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Petitioner: YOUSAF HAROON and others VS Respondent: PUNJAB PUBLIC SERVICE COMMISSION, AGHA JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Bashir Jehangiri, Muhammad Arif, Mian Muhammad Ajmal Title:YOUSAF HAROON and others vs PUNJAB PUBLIC SERVICE COMMISSION, AGHA
JUDGMENT
Reported As: PLD 2001 Supreme Court 1012 Result: Appeals accepted Judgment JUDGMENT CH. MUHAMMAD ARIF, J.---Through this common judgment we intend to dispose of the above appeals with two different leave granting orders dated 23-7-1999 (in C.A. No,1042 of 1999) and dated 4-8-1999 in C.As. N'os.1198 and 1199 of 1999) respectively, which had, in their own turn, arisen out of a common judgment passed by a Division Bench of the Lahore High Court, Lahore on 14-6- 1999 in I.C.As. Nos.1287, 1361 and 1363 of 1998, to consider whether the appellants were denied appointment on legal grounds. 2. Appellant Yousaf Haroon had brought Writ Petition No,7649 of 1998 in the Lahore High Court, Bench Multan and appellants-Nasir Ali Saqib and Shafqat Nadeem as also appellant-Shahid Ikram had brought Writ Petitions Nos.19416 and 18177 of 1998 in the Lahore High Court, Lahore by pleading that Punjab Public Service Commission, hereinafter referred to as the Commission, invited applications for holding written/oral tests for appointment of 300 Inspectors in Punjab Police. In response to an advertisement in Daily Nawa-i-Waqt Lahore dated 28-9-1997 they submitted applications alongwith necessary documents, appeared in written test as well as interview and came out with flying colours. As a result of the above they were recommended by the Commission to the Competent Authority for appointment. On a complaint to the effect that some candidates have manipulated sitting in the examination by securing false certificates regarding their physical standards from Medical Officers which requires recall of the appointment orders, if issued, the Provincial Government constituted Divisional Boards comprising concerned D.I.-Gs/Police Range, Suprintendents of Police and Medical Superintendents of Headquarters Hospitals or their representatives to measure the height and chest of candidates recommended by the
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Commission. They were examined by the so constituted Boards and were found deficient in height (and chest). In view of the above findings by the Boards, the matter was referred to the Provincial Government for necessary action on 17-8-1998. 3. Appellant Yousaf Haroon filed Writ Petition No,7649 of 1998 in the Lahore High Court, Multan Bench, Multan whereas appellants Nasir Ali Saqib and Shafqat Nadeem Ch. Filed Writ Petition No,19416 of 1998 and appellant-Shahid Ikram filed Writ Petition No,18177 of 1998 in the Lahore High Court, Lahore with the following prayers, respectively:-- W.P. No,7649 of 1998: "PRAYER: It is, therefore, respectfully prayed that this petition may kindly be accepted, and an appropriate order, writ or direction may kindly be issued to respondent No,1 to issue recommendation letter for the appointment of petitioner as Police Inspector in BPS-16, and respondents Nos.2 and 3 may kindly be directed to accept joining of the petitioner immediately. Any other equitable relief, which this Honourable Court deems proper may also graciously be granted.' W.P.No,19416 of 1998: PRAYER: It is, therefore, respectfully prayed that this petition may kindly be accepted, and the letter of withdrawal of recommendations issued by the Punjab Public Service Commission dated 19-8-1998 may very graciously be declared to have been issued without lawful authority and the subsequent tests arranged by the police after 29-6-1998 as illegal and without jurisdiction. It is further prayed that a direction may kindly be issued to the respondents to include the names of the petitioners in the notification of appointment as inspectors. It is also prayed that till the final disposal of this petition, the petitioners may very graciously be allowed to provisionally join the training required for towards the ultimate posting. Any other writ, relief or direction expedient in the interest of justice may also be issued in vindication of the grievances afore-referred. W.P.No,18177 of 1998: PRAYER: 1. It is, therefore, most humbly prayed that the petition may very kindly be accepted and the letter of withdrawal of recommendations issued by respondent No,2 (Annexure 'H') may very kindly be declared to have been issued without lawful authority and the subsequent tests arranged by the police after 29-6-1998 are illegal and without jurisdiction. 2. It is also prayed that a direction may kindly be issued to the respondent No,1 to include the names of the petitioner in the Notification of appointment as Inspectors (Annexure F). 3. It is further prayed that till the final disposal of this petition, the petitioner may very kindly be allowed to provisionally join the training likely to be started on 15-9-1998. Any other relief to which the petitioner is found entitled may also very kindly be made available to him." 4. A learned Judge of the Lahore High Court, Multan Bench, Multan heard the arguments of the parties in Writ Petition No,7649 of 1998 and, after noticing (i) the opinion of the Medical Superintendent that if the height of appellant Yousaf Haroon is more than 5'-6-1/2" it would be considered to be 5'-7' but his such opinion was not accepted by the other Members of the Board and case was referred to the Inspector-General Police who, in turn wrote a letter to the Commission for withdrawal of its recommendation which was done vide the impugned letter dated 19-8-1998 as also (ii) the pleadings of the parties that (a) appellant-Yousaf Haroon had been meted out discriminatory treatment inasmuch as one Asif Kamal whose height is also 172 c.m. Has been appointed as, an Inspector and (b) the Inspector-General Police has submitted an evasive reply to ground IV (in the writ petition) by stating that "Asif Kamal was found physically fit as per requirement of Police Rules 12.15", came to the following conclusions: "5. In the Letter No,23811/E, dated 24-6-1998 written by the Deputy Inspector-General of Police, Mutlan, to the Inspector-General of Police in para.3 the height of the petitioner has been mentioned
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as 5'-6-1/2" and that of Asif Kamal as 5'-6-1/4". It is an admitted fact that Asif Kamal has been found fit, as such, it is a case of clear discrimination with the persons similarly placed. 6. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:-- 25. Equality of citizens.--(1) All citizens are equal before law and are entitled to equal protection of law. (2) There shall be no discrimination on the basis of sex alone. It is also a fact that five candidates were granted exemption to four candidates for 2" in deficiency in chest and one Khalid Mahmood Tabassum of Lahore Range deficiency in height by 1" vide Letter No,SE-I/2873-82/E.I./93, dated 16-5-1993 and endorsement No,5169-5233/F.II, dated 18-5-1993 (Mark 'A') by the Inspector-General of Police. 7. In this view of the matter the petitioners are entitled to be treated equally before law and to equal protection of law without any discrimination. The writ petition is allowed with no order as to costs." 5. Similarly, Writ Petitions Nos.(17255), 19416 and 18177 of 1998 were taken up by a learned Judge in Chambers of the Lahore High Court, Lahore and, after noticing, that (i) the admitted position on the record is that there is difference between the scales provided by the Government to the Health Department and those used by the Police Department for measuring the height; (ii) appellants- Shahid Ikram and Nasir Ali Saqib as also Shafqat Nadeem Ch. Have not made any misstatement whatsoever; (iii) the Superior Courts of the country have been insisting to afford opportunity of hearing before any administrative action is taken against a citizen in line with the cases reported as The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed PLD 1965 SC 90; Mrs. Anisa Rehman v. PIAC and another 1994 SCM R 2232 and Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; and (iv) the impugned order had been issued mechanically sans application of mind as it does not point out any deficiency whatsoever, the same were allowed with, inter alia, the following observations: "12. Now coming to the petitioner Muhammad Khalil Malik in W.P. No,17255/98 and Muhammad Khan petitioner No,1 in W.P. No,19416/98. The deficiency has been noticed in respect of the chest. Respondent No,1 was ill-advised to straightway withdraw the recommendation in respect of them. The action should have been taken after giving them opportunity of being heard, therefore, the impugned order of the Commission is set aside as being violative of the principles of natural justice. However, the Commission will be at liberty to proceed against these two petitioners in accordance with law as declared by the Hon'ble Supreme Court in the case of Zakir Ahmad (supra). 13. The upshot of the above discussion is that this writ petition is accepted. The result is that the impugned order of Commission is illegal and discriminatory with no order as to costs." 6. The official respondents felt aggrieved of judgments dated 22-101998 (in W.P. No,7649 of 1998) and dated 25-11-1998 (in W.Ps. Nos.19416 and 18177 of 1998) (as also W.P. No,17255 of 1998) and filed Intra-Court Appeals Nos.1287, 1361 and 1363 of 1998. As mentioned above, the I.C.As were taken up together and the learned Members of the Division Bench of the High Court recorded the following pleas raised by the learned Advocate-General, Punjab on behalf of the respondents: "Firstly That the learned Single Judge had erred in law in applying the doctrine of equality as embodied in Article 25 of the Constitution; that respondents in these Intra-Court Appeals were accorded equal treatment by the competent authorities; that all successful candidates including respondents (recommended by the Commission), were subjected to physical test by a Board constituted by the Provincial Government; that their height and chest were measured by the District Health Officer in the presence of D.I.-G. And S.P. On the above line of reasoning, it was stressed that the doctrine of equality was fully adhered to in the case of respondents; that instance of relaxation made in 1993 could not be pressed into service in recruitments of Inspectors in 1998.
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Secondly That the physical standards as laid down in rule 12.15 of Police Rules. 1934. Were condition precedent for appointment of an Inspector and his induction in the police force; although the D.I.-G. Was empowered to relax the above standard in special cases; yet relaxation of aforesaid condition was within the discretionary power of D.I.-G. And to be made in special circumstances/event. On this line of approach, it was stressed that the action of the Provincial Government/culminating into withdrawal of the recommendation by the Commission/was unexceptionable. Thirdly that the rule 12.16 of Police Rules was to be read alongwith rule 12.17 and Appendix 12.16; that the authority of the Surgeon was to give a certificate with regard to height, eye-sight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit. Sub-rule (2) of rule 12.6 even empowered/empowers the Superintendents of Police to reject those candidates whose general standard of physique and intelligence was/is unsatisfactory. This empowerment clearly demonstrated that physical standards were to be checked by Police Authorities and not by Health Authorities whose role was of facilitative character. Fourthly that learned Single Judge had not correctly construed relevant rules namely, 12.15, 12.16 and Appendix 12.16." The learned Members of the Division Bench of the High Court recounted the arguments of the then learned counsel for the petitioners that: "... ...Under Rules noted above, it was the function of Health Officer/Authorities to measure the height/chest of respondents and this was outside the powers of Police Authorities to do so. On this line of approach it was suggested that the Government had no business to constitute Boards and that the said Boards had no business to measure the height and chest of the respondents. Reliance was placed on Rule 12.15 and Rule 12.16 of Police Rules, 1934. According to learned counsel, the expression District Health Officer and Civil Surgeon employed in the above rule clearly fix the responsibility of Health Authority to measure the chest and height of recruits. Lastly, it was submitted that under Rule 12.16, the Deputy Inspector-General had Authority to relax the physical standards as set down therein in special cases; that the respondents had appeared in written examination as well as oral tests successfully; that the respondent were Post- Graduates; that on these facts the learned D.I.-G. Should have exercised his discretion of relaxation in their favour and condoned if there was any minor deficiency in chest and height of respondents. Reliance was placed upon Sheraz Ata Ullah Khan (minor) through his real maternal uncle v. Nasir Ahmad Khan and others 1993 CLC 945; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd. PLD 1991 SC 14; Chaudhary Shujaat Hussain v. State 1995 SCM R 1249 and Abdul Razzaq Rathore v. The State PLD 1992 Kar. 39." and observed: ... "6. From the foregoing narration of facts, circumstances and arguments of the parties, the following questions arise for consideration: (1) Was the doctrine of equality, as embodied in Article 25 of the Constitution, applied to the facts and circumstances of the case in hand? (2) Is/are the Health Authorities namely Civil Surgeon/D.H.O./Medical Officer competent to measure height, chest of successful candidates and Boards, constituted by the Province of Punjab to undertake that exercise were incompetent? (3) Were the respondents entitled to benefit of relaxation of conditions of height and chest under rule 12.16 of Police Rules? 7. The learned Members of the Division Bench of the High Court considered the doctrine of equality as contained in Article 25 of the Constitution and, after making a reference to Brig. (Retd.) F.B. Ali and others v. The State v. PLD 1995 SC 506; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57; Aziz Begum v. Federation of Pakistan PLD 1990 SC 899 and I.A. Sherwani v. Government of
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Pakistan 1991 SCM R 1041, came to the conclusion that on point No,1 above the learned Judge in Chambers in Writ Petition No,7649 of 1998. ... "....Did apply the rule of equality by assessing into service the examples of relaxation in appointment of Inspectors in 1993 and did not notice that no relaxation had been made in the exercise of recruitment of respondent in 1998 (incorrectly mentioned as 1993) at all. This being the position we are very clear in our mind that the doctrine of equality was not correctly applied. In view of the above, we are not able to uphold the decision of our brother Munir Ahmad Mughal, J. In Writ Petition No,7649/98". While returning the findings against appellants herein on question No,2 the learned Members of the Division Bench of the High Court took notice of rules 12.1, 12.6, 12.8, 12.15, 12.16 and 12.17 of the Punjab Police Rules. 1934 specifying the competent authority to whom power had been delegated for making appointments of Inspectors, S.Is. And A.S.Is. To hold that the power to appoint Inspectors lies with D.I.-G./A.I.-G within the parameters laid down in them i,e, (1) on the recommendation of the Commission, (2) after the Commission has held the examination of candidates, (3) a candidate who possesses good moral character must be 18 to 25 years of age and must be Graduate; and (4) a recruit shall not be more than 25 years of age or less than 18 years of age at the time of enrollment... ...... "... And shall have minimum height of 5 feet 7 inches and formal chest measurement of 33 inches with an expansion of 1-1/2 inches. It also embodies the power of D.I.-G. To relax the aforesaid condition in case of special castes and classes which supply desirable recruits whose height is less than prescribed standard. It can be safely said that this rule is very important and embodies physical standards for appointment of recruits as Inspectors. Rule 12.16 is also significant. It is as follows:-- "12.16. (1) Every recruit shall, before enrolment, be medically examined and certified physically fit for service by the Civil Surgeon. A certificate, in the prescribed form (No,64), signed by the Civil Surgeon personally, is an essential qualification for enrolment (vide Fundamental Rules)." "The examination by the Civil Surgeon will be conducted in accordance with the instructions issued by the Medical Department and will test the eye-sight, speech and hearing of the candidate, his freedom from physical defect, organic or contagious disease or any other defect or tendency likely to render him unfit, and his age. The candidate must strip for examination, a loin covering being allowed except when the examination is being completed, and any candidate who refused to do so must be rejected. The condition of police service make it necessary that the medical examination of candidate should be strict. Candidate shall be rejected for any disease or defect which is likely to render them unfit for the full duties of a police officer. " Para. (2). Superintendents are themselves responsible for rejecting candidates whose general standard of physique and intelligence is unsatisfactory; only those candidates should be sent for medical examination whom the superintendent has accepted as being up to the required standard in these respects." It says that every recruit shall, before enrolment, be subjected to medical examination and certified to be physically fit for service by Civil Surgeon. Its sub-rule (2) empowers the superintendents of police to reject the candidates who do not fulfil the physical criterion and do not possess reasonable intelligence. Superintendents of Police are thus, empowered not to send such candidate for medical test. Rule 12.17 applies when a candidate has crossed the above stages. The recruit is sent to Line Officer who shall put him in the charge of Chief Drill Instructor." Para. 10 of the impugned judgment reads thus: "10. From the above analysis, it thus, becomes clear that rules 12.15 and 12.16 clearly lay down the physical standards of a recruit to be inducted to police force as Inspector. Summarily, these rules postulate that height of a recruit be 5 feet 7 inches and his chest must be of 33 inches and his age
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must be 18 to 25 years. The competent authority to make appointment is Deputy Inspector-General of Police, Assistant Inspector-General/Government Railways Police and Assistant Inspector general/Provincial Additional Police. The aforestated physical condition/standard/criteria are condition precedent for the appointment of successful candidates as recruits/Inspectors. This view is completely fulfilled by rule 12.16 which empowers Superintendents of Police to reject candidate whose standard of physique and intelligence is unsatisfactory, and to send only those candidates for medical examination whom the Superintendent of Police has accepted as being up to the required standard in this respect. It, thus, confers power on Superintendents of Police (not competent authority) of full discretion to assess the physical standards of successful candidates and deny them medical examination. In the face of this rule can it be said that Civil Surgeon/D.H.O./Medical Officer are not only Authorities to measure the height and chest of a candidate and the competent authority is not bound to accept their opinion/result. It is common ground that the competent authority as already noted is D.I.-G. The association of Superintendent of Police and Health Authorities in the task of appointment of Inspectors is of facilitative nature. Even Superintendent of Police is empowered to reject the candidate on the touchstones of physical standards and intelligence. Seen from the above prospective we are of considered view that it is the competent authority which has to finally weigh/adjudge physical standard required for appointment of a recruit. No doubt, the role of Health Authority is of facilitative nature and is of weight and we are clear in our mind that the Boards. Constituted by the Government of Punjab/comprising D.I.-G./competent Authority/S.P./D.H.O. Were lawful and constituted by Provincial Authority/Government of Punjab. Hence, these Boards, exercised their power within the framework of law and legally found that the respondents did not have the required height and so were not qualified to be appointed as recruits/Inspectors. It is significant to note that these Boards designated competent authority, S.S.P. And concerned Medical Officer." After reiterating the contents of rules 12.15 and 12.16 to the effect that D.I.-G. Of Police/competent authority is possessed of the powers to relax the rules but within strictly circumscribed limits relatable to only special castes or classes and after referring to State v. Cummings 36 MO 263, 278, it was ruled: "....That discretionary jurisdiction is power of Administrative Authority/Judicial Authority to adopt a way or decide a matter according to his own (sagacity) or prudence and opinion. It is true that the Courts have initiated the role whereby this power has been structured within parameters of fairness. Nevertheless, exercise of this power rests upon the opinion of Administrative Judge. Briefly speaking it is not dispensable. The power is given on account of complex nature of the jurisdiction. This is almost an odium. What we find is that competent authority declined to exercise this power and dealt with every successful candidate including respondents with equal treatment. Seen from above spectrum, that the action of Government of Punjab in constituting Boards and the exercise taken by them was clearly legal and no exception can be taken to it.", and the Intra-Court Appeals were allowed, decisions of the learned Judges in Chambers dated 22-10-1998 and 25-11-1998 in Writ Petitions Nos.7649, 19416/98 and 18177/98 set aside and the writ petitions dismissed. 8. Hafiz Tariq Nasim, learned Advocate Supreme Court appearing in support of Civil Appeal No,1042 of 1999 has relied upon Nazar Din and others v. Secretary Rural 1983 SCM R 1188, Punjab Province and others v. Faqir Muhammad and others 1987 CLC 1643, Government of Balochistan v. Azizullah Memon PLD 1993 SC 341, Secretary Finance Division v. Muhammad lqbal Solangi 1993 SCM R 837, Muhammad Yusuf v. Kharian Bibi 1995 SCM R 784 and Irshad Ahmed Hashmi v. General Manager, Pakistan Railways 1999 SCM R 240 and contended that Intra-Court Appeal No,1287 of 1998 was barred by 9 days and that the same was liable to be dismissed as such. Moreso, when even an application seeking condonation of delay was not made by the official-respondents. According to him, mere disposal of a cause without adverting to the question of limitation cannot be equated
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with condonation of delay by conscious application of mind as observed, inter alia, in Muhammad Raz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 3, Central Board of Revenue, Islamabad v. Messrs. Raja Industries (Pvt.) Ltd. 1998 SCM R 307 and Mst. SiranjunMunira v. Pakistan 1998 SCM R 785. He was also critical of the impugned judgment holding that Article 25 of the Constitution was not attracted to the facts and circumstances of the instant cause. He placed reliance on Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCM R 1072 to contend that preferential treatment meted out to one-Asif 'Carnal could not be excluded from consideration and that too without even so much as observing that his client was not to blame for any of the alleged shortcomings in the process of measurement of his body. He also relied upon Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 to contend that presumption of regularity is attached to official acts and the respondent-authorities had miserably failed to rebut the same. He referred to Multiline Associates v. Ardeshir Cowasjee and others 1995 SCM R 362 and Bashir alias Bashir Ahmad and another v. The State 1998 SCM R 1794 to contend that in the present lis between individuals/citizens on one side and the State on the other, interpretation of all the rules on the subject should be such which is beneficial for the former and not the latter. According to him, his client came to be clothed with many valuable rights after qualifying in the written test, interview, etc. And, to say the least, was entitled to benefit therefrom, in the ensuring service-career.…
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