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Petitioner: Syed IRFAN AHMED VS Respondent: GOVERNMENT OF PAKISTAN through Secretary, Finance, Ministry of Finance, IslamabadHonorable Justice Azizullah M. Memon, Actg. C.J. and Arshad Noor KhanFaiz Ghanghro,Usman Shaikh
2009 P L C (C
2009 P L C (C.S.) 4
[Karachi High Court]
Before Azizullah M. Memon, Actg. C.J. and Arshad Noor Khan, J
Syed IRFAN AHMED and another
Versus
GOVERNMENT OF PAKISTAN through Secretary, Finance, Ministry of Finance, Islamabad and 4 others
Constitutional Petition No.702 of 2000, decided on 3rd July, 2008.
(a) Pakistan Banking and Finance Services Act (XIII of 1992)---
----S. 7---Pakistan Banking and Finance Services Commission---Object---Government had established the Commission for recruitment for filling the posts in financial institutions through it---Pakistan Banking and Finance Commission is the final authority to select and recommend incumbents for their appointment in banks or other financial institutions.
(b) Pakistan Banking and Finance Services Act (XIII of 1992)---
----Ss. 7 & 8---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Recruitment--- Vested right--- Discrimination--- Despite recommendation by Pakistan Banking and Finance Services Commission, the concerned authority did not issue appointment letters to petitioners, whereas other candidates recommended by the Commission were appointed---Plea raised by authorities was that the petitioners were not appointed due to ban on recruitment by Federal Government and furthermore the petitioners had no vested right to claim their appointment---Validity---If incumbent was declared successful by the Commission authorized to recruit them and on recommendation by the Commission to the concerned authority for their appointment, a right had vested in the recommendees---Such right of recommendees could not be disputed, denied or challenged without assigning any just and sufficient reason---Even ban imposed by government on recruitment could not be pleaded as a defence by the authority to whom recommendation for appointment of successful candidates had been made---Authority concerned failed to assign any just, sufficient and plausible reason to deprive the petitioners from their legitimate right of appointment for the posts applied by them under the defence of ban imposed by Federal Government---Such defence was not available to the authority concerned because before imposing any ban by the Government, the petitioners had been declared successful and qualified for the posts, for which they had applied and mere departmental formalities remained to be observed for issuance of their appointment letters---Some of the candidates, who were recommended by the Commission to the authority concerned along with the petitioners, were appointed by the authority, as such the authority concerned had discriminated against the petitioners---High Court directed the authority concerned to issue appointment letters to the petitioners---Petition was allowed in circumstances.
Manthar Ali M. Jatoi v. The Government of Sindh through Chief Secretary; Sindh 1988 PLC (C.S.) 344; Muhammad Farooq M. Memon v. Government of Sindh through Chief Secretary Karachi 1986 CLC 1408; Miss Farzana Qadir v. Government of Sindh through Secretary; Ministry of Health; Karachi 2000 PLC (C.S) 255 and Muhammad Rasheed v. Government of Punjab & others 2006 SCMR 1082 rel.
1993 PLC (C.S.) 470 distinguished.
(c) Constitution of Pakistan (1973)---
----Art. 199---Civil Procedure Code (V of 1908), S.11---Constitutional petition---Res judicata, principle of---Applicability---Respondents contested the petition on the ground that petitioners had applied earlier in similar matter before another High Court to join them as party which was decided against them which had created res judicata under S.11 C.P.C.---Validity---Plea of res judicata was not available to respondents for the reason that case of petitioners was not decided by that High Court on merits, nor even they were impleaded as a party in that earlier petition---As the case of petitioners was not finally decided by another High Court, therefore, bar of res judicata was not attracted in the circumstances.
Faiz Ghanghro for Petitioners.
Usman Shaikh for Respondents.
Badar Alam, D.A.-G. for the Federation.
Date of hearing: 15th May, 2008.
JUDGMENT
ARSHAD NOOR KHAN, J.---By this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the legality and validity of the order dated 27-6-1998 passed by respondent No.3 and prayed to declare it to be illegal, inoperative and ultra vires to the Constitution of Islamic Republic of Pakistan, 1973.
The facts leading rise to the present petition in brief are that in pursuance to advertisement dated 27-10-1995 published in Daily Jang, advertised by Pakistan Banking and Finance Services Commission, hereinafter shall be referred as the "PB & FSC", on behalf of National Bank of Pakistan for recruitment of different categories of the officers/officials, whereby the applications were invited from suitable candidates, who were fulfilling the requisite qualification and experience mentioned against each of the said posts and the last date of filing of the application was fixed as 30-11-1995 on prescribed form. The petitioner No.1 applied for the post of Resident Engineer (Civil) Officer, Grade-II, vide Case No.RECT/N.B.P./9530(A). The petitioner No.2 applied for the post of Assistant Engineer (Civil) Officer, Grade-III, vide case No.RECT/N.B.P./95-32(a). The petitioners along with other candidates were called for written test/interview to compete for their respective posts. The petitioner No.1 was assigned Roll No.K-5141 and petitioner No.2 was assigned Roll No.K-5402 for the purpose of written test/interview. Both the petitioners successfully qualified their written tests/interview and result was declared on 6-9-1996 and subsequently displayed on Notice Board of the PB&FSC within the premises of the office of respondent No.3 and also announced through press release belatedly on 2-10-1996. It is further stated in the petition that the petitioners were selected and their cases were accordingly recommended for their appointment. The petitioners were intimated by the PB&FSC, which intimation envisaged that an offer of appointment will be issued to the petitioners in due course of time by respondent No.2 viz. National Bank of Pakistan, vide its letter dated 23-10-1996.
After receipt of the recommendation for appointment in the month of September, 1996, respondent No.2, National Bank of Pakistan did not contact the petitioners by itself to convey any further progress of their 'cases, however, in reply to the correspondence, letter dated 25-1-1997 was addressed to the petitioner No.2 wherein the recommendation of the respondent No.3 (PB&FSC) were acknowledged and in spite of favourable understanding extended to petitioners nothing has been conveyed further to them by respondent No.2 however on persistent approaches of the petitioners through their letters, thereby requesting for issuance of appointment letters, respondent No.2 adopted a fake plea as an eye wash, to protract and avoid issuance of appointment letters under the fake and fallacious plea of ban allegedly imposed by the Government on fresh appointment, as such, the case of the petitioner was not further processed for their appointment. It is further stated in the petition that respondent No.2 has already made so many fresh appointments in spite of alleged ban imposed by the Federal Government and the petitioners were discriminated by respondent No.2 for certain extraneous consideration. It is further stated in the petition that in spite of so-called ban one, Mr. Hamid Raza, the candidate of same advertisement, who was similarly recommended by the PB&FSC, has been appointed by respondent No.2. It is further stated in the petition that PB&FSC also selected ' and recommended candidates for their appointment in National Bank of Pakistan and in Federal Bank for Cooperatives, respondent No.5 by a consolidated press release dated 2-10-1996 in daily "The News, Rawalpindi" has been pleased to implement the said recommendation of the PB&FSC and appointment letter in favour of Mr. Imranullah was issued by respondent No.2 and the issuance of appointment letters in favour of the petitioners was delayed illegally and malafidely by respondent No.2. It is further stated in the petition that about 300 appointments were directly made by respondent No.2 on the recommendation of respondent No.3 and the ease of present petitioners is of discrimination for satisfaction of illegal lust of the officers of respondent No.2. It is further stated that respondent No.2 with mala fide intention and concocted plea of ban allegedly imposed by the Federal Government of fresh appointment, are denying the legitimate right of the petitioners, in spite of several appointments made by them, so far in the bank other than the recommendation of the PB&FSC. In view of section 8(3) of the Pakistan Banking and Finance Services Act No.XIII of 1992 (hereinafter shall be referred to as "The Act of 1992"), as such, the act of respondent No.2 is illegal, inoperative, discriminatory, ab initio void and ultra vices to the Constitution of Islamic Republic of Pakistan, 1973.
Respondents were served with the notice of the present petition and respondent Nos. 1 and 2 filed their comments. Respondent No.2 in his comments, pleaded the maintainability of the 'present petition and further stated that while the matter regarding appointment of the petitioners were under consideration by the respondent-Bank, the Government of Pakistan through its letter dated 14-11-1996 imposed ban on fresh appointment, inter alia, in the banks/D.F.Is. The Government of Pakistan through its letter dated 26-7-1999 again extended ban on making fresh recruitment in banks/D.F.Is. It is further stated in the comments by respondent No.2 that the petitioners were informed by letter dated 16-2-1997 that there is ban on recruitment in bank services. It is further pleaded in the comments that the petitioners did not approach to the Court with clean hands as both of them had made applications dated 13-10-1998 and 22-7-1998 for their joining as party in Writ Petition No.737 of 1998 in the Lahore High Court filed by Sultan Mehmood Nasir and another against respondents Nos.1, 2 and 3 herein, which petition was heard along with Writ Petition No.14693 of 1997 by Mr. Justice Ihsanul Haque Chaudhry, who was pleased to dismiss both the petitions vide judgment dated 26-10-1999, as such the case of the present petitioners is also hit under section 11, C.P.C. The other allegations regarding publication of advertisement by respondent No.3 and the mala fide acts of the respondents etc. have also been refuted by respondent No.2 in his comments.
Respondent No.1 in his comments has also pleaded the ban allegedly imposed by the Federal Government on 14-11-1996 on fresh recruitment which was extended on 28-7-1999 and the publication of advertisement made by the respondent No.3 in daily newspapers as well as the powers of respondent No.3 for making recommendation to respondent No.1 has not been disputed. Respondent No.3 has not filed any comments in the present petition but the comments filed by respondent No.3 in Writ Petition No.14693 of 1997 before the Lahore High Court, are available on record of the present petition and the relief claimed in the petition against the respondents is same and identical to the present petition, and is also the off-shot of the recruitment of the present process, wherein respondent No.3 has admitted the publication of advertisement dated 10-5-1995 in daily newspapers on the requisition of respondent No.2, National Bank of Pakistan and after conducting written test/interview on 18-6-1996, the case of other petitioner was recommendation on merit to the respondent No.2 for issuance of appointment letters to those petitioners for the posts for which they were recommended. It is further stated in the comments that the said PB&FSC is a statutory body established under the Act of 1992 entrusted with the recruitment/selection of the officers on merit in the Nationalised Commercial Banks and Development Financial Institutions through a process of written test and interviews as per its charter. After selection, names of the selectees are forwarded to the requisitioning agency for issuance of appointment offers and thereafter it is duty of the requisitioning agency to implement the recommendation of the PB&FSC in terms of section 8 (3) of the Act of 1992.
We have, therefore, heard Mr. Faiz Ghanghro, Advocate for the petitioners, Mr. Usman Shaikh, Advocate for the respondents and Mr. Badar Alam, D.A.G. for Federation of Pakistan.
Mr. Faiz Ghanghro, learned Counsel for the petitioners vehemently contended that the petitioners were declared successful and qualified for the post of Resident Engineer (Civil) Officer, Grade-II and Assistant Engineering (Civil) Officer, Grade-III and were accordingly recommended by the PB&FSC as such a vested right has been created in favour of the petitioners and they have been denied their legitimate right of appointment, which. is, in contravention and ultra vires to Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. It is further contended that the alleged ban imposed by the Federal Government on 14-11-1996 was imposed much after the recommendation of the petitioners for the post applied by them as such, the alleged ban could not be pleaded as a sufficient bar to refuse the issuance of appointment letters to the petitioners and the petitioners have been deprived of from their legitimate rights on the fallacious and false plea of alleged ban imposed by the Federal Government, which is not available to the respondent No.2 at any time after receipt of recommendations by the PB&FSC. It is further contended that in Writ Petition No.737 of 1998 though the petitioners had applied for joining them as a party but they were not allowed to implead as party by the learned Lahore High Court in C.P. No.737 of 1998 and even the case of the present petitioners was not decided on merit as such no bar exists in way of the petitioners to approach to this Court. According to him, respondent No.2 appointed so many other officials but the petitioners were discriminated by the respondent No.2 in spite of the valid selection and recommendation by the PB&FSC. In support of this contention, he has relied upon the case of Mushtaq Ahmed Mohal and another v. The Honourable Lahore High Court, Lahore and others reported in 1997 SCMR 1043; the case of Manthar Ali M. Jatoi v. The Government of Sindh through Chief Secretary, Sindh reported in 1988 PLC (C.S.) 344; the case of Muhammad Farooq M. Memon v. Government of Sindh through its Chief Secretary, Karachi reported in 1986 CLC 1408; the case of Miss Farzana Qadir v. Government of Sindh through Secretary, Ministry of Health, Karachi reported in 2000 PLC (C.S.) 255; and the case of Muhammad Rasheed v. Government of Punjab and others reported in 2006 SCMR 1082.
Mr. Usman Shaikh, learned counsel for the respondents vehemently contended that the petitioners had applied for their joining as party in Petition No.737 of 1998 and the said petition along with Petition No.14693 of 1997 was heard and dismissed by the learned Lahore High Court on 26-10-1999 as such the petition is completely hit under section 11, C.P.C. being res judicata. He further contended that Federal Government had imposed ban on fresh recruitments in the banks and other financial institutions through its letter dated 14-11-1996 and the said ban still continue, which is a great hurdle in the case of the petitioners and unless the said ban is removed by the Federal Government, the case of the petitioners could not be considered. According to him, the petitioners are not entitled for the relief as claimed in the present petition, as no particulars of mala fide have been stated against the respondent as such, the petition is not maintainable, on this score also.
Mr. Badar Alam, learned D.A.-G. has adopted arguments advanced by Mr. Usman Shaikh, learned counsel for the respondents and has further contended that respondent No.2 did not invite any applications by way of any publication in any newspaper nor had made any requisition to the PB&FSC for appointment of the officials for respondent No.2 as such, petitioners are not entitled for any relief as claimed by them in this petition.
We have considered the arguments advanced on behalf of the parties and have gone through the entire' material available on record as well as the case law on the subject.
The preamble of the Act, 1992 is very plain and unambiguous in its wisdom, which provides for establishment of a Banking and Finance Services PB&FSC for the purpose of recruitment of the officers/officials for appointment in banks and other financial institutions. The establishment of the PB&FSC as provided under clause 3 of the Act, 1992 consists of a Chairman and not more than four members, appointed by the Federal Government. The powers and functions of the PB&FSC have been provided under section 7 (ibid), which are usefully quoted herein below, for the sake of convenience:--
(a) To conduct open competitive examination for recruitment to Grade III or higher posts in the financial institutions;
(b) To conduct interviews and tests for recruitment to posts in grades higher than Grade-III, except where such recruitment is excluded from the purview of the PB&FSC by the Federal Government;
(c) To conduct tests for promotion of existing employees from lower cadres to Grade III and above, if so required by a financial institutions; and
(d) To advise the Federal Government on matters relating to qualifications for, and methods of recruitment to, posts in Grade-II or higher grades in the financial institutions, if so required by the Federal Government.
The functions and powers of the PB&FSC are, therefore, to advertise the post on requisition of Banks and other financial institutions and to conduct open competitive examinations for the recruitment of officers in Grade-III and above in financial institutions after conducting the requisite tests/interviews for the said posts. Section 7 of the Act 1992 provides that all the recruitments to the posts in financial institutions in Grade-III or higher grades in financial institutions shall be made on the advice of the PB&FSC, as such, it is very much clear that no appointment may be made by the banks or financial institutions without recommendation of the PB&FSC established under the Act of 1992.
It is, therefore, evident from the perusal of Act, 1992 that for all practical purposes and intention, the Government has to establish a PB&FSC for recruitment through PB&FSC for filling the posts in financial institutions and established under Act of 1992, who is the final authority to select and recommend the incumbents for their appointment in the banks or other financial institutions. The banks and financial institutions, who are mentioned in schedule of Act, 1992 are usefully quoted hereinbelow, for the sake of convenience:---
SCHEDULE
(1) State Bank of Pakistan (2) National Bank of Pakistan (3) Habib Bank Limited (4) United Bank Limited (5) Muslim Commercial Bank (6) Allied Bank Limited (7) Investment Corporation of Pakistan (8) Industrial Development Bank of Pakistan (9) National Development Finance Corporation (10). . Pakistan Kuwait Investment Company Limited (11) Pak-Libya Holding Company Limited (12) Saudi-Pak. Industrial and Agricultural Investment Company Ltd. (13) National Investment Trust (14) Pakistan Industrial Credit and Investment Corporation (15) Equity Participation Fund (16) Bankers Equity Limited (17) Small Business Finance Corporation (18) House Building Finance Corporation (19) Federal Bank for Cooperatives (20) Agricultural Development Bank of Pakistan.
A perusal of the schedule attached to the Act of 1992 shows that National Bank of Pakistan; who is respondent No.2 herein, is included in the schedule as such the respondent No.2 is bound by the provisions of Act of 1992 to follow the recommendations of respondent No.3, who is the PB&FSC set forth under section 3 of the Act, 1992 and since the respondent No.2 falls within the schedule of Act, 1992 as such the respondent No.2 could not ignore or refuse to implement the recommendations of respondent No.3 without any just or legitimate cause.
The respondent No.2 in his comments has not disputed that the vacancies were not requisitioned to PB&FSC and that petitioners had not appeared in the written test/interview before respondent No.3 for the posts applied by them. It is also not disputed by both these respondents that respondent No.3 did not recommend the petitioners for their appointment to the posts applied by them, as such, the qualification of the petitioners duly recommended by respondent No.3 for the post they applied, remained undisputed. The respondent No.3 admittedly recommended both the petitioners to respondent No.2 for their appointment to their respective posts for which they have applied. The recommendation of respondent No.3 dated 23-11-1996, which is same to the case of both the petitioners, is usefully quoted herein below, for the sake of convenience:---
"Recruitment To The post of Resident Engineer (Civil OG-II), In National Bank of Pakistan Case No.Rect/N.B.P./9530(A). With reference to your application for the above noted post, we are pleased to inform you having recommended your name to National Bank of Pakistan for appointment.
This intimation should in no way be construed as an offer of appointment which will be issued by National Bank of Pakistan, in due course of time.
Yours faithfully (Sd.) (Arshad Hafeez) Deputy Director (Rect.)."
From the perusal of recommendation of respondent No.3, it is evident that both the petitioners were declared successful and were recommended for their appointment by National Bank of Pakistan. The receipt of the said recommendation has also not been denied by respondents Nos.1 and 2. The respondents Nos. 1 and 2 have pleaded that the case of the petitioners could not be processed for the reason that ban was imposed on fresh appointments vide Notification of Federal Government dated 14-11-1996. The date of recommendation of the petitioners by respondent No.3 viz. 23-10-1996 is very crucial under the circumstances of the present petition as by .that date the petitioners had been recommended for their appointment in the Bank of respondent No.2 and simply the formalities had to complete by respondent No.2, which were necessary for their appointment and the alleged ban was imposed on 14-11-1996 i.e. much after their recruitment, selection and recommendation for their posts as such the ban, if any, imposed by the Federal Government on recruitment in financial institutions was not applicable in the case of the present petitioners, as by that time they were already declared successful candidates and were accordingly recommended for their appointment, as such a vested right had already been accrued in favour of the petitioners immediately on their recommendation by the PB&FSC vide its letter dated 2340-1996, reproduced hereinabove. Respondent Nos. 1 and 2, therefore, could not plead any shelter under the banner of alleged ban dated 14-11-1996 imposed by the Federal Government on the appointment and recruitment of staff of financial institutions.
The respondent No.3 has not denied the selection and recommendation of the petitioners after their successfully passing the written test and interview and their recommendation to the respondent No.2 for their appointment, by way of filing any comments, however, in the comments filed in Petition No.14693 of 1997, respondent No.3 has candidly admitted the recommendation of the other petitioners of the same advertisement and proceeding. The comments submitted by respondent No.3 in the aforesaid petition, are usefully quoted herein below for the sake of convenience:--
"-----------------------------------------------------------
(1) The name and address of the PB&FSC as given in tote writ petition is correct. However, it is clarified that Pakistan Banking and Finance Services PB&FSC at serial No.1 and the Deputy Director representing the PB&FSC at serial No.2 is one and the same entity.
(2) It is correct that on receipt of a requisition of vacancies from the National Bank of Pakistan this PB&FSC arranged publication of a consolidated advertisement (No.RECT/95-6 on 27-10-1995) which, inter alia, included 20 vacancies for the posts of Officer Grade-I (copies of advertisement and requisition of N.B.P. enclosed). In response to this advertisement, the petitioner Mr. Khalid Javed applied for the post of Officer Grade-I (case No. RECT/N. B. P./95-28).
(3) The statement of the petitioner is correct that he was called to appear in Test/Interview conducted by this PB&FSC on 18th June, 1996 at Lahore.
(4) It is also correct that after qualifying the test and the interview,…
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