Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Inayat Ullah Memon VS Respondent: Rejesh Kumar and others
Court Name: Islamabad High Court Judge(s): Arbab Muhammad Tahir Title: Inayat Ullah Memon vs Rejesh Kumar and others Case No.: Writ Petition No.699 of 2013 Date of Judgment:2022-08-05 Reported As: 2022 IHC 200 Result: Accordingly Dismissed
JUDGMENT
JUDGMENT ARBAB MUHAMMAD TAHIR, J. Through the present writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution" ), the petitioner , Inayat Ullah Memon, inter alia seeks the issuance of a writ of quo warranto against respondents No.1 (Rejesh Kumar), No.2 (Jamil Ahmed Bajkani) and No.3 (Nisar Ali Shah), challenging their appointments as Assistant Director (Civil) (BPS- 17) in the Capital Development Authori ty (hereinafter referred to as "the Authority" ) made pursuant to the advertisement dated 04.10.2006, issued by the Authority . FACTUAL BACKGROUND:- 2. Tersely , the facts essential for the disposal of the present writ petition are that on 04.10.2006, the Authority issued an advertisement inviting applications for appointments against various posts including the posts of Assistant Director (Civil) (BPS-17). The said advertisement also sets out a condition in terms that "the CDA has reserved the right to reduce, increase or abolish any or all the posts without assig ning any reason". The petitioner was one of the candidates, who had applied for the post of Assistant Director (Civil) (BPS-17) against the quota reserved for Sindh (Rural) and Merit. The requisite qualification for appointment against the post of Assistant director (Civil) (BPS-17) was a Bachelor degree in the related discipline of Engineering with three years' experience in the relevant field in Government or any Organization or Firm of repute in Public or Private Sector . It was also provided in the said advertisement that the applicant must be registered with Pakistan Engineering Council (hereinafter referred to as the "P.E.C." ). After scrutinizing process, the petitioner was apparently issued a call letter requiring him to appear in the written test on 26.03.2007. In the written test, the petitioner obtained 59 marks out of total 70 marks having 84.29%. Whereas, respondents No.1, 2 and 3 obtained 50 marks (71.43%), 44 marks (60%) and 39 marks (55.71%), respectively .
---
## Page 2
3. Subsequently , the petitioner was called upon to appear for an interview before the Departmental Recruitment Committee (hereinafter referred to as the "D.R.C." ), which consisted of Six Members. Each Member was accorded with a maximum of 100 marks for each candidate to be awarded based on the applicant' s performance in the interview . Thus, the interview carried 600 discretionary marks for each candidate. The petitioner appeared before the D.R.C./Interview Committee and had been able to obtain 349 marks out of 600 marks. According to the petitioner 's version, the marks awarded to him in the interview were disproportionate to the ones obtained by him in the written test viz 84.29%. It is the petitioner 's presumption that all this happened by the Authority just to accommodate pre-selected/blue-eyed candidates. It is the petitioner 's case that respondents No.1 to 3 with lesser aggregate than the petitioner have been appointed against the post in question, whereas he has been discriminated against for the reasons best known to the Authority . SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER:- 4. Dr. G. M. Chaudhry , Advocate, learned counsel appearing on behalf of the petitioner after narrating the facts, contended that the petitioner had fulfilled the requisite criteria for the post of Assista nt Director (Civil) (BPS-17); that although the petitioner secured highest marks in the written test, but his position was lowered by awarding him lesser marks in the interview; that the other candidates appointed against the quota of Sindh (Rural) secured lesser marks than that of the petitioner; that the petitioner deserved to be appointed against the quota of Sindh (Rural) since he obtained highest marks in the written test; that respondents No.1 to 3 were appointed in derogation of the Capital Development Authority Employees (Service) Regulations, 1992 (hereinafter referred to as "the 1992 Regulations" ); that respondents No.1 to 3 were appointed on basis of favourtism and nepotism; that the entire process of appointment against the post of Assistant Director (Civil) (BPS-17 ) was marred with illegalities, irregularities and based on mala fide intent; that the recruitment process carried out by the Authority was against the principle of equity , fair play and in violation of the fundamental rights guaranteed by the Constitution; that the appointments of respondents No.1 to 3 were made in utter disregard of the Consti tutional provisions and without a transparent manner; that this Court has ample discretionary powers to declare the appointments of respondents No.1 to 3 to be illegal and against the spirit of the law . 5. Furthermore, it was contended that the Authority was under a legal obligation to strictly adhere to the mandatory provisions of the law and observe a policy of transparency as embodied in Sr. No.13 of Chapter-II of the ESTACODE (2007 Edition); that respondents No.1 to 3 got themselves appointe d against the post of Assistant Director (Civil) (BPS-17) in the Authority on the basis of political influence; that respondent No.1 to 3 could not have been appointed since they obtained lesser marks in the written test than the petitioner; that other eligible candidates, including the petitioner , who had developed legitimate expectation to be appointed against the said post, were deprived of their legal rights inasmuch as respondents No.1 to 3 being blue eyed persons of the influential persons, were appointed against the said posts; that superior Courts of the Country have set aside the appointments made in violation of the quota or merit and in disregard of the Rules and Regulations; that the powers vested in the Authority ought to have been exercised in accordance with the mand ate of the law and not arbitrarily; and that on the basis of the excellent performance showed by the petitioner in the written examination, he should have been appointed against the vacancy reserved for Sindh (Rural). Learned counsel for the petitioner prayed for the writ petition to be allowed and for the appointments of respondents No.1 to 3 to be declared as illegal and unlawful. Learned counsel for the petitioner while contending relied upon the judgments reported as 2010 SCMR 1301 , PLD 2012 SC 132 , 2002 PLC (CS) 606 , 2000 SCMR 343, 2002 SCMR 122 and 2006 PSC 2000. SUBMISSIONS OF THE LEARNED COUNSEL FOR RESPONDENT s NO.1 to 3:- 6. On the other hand, Hafiz Arfat Ahmad Ch., Advocate, learned counsel appearing on behalf of respondents No.1 to 3 contended that respondents No.1 to 3 were appointed pursuant to the advertisement dated 04.10.2006 after undergoing a lengthy selection process; that the interviews of the shortlisted candidates/respondents No.1 to 3 were conducted by an Interview Committee which comprised of senior Members of the Authority; that the appointments of respondents No.1 to 3 were made strictly in accordance with the provisions of the 1992 Regulations after finding them as the most suitable candidates; that the present writ petition has been filed by the petitioner only to malign respondents No.1 to 3; that the present writ petition has been filed at a belated stage i.e.
---
## Page 3
after a period of six years and that too when respondents No.1 to 3 not just have been confirmed in service but have also been promoted to next higher grades i.e. to the post of Deputy Director (BPS-18); that the present writ petition is badly hit by the doctrine of laches and thus not maintainable; that a writ of quo warranto cannot be issued on the basis of mere technicalities; that it is settled law that a writ of quo warranto cannot be issued as a matter of course on sheer technicalities; that conduct of the petitioner is not unjust, but also unfair inasmuch as he filed classified, confidential, unsigned and unattested copies of the internal communication of the Authority , which he was not supposed to annex with the present petition; that it is the duty of the Court that before issuing a writ of quo warranto , it has to satisfy itself as to the conduct and motive of the person seeking the issuance of such a writ; that the conduct of the petitioner is such that does not entitle him to the relief sought by him in the present writ petition; that the Hon'ble Supreme Court in the judgment reported as 2004 SCMR 1299 declined the grant of the relief to the petitioner on the ground that the petitioner in the said case used classified material/documents in his petition of quo-warranto ; that the petitioner has indeed a right to procure the documents provided he resorte d to the procedure enunciated under the provisions of Right of Access to Information Act, 2017; that the petitioner through an unfair means obtained confidential documents pertaining to respondents No.1 to 3' s selection/appointment. 7. He next contended that the present writ petition has maliciously been filed at the behest of someone behind the screen; that in fact the petitioner has filed a petition in the nature of mandamus under the garb of a writ of quo warranto in order to thwart the law of limitation; that in fact the petitioner seeks his induction in the Authority only on the basis of his result in the written test, which according to him (the petitioner) he stood at the top; that the assertions made by the petitioner in the present writ petition are with respect to a writ of quo warranto , but strangely he has inserted a prayer clause for his own induction in the employ ment of the Authority meaning thereby , he seeks the issuance of a writ of mandamus under the garb of the writ of quo warranto ; that the petitioner could have approached an appropriate forum for the redressal of his griev ances by initialing appropriate proceedings against the Authority , but could not have approached this Court seeking the removal of respondents No.1 to 3 from the official positions and that too after a lapse of more than six years; that the Authority after having found respondents No.1 to 3 to be worthy of selection issued letters of appointmen ts to the said respondents; that in the recruitment process, strict compliance to the law in general and the 1992 Regulations in particular was shown; that the petitioner did not annex even a single document having been issued to him by the Authority during the process of recruitment and he has used sample letters of other candidate for his adventure and fun; that the petitioner is not an aggrieved person to invoke the extraordinary jurisdiction of this Court; and that it is the duty of the person seeking a writ of quo warranto to lay complete information before the Court in relation to the alleged usurpers of the public office. Learned counsel for respondents No.1 to 3 prayed for the writ petition to be dismissed with costs. While making his contentions, he placed reliance on the law laid down in the judgments reported as 2005 SCMR 1829 , PLD 1986 Lahore 310 , 2005 PLC (CS) 894, 2005 PLC (CS) 997 and 2004 SCMR 1299 . SUBMISSIONS OF THE LEARNED COUNSEL FOR THE AUTHORITY :- 8. Similarly , Mr. Amir Latif Gill, Advocate, learned counsel appearing on behalf of the Authority contended that the petitioner is not an aggrieved person to invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution; that the petitioner is attempting to unnecessarily pressurize the Authority and to obstruct the smooth functioning of the Authority; that the petitioner has no locus-standi to file the present writ petition since he does not fall within the term of "an aggrieved person" ; that since the petitioner prays for an equitable relief hence, he ought to come to this Court with clean hands; that the selection of the candidates was carried out strictly in accordance with the procedure laid down in the 1992 Regulations; that 12 posts of Assistant Director (Civil) (BPS-17) were filled by the Authority after observing all codal formalities; that after obtaining formal approval of the competent authority i.e. the Chairman, C.D.A. in terms of Regulation No.4.01 of the 1992 Regulations, offer letters were issued to the successful candidates; that the appointments of the successful candidates including respondents No.1 to 3 were made strictly in accordance with the Authority' s Rules and Regulations; the petitioner 's claim is not clear as he on the one hand, prays for his induction in the Authority on the basis of the marks/scor es obtained by him in the written test, but on the other hand, he claims the violation of the regional quota and thus, his stance is inconsistent; that it is not mandatory that a candidate, who scores top in the written test can be expected to perform an outstanding
---
## Page 4
response in the viva voce/interview; that much water has already been flown under the bridge since respondents No.1 to 3 have been working since 2006; that there is a plethora of judgments of the Hon'ble Superior Courts on the point that such an appointment cannot be subjected to a challenge; that the Authority never violated any of its Rules and Regulations and no question regarding violation of the Regulation by the Authority has ever been raised by any one before any forum; that if there was any violation of the 1992 Regulations, the same could have been identified by any candidate and brought to the knowledge of the D.R.C. Learned counsel for the Authority prayed for the instant writ petition to be dismissed with costs. 9. I have heard the submissions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the present writ petition have been discussed in detail (supra) and need not be reiterated. 10. Perusal of the record reveals that on 04.10.2006, an advertisement was published by the Authority inviting applications from suitable/eligible candidates for appointment against various posts including the post of Assistant Director (Civil) (BPS-17). The qualification and experience set forth in the advertisement for appointment against the said post were a Bachelor degree in the related discipline of Engineering and three years' experience in the relevant field in Government or any Organization or Firm of repute in Public or Private Sector . It was also provided in the said advertisement that the candidates must be registered with P.E.C. After scrutinizing process, all the shortlisted candidates were issued call letters requiring them to appear in the written test on 26.03.2007. In the written test, the petitioner obtained 59 marks out of total 70 marks having 84.29%. However , respondents No.1, 2 and 3, whose appointments have been challenged in the present petition, obtained 50 marks (71.43%), 44 marks (60%) and 39 marks (55.71%), respectively . Subsequently , the petitioner was called for interview before the D.R.C./Interview Committee consisting of Six Members. Each Member of the D.R.C. was empowered to accord a maximum of 100 marks to each candidate to be awarded on the basis of the candidate' s performance in the interview . Thus, the interview carried a total of 600 discretionary marks for each candidate. The petitioner appeared before the D.R.C./Interview Committee and had been able to obtain 349 marks (i.e. total marks awarded by each Member) out of 600 marks. However , as per the Evaluation Chart of candidates who appeared in the interview , produced by the Authority reflects that respondents No.1, 2 and 3 outmatched the petitioner by securing 469, 445 and 439 out of total 600 marks in the interview , respectively . It is the petitioner 's case that respondents No.1 to 3 with lesser aggregate than the petitione r have been appointed against the post in question in violation of the Authority' s applicable Regulations, whereas he has been discriminated against for the reasons best known to the Authority . 11. Before dilating upon the issue involved in the present writ petition and going into the merits of the case, it is imperative to first highlight the scheme of the 1992 Regulations, which were made by the Authority in exercise of the powers conferred by Section 51 of the Capital Development Authority Ordinance, 1960 (hereinafter referred to as "the Ordinance" ) read with Sections 37 and 38 thereof. These Regulations were to come into force at once. 12. Sections 37 and 38 of the Ordinance are reproduced herein below for ready reference:- "37. Appointment of of ficers and servants etc. 1) The Authority may from time to time, appoint such officers, servants, experts or consultants as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit: Provided that salaried officers and servants whose remuneration exceeds two thousand and five hundred rupees per mensem shall not be appointed except with the previous approval in writing of the (Federal Government). (2) Subject to the proviso to sub-section (1), the Chairman may, in cases of urgency , appoint such officers, servants, experts or consultants and on such terms and conditions as he deems fit: Provided that every appointment made under this sub section shall be reported to the Authority without unreasonable delay . 38. Recruitment conditions of service and disciplinary powers:- The Authority shall lay down the procedu re for the appointment of its officers, servants, experts and consultants, and the terms and conditions of their services including the constitution and management of provident fund for them, and shall be competent to take disciplinary action against them." 13. Regulation 1.02 of the said Regulations provides as follows:-
---
## Page 5
"Extent of application . These Regulations shall apply to all officers, servants, experts and consultants appointed on regular basis in a cadre or to a post by the Authority or a person authorized by it in this behalf but, except as specifically provided otherwise in these regulations, shall not apply to:- a) a person who is employed for a specific period on specific terms; b) a person who is employed on contract; c) a person who is serving in the Capital Development Authority on Deputation; d) a person who is paid out of contingencies/ daily wages." 14. Regulation 2.01 of the said Regulations defines the authority which has been vested with the power to appoint any person to a sanctioned post. For ease of reference, the said Regulation is reproduced herein below:- "2.01. Definitions. In these Regulations, unless there is anything repugnant in the subject or context:- i. "Appointing Authority" means the Authority or a person authorized in these regulations to make appointment to a post; ii. "Authority" means the Capital Development Authority as defined in the Capital Development Authority Ordinance, 1960 (XXIII of 1960) iii. "Basic pay scale" means basic pay scale of pay prescribed by the Authority or the basic pay scale prescribed by the Federal Government and adopted by the Authority; iv. "Board" means the Board constituted under section 6 of the Capital Development Authority Ordinance 1960 (XXIII of 1960); v. "Cadre" means the strength of the service or part of the service sanctioned as a separate unit; vi. "Chairman" means the Chairman of the Capital Development Authority: vii. "Day" means a calendar day beginning and ending at midnight; viii. "Departmental Promotion Committee" means a committee constituted for the purpose of making selection for promotion or transfer to posts in the Authority; ix. "Departmental Selection Committee" means a committee constituted for the purpose of making selection for initial appointment to posts in the Authority". 15. The terms and conditions of the Autho rity's employee' s services shall be governed in terms of Regulation 3.03 of the said Regulations, which defines them as under:- "3.03. Terms and conditions of service. 1. Terms and conditions of an employee shall be as laid down in these regulations or in such subsidiary orders and instructions which may be issued form time to time with the approval of the Board or which, not being inconsistent with these regulations, were issued with the approval of the Board and were in force immediately before commencement of these regulations. 2. In all matters not expressly provided for in these regulations, employees shall be governed by appropriate rules, orders and instructions of the Federal Government made applicable to the 7 employee by orders of the Authority with such changes as are considered necessary ." 16. The Authorities competent to make appointments in the Authority are mentioned in Regulation No.4.01 of Chapter-4, Part-I of the 1992 Regulations. The said Regulation is reproduced herein below:- 4.01. Authorities competent to make appointment:- The authorities competent to make appointment to various posts shall be as follow:- a. Posts in basic pay scale 20 Secretary of the Administrative Division concerned b. Posts in basic pay scales 18 and 19 Chairman c. Posts in basic pay scales 11 to 17 Member concerned d. Posts in basic pay scales 1 to 10 Director concerned * Note:- In the case of posts in BPS-1 1 to 15 in the cadres with which Member (Administration) is concerned, his powers may be exercised by Deputy Director General (Administration)
---
## Page 6
17. There shall be three Departmental Selection Committees, ("D.S.C.") which are prescribed in Regulation No.4.04 of the 1992 Regulations. Regulation No.4.04 reads thus:- 4.04. Departmental Selection Commi ttee and Departmental Promotion Committee:- 1. There shall be constituted Departmental Selection Committee-I for initial appointment to posts in basic pay scales 18 and 19, Departmental Selection Committee 2 for initial appointment to posts in basic pay scales 11 to 17 and Departmental Selection Committee-3 for initial appointment to posts in basic pay scale 10 and below . For appointment by promotion and transfer , the Departmental Selection Committee 1, 2 or 3, as the case may be, shall function as Departmental Promotion Committee respectively . 18. Regulation No.4.04(2) proposes the D.S.C. in conformity to appointing authorities in the following manner:- Departmental Selection/ Promotion Committee No. 01 From BPS-17 and above Member (Concerned) Chairman of the Committee Financial Advisor/Member Member Member (Administration) Member Member/DG (Concerned)/E.D for Capital HospitalMember Dy. DG (Admin) Member Director HRD Member-cum-Secretary 19. According to Regulation 4.06(3), it is the D.S.C. which has been empowered to recommend from a panel of at least three names for each vacancy . The said Regulation reads as follows:- "4.06. Initial appointment to posts in basic pay scale 17 and above:- Initial appointment to posts in basic pay scale 20 shall be made by the appointing authority on the recommendations of the Selection Board. The Selection board shall consider and recommend from a panel of 3 names for each vacancy . (2) Initial appointment to posts in basic pay scales 18 and 19 shall be made by the appointing authority on the recommendations of the Departments Selection Committee 1. The Departmental Selection panel of 3 names for each vacancy 3. Initial appointment to posts in basic pay scale 11 to 17 shall be made by the appointing authority on the recommendations of the Departmental Selection Committee 2. The Departmental Selection Committee shall, as far as possible, recommend from a panel of the least 3 names for each vacancy . 4. Initial appointment to posts in basic pay scale 10 and below shall be made by the appointing authority on the recommendations of the Departmental Selection Committee 3. The Departmental Selection Committee shall, as far as possible, recommend from a panel of 3 names for each vacancy ." MAINT AINABILITY OF THE PRESENT PETITION ON THE GROUND OF LACHES: 20. Another objection taken by the learned counsel for respondents No.1 to 3 as well as of the Authority was that the present petition suffers from laches particularly when respondents No.1 to 3 have not only been confirmed rather they have been promoted in the next grades i.e. to the post of Deputy Director (BPS-18). They contended that the present petition, having been filed after almost six years of the appointments in question, badly suffers from laches. The learned counsel for respondents No.1 to 3 while arguing this aspect of the matter placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Muhammad Rafique Vs. Muhammad Pervaiz (2005 SCMR 1829 ), wherein, it was inter alia held that constitution petition was filed after a period of five years when the petitioners have already been confirmed in their appointments after successful completion of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.