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Petitioner: NASRULLAH VS Respondent: PROVINCE OF BALOCHISTAN
2000 P L C (C
2000 P L C (C. S.) 769
[Quetta High Court]
Before Iftikhar Muhammad Chaudhary, CJ. and Aman Ullah Khan Yasinzai, J
NASRULLAH and others
Versus
PROVINCE OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta and others
Constitutional Petition‑ No. 491 of 1999, decided on 30th December, 1999.
(a) Balochistan Public Service Commission (Function) Rules, 1982‑‑‑
‑‑‑‑R. 5‑‑‑Withdrawing any post from purview of Public Service Commission‑‑‑Competent Authority under the provision of R.5 of Balochistan Public Service Commission (Function) Rules, 1982 enjoys the jurisdiction to withdraw any post from purview of Public Service Commission in public interest.
(b) Words and phrases‑‑
‑‑‑‑"Public interest"‑‑‑Connotation‑‑‑Matter of public or general interest does not mean what is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community has a pecuniary interest, or some interest' by which their legal rights or liabilities are affected.
Stroud's Judicial Dictionary, Vo1.I, p.2029; R. v. Bedfordshire 24 LJQB 84; Seymour v. Butterworth 3F & F 372; Cox v. Feeney 4 F&F 13; Strauss v. France 4 F&F 1113; Hunter v. Sharp 4 F&F 983; ‑ R v. Labouchere 14 Cox CC 419; South Hetton Co. v. North Eastern News Association (1894) .1 QB 133; Joynt v. Cycle Trade Publishing Co. (1904) 2 KB 296; Thomas v. Bradbury, Agnew & Co. (1906) 2 KB 627; Mangena v. Wright 53 SJ 485; Sharman v. Merritt and Hatcher 32 TLR 360; Ellis v. Home Office (1953) 2 QB 135; R. v. Sussex Confirming Authority 157 LT 590; Duncan v. Cammell Laird & Co. (1942) AC 624; Ellis v. Hone Office (1953) 2 QB 135; Postmaster‑General v. Pearce (Note) (968) 2 QB 463; Cartwright v. Post Office (1969) 2 QB 62; Words and Phrases by John B. Saunders, Second Edn., VoI.IV, p.220; Constitution of India, Art.19(5); Damodar Ganesh and others v. State AIR 951 Bom. 459 and Iswari Prosad and others v. N.R. Sen and another AIR 1952‑Cal, 273 ref.
(c) Balochistan Public Service Commission (Function) Rules, 1982‑‑
‑‑‑‑R. 5‑‑‑Expression "public interest" ‑‑‑Meaning and scope‑‑‑Expression "public interest" can be defined as any action which is to be taken to protect legal rights of, general public or class of public with whom justice is required to be done by a Competent Authority, keeping in view the relevant rules and law available on the subject‑‑‑Competent Authority, though enjoys jurisdiction to adjudge in view of prevailing circumstances to do or not to do a particular act in public interest, but at the same time care should be taken that such act may not cause injustice to some or majority of the members of the public who are also entitled equally for protection of law/rules under which action has been taken.
A. M. Khan Leghari, CSP, Member, Board of Revenue, West Pakistan v. Government of Pakistan through Secretary to Government of Pakistan, Establishment Division, Rawalpindi and 7 others PLD 1967 Lab. 227 and Lt.‑Col Farzand Ali and others v. Province of West Pakistan through Secretary, Department of Agriculture, Government of West Pakistan Lahore PLD 1970 SC 98 ref.
(d) Balochistan Public Service Commission (Function) Rules, 1982---
‑‑‑‑R. 5‑‑‑Constitution of Pakistan (1973), Art. 199----Constitutional petition ‑‑‑Withdrawing of posts from purview of Public Service Commission‑‑‑Examination for appointment of 152 Assistant Engineers (B‑17)‑‑‑Provincial Government withdrew the posts from purview of Public Service Commission without specifying whether same was in the public interest and what would be qualification and experience of the candidates who were to be recruited against the posts‑‑‑Validity‑‑‑Competent Authority was not competent to take out the posts from purview of the Commission without specifying the reasons in order to prima facie establish that such action was in public? interest‑‑‑Examination conducted and result announced had no legal sanctity as a consequence of such act of the Government.
PLD 1986 FSC 29; PLD 1990 SC 1013; PLD 1992 FSC 252; 1993 SCMR 1869; PLD 1996 Quetta 21; PLD 1996 Quetta 56 and Khadim Hussain v. Government of Pakistan through Secretary Establishment, Islamabad and 8 others 1993 SCMR 1869 ref. S.A.M. Qaudri for Petitioners. Noor Muhammad Achakzai, Addl. A.‑G. for Respondent. H. Shakil Ahmed for the Intervenors/Applicants.
Date of hearing: 27th October, 1999.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHARY, C.J.‑‑‑Petitioners are graduate engineers in different technologies. Their grievance in short is that the Government of Balochistan created vacancies/posts of Assistant Engineers (B‑17) in the following technologies:‑‑‑ (a) 104 posts for Civil Engineers;
(b) 24 posts for Mechanical Engineers;
(c)? 24 posts for Electrical Engineers;
Object of the Government to create the above vacancies was to accommodate jobless qualified Engineers in B‑17 as Assistant Engineers. It may be noted that as per the Balochistan Civil Servants (Appointment, Promotion & Transfer) Rules, 1979 following procedure has been prescribed for recruitment of B‑17 Officers.
Rule 10. Initial appointment to posts in basic pay scales 16 to 22, and equivalent shall be made if the posts.;
(a) fall within the purview of the Commissioner, on the basis of examination or test to be conducted by the Commissioner;
(b) Do not fall within the purview of the Commission, in the manner as may be determined by Government;
However, the Government of Balochistan did not adhere to above procedure and vide notification dated 30‑10‑1998 constituted a Committee with the terms of reference to make recommendations for method of appointment of unemployed Engineers against the posts available in the Irrigation and Power, Communication and Works, Education and Public Health Departments. For the sake of convenience contents of notification are re‑produced hereinbelow:‑‑‑
"In partial modification of this department Notification No. even, dated 23rd October, 1998 the Government of Balochistan is pleased to constitute a Committee consisting of the following members for recruitment of Assistant Engineers (B‑17) available in various Departments:‑‑‑
(a)??????? Mr. Asadullah Baloch ? Chairman Minister PHE
(b)??????? Secretary S&GAD ????? Member/Coordinator
(c)??????? Secretary Finance ??????? Member
(d)??????? Secretary PHE???????????? Member
(e)??????? Secretary, Education ??? Member
(t)???????? Secretary C&W ????????? Member
(g)??????? Secretary; I&P???????????? Member
(h)??????? Mr. Abdul Rehman ????? Engineer/Representative
(i)???????? Malik Ramzan????????????? Engineer/Representative
2.???????? The terms of reference of the Committee would be to make recommendations for method of appointment of unemployed Engineers against the posts available in Irrigation and Power, Communication & Works, Education and Public Health Engineering Departments.
It is the case of the petitioners that after issuance of above notification some of them challenged the Constitution of Committee by instituting C. P. No.82 of 1999 inter alia on the ground that M/s. Abdul Rehman and Malik Ramzan Members of the Committee are themselves candidates for the available vacancies, therefore, their inclusion as Members of the Committee merely for the reasons that they are office‑bearers of Balochistan Berozgar Engineers Association is unwarranted and uncalled for.
It may be noted that Constitutional petition earlier filed by some of the petitioners was disposed of on 28‑4‑1999 in the following terms:‑‑‑
"Learned Advocate‑General had also placed on record a certificate issued by S&GAD of even date, a perusal, whereof indicates that their names were included only for the purpose of recommended method of recruitment which process is now complete. However, to show transparency the examination is being conducted by out sider specialists exclusively and as far as these two unemployed Engineers are concerned they have nothing to do with the conduct of examination and final selection.
In view of the statements, made by respondents as well as learned Advocate‑General, Syed Ayaz Zahoor learned counsel for petitioners does not press the petition which is accordingly dismissed as not pressed. However, if the petitioners feel aggrieved against any action of the Examination Committee they may launch appropriate proceedings before the competent forum."
It is stated that in pursuance of method recommended by the above Committee for the selection of Engineers, Government of Balochistan through Secretary S&GAD entered into an agreement with Professor Saeed Ahmad Jelani Consultant/E & T Department College of Physicians & Surgeons, Defence Housing Society Karachi (Respondent No.9) for arranging test of the prospective candidates to fill up above vacancies. In this manner statedly good number of candidates probably more than 700 Engineers appeared in the test held at Quetta on 2‑5‑1999, the result whereof was announced/declared on 3‑6‑1999 and out of the total number of candidates 444 have been declared to have passed the test. As far as petitioners are concerned they failed to qualify the test as such before the verbal interviews of successful candidates. They have filed instant Constitutional petition with the following prayer:‑‑
"It is, therefore, humbly prayed that this Honourable Court may graciously be pleased to declare:
(a) that holding of the test for the posts of engineers (B‑17) was a device designed for deprivation of candidates on merits from being selected. .
(b) Declaring that the so‑called test was not held transparently and, therefore, same was held illegally and without lawful authority;
(c) Declaring that the result of the test has not been made through honest means and manipulations made therein render the same unlawful, illegal and of no legal consequence;
(d) Cancelling the test and its result being devoid of transparent measures;
(e) Directing the Government of Balochistan to send the matter of the selection of the engineers to the Public Service Commission to do the needful as prescribed under the law;
(f) Any other relief which may be deemed just and proper in the circumstances of the case may also be granted.
(g) Costs of the petition may also be awarded;
Petition was admitted to regular hearing on 5‑7‑1999 inter alia to examine as to whether:‑‑‑
"(1) Examinations for recruitment/appointment of Engineers for different Departments of the Province of Balochistan were not transparent because first the Government of Balochistan had assigned the task of conducting these examinations to respondent No.9 Professor Saeed Ahmad Jelani Consultant/E&T Department, College of Physicians and Surgeons, Defence Housing Society Karachi;
(2) Public Service Commission is functioning in the province and there was no occasion for the Government to fill up available vacancies of Engineers through an outsider agency in purported exercise of jurisdiction of Rule 5 of the Balochistan Public Service Commission Function Rules, 1988;
(3) Initially the Government of Balochistan vide notification dated 30‑10‑1998 constituted a Committee to suggest the methods for appointment of unemployed Engineers and when earlier Petition No.282 of 1999 was filed some of the petitioners expressed their apprehension that the Committee will riot conduct examination fairly and transparently because two of the Members of the Committee namely, Mr. Abdul Rehman and Malik Ramzan are themselves un?employed Engineers/candidates, but during hearing of the case it was given to understand to the petitioners that their job would be only to suggest the methods but surprisingly these two persons have appeared in the written test and have been declared pass. Inasmuch as these two candidates being members of the Committee will also take interviews of the candidates which is to be held on 10‑7‑1999."
Mr. S. A. M. Quadri, Advocate appeared on behalf of petitioners; whereas Mr. H. Shakil Ahmad, Advocate represented to private respondents and Malik Sikandar Khan former Advocate‑General appeared for official respondents.
It is contended firstly on behalf of the petitioners that under Article 242 of the Constitution of Islamic Republic of Pakistan, Provincial Public Service Commission has been constituted and it is functioning, therefore, in presence of the Commission Government of Balochistan had no lawful authority and jurisdiction to take out all the posts of B‑17/Assistant Engineers from the purview of Public Service Commission without assigning any cogent reason. He candidly conceded that Government under Rule 5 of the Balochistan Public Service Commission Function Rules, 1982 is competent to withdraw a post from the purview of the Commission but subject to public interest. According to him in the instant case no reason was assigned by the competent Authority as to what was the public interest to fill up 105 posts by constituting a Committee comprising upon the members whose names have been mentioned hereinabove including two amongst them who themselves are candidates. He further contended that aim and object of the Government and its all other organs should be to strengthen the institution but not to weaken them, but in the instant case without any cogent reasons the Public Service Commission has been bye‑passed and on account of such exercise on behalf of the Government transparency in the selection of candidates has become doubtful. Reliance was placed by him on PLD 1986 FSC 29, PLD 1990 SC 1013, PLD 1992 FSC 252, 1993 SCMR 1869, PLD 1996 Quetta 21 and 56.
On the other hand Mr. H. Shakil Ahmad learned counsel for private respondent contended that under Rule‑5 of the Balochistan Public Service Commission Function Rules, 1982 Government is competent to take out any post or posts from the purview of the Public Service Commission. According to him authority rests with the Provincial Government to determine that what is the public interest, but so far as candidates are concerned they cannot object as to why the Government had taken out these posts of B‑17 from the purview of the Public Service
Commission, therefore, according to him the petition is liable to be dismissed on another ground as well namely. that petitioners themselves appeared in the examination test arranged by respondent No.9 in the hope that they might will succeed but as .they could not pass the examination, therefore, with ulterior motive they have instituted instant petition. He further stated that how instant petition on behalf of few petitioners is competent comparing to 444 candidates out of the total candidates of 740 who have passed their examinations, thus on this score alone instant petition is liable to be rejected.
Mr. Noor Muhammad Achakzai learned . Additional Advocate?General has adopted the arguments of Mr. H. Shakil Ahmad, Advocate with the addition that as in the earlier petition, i.e. C.P. No. 282 of 1998 no relief was given to some of the petitioners who‑ were party to the petition, therefore, instant petition being barred by the principle of res judicata deserves to be dismissed.
We have heard learned counsel for parties and have also gone through relevant provisions of law. However, for the sake of convenience Rule 5 of the Balochistan Public Service Commission (Function) Rules, 1982 is re‑produced hereinbelow:‑‑‑
"Notwithstanding anything contained in Rule 3 Government may, in the public interest, specify posts which may be filled without reference to the Commission, by persons possessing such qualifications and experience and in such manner as it may determine."
A careful perusal of the above rule indicates that competent Authority enjoys the jurisdiction to withdraw any post from the purview of A Public Service Commission in the public interest. In this behalf it is to be noted that the notification constituting Committee to suggest method of t recruitment of Assistant Engineers B‑17 was subsequently changed vide Notification No S‑IV‑19 (52)/S&GAD, dated 30‑1‑1999 whereby Mr. Muhammad Saleh Bhotani Minister for S&GAD was made Chairman of the Committee by the orders of Chief Minister. However, the earlier Committee convened its meetings from time to time and got approval of its decision. One of those decisions relevant for disposal of instant petition was that:
"These posts may be withdrawn from the purview of the Commission and should be filled in on the recommendations of the Committee already constituted for this purpose. "
It is important to note that the Committee had not decided to withdraw these posts from the purview of the Commission in the public interest nor it appears that the then Chief Minister had. granted approval of the above decision in the public interest, therefore, withdrawing the posts of Assistant Engineers from the purview of the Commission appears to be contrary to Rule 5 of the Balochistan Public Service Commission (Function) Rules, 1982.
Mr. H. Shakil Ahmed learned counsel contended that because the Committee after deliberations had decided to withdraw these posts from the purview of the Commission and approval of the decision had also been taken by them from Chief Minister, therefore, it may be resumed that these posts were withdrawn in the public interest.
On the other hand Mr. S. A. M. Quadri learned counsel stated that in, absence of expression in the above decision of the Committee that the posts are being withdrawn in the public interest, it would not be in the interest of justice to construe that these posts have been withdrawn in the public interest.
We are inclined to agree with learned counsel for the petitioner that it was obligatory upon the Committee as well the Chief Minister to have incorporated in the decision that the posts are being withdrawn from the purview of the Commission in the public interest. Because without mentioning expression public interest the case of official respondents will not be covered under Rule 5 of Balochistan Public Service Commission (Function) Rules, 1982. However, if for the sake of arguments' it is presumed that the posts of Assistant Engineers B‑17 were withdrawn from the purview of Public Service Commission in public interest then we have to examine that what are those considerations on the basis of which the action of competent Authority can be construed to be an action which has been taken in the public interest. It is an admitted position that the word "public interest" has not been defined in the statute, i.e. Public Service Commission 1982, therefore, to interpret this expression we have to make reference to the dictionary meanings and the judgments wherein superior Courts have defined it. First of all reference may be made to Stroud's Judicial Dictionary (Volume‑I), page 2029, wherein "public interest" has been defined as under:‑‑
Public Interest. ‑:(I) A matter of public or general interest ' does not mean that which is interesting as gratifying curiosity or a love of information or‑ amusement; but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected (per Campbell C.J., R.V. Bedfordshire, 24 L.J.Q.B. 84). See further Seymour v Butter worth, 3 F & F 372; Cox v. Feeney, 4 F & F 13; Strauss v France, 4 F & F. 1113; Hunter v.‑ Sharp, 4 F & F. 983; R. v. Labouchere, 14 Cox C.C 419: South Hetton Co. v. North Eastern News Association (1894) 1 Q.B 133, See also per Williams L. J. Joynt v. Cycle Trade Publishing Co. (1904) 2 KB 296; Thomas v. Bradbury, Agnew & Co. (1906) 2 K.B. 627, cited Fair Comment; Mangena v. Wright, 53 S. J. 485, Sharman v Merrit and Hatcher, 32 T.L.R. 360;
(2) "One feature ...of the public interest is that justice should always be done and should be seen to be done" per Morris L.J. (Elks v. Home Office (1953) 2 Q‑B, 135;
(3) "Interests of the public". (Licensing (Consolidation) Act, 1910 (c. 24), s.14) A condition imposed by justices on a licence might have been in the interests of the public although it was not in the interests of every part of the public (R. V. Sussex Confirming Authority, 157 L.T 590).
(4) Cases where in the public interest a minister of the Crown is justified in 'objecting to the production of documents are where disclosure would be injurious to national defence or to good diplomatic relation or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service (Duncan v. Cammel Laird & Co (1942) A. C. 624, 642).
(5) ???When considering the public interest and what might be injurious to the public interest' within the proviso to section 28(1) of the Crown Proceedings Act, 1947 (c.44), it seems to me that it is to be remembered that one feature and one facet of the pubic interest is that justice should always be done and should be seen to be done Ellis v. Home Office (1953) 2 Q. B. 135.
(6) "Public interest" (Telegraph (Construction) Act, 1916 (c. 40, s.1). For the refusal of a landowner to permit telephone lines to pass over his land to be contrary to "public interest" it is not necessary to show that a district or large number of persons would be thereby deprived of the telephone (Postmaster‑General v. Pearce (Note) (1968) 2 Q.B 463). It has in fact been held contrary to "public interest" to deprive two farmers in a remote area (Cartwright v. Post Office (1969 2 Q.B 62).
See Fair Comment; General Interest; Interested in; public; public Benett. "
In the Words and Phrases, by John B. Saunders, Second Edition, Valume‑IV, page‑220 "public interest" has been interpreted as under:‑‑
"Public Interest.‑‑it is fallacious to say that condition attached to a justices' licence is not in their public interest, or may not be in the public interest, if it is the case that a great many of those persons who constitute the public are not directly affected by it; and it is equally fallacious to ‑say that a condition cannot be in the public interest if a great many members of the public neither know nor care anything about it."
Likewise in the case of "Ellis v. Home Office" the All England Law Reports, 1953 "(Volume‑II), page‑149 following definition was assigned to the expression public interest";
"Per Jenkins, L.J.,....Where there is a large number of relevant documents within the ambit of privilege which may or may riot become of real materially to be case as it develops, there should be some one on the spot readily available‑‑‑Whether counsel or solicitor on the Government side or an official from the department concerned‑‑‑invested with authority to consider question of privilege which may arise in the course of the case, and in his discretion o waive the claim of privilege. That, of course, would not apply to documents which from the outset appear to be such that they should on no account be disclosed for reasons of public interest."
per Morris, L.J....When considering the public interest and what might be injurious to the public interest, within the proviso to section 28!1) .of the Crown Proceedings Act, 1947, it seems to me that it is to be remembered that one, feature and one facet of the public interest is that justice should always he done and should be seer, to be done."
It may be noted that in Article 19 sub‑Article 5 of the Constitution of India the word "in the interest of general public" has been used and this provision of Article came for consideration in the case of "Damodar Ganesh anal others v. State" AIR 138) 1951 Bombay 459, relevant para? for convenience is re‑produced herein below:‑‑
"The words 'in the interests of the general public are of much wider import than the words in the 'interest of public order'. The restriction, therefore, on the right to move freely throughout the territory of India may be not merely for tire purpose of maintaining public order but may in the interest of the general public. It seems to us that the words in the interest of general public used in clause (5) of Article 19 have been advisedly used and in contradistinction with the words in the interests of public order used in the earlier clauses must be given their full meaning. It i; probable that the Constitution used these particular words in order 10 enable the State to adjust the rights given by the Constitution and to reconcile them is the interest of the general public, whether the interests oaf tire public order were immediately affected or not by such restrictions."
In the case of "Iswari Prosad and others v. N.R. Sen and another" (AIR 1952 Calcutta 273). following meaning were assigned to the words "in the interest of 1eneral public" or the "public? interest."
"I do not think it can possibly be said that tire words 'in the interest of the public of the whole of the Republic of India' Legislation may be essential to redress some urgent grievance, for example, in a particular State, though such legislation would be wholly unnecessary in any other State. The fact that such legislation would not affect citizens in other States would…
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