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Petitioner: ZAHEER AHMAD VS Respondent: PROVINCE OF PUNJAB
1997 P L C (C
1997 P L C (C. S.) 43
[Lahore High Court]
Before Karamat Nazir Bhandari, J
ZAHEER AHMAD and another
versus
PROVINCE OF PUNJAB through Secretary, Local Government, Punjab, Lahore and 5 others
Writ Petition No. 11134 of 1995, decided on 8th October, 1996.
Punjab Local Government Ordinance (VI of 1979)‑‑‑
‑‑‑‑S. 44‑‑‑Constitution of Pakistan (1973), Arts. 2A & 199‑‑‑Constitutional petition‑‑‑Ignoring merit in appointment‑‑‑Validity‑‑‑Appointment of respondents as clerks of Town Committee‑‑‑Petitioners challenged appointment of respondents through representation to Secretary, Local Government, protesting that they were having better merits but had been ignored‑‑‑No relief having been granted to petitioners they challenged appointment of respondents as against merit policy and on account of political influence‑‑‑Comparative merit statement of petitioners and respondents showed that respondents had secured far less marks on merit than petitioners‑‑‑Both Deputy Commissioner and Assistant Commissioner in. their report had asserted that in appointing respondents they had observed policy of Government‑‑‑Officers concerned failed to show as to what was the policy of Government, on which they had discarded merit and appointed persons with less merit and qualifications than petitioners‑‑ Even if policy of Government was to appoint persons with lesser merit and qualifications, such was against Objectives Resolution which was now substantive part of the Constitution as was reflected in its Art.2A‑‑‑To encourage and prefer merit must be the cornerstone of collective living in Pakistan‑‑‑By appointing respondents who were mere matriculates of 2nd and 3rd Divisions in preference to petitioners, who were graduate and who had secured better marks even in interview, officials had done no service either to Government or to the Constitution or to country‑‑‑Officials concerned had thus, not acted in honest, transparent and bona fide manner‑‑‑Impugned appointment being arbitrary, unmeritorious, against the Constitution, good conscience, good Government and equity were declared to be without lawful authority and of no legal effect‑‑ Apart from petitioners there were others appearing in merit list who had secured better marks not only against respondents but also against petitioners‑‑‑High Court instead of issuing mandamus for appointing petitioners remitted case to concerned officials to proceed to fill up vacancies strictly in accordance with merit of respective candidates and to complete the process within one month.
Mushtaq Ahmad Muhal for Petitioners.
Muhammad Ramzan Khokhar for Respondent No. 3.
Malik Khizar Hayat Khan for Respondent No. 4.
Date of hearing: 8th October, 1996.
JUDGMENT
Both the petitioners and respondents Nos.3 to 6 alongwith large number of other candidates were competing for the post of Office Clerk and Octroi Clerk advertised by respondent No.3. After the exercise of processing and interview etc. vide the order dated 22‑6‑1995, respondents Nos. 4 to 6 were appointed. Both the petitioners made representations to Secretary, Local Government protesting that they were having better merits but have been ignored Having falled to obtain any relief from the respondents, two petitioners have lodged this joint petition seeking annulment of the appointments of respondents Nos.4 to 6 and a mandamus that instead the petitioners be appointed. The petitioners' case is founded on the claim that both the petitioners are graduates having much better academic record than respondents Nos.4 to 6, who are mere matriculates and one of them a third divisionary and have been picked up on account of considerations other than provided by law. In fact, it is asserted that they have been appointed on the interference of local M.P.A. and M.N.A.
2. In the report and parawise comments submitted, the allegations that the appointments, were made on political influence have been denied. However, it has not been denied that the two petitioners are graduates while the selected persons are mere matriculates. It is maintained that the criteria laid down by the Government has been observed and respondents Nos.4 to 6 were duly recommended for appointment by the District Recruitment Committee, Sargodha, headed by Deputy Commissioner, as Chairman.
3. On the direction of the Court the original record has aiso been produced for examination. While respondent No.4 is represented, respondents Nos.5 and 6 have chosen not to defend this petition, inasmuch as, they have not responded to the notices issued to them for today's hearing. The case was taken up in the morning and, under the direction of the Court, learned State Counsel prepared a comparative merit statement of the two petitioners and respondents Nos.4 to 6. He has done so with the assistance of the learned counsel for respondents Nos.3 and 4, which has been placed on record as Mark "A". According to the statement, the respective marks of the petitioners and respondents Nos.4 to 6 are as follows:‑‑
NAME
QUALIFICATION
MARKS
Zaheer Ahmad son of Ghulam Jillani, (Petitioner No. 1)
B.A. (1st Div)
68+12=80
Mehr Allah Ditta son of Hussain Ahmad (Petitioner No. 2)
B.A. (2nd Div)
61+3=64
Muhammad Subtain son of Ghulam Muhammad. (Respondent No.4)
Matric(2nd Div)
55+3=58
Sabir Hussain son of Muhammad Nawaz, (Respondent No.6)
Matric (2nd Div)
55+3=58
Ali Ahmad son of Jamil Ahmad (Respondent No. 5)
Matric (3rd Div)
40+2=42
4. The record is absolutely silent as to why respondents Nos.4 to 6 securing far less marks on merit than the petitioners, have been appointed. Both the Deputy Commissioner and Assistant Commissioner, in their report made an assertion of self‑righteousness by reiterating that in appointing these respondents they have observed the policy of the Government. If these respondents are correct, they have thrown aside the meritorious people and appointed the persons with lesser merit and qualifications. It has not been shown that this is the policy of the Government. However, even if this is the policy of the Government, the same is against the nobel objectives enshrined in the Objectives Resolution which is now substantive part of the Constitution as reflected in Article 2A of the Constitution. To encourage and prefer merit has to be the cornerstone of collective living in Pakistan. By appointing respondents Nos.4 to 6, who are mere matriculates 2nd and 3rd Divisions in preference to petitioners, who are Graduates and who have secured better marks even in interview, respondents Nos.2 and 3 have done no service either to the Government or to the Constitution or to this Country. After their denial that there was any political influence or any interference by MNA/MPA, one fails to understand the motive behind these appointments. It will have to be concluded that by keeping the motive under cover and preferring Matriculates, respondents Nos.2 and'3 have not acted in an honest, transparent and bona fide manner. Even if they were to prefer less meritorious persons, they ought to have recorded the reasons for the same. As noted, the record is silent and even no reason has been submitted to this Court. The impugned appointments are, therefore, arbitrary, unmeritorious, against the Constitution, good conscience, good Government and equity. These are hereby declared as without lawful authority and of no legal effect.
5. I am informed that apart from the two petitioners, there are others appearing in the merit list who have secured better marks not only as against respondents Nos.4 to 6, but against the petitioners also. It is, therefore, undesirable to issue a mandamus for appointing the petitioners. The case is remitted to the appointing authority, respondent No.3, who will proceed to fill up the vacancies strictly in accordance with the merit of the respective candidates and, if for any reason, a candidate securing better merit is not appointed, the authority shall record reasons for doing so. This exercise will be completed within one month from today.
6. This writ petition is allowed in the above terms and, in the peculiar circumstances of this case, it is directed that respondents Nos.2 and 3 will pay the costs of this petition.
A.A./Z‑15/L Petition accepted.