Full Judgment Text & Judicial Ruling

2011 P L C (C.S.) 1537 [Lahore High Court] Before Syed Mansoor Ali Shah, J IRFAN NASEER BAIG and another Versus PROVINCE OF PUNJAB through Secretary, S&GAD and 2 others

Writ Petitions Nos.8741 and 9654 of 2011, heard on 12th July, 2011.

(a) Punjab Delegation of Powers (Relaxation of Age) Rules, 1961---

----Relaxation in upper age limit for initial recruitment in BS-1 to 17---Powers of Administrative Secretary to grant such relaxation to a prospective candidate---Scope---Secretary having discretion either to grant or refuse to grant such benefit to prospective candidate must exercise same lawfully and in writing supported by cogent reasons after considering facts of initial recruitment to every post in a particular year---Non-exercise of such discretion in a particular year or its exercise without application of mind would reflect poor public administration---Principles. Under Punjab Delegation of Powers (Relaxation of Age) Rules, 1961, the powers have been delegated to the Administrative Secretaries to grant relaxation in upper age limit for all the posts meant for initial recruitment. The Secretaries may or may not grant relaxation of upper age limit, but they have to exercise their discretion whenever initial recruitment takes place. The exercise of this discretion for the sake of transparency and good governance has to be in writing supported by cogent reasons in accordance with law. The discretion vested in the Administrative Secretary determines the upper age limit of a prospective candidate for initial recruitment in a particular year, therefore, exercise of discretion prior to the public advertisement for initial recruitment is essential as it determines and provides the prospective candidate with access to lawful employment. The Administrative Secretary is, therefore, under an obligation to consider to the attending circumstances of an initial recruitment in a particular year and exercise the discretion vested in him under the law. Rules vest discretion in the Administrative Secretaries to grant relaxation in upper age limit in cases of initial recruitment (for non-government candidates) after considering the facts of initial recruitment to every post. This discretion vested in the Administrative Secretaries is for the benefit of the citizens applying for public posts and therefore, it must be exercised in accordance with law. No doubt, it is the prerogative of the concerned Secretary to extend or not to extend the benefit of age relaxation to the prospective candidates for a particular year, but it is obligatory on the Secretary to apply mind and give reasons for his decision. Discretion must be structured and supported by good reason. Inbuilt in this is the compulsion that discretion once vested under the law in a public officer must also be lawfully exercised. While the public officer exercising discretion has the choice to decide either way after giving reasons, he has no choice to exercise discretion in a particular year and let the recruitment process pass. Any such omission where discretion goes unexercised and un-used without application of mind, affairs go away, reflecting poor public administration.

Authority entrusted with discretionary power must enjoy the power and flexibility to consider the facts and circumstances of an individual case and independently apply its mind to it. Any fetter or over-rigid policy that prevents application of free mind renders the discretion bad in law. Julius v. Lord Bishop of Oxford (1880) 5 AC 214; Aman Ullah 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; 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 rel.

(b) Constitution of Pakistan---

----Arts. 4 & 9---Right of a citizen to have access to compete for any public office/post through a lawful and transparent recruitment process---Denial of such right to a citizen would offend his fundamental right to life and due process clause contained in the Constitution---Principles. Due process guaranteed under Article 4 of the Constitution empowers a citizen to be lawfully and transparently considered for any public office. In addition, inbuilt in the right to life under Article of the Constitution is the right of a lawful recruitment process for any public office. Any haphazardly structured or rushed recruitment process impairs the prospects of appointment, thus, depriving many the opportunities and access to compete for a public post. This denial of opportunity of employment offends the fundamental right to life. Government in regulating public appointments, besides ensuring merit and transparency of the process must also guarantee fairness and equity in the recruitment process. Good governance mandates that Government must deal with the affairs of the citizen with compassion and care.

(c) Discretion---

----Discretion must be structured by good reason and exercised lawfully---Non-exercise of discretion vested in an authority or its exercise without application of mind would reflect poor public administration---Authority having discretionary power must enjoy power and flexibility to consider facts and circumstances of an individual case and apply his independent mind thereto---Any fetter or over-rigid policy preventing application of free mind would render discretion bad in law---Application of general rule by authority to all cases without considering facts of each case and applying mind thereto would be failure to exercise discretion---Principles. Julius v. Lord Bishop of Oxford (1880) 5 AC 214; Aman Ullah 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; 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 rel.

(d) Punjab Delegation of Powers (Relaxation of Age) Rules, 1961---

----[as amended vide Notification dated 4-11-2006]---Punjab Civil Servants Act (VIII of 1974), S.23---Constitution of Pakistan, Arts.9 & 199---Constitutional petition---Provincial Management Service (PMS)---BS-17, posts of---Combined Competitive Examination for such posts through Public Service Commission---Advertisement dated 3-4-2011 inviting applications for initial recruitment to such posts required age of non-government candidates to be between 21-28 years without relaxation in upper age limit---Petitioners' claimed relaxation in upper age limit on grounds that last examination took place in year 2008, but no recruitment against such post was made during last two years, resultantly they could not apply for such posts and became overage during interregnum; and that Administrative Secretary had consistently extended such benefit in past including in the year 2008---Plea of Secretary that such benefit was given for last time in year 2008 as One Time Dispensation, which could not be extended in year 2011---Validity---Secretary having discretion either to grant or refuse to grant such benefit to prospective candidate had to exercise same lawfully and in writing supported by cogent reasons after considering facts of initial recruitment to every post in a particular year---Exercise of such discretion being part and parcel of initial recruitment process, thus; its non-exercise in a particular year or its exercise without application of mind would not only reflect poor public administration, but would derail entire recruitment process---Competent Authority under Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 or even Chief Minister could not divest or deprive future Administrative Secretary of his discretion provided thereunder---Clog of such One Time Dispensation imposed on discretion of Secretary was not only illegal, but same would amount to playing a fraud on people and making a mockery of public commitment made by Government---Secretary had failed to apply his mind to facts and circumstances of case of each petitioner---Recruitment for such post in years 2009 and 2010 had not taken place---Relaxation in upper age limit had been consistently granted in past including year 2008 in order to cover period during which recruitment could not take place---Authority had to give reason for deviating from such past practice spanning over several years---Secretary had to give reasons showing co-relation between "best talent" and relaxation of upper age limit especially when government employees were enjoying benefit of such relaxation under the Rules for same post---Issuance of impugned advertisement by Secretary without exercising his discretion under the Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 offended due process clause and impaired petitioners' right to life provided under Art.9 of the Constitution---High Court set aside initiation of recruitment process through impugned advertisement while directing the Secretary to re-advertise such posts after considering petitioners' case and passing speaking order with reasons whether their upper age limit ought to be relaxed while disregarding One Time Dispensation announced in the year 2008.

Julius v. Lord Bishop of Oxford (1880) 5 AC 214; Aman Ullah 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; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101; H.W.R. Wade and C.F. Forsyth-Administrative Law-Oxford 10th Edition pages 270-271; DE Smith, Woof and Jowell-Judicial Review of Administrative Action 5th Edition (Sweet and Maxwell-1995) and Chief Secretary, Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876 rel. ljaz Ahmed Awan, Sarfraz Ahmad Qureshi, Malik Asif Ahmad Nissoana, Nauman Mushtaq Awan, Ms. Komal Malik Awan, Ms. Samia Bano, Rizwan Mushtaq, Mushtaq Ahmed Mohal, Muhammad Munawar Jungsher Qadri, Sheikh Khurshid Ahmad, Muhammad Shahzad Shaukat, Ch. Abdul Razzaq, Shahid Javed Chohan, Mian Abdul Ghaffar, Malik Muhammad Ali Awan, Rao Tariq Mahmood-1, Muhammad Asghar Nadeem, Barrister and Barrister Muhammad Ahmad Pansota for Petitioners (in connected petitions). Khawaja Salman Mahmood, Asstt. A-G., Punjab, Ehsan Bhutta, Additional Secretary (Admn.) S&GAD, Muhammad Arif Qureshi, Deputy Secretary, S&GAD, Muhammad Sultan, Deputy Director (Examination) PPSC, Lahore and Muhammad Farooq Raja, Deputy Director (Legal), PPSC for Respondents. Date of hearing: 12th July, 2011.

JUDGMENT SYED MANSOOR ALI SHAH, J.--- This judgment decides the instant petition, as well as, petitions mentioned in Schedules A and B as they raise same questions of law and facts. Petitions listed in Schedule-B carry an additional fact that the applications for the post in question were submitted after the cut off date i.e., 25th April, 2011. 2. Brief facts of the titled petition are that the Punjab Public Service Commission (Respondent No.1) invited applications for 66 posts of Provincial Management Service ("PMS"), BS-17 through public advertisement No.7 of 2011 dated 3-4-2011. The advertisement was for initial recruitment to the post of PMS through Combined Competitive Examination. Clause 5 of the advertisement required the age of the prospective candidates (non-government candidates) to be between 21-28 years on 1-1-2011 while it provided age relaxation for government employees under the relevant rules. 3. The grievance of the petitioners is that inspite of the Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 ("Rules, 1961") and its Schedule as amended through Notification dated 4-11-2006, the Administrative Secretary i.e., Secretary S&GAD, Government of the Punjab, has failed to grant relaxation, of .upper age limit to the petitioners (non-government candidates) for the above post. Learned counsel for the petitioners submitted that relaxation of upper age limit for the post of PMS has been consistently extended to the non- government candidates in the past including the last time in 2008. It has also been urged that for the last two years there has been no recruitment against the said post and the last Combined Competitive Examination took place in the year 2008, as a result the petitioners missed their chance to apply for the said post and have become overage during this interregnum i.e., between 2009 and 2010, hence they were entitled to the grant of benefit under Rules, 1961. It was also submitted that in other departments of the Government of Punjab, relaxation of 5 years in the upper age limit has been granted and referred to public advertisement No.5 of 2011 published in national dailies on 13-3-2011 wherein relaxation of upper age limit has been granted by the Agriculture, Auqaf, Food, Planning and Development Departments and the Board of Revenue, Punjab for a period of 5 years. 4. Learned Law Officer on the other hand submitted that the discretion to grant relaxation of upper age limit vests with the concerned Administrative Secretary under Rules, 1961 and the benefit has been refused to the petitioners this year. The reason for withholding the said benefit was the declaration made in the year 2008 that the benefit was being given for the last time in the year 2008, being a ONE TIME DISPENSATION. Hence, the upper age limit was not relaxed this year. It was further submitted that relaxation of age extended in other departments casts no obligation on the Secretary, S&GAD as every department operates independently. 5. Arguments heard, record perused. 6. In the Schedule, to Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 amended under Section 23 of the Punjab Civil Servants Act, 1974 vide Notification dated 4-11-2006, the discretion to grant relaxation of upper age limit vests in the concerned Administrative Secretary in the following manner:---

Sr. No.

Authorities competent to relax age prescribed for recruitments

Services and posts in respect of which relaxation is permissible

Limit upto which age can be relaxed.

1.

Administrative Secretary

i. All the services and posts meant for initial recruitment. (emphasis supplied) ii. Cases where a highly qualified candidate applies for a particular post to be specified by the Administrative Secretary.

Upto 5 years across the board, to appear as part of advertisement (emphasis supplied) Upto 8 years across the board, to appear as part of advertisement.

2.

District Coordination Officers

All services and posts meant for initial recruitment falling under the domain of a District Government

Upto 5 years, across the board, to appear as part of advertisement.

7. As a matter of background, Schedule to Rules 1961 as amended vide Notification dated 21-6-1999 provided for relaxation of upper age limit in the following manner:---

Authorities competent to relax maximum age prescribed for recruitment

Services and posts in respect of which relaxation is permissible

Limit upto which age can be relaxed

1

2

3

Administrative Secretary

Cases where no recruitment was made for any reason during last five years. This relaxation equivalent to the period during which no recruitment took place shall be given across the board and appear as a part of the advertisement for recruitment obviating the necessity of an individual approaching the Government authorities for relaxation. (emphasis supplied)

Equivalent to the period for which no recruitment was made. (emphasis supplied)

8. Thereafter the said Rules were held in abeyance and relaxation in upper age limit for initial recruitment to post BS-1 to BS-17 (for non-government candidates) was granted under the Recruitment Policies issued by the Services and General Administration Department (Regulations Wing), Government of the Punjab from time to time. 9. The Recruitment Policy, 2003 dated 5-5-2003 provided as under:---

"IX RELAXATION IN UPPER AGE LIMIT FOR INITIAL RECRUITMENT IN BS-I TO 17 According to the Punjab Delegation of Powers (Relaxation of Age) Rules, relaxation in upper age limit equivalent to the period during which no recruitment took place, is given across the board, subject to a maximum of five years. Under these rules, benefit could not be given to most candidates, as some recruitments in various categories of posts have been made in the past, from time to time. It has, therefore, been decided that: (1) 5 years relaxation in upper age limit may be allowed, across the board, for all categories of posts, irrespective of the fact as to whether recruitment was made or not. (2) This relaxation would be a one time dispensation which will be valid upto 31-12-2004 for all kinds of recruitments. During this time. the application of Punjab Delegation of Powers (Relaxation of Age) Rules, shall be held in abeyance." (emphasis supplied).

Thereafter Recruitment Policy, 2004 dated 17-9-2004 once again granted relaxation in upper age limit in the following terms:---

"16. RELAXATION IN UPPER AGE LIMIT FOR INITIAL RECRUITMENT IN BS-1 TO 17.

(i) 5 years relaxation in upper age limit shall be allowed, across the board, for all categories of posts in BS-1 to 17. (ii) This relaxation would be valid upto 30-6-2005, for all kinds of recruitments. During this time, the application of Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 shall be held in abeyance." (emphasis supplied)

The relaxation granted up to 30-6-2005 under the Recruitment Policy, 2004 was further extended up to 30-6-2006 vide letter dated 14-7-2005 issued by the Services and General Administration Department (Regulations Wing), Government of the Punjab. 10. The said post was once again advertised in the year 2008 vide public advertisement No.18 of 2008 by the Punjab Public Service Commission, Lahore. Relaxation of upper age limit was not granted to the non-government candidates; however, through partial modification of the above advertisement1, Government of the Punjab, granted three years age relaxation for all the posts the Combined Competitive Examination 2008 as a one time dispensation. 11. Thereafter, Combined Competitive Examinations were not held in the years 2009 and 2010 and the post of PMS was advertised after two years in the year 2011. The public advertisement for the year 2011 did not grant relaxation of upper age limit for the non government candidates (petitioners) on the ground that the Government of the Punjab granted relaxation of upper age limit as a ONE TIME DISPENSATION, hence benefit of age relaxation could not be extended to the petitioners in the year 2011. 12. The legal question that emerges for the deliberation of this court is whether there has been failure or abuse of discretion by the Secretary S&GAD (the concerned Administrative Secretary) vested in him under the Schedule to Rules, 1961? 13. Reading of the Punjab Delegation of Powers (Relaxation of Age) Rules, 1961 shows that the powers have been delegated to the Administrative Secretaries to grant relaxation in upper age limit for all the posts meant for initial recruitment. The secretaries may or may not grant relaxation, of upper age limit but they have to exercise their discretion whenever initial recruitment takes place. The exercise of this discretion for the sake of transparency and good governance has to be in writing supported by cogent reasons in accordance with law. 14. The discretion vested in the Administrative Secretary determines the upper age limit of a prospective candidate for initial recruitment in a particular year, therefore, exercise of discretion prior to the public advertisement for initial recruitment is essential as it determines and provides the prospective candidate with access to lawful employment. The administrative secretary is therefore under an obligation to consider the attending circumstances of an initial recruitment in a particular year and exercise the discretion vested in him under the law. 15. Due process guaranteed under Article 4 empowers a citizen to be lawfully and transparently considered for any public office. In addition, inbuilt in the right to life under Article 9 of the Constitution is the right to a lawful recruitment process for any public office. Any haphazardly structured or rushed recruitment process impairs the prospects of appointment thus depriving many the opportunities and access to compete for a public post. This denial of opportunity of employment offends the fundamental right to life. Government in regulating public appointments, besides ensuring merit, and transparency of the process must also, guarantee fairness and equity in the recruitment process. Good governance mandates that Government must deal with the affairs of the citizen with compassion and care. 16. In the present case, Rules, 1961 vest discretion in the Administrative Secretaries to grant relaxation of upper age limit in cases of initial recruitment (for non government candidates) after considering the facts of initial recruitment to every post. This discretion vested in the Administrative Secretaries is for the benefit of the citizens applying for public posts and therefore it must be exercised in accordance with law. No doubt, it is the prerogative of the concerned Secretary to extend or not to extend the benefit of age relaxation to the prospective candidates for a particular year but it is obligatory on the Secretary to apply his mind and give reasons for his decision. It is useful to refer to the oft quoted observation of Earl Cairns CJ in the leading case of Julius v. Lord Bishop of Oxford2 "Where a power is deposited with a public officer for the purpose of being used for the benefit of persons .... that power ought to be exercised, and the Court will require it to be exercised." 17. It is now settled law that discretion must be structured and supported by good reason. Inbuilt in this is the compulsion that discretion once vested under the law in a public officer must also be lawfully exercised. While the public officer exercising discretion has the choice to decide either way, after giving reasons, he has no choice not to exercise discretion in a particular year and let the recruitment process pass. Any such omission where discretion goes unexercised and unused without application of mind, affairs go away, reflecting poor public administration. I rely with advantage on Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), wherein the august Supreme Court of Pakistan held:--- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the 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 findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, 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 fail 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 times". (emphasis supplied). Further reliance is also placed on 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), Abdul Wahab and another v. Secretary, Government of Balochistan and another (2009 SCMR 1354) and Delhi Transport Corporation v. D.T.C. Mazdoor…

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