Board of Intermediate and Secondary Education, Gujranwala and Superintendent of Commissioner's Office, Gujranwala both appeared in Court and admitted that none of the persons mentioned in the merit list was appointed against the vacancies for which applications were invited and that some other 36 persons were appointed who did not apply for the posts in question. In view of this admission by the respondent authorities, notices were issued to the 36 appointees. The
Commissioner, Gujranwala Division, Gujranwala who was Chairman of the Divisional Recruitment Committee, in his parawise comments, did not deny the aforereferred factual position but merely submitted that the petitioner (in W.P. No.17021/95) did not appear for the English type test which was mandatory and on that account he was not selected as junior clerk. He reiterated his stand that the Recruitment Policy of the Government was fully observed while making the appointments.
Chairman of the Board of Intermediate and Secondary Education, Gujranwala admitted that the petitioners appeared in the test and interview and a merit list was prepared which was sent to the Commissioner, Gujranwala Division, Gujranwala, however, on receipt of a list of 36 applicants from Commissioner's Office he issued appointment letters in favour of 36 of those applicants and out of them only 21 joined the service. He further admitted that these 36 applicants did not figure anywhere in the merit list.
They appeared in response to the notice issued by this Court and were represented by their learned counsel Mr. Mazhar Alt Naqvi, Advocate who did not file any written statement but adopted the arguments of Mr. Ijaz Ahmed Chaudhry, the learned, counsel appearing for respondent No. l (Chairman, Board of Intermediate and Secondary Education, Gujranwala).
5. In support of his petitions, learned counsel for the petitioners has made following submissions:‑‑
(i) That the appointments against various posts have been made in utter violation of the recruitment policy and in derogation to the merit list prepared by the Divisional Recruitment Committee.
(ii) That the appointments have been made on the recommendations of Member of the National and Provincial Assemblies. These Members have no privilege to interfere in the recruitment process.
(iii) While conceding that the Chief Minister had the authority to relax the rules. He, however, added that in the instant case no relaxation was made by the Chief Minister in favour of the appointees and, therefore, their appointments are void, and
(iv) That the orders of appointments are violative of Article 4 of the Constitution of Islamic Republic of Pakistan and, therefore, not sustainable.
6. Mr. Ijaz Ahmed Chaudhry, learned counsel for Board of Intermediate and Secondary Education, while defending the impugned appointments, submitted as under:‑‑ ,
(i) That the petitioners are basing their claim on the merit list prepared by the Divisional Recruitment Committee. The procedure adopted by the Divisional Recruitment Committee was not in consonance with the Board of Intermediate Act and, therefore, the merit list prepared had no sanctity in law.
(ii) That the appointment letters were issued in favour of 36 persons by the Chairman of the Board of Intermediate and Secondary Education who is competent Authority to make such appointments. There being no jurisdictional defect in the orders no exception can be taken to these appointments.
(iii) That a merit list was prepared but no appointment order had been issued in favour of the petitioners and no right having been created, the competent Authority had the power to review/rescind the earlier order and the merit list. In support of this argument he relied on a judgment of the Hon'ble Supreme Court reported in Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407).
(iv) That pursuant to appointment letters issued 21 persons have already joined the service and lawful rights having once been created cannot be interfered with. Reliance was placed on Director, Social Welfare N.‑W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350=1996 PLC (C.S.) 927:
(v) That no mala fides can be attributed to the respondents as such allegations call for proof which exercise cannot be undertaken in a Constitutional petition. Reliance is placed on Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 Supreme Court 139).
The learned Additional Advocate‑General Punjab while defending the impugned appointments submitted that the petitioner was not appointed as he did not appear in English typing test and that notwithstanding the procedural defect the appointment have been made by the Chairman of the Board who is the competent Authority. He further submitted that as the authority of the Recruitment Committee which prepared the merit list is doubtful the petitioners cannot derive any benefit out of the same.
7. I have heard learned counsel for the parties and have gone through the precedent case‑law cited at the Bar.
8. Admittedly the applications were invited for recruitment to various posts through advertisement published in the daily 'Jang' dated 24‑2‑1995. Recruitments were to be made in the light of the Recruitment Policy issued to all administrative departments by the Government of the Punjab through a Circular, dated 10th August, 1993 which reads as under:‑‑
9. On 8‑2‑1995 another notification was issued wherein Selection Committees were constituted for recruitment to the posts in BS 1 to BS 15 "in or under Departmental Offices within the meaning of sub‑rule (1) of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974". This Notification is being reproduced for ready reference:‑‑
SUBJECT: REVIEW OF RECRUITMENT POLICY FOR INITIAL RECRUITMENT TO THE POSTS IN BS‑1 TO 15 UNDER THE PURVIEW OF THE DEPARTMENTAL RECRUITMENT COMMITTEES.
Sir,
I am directed to refer to this Department's Circular ‑Letter No.SORIII‑2/94, dated 30‑10‑1994 on the above subject and to state that Recruitment to different available posts has been unnecessarily delayed., In order to facilitate and to finalize entire recruitment procedure within 45 days from the date of issue of this circular letter, the following Committees are constituted to coordinate and accelerate the recruitment within the given time:‑‑
1. For Divisional/Regional/Circle Cadre Posts.‑‑Selection Committee for the purposes of making selection for all appointments by initial recruitment to all posts in BS 1 to 15 in or under Departmental Offices within the meaning of sub‑rule (1) of Rule 4 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974.
(a) Divisional Commissioner Chairman (b) Appointing Authority concerned. Member (c) Two officers to be nominated concerned by the Admn. Department concerned. Member
(d) Addl. Commissioner (Coord). Member/Secretary
2. For District and Below Cadre Posts
(a) Deputy Commissioner Chairman (b) Appointing Authority concerned Member (c) One officer of the Department Member concerned. (d) Additional Deputy Commissioner (General). Member/Secretary
2. To provide a fair chance of competition to all those candidates who have not been able to apply earlier in response to the advertisements given by the respective departments, last date of receipt of applications has been extended by 15 days. The entire Recruitment process shall be completed within 45 days in accordance with time schedule as detailed below:‑ ---
(1) Last date for receipt of applications
Up to 23‑2‑1995
(2) Time for scrutiny/process of the applications so received.
Up to 12‑3‑1995
(3) Selection appointment to various posts of suitable candidates.
Up to 27‑3‑1995
(3) The above Schedule lays down that the Committees shall finalize recommendation/ appointment of suitable candidates against all available posts from BS‑1 to 15 excluding those falling within the purview of Public Service Commission, within a period of 45 days. All circulars/notifications and relevant provisions of the Department's Letter No.SOR‑III‑2‑1/94, dated 30‑10‑1994 stand amended to the extent to the contents in this circular letter.
(4) All Administrative Secretaries of the concerned departments shall intimate the names/designations of the officers deputed to be members of the abovesaid Recruitment Committees to the Commissioner/Deputy Commissioner concerned within seven days from the receipt of this circular letter.
Your obedient servant, (Sd. ) (MUHAMMAD SADIQ), DEPUTY SECRETARY (RULES), SG&I DEPARTMENT."
10. Not realizing that the aforereferred Committees were constituted merely for recruitment in' Departmental office stipulated in the notification and not for the Board, a Recruitment Committee was constituted with following members:‑
(i) Commissioner, Gujranwala Division, Gujranwala
Chairman.
(ii) Chairman of the Board.
Member
(iii) Director of Schools (EE)
Member
(iv) Director of Education (C)
Member
(v) Addl. Commissioner (Coord)
Member
11. After conducting tests and interviews of the applicants a merit list was prepared and sent to the Commissioner. It is further admitted in the comments that notwithstanding the merit list, a list of 36 applicants was sent by the Commissioner to the Chairman of the Board and the Chairman issued appointment letters in favour of the 35 applicants out of these 36 but only 21 out of 35 joined the service. In ground (f) of the comments it had been unequivocally admitted as under:
"(f) The Board received, firstly, a list of 19 applicants, secondly, a list of 2 applicants, thirdly, a list of 10 applicants, and, fourthly, a list of 5 applicants from the Commissioner/Chairman/Divisional Recruitment Committee, Gujranwala Division for appointment as junior clerks. The Chairman of the Board of Intermediate and Secondary Education approved the recommendations made by the Divisional Selection Committee for appointment as Junior Clerks. The Board issued appointment letters to 35 applicants out of 36. It is worth mentioning here that out of 35 only 21 joined the service of the Board. (Approval of Chairman for appointment is enclosed as Annexures R‑1 to R‑8). It is pertinent to mention here that, as mentioned in the order of this Honourable Court, these 36 applicants were figured nowhere in the merit list. The appointment letters were issued to these 36 persons in compliance of the order of the Commissioner."
12. To examine the vires of the circular letter dated 8‑2‑1995 and the Recruitment Committee constituted pursuant thereto which conducted the test and interview as also the appointments made by the Chairman of the Board which are impugned herein it necessary to refer to some provisions of the Punjab Boards of Intermediate and Secondary Education Act, 1976. The expression 'Government' had been defined in section 2(g) of the aforereferred Act which reads as
'Government' means the Government of the Punjab.'
Section 11 of the Act stipulates that 'Government shall be the Controlling Authority of a Board."
The powers of the Controlling Authority have been spelt out in section 12 of the Act which is being reproduced for reference:‑‑
'(1) The Controlling Authority shall have the power to inspect and cause an inspection to be made, by such person or persons as it may direct, of the offices, activities and funds of and the conduct of examinations by a Board, and to cause an enquiry to be made in respect of any matter concerning a Board, or the discharge of functions by the members, officers and employees of the Board.
(1‑A) The Controlling Authority may at any time suspend a member, an officer or an employee of the Board.
(2) The Controlling Authority may communicate to a Board the result of such inspection or enquiry and may advise a Board to take such action and within such period as may be specified.
(3) The Board shall report to the Controlling Authority the action taken on such communication.
(4) Where a Board does not, within a specified time, take action to the satisfaction of the Controlling Authority, the Controlling authority may, after considering any explanation made by a Board, `Issue such directions as it thinks fit, and the Chairman shall comply with such directions.
(5) If the Controlling Authority is satisfied that any proceeding of a Board or a Committee is not in conformity with the provisions of this Act, or regulations or Rules framed thereunder or in public interest, the Controlling Authority may, without prejudice to the foregoing provisions of this section, by order in writing, annul such proceeding:
Provided that before making any such order, the Controlling Authority shall, through the Chairman, call upon the Board or the Committee, as the case may be, to show cause why such an order should not be made.
(6) The Controlling Authority may, from time to time, direct a Board to conduct its affairs and to perform its functions in such manner as may be specified.
(7) The Controlling Authority may require a Board to furnish it with:‑‑
(i) any return, statement, estimate statistics or other information regarding any matter under the control of the Board, or
(ii) a report on any such matter, or
(iii) a copy of any document in the charge of the Board, and the Chairman shall comply with every such requisition.
(8) Notwithstanding anything to the contrary contained in this Act, the Controlling Authority may:‑‑
(i) place the services of any of the officers or other employees of any Board at the disposal of this Government or any other Board or Institution. for such period and on such terms and conditions as may be determined by him provided that such terms and conditions shall not be less favourable than those admissible to him immediately before his transfer;
(ii) snake appointment to any post in the Board in any capacity from persons in the service of Pakistan or from officers or other employees of any other Board, and
(iii) make regulations concerning efficiency and discipline of officers and other employees of the Board;
(iv) the Controlling Authority may remove from service any employee of a Board, provided that no such employee shall be removed from service without being given an opportunity of being heard, provided further that where the Controlling Authority has initiated any such proceedings against any such employee, no other person including the Board shall have power to initiate any proceedings or take any steps in the matter."
Section 18 pertains to the constitution of the Committees and for the purpose of appointments. Subsection (2), 'item (ii) refers to "The appointments Committee" and section 19 of the Act envisages that "The constitution, functions and duties of committees shall be such as may be prescribed by regulations".
The power to make regulations are with the Board and section 20 is relatable to the said power which reads as under:‑‑
'(1) A Board may, subject to the approval of the Government, frame regulations, not inconsistent with the provisions of the Act, to carry out the purposes of this Act provided that‑‑
(i) a Board shall not propose draft of regulations affecting the constitution or power of any authority of .the Board until such authority has been given an opportunity of expressing an opinion in writing upon the proposals;
(ii) the draft of Regulations shall be forwarded to the Controlling Authority and shall not be effective until it has been approved by the Controlling Authority, and
(iii) a Board shall not have the power to make any regulation or adopt any rules or regulations concerning efficiency and discipline of the officers/officials and other employees which is not in conformity with rules made by the Government.
(2) In particular and without prejudice to the generality of the foregoing powers, such regulations may provide for‑‑
(a) the terms and conditions of service of the employees of a Board, including matters relating to grant of leave and retirement of such employees. '
Explanation.‑‑The terms and conditions should be in conformity with rules applicable to Government servants carrying equivalent pay scales and other benefits;
(b) the constitution of pension or provident fund or both for the benefit of the officers and other employees of a Board;
(c) the admission of institutions to the privilege of recognition and the withdrawal of recognition;
(d) a general scheme of studies, including the total number of subjects to be taught and the duration of courses, and
(e) all other matters required under any of the provisions of this Act to be prescribed by regulations."
As per section 32 of the Act, the regulation set out in the Schedule shall be deemed to be the first regulation framed by the Board under section 20 of this Act.
Regulation 4 of the aforereferred regulations deals with the…
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