W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, BAHAWALPUR BENCH, BAHAWALPUR. (JUDICIAL DEPARTMENT)
WRIT PETITION NO.701/2010.

SAFDAR HUSSAIN, ETC. vs. WATER & POWER DEVELOPMENT AUTHORITY, ETC.
WRIT PETITION NO.703/2010.

SAMIA JABBAR vs. WATER & POWER DEVELOPMENT AUTHORITY, ETC

WRIT PETITION NO.705/2010.

KHURRAM SHEHZAD, ETC. vs. WATER & POWER DEVELOPMENT AUTHORITY, ETC.

JUDGMENT
DATE OF HEARING: 17.06.2010. PETITIONER BY: Mr. Jamshaid Akhtar Khokhar, Advocate
for petitioners.

RESPONDENT BY: Syed Mujahid Ayub Wasti, Advocate for

respondents No.1 to 4. Malik Mumtaz Akhtar, Additional Advocate General. Mian Iftikhar Ahmad, HR (Admn. Director)-MEPCO, Raja Ishtiaq Ahmad

(Manager Legal) and Mian Suhail Ahmad Deputy Manager.

. MUHAMMAD QASIM KHAN, J: - This single judgment

shall dispose of three matters i.e. W.P.No.701/2010 titled SAFDAR HUSSAIN, ETC. vs. WATER & POWER

DEVELOPMENT AUTHORITY, ETC. W.P.No.703/2010 titled SAMIA JABBAR vs. WATER & POWER DEVELOPMENT AUTHORITY, ETC and W.P.No.705/2010 titled KHURRAM

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

SHEHZAD, ETC. vs. WATER & POWER DEVELOPMENT AUTHORITY, ETC. 2. Briefly the facts necessitating filing of the above writ

petitions are that an advertisement was published in daily NAWA-I-WAQAT, Multan in its issue dated 03.11.2008, whereby applications were invited for appointments against posts of about fifteen various categories, on contract basis and in the said advertisement it was specifically mentioned that services of candidates having domicile of MEPCO jurisdiction were required 3. It has been argued by learned counsel for the

petitioners that in violation of their own advertisement, the respondents/authorities appointed a large number of persons against the above advertised posts who did not belong to the MEPCO territorial jurisdiction, as they in fact were

recommended by the Minister for WAPDA and other Members of the National and Provincial Assemblies, in this way, according candidates to the learned counsel the deserving of local their

like

the

petitioners

were

deprived

fundamental rights. The learned counsel further argued that even the quota reserved for women has not been observed by the official respondents and no merit list was prepared in that respect. It has been further argued that purported merit list was prepared by ignoring the merit policy, recruitment procedure mentioned in the advertisement and law applicable

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

thereto, as such, the appointments made in violation thereof, are liable to be struck down. 4. On the other hand, learned counsel for respondents and official present on behalf at of the respondent/ although

senior

department

have

argued

length

that

advertisement was published, wherein it was mentioned that after short listing of the candidates written examination will be held and then after interview final merit list will be prepared, and for that purpose Selection Boards were also constituted, but later on vide circular dated 15.10.2009 it was advised by the concerned authorities to appoint 50% of the posts by relaxing the recruitment policy up to the extent of interview and numbers of the written test were directed to be added in the Interview. The contention of learned counsel for official respondents is that criteria had been changed and written test had been abolished just keeping in view the law and order situation prevailing in the country, as a large number of candidates had applied, therefore, it was difficult for the department to handle such crowed and to arrange for their written test in the security point of view. It has further been argued that the Selection Board after adopting the complete amended procedure as directed by the WAPDA authorities, prepared the merit list and the candidates who were on top of the said list, were issued appointment letters. However, on court query, the learned counsel has not been able to answer that how the applications of the candidates

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

outside MEPCO territorial jurisdiction were entertained and he came forward with novel argument that in the light of directions of the WAPDA high ups after approval of the concerned Minister procedure of walk in interview was adopted, every candidate was considered and then merit list was prepared and on court query whether any fresh advertisement for walk in interview was published, the answer was in the negative. When further questioned, Mian Iftikhar Ahmad Director MEPCO informed that for the post of Assistant Line Man total marks were 100, which all were reserved for interview and for other fourteen categories of different posts out of total 100 marks, 90 were fixed for interview and 10 were reserved for one step higher education. The learned counsel has also shown the merit list prepared by the department for different categories of the candidates and on the direction of this Court photo copy of the result of interview for the posts of Commercial Assistant has been brought on the file, just to keep record as to how the interview marks were awarded and the said merit list has been prepared. As the same procedure has been adopted in the appointments of other categories, hence, there is no need to burden the file by placing other lists. When questioned about the original individual list of each member showing award of interview marks by individual member with their handwriting, it has been replied that the list attached above is

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

the whole material available with the respondent department and no separate list of each member was prepared. 5. I have considered the arguments of learned counsel for

the parties at length and have perused the entire available record before me. 6. The constitution of a country is a sacred document by

which a government is run and is controlled. Constitution of a country is also a kind of social contract which would bind people, society and a State. Honest commitment to the goals set out in Constitution would ensure promotion of nationhood and stability of social system, so, in the preamble of Constitution of Islamic Republic of Pakistan, 1973

(hereinafter shall be called as the Constitution), it has been mentioned WHEREAS sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust; and further it has been provided that WHEREIN shall be guaranteed Fundamental Rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. It has been settled that preamble is brief statement affixed to a statute indicating the principles used as guide lines by its framers. It usually states the general object and intention of the Legislature in enacting the same. All the principles laid down in the preamble find

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

expression in the enactment and provide guiding light for true appreciation and understanding of the document. One of the objects of the Constitution of a government is to protect the life, liberty and property of the individuals. To this end, the constitutional system may be a Government of laws and not of men, it is necessary to limit the powers of Government and thereby operates as bulwarks of liberty for the protection of private rights, the political institutions and social structure rest on the theory that all men have certain rights of life, liberty and the pursuit of happiness, which are unalienable, fundamental and inherent. When these unalienable rights are protected by constitutional guarantees, they are called fundamental rights because they have been placed beyond the power of any organ of the State, whether executive or legislative to act in violation of them. These rights are a part of invaluable treasure of the citizens and in the absence of reasonable restriction imposed by law, every citizen has the right to enjoy them to their maximum. The essential characteristic of Fundamental Rights is that they impose limitations, express or implied, on public authorities,

legislative, executive and judicial, prohibiting them from interfering with their exercise and no right can be properly described as fundamental if the Legislature can take it away by a law not involving an amendment of the Constitution, or unless its suspension or surrender in a national emergence as specifically provided by the Constitution itself. The Islamic

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

Republic of Pakistan has a written Constitution, which is an organic document designed and intended to cater to the needs for all times to come. It is a living organism and has to be interpreted to keep alive the traditions of the past blended in the happening of the present and keeping an eye on the future and it provides a method of legitimacy to the Government. It is the power behind the organs and

institutions created by it. It is like a living tree; it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus the approach while interpreting a constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation which has arisen, effectively. 7. In a system of constitutional governance guaranteeing

the Fundamental Rights, and based on tracheotomy of powers, such as ours, the Judiciary plays an important role in interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or Citizens inter-se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law be upheld in the society. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure sustenance of system of separation of powers based on

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals and such Judicial system can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of caste, creed, colour, culture, gender or place of origin, etc, except in accordance with law. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development. Judiciary is heart of freedom and independent judiciary represents the difference between civilization and savagery. 8. As I have discussed the Constitution, its needs in a

civilized society and its salient features with regard to the rights of the citizen and liabilities/duties of the court in a civilized society under the Constitution of Islamic Republic of Pakistan, 1973. Now again I would advert to the facts of the case in hand. In the advertisement published in the newspaper a specific procedure for recruitment was provided requiring that The services of suitable candidates having domicile (MEPCO jurisdiction) for the following posts (Contract Basis) are required on the following terms and conditions and in NOTE (2) it has been provided that only short listed candidates will be called for written test/Interview. It is

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

admitted during the course of arguments on behalf of the respondents that earlier recruitment policy was framed for appointment in WAPDA from Grade.1-15 and the same was adopted by the MEPCO, which provided a comprehensive guideline for appointments but in the case in hand after advertisement fresh instructions were issued by PEPCO on 15.10.2009 directing that process was not likely to be completed within 4-5 months, the job had become difficult on account of overwhelming response of the candidates for the advertised vacancies and that law and order situation as prevalent in the country holding of written test in assemblage of thousands of candidates is not without serious life threats, therefore, in para-3 of the said instructions it was observed that the position has been discussed and brought in the notice of Minister of Water & Power and in the view of the aforementioned circumstances, it has been advised to fill 50% of the vacancies in BPS.1-16 on immediate basis in accordance with the Recruitment Policy with unavoidable exception, where required. With this excuse the criteria settled since 1992 and mentioned in the advertisement was curtailed without any fresh advertisement showing change of such procedure whereas, it is now a settled law that no recruitment could be made without advertisement and it is obligatory on all the government departments that advertisement shall consist of complete relevant/necessary details with regard to the matter in issue. As advertisement is a public notice, hence, public at

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

10

large should be provided complete information and if this procedure is not adopted, this action of the respondents will be derogatory to the fundamental rights. At the same time, it may be pointed out that right within the MEPCO territorial jurisdiction the Multan Board, Dera Ghazi Khan Board and Bahawalpur Board are successfully and repeatedly making arrangements, where thousand of students take exams. Furthermore, the Bahau-din Zakariya University and the Islamia University Bahawalpur are also taking exams of the students at large scale, without there being any law and order situation. Therefore, the ground taken by the respondents for bypassing a lawful recruitment process has no legs to stand. 9. Further, the act of the respondents appointing the

persons from outside the MEPCO jurisdiction, is sheer transgression of their powers and the allegations leveled in the writ petitions and also during arguments that respondent authorities molded the selection criteria and by doing so they appointed the blue-eyed persons of the members of the parliament and Minister concerned, could not be categorically denied by the respondents. As such, impliedly the

respondents/authorities had nothing to defend themselves about those specific allegations and there being nothing on the contrary, this court would hold that political influence was very much a reality in the impugned recruitments. In the case MUHAMMAD AKHTAR SHIRANI and others vs. PUNJAB

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

11

TEXT BOOK BOARD and others (2004 SCMR 1077) the Honble Supreme Court of Pakistan held as under:Supreme Court had noted with concern that

departmental authorities responsible to run its affairs submitted to whims and wishes of their superiors and had never felt hesitation in implementing even an illegal order, knowing well that it had no legal sanction and if such order was implemented it was bound to give rise to a number of complications in future---Supreme Court, time and again, had emphasized that the departmental functionaries were only obliged to carry out lawful orders of their superiors and if they were being pressurized to implement illegal order, they should put on record their dissenting note and if such practice was followed chances of issuing/passing illegal orders would be minimized. 10. It is settled by now that all public powers are in the

nature of trust and public functionaries must act as custodian of such act, whereas, in this case the respondents have blindly acted under the advice of political figures i.e. Minister and others. The specific allegations leveled by the petitioners in respective paragraphs of their writ petitions about political interference in the impugned appointments, have not be categorically denied by the respondent authorities with proof and while submitting report and parawise comments they took it very casually by simply stating legal or incorrect. I am afraid this was not the proper reply and it on the contrary reflects that as a matter of fact the respondents had nothing to defend and moreover during

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

12

arguments not a single sentence has been advanced by the representative official of respondent or their counsel. The allegations of the petitioners seek further strength from the fact that in para No.7 of the writ petition, it was specifically alleged by the petitioners that a person who had the domicile of Gujar Khan was appointed and the said place is known to the be area of Federal Minister for Water and Power and in reply to this para the respondents have only mentioned incorrect, whereas, the respondents must have come out with specific defence to controvert the said allegation. Even otherwise, factually it is correct that Gujjar Khan falls in the constituency of Federal Minister for Water & Power. Apart from that so many other candidates were alleged to have been appointed against the posts of Commercial Assistant, Account Assistant and ALM, etc. from outside the MEPCO jurisdiction. The Honble Supreme Court of Pakistan in the case MUNAWAR KHAN vs. NIAZ MUHAMAMD and 7 others (1993 SCMR 1287), held as under:Appointments of both the parties contesting the appointments were made without advertisement, publicity and information in the locality from which the recruitments were to be made---Supreme Court in view of Constitutional requirement expected that in future, all appointments would be made after due publicity in the area from which the recruitments had to be take place, except in case of short-term leave vacancies or the contingent employment Allocation of quota of posts to local MPAs or MNAs for requirement to the posts was offensive to

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

13

the Constitution and the law on the subject--Ministers, Members of National and Provincial Assemblies all were under oath to discharge their duties in accordance with the Constitution and the law---Service laws designate, in the case of all appointments, a departmental authority competent to make such appointments, whose judgment and discretion has to be exercised honestly and objectively in the public interest and could not be influenced or subordinated to the judgment of anyone else including his superior---Allocation of quotas to the Ministers/MNAs or MPAs and appointments made thereunder were all illegal ab initio, and have to be held so by all Courts, Tribunals and Authorities. Further the apex Court in the case ABDUL HAFEEZ ABBASI and others vs. MANAGING DIRECTOR PAKISTAN

INTERNATIONAL AIRLINES CORPORATION, KARACHI and others (2002 SCMR 1034) held as under:Appointments made by Departmental Authorities on the directives of the persons at the helm of affairs/governing the country---Subsequent

termination of services on the ground that such appointments were contrary to law as well as prevailing Rules and Regulations---Effect---Besides proceeding in such situation against the beneficiaries of so-called illegal appointments the officers responsible for implementing such illegal directive should also be held equally responsible and sever action should be taken against them, so that in future, it may serve as a deterrent for other like-minded person. Reliance is also placed on the cases ABDUR RASHID vs. RIAZUDDIN and others (1995 SCMR 999) and MUHAMMAD

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

14

ASLAM vs. GOVERNMETN OF THE PUNJAB and another (1992 PLC (CS) 962). 11. Apart from the above, as noted above the respondents

by their own whims and also under instructions of high ups altered the selection and criteria in contravention the to the The

advertisement

interviewed

candidates.

respondents also could not establish from the record as to how the information was laid to the candidates with regard to the dates of interview and if the interview was in the shape of walk-in, the respondents have no document with them to show that it was held as such and for this specific altered criteria how the candidates were informed, the respondents could not establish from any publication or issuance of notice to the respondents. On courts direction a list of about 1678 candidates for the posts of Commercial Assistant who had been allegedly interviewed by the respondents, has been placed on the file and it is admitted by the respondents that entire interview process was completed within six days. If it is taken to be true then obviously about 279-candidates had to be interviewed on one day for the post of Commercial Assistant. If at least four minutes are reserved for each candidates that naturally it would consume eighteen hours per day, if the members of the committed constantly take interview without any interval, which is not humanly possible.

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15

12.

According to the learned counsel for the respondents,

same procedure was observed with regard to the recruitment against other posts as well and the selection committee consisted of three members. When questioned about the original individual list of each member showing award of interview marks by individual member with their own handwriting, it has been replied that the list attached above is the whole material available with the respondent department and no separate list of each member was prepared and in most of the cases directly this computerized list was prepared and in one or two cases separate list was prepared which was destroyed. This is ridiculous on the part of the respondents, definitely each member of the committee must have an independent list to score the interview marks against each candidate and only thereafter a final merit list could be prepared by tabulating the interview marks awarded by each of the member. The above reply to the court query indicates that no such procedure was ever carried out by the respondents, otherwise, there was no reason for them to have destroyed the most important and relevant part of the selection/recruitment process, whereas, such document was about to determine the rights in favour of the candidates. This circumstance alone is sufficient to throw out the entire interview process, being tainted with sheer violation of the settled principles and the procedure for obvious reason to accommodate the favorites of the politicians including

W.P.No.701/2010. W.P.No.703/2010. W.P.No.705/2010.

16

concerned Minister for WAPDA and the MNAs or MPAs. The Honble Supreme Court of Pakistan in the case CHIEF SECRETARY PUNJAB and others vs. ABDUL RAOOF DASTI (2006 PLC (CS) 1278, held as under:Choosing persons for public service is not just providing a job and the consequent livelihood to the one in need but is a sacred trust to be discharged by those charged with it, honestly, fairly, in a just and transparent manner and in the best interest of public. Individuals so selected are to be paid not out of the private pocket of the persons appointing them but by the people through the public exchequer---Not selecting the best as public servants is a gross breach of public trust and is an offence against public, who has a right to be served by the best; it is also a blatant violation of the rights of those who may be available and whose rights to the posts are denied to them by appointing unqualified or even less qualified persons to such posts.--- Such practice and conduct is highly unjust and spreads a message from those in authority that might is right and not vice versa, which message gets gradually permeated to grass-root level leading ultimately to a society having no respect for law, justice and fair play.---Evil norms ultimately lead to anarchic and chaotic situations in a society--Such likes evil tendencies should be suppressed and eliminated before the same eliminate us all. 13. Moreover, it has been noticed that procedure of

appointment has been changed after advertisement and that too secretly as certainly it was not in the knowledge of each and every interested candidate. Although the officials are bound that each and every post must be filled according to

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17

the recruitment policy framed for that purpose and no subsequent instructions or directions could change the same, which is based on established principles and even if any change is compulsory to be made then it was incumbent upon the respondents to have re-advertised the same. Therefore, the impugned recruitment of the candidates being against the prescribed criteria advertised in the print media is considered to be no recruitment at all. The Honble Supreme Court of Pakistan in the case MUNAWAR KHAN vs. NIAZ MUHAMMAD, ETC. (NLR 1994 Service 1), held as under:(a) Appointments to posts in Government offices, should from be made eligible, after inviting and

other than short-term leave vacancies or contingent employment, applications those deserving

desirous, and after due publicity in area from which recruitments are to take place. Appointments made without open advertisements would prima facie be violative of Fundamental Rights 18 of the Constitution, 1973. (b) Art.18. Fundamental right of freedom of trade,

business or profession. Appointments to posts in Government offices made without open advertisement violate Art.18. By holding so I am fortified by the judgment 2004 PC (CS) 278 and 580, 1987 PLC (CS) 419, MST. NUSRAT FATIMA and others vs. DEPUTY DIRECTOR (ADMN) DIRECTORTE OF ELEMENTARY EDUCATION and others (2005 SCMR 955) and As discussed above, Mian Iftikhar Ahmad Director MEPCO admitted before the Court that for the posts of Assistant Line

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18

Man total marks were 100, which all were reserved for interview and for other fourteen categories of different posts out of total 100 marks, 90 were fixed for interview and 10 were reserved for one step higher education. This again is a glaring example how the respondents wanted to almost totally oversight the qualification or the experience of the candidates and adopted a novel practice for reserving such excessive marks for interview to extend favour to those who otherwise, were not able to compete on merit with regard to the qualification criteria. As such it is sheer case of nepotism and arbitrary exercise of authority. This court in the case AMJAD LATIF vs. C.B.R and others (1996 C.L.C 1422) in almost similar circumstances strike down such like action by holding:No transparency was visible and attempt had been made by Members of Selection Committee to upset the merit list prepared on the basis of written test--Selection Committee, had, thus, adopted methodology in a mala fide manner to upset merit of candidates and 33.3 per cent. Marks being available to them, they were successful in upsetting the merit and subjective assessment prevailed ex-facie. By holding so the constitutional petition was accepted only to the extent of merit list prepared on the basis of viva voce and was declared to be of no legal effect. In another case reported in 1994 MLD 1647, this Court had observed as under:-

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19

Reservation of marks for interview should not be of such high percentage which could lead to arbitrariness and unfairness. Hence, I hold that in this case a higher percentage for interview marks was reserved with obvious intent to bring up the favorites, Thus, irrespective the of their qualification have

standards.

respondents

authorities

intentionally destroyed the entire scheme of law just for their ulterior motives on the directions of their high ups, and such like practice giving birth to arbitrariness and resulting in miscarriage of justice cannot be allowed to continue for an indefinite period. All official functionaries are bound to perform their duties within the ambit of law and where they act with malafide or in violation of law; their actions are certainly amenable to constitutional jurisdiction of this court. 14. The respondents by their acts through which they over-

looked the advertisement, their own policy and the procedure for recruitment of the employees, deprived a large number of society members from their basic rights. It is settled principle of interpretation of statute that the fundamental rights are not static documents and should be interpreted in the light of needs of the day and after insertion of Article 2(a) i.e. Objective Resolution in the Constitution, the Holy Quran and Sunnah have become the guideline for the people of all walks of life. The Holy Quran teaches the human beings to seek

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divine assistance in repentance and awe, asks for allegiance to God Almighty without any distinction of colour, creed, race and status. The foundation of Islam is on justice. The

concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what may be called absolute justice or absolute fairness. There are repeated references to the importance of justice and of its being administered impartially in Holy Quran. The fundamental rights are those provided by the Quran & Sunnah, adopted by the whole society and enshrined in the Constitution of Islamic Republic of Pakistan, 1973. The last Sermon of the Holy Prophet (Peace Be Upon Him) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are known as Fundamental Rights. The following extract from the farewell Sermon can be reproduced for reference:O Ye People, Allah says: O People We created you from one male and one female and made you into tribes and nations, so as to be known to one another. Verily in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non-Arab and for a non-Arab over an Arab, nor for the white over the black nor for the black over the white except in God-consciousness All mankind is the progeny of Adam and Adam was fashioned out of clay. Behold every claim of privilege

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whether that of blood or property, is under my heels except that of the custody of the Kaba and supplying of water to the pilgrims Behold all practices of the days of ignorance are now under my feet. The blood revenges of the days of ignorance are remitted.All interest and usurious dues accruing from the times of ignorance and wiped out O people, verily your blood, your property and your honour are sacred and inviolable of this day of yours, the month of yours and this very town (of yours). Verily you will soon meet your Lord and you will be held answerable for your actions. In Law Justice & Islam Justice Dr. Nasim Hasan Shah while referring to the farewell Sermon has observed:The farewell Sermon of the Holy Prophet (p.b.u.h) was a comprehensive charter founded on the basic, fundamental, inalienable and residual rights of Man guaranteed in written form, under the Holy Quran which constitute the Spoken Word of Allah. These rights, according to the belief of Muslims, cannot be obscured or eradicated by any mortal power.

15.

After becoming part of the Constitution by insertion of

Article 2(A) Objective Resolution, it has become duty cast upon the Executive, Legislature and the Judiciary to be more careful with regard to the fundamental rights of the citizens as these are the rights which are awarded by divine, respected and announced by Holy Prophet (P.B.U.H), but in this case, it is observed that the respondents authorities have ignored the fundamental rights of the citizens and acted

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22

under the advice of political high ups, playing with the miseries of the poor people of the locality. Thus, the respondents have abused their powers, ignored their duties imposed upon them by law, Holy Quran and the Sunnah of Holy Prophet Muhammad (P.B.U.H) and their above acts show that they are not answerable to any person except the political high ups and by ignoring the dictates of Islam, they have shown by their conduct that they are not even answerable to Allah Almighty. The Honble Supreme Court of Pakistan in the case SARDAR ALI and others vs. MUHAMMAD ALI and others (PLD 1988 SC 287), held as under:Besides being of Constitutional importance,

Objectives Resolution represents very important part of Ideology of Islam and in turn that of Pakistan also. It contains the progressive elements of an Islamic polity Sovereignty of Allah, Democracy, Social Justice, Fundamental Rights, Independence of Judiciary, the protection of the rights of minorities etc. It is important to note that the exercise of power and authority by the State through the chosen representatives, though appears as the second important Constitutional mandate in the Resolution, this concept is so important that it is included in the first one alsothe Sovereignty of Allah Almighty as interpreted by Supreme Court in the case of Asma Jillani. It is also of no less importance that Federal Structure of the State has also been guaranteed with necessary safeguards for the federating units as also the Federation. Indeed it is a remarkable Instrument which is very rarely made by the Founding Fathers of a new Nation.

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16.

Article 4 of the Constitution of Islamic Republic of

Pakistan, 1973 although is not part of the fundamental rights and is part of Chapter-I of the Constitution Introductory. This is highly important provision. A bare reading of Article 4, Constitution of Pakistan, 1973 will show that it incorporates the doctrine of equality before law or equal protection of law. This jurisprudential concept is the fruit of ceaseless efforts of citizens to have supremacy of rule of law. It is even available as shield against tyranny and excess in emergency. It ensures the rule of law and rule of equality as against the rule of arbitrariness, whims and caprice. This Article is actually supplementary and complementary to Article 2 and Article 8 to 26 in our Constitution. of Federation It casts and obligation the upon

functionaries

Federating

Units/Legislatures to ensure the doctrine of rule of law and embody the principle of equality. This Article embodies the concept of dignity, equality of law and save citizens from arbitrary/discriminatory laws and actions by the

Governmental Authorities. Article 4 provides protection of law, treatment in accordance with law and in particular protection of life, liberty, property, trade, business and profession, subject to law and the right is an interest which is not only recognized by law, but also enforceable at law. It included the personal as well as statutory rights. Inalienable rights are those rights which are nontransferable, cannot be relinquished, abridged or usurped. Such rights are conferred

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by the Constitution and cannot be taken away or modified except by the Constitution itself. When such rights are given constitutional guarantees they are called fundamental rights because they have been placed beyond the power of any organ of the State, whether Executive or Legislative to act in violation of them. The provision of Article 4 provides constitutional guarantee to the people that the Executive cannot take their right of life, liberty, property and reputation unless it has the support of some legal provisions for doing so. Every statutory body or public functionary is supposed to function in good faith, honestly and within precincts of its powers so that person concerned should be treated in accordance with law and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance in this respect is placed on the case MUHAMMAD ASLAM vs. GOVERNMETN OF THE PUNJAB and another (1992 PLC (CS) 962). Departure from that grand norm would render actions of public functionary without validity and would be struck off as illegal and without lawful authority, and in the present case the respondents functionaries by violating their own policy and ignoring the terms and conditions mentioned in the advertisement basically have tried to snatch the rights guaranteed to the petitioners and others, under Article 4 of the Constitution, whereas, they being the citizens of Pakistan had to be treated in accordance with law and no action detrimental to their life, liberty, body, reputation or property

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of any person shall be taken except in accordance with law, hence, the act of the respondents is declared to be in violation of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. 17. Article 9 of the Constitution of Islamic Republic of

Pakistan, 1973 provides that no person shall be deprived of life or liberty save in accordance with law. Here the Constitution guarantees against any attack on life or liberty of a person subject to law. The word life is not restricted to animal life or vegetative life. It carries with it the right to live in a clean atmosphere, a right to live where all Fundamental Rights are guarantees, a right to have rule of law, a right to have clean and incorruptible administration to govern the country and the right to have protection from encroachment on privacy and liberty. The word life has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legality and constitutionally. The

fundamental right of right of life recognized in the entire civilized world and enshrined in Article 9 of the Constitution of Pakistan has been given expanded meaning over the years. With the passage of time the role of the State has become more pervasive. Its actions, policies and laws affect the individuals in a variety of ways and the Courts have

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accordingly given a more comprehensive and dynamic interpretation of the fundamental rights including the right to life. Right to life is no longer considered as merely a right to physical existence or a right not to be deprived of life without due process of law. It means a sum total of rights which an individual in a State may require to enjoy a dignified existence. In modern age a dignified existence may not be possible without giving an extensive and wide meaning to the word life, which includes such rights which are necessary and essential for leading a free life. 18. The Honble Supreme Court of Pakistan in the case 2000 CLC 633, has held as under:.Thus, apart from the wide meaning given by US Courts, the Indian Supreme Court seems to give a wider meaning which includes the quality of life, adequate nutrition, clothing and shelter and cannot be restricted merely to physical existence. The word life in the Constitution has not been used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it. Under our constitution, Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the word. The Constitution guarantees dignity of man and also right of life under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing,

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shelter, education, health care, clean atmosphere and unpolluted environment. 19. The courts are bound, while examining any act of the

government functionaries, in the light of fundamental rights to see if deprivation of life and liberty of a person is under any law or not and to see whether the law is followed and to put this role in other words every public functionary or a person must show the legal authority for his interfering with the right of life of any other person and as discussed above, the word life has been given wider meaning. Hence, to deprive a person from his legal right to be appointed is equal to deprive him of his right to life. Therefore, on this touchstone alone, the act of the respondents depriving the petitioners and a lot of other similarly placed persons residing in MEPCO

jurisdiction, have deprived them all from their right of life and this act is violation of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. 20. Article 14 of the Constitution of Islamic Republic of

Pakistan, 1973 deals with dignity of man. It is for the first time that provisions have been made to safeguard dignity of man in the Constitution of Pakistan. The dignity of man is inviolable right. It in clear terms guarantees to protect the dignity of man and this provision is unparallel in the Constitutions and hardly Constitutions of a few countries provide for it. Dignity of man is not only provided by Constitution of Pakistan, but according to history and belief

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under Islam great value has been attached to the dignity of man. This principle is required to be extended further to the cases where any defamation is caused, because the human dignity, honour and respect is more important than physical comforts and necessities. No attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace another person, thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life, should be allowed to go with impunity. There are six basics which are to be protected i.e. protection of faith, protection of life, protection of honour and dignity and protection of paternity, as discussed by the Muslim jurists and in this case the respondents by ignoring the petitioners and other applicants from MEPCO jurisdiction, entertained applications from the outsiders and went on to appoint, in sheer disregard to the dignity of the citizens of this area, which practice in fact is bound to create a sense of hatred in the minds of these deprived people and by this act the respondents have tried to establish that poor people of this territory (having domicile of MEPCO territory) dont have the capacity, knowledge or the qualification to be appointed on particular posts and for this reason the act of the respondents is hit by Article 14 of the Constitution of Islamic Republic of Pakistan, 1973. 21. Article 18 of the Constitution of Islamic Republic of

Pakistan, 1973 relates to the freedom of trade, business or profession subject to qualification or regulated by law. This

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article proclaims that every citizen of Pakistan is entitled to enter upon any lawful profession or occupation and to conduct in lawful trade or business. It is important to point out that the word lawful qualifies the right of citizen in the relevant field. In the case in hand, the petitioners and other applicants having domicile of MEPCO territorial jurisdiction and having other requisite qualifications to contest the posts advertisement and to be recruited in accordance with law, policy and the procedure but the respondents have violated the conditions mentioned in the advertisement and policy as well as procedure for recruitment, this way they also infringed the right of profession guaranteed by Article 18 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the same calls for interference by this court to strike down the same to ensure protection of rights to the citizens. The Honble Supreme Court of Pakistan in RE: ABDUL JABBAR MEMON and others Human Rights Cases (1996 SCMR 1349), held as under:Arts.184 various Government, & 18---Human Rights of case---Irregular violation of

appointments---Supreme Court while inquiring into complaints Provincial Fundamental/Human Rights, found that Federal Governments, Statutory Bodies and Public Authorities had been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising vacancies and appointments at times by converting ad hoc into regular appointments---Such

practice was prima facie violative of Fundamental

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Rights (Art. 18) guaranteeing to every citizen freedom of profession---Supreme Court, after notice to all concerned and after full hearing in the matter ordered that violation of such Fundamental/Human Right should be discontinued forthwith. Authorities were directed to take immediate steps to rectify so as to bring such practice in accord with the Constitutional requirement. Reliance is also placed on the cases JAMIL AHMED VIRK and another versus SECREARY EDUCATION GOVERNMENT OF PUNJAB and 8 OF others (2005 PLC (CS) 154) and Forest

GOVERNMENT

N.-W.F.P.

through

Secretary,

Department, Peshawar and others versus MUHAMMAD TUFAIL KHAN (2004 PLC (CS) 892). 22. Article 25 of the Constitution of Islamic Republic of

Pakistan, 1973 is analogous to the provisions contained in Article 7 of the Declaration of Human Rights. It prohibits discrimination within the class but does not prohibit the classification as such. The criteria for reasonable

classification is to see as to whether the basis of differentia has any rational nexus with its avowed policy. The Honble Supreme Court of Pakistan in the case Lt. MUQUDDUS HAIDER vs. FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad (2008 SCMR 773) observed as under:Reservation/quota system has been introduced to secure adequate representation in the service of qualitative inadequacy of representation for the persons belonging to socially and educationally backward class or area, so that they should have

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adequate representation in the lowest rung of service for which they aspire to secure adequate representation in the selection posts in the services as well, as such quota is being approved. Proviso in Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 also permits for reserving the posts for persons belonging to any class or area to secure adequate representation in the service of Pakistan. In the cases in hand the respondents made reasonable classification and

advertises the posts to be filled by the persons having domicile of MEPCO jurisdiction. Keeping in view the principle of reasonable classification laid down by the apex Court, the above classification of the respondents was well within the ambit of law, as in the advertisement only applications were called from the candidates of MEPCO jurisdiction, sensing this area to be underdeveloped and almost totally ignored and deprived region with regard to education, health,

entertainment and other allied facilities. Moreover, all the distributing companies have adopted uniform policy to fill up the posts amongst the candidates of their own territorial jurisdiction and as such, GESCO, LESCO, Etc. fulfilled the vacancies amongst the candidates having domicile of their jurisdiction. Furthermore, before establishing the procedure of these companies earlier the WAPDA being their mother company adopted the same procedure and non-gazetted posts were fulfilled on regular basis. Therefore, so far as calling of applications from MEPCO jurisdiction is concerned, it was a

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very reasonable attempt, but the respondents themselves went on to violate their said policy, for the reasons discussed above. Uneven state of economic development and

educational opportunities in different parts of country stands recognized right from the formation of Pakistan, therefore, the need for affirmative action in aid of people from less developed areas is recognized and it is with this object that quota system is introduced in services and the same tends to provide weightage to residents of certain areas on the basis of disadvantages and lack of opportunities that such people have faced because of inadequacy or inequality of

educational, economic or cultural opportunities. 23. At the same time, it stood admitted position that

although the Government had issued notification about reserving 5% quota for women which was being implemented in all departments of the country, but the respondents failed to observe the same and on court query it was admitted that this quota was only observed for gazetted posts of BS-17 and not for the post advertised. Article 25(3) of the Constitution of Islamic Republic of Pakistan, 1973 provides that nothing in this Article shall prevent the State from making any special provision for the protection of women and children. Thus, at higher level appropriate steps were taken to safeguard the interests of women and children and it was for this reason that above mentioned notification with regard to 5% quota for women was reserved, but respondents departments did not

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care about it and thus violation of Article 25(3) of the Constitution is apparent. It may be reiterated that as held above the respondents may make reasonable classification of the posts and reserve the quota for women against the posts suitable for them keeping in view the dignity of womenfolk in the light of Article 27 of the Constitution of Islamic Republic of Pakistan, 1973 by declaring that such and such posts may be filled only amongst the men, but totally ignoring a limb of the state is absolutely ridiculous. Guidance is sought from the case MST. FAZAL JAN versus ROSHAN DIN and 2 others (PLD 1992 SC 811). 24. Article 27 of the Constitution of Islamic Republic of

Pakistan, 1973 provides safeguards against discrimination in service. But in this case the respondents against their own condition mentioned in the advertisement, accepted and entertained the applications from the candidates outside the MEPCO territory, and such outsider candidates have in fact been appointed as well, but the persons of this area i.e. MEPCO territory were totally ignored by violating the existing policy and mentioned in the advertisement, while other companies advertised posts to be filled amongst the

candidates having domicile of their territorial jurisdiction like GESCO, LESCO, ISCO, Etc, and the persons from MEPCO were not allowed to apply for the posts and to compete the same in other companies.

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25.

In the case SHAHID MAHMOOD KHAN, ADVOCATE,

HIGH COURT vs. GOVERNMENT OF PUNJAB, through Chief Secretary, Punjab, Lahore and 4 others (2008 PLC (CS) 4), a learned Division Bench of this Court held as under:Art.27---Expression service--Connotation ---

Expression service does not mention a permanent service or a contractual service, therefore, it would include all kinds of service whether permanent, temporary or on contract, etc. The proviso to Article 27 is to the effect provided that, for a period not exceeding [forty] years from the commencing day, posts may be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan; and second proviso provides provided further that, in the interest of the said service, specified posts or services may be reserved for members of either sex it such posts or services entail the performance of duties and functions which cannot be adequately performed by members of the other sex. Therefore, while discussing Article 27 in the light of first proviso, in the present cases the respondents authorities have deprived the petitioners and others of their valuable rights and outsiders have been appointed, which is violation of Article 27 of the Constitution of Islamic Republic of Pakistan, 1973. 26. Employment for a common person is source of

livelihood and right of livelihood is an undeniable right to a

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person. If work is sole source of livelihood of a person, then right to work is not less than a fundamental right which has to be given protection. Such appointments are trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such post is excluded from the process of selection and is deprived of his right of appointment in service. Each and every organ of the state has to perform its functions freely, without interference by any other organ of the state. Said principle along with Article 2-A, 4, 5(2), 37 and 38 of the Constitution lead to a conclusion that each and every organ of the state should remain within its spheres and the superior courts should set-aside actions which are not within the domain of the authorities. 27. At this stage it may be pointed out that respondents

officials were directed to produce the detailed list of the candidates appointed from outside the MEPCO jurisdiction and they filed the list and those mentioned in the list were inserted as party and they appeared before this Court in person. On court question whether they needed some time to engage counsel or they may argue the case of their own, all such respondents intended to adopt the arguments advanced on behalf of the respondents officials and also by the representative of the MEPCO, hence, right of hearing has been provided to them. But I am of the view that respondents

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officials have not yet filed the complete list of the appointees belonging to outside the territorial jurisdiction of MEPCO and have only filed a list of those appointees against whom the petitioners had filed these writ petitions, hence, although the principle of natural justice required that no person should be condemned unheard, but seeking guidelines from the

principles set in the celebrated judgment of the Honble Supreme Court of Pakistan in Constitution Petition No.8 & 9 of 2009 (judgment on emergency), it was not considered necessary to issue notices to all the affected appointees, as they themselves filed applications for appointment in an area, which was not open for them according to the advertisement published in the newspaper by the respondents authorities. As such they equally contributed to the illegal and

unconstitutional exercise of the respondents authorities in derogation to the conditions mentioned in the advertisement; therefore, the impugned actions of the respondents being void ab-initio, the principle of audi alteram partem would not be applicable to the appointees, subject matter of these writ petitions. 28. The Honble Supreme Court of Pakistan in the case

GOVERNMENT OF SINDH vs. RAEESA FAROOQ (1994 SCMR 1283) held as under:provisions which confer fundamental rights on a citizen, whenever violated and complaint is made to a High Court about their violation, the Court must step

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in to investigate such facts under the discretionary jurisdiction conferred on it under Article 199 and pass such order as may be found just, legal and equitable taking into consideration the facts and circumstances of each case. 28. In another case GOVERNMENT OF N.-W.F.P. through

Secretary, Forest Department, Peshawar and others versus MUHAMMAD TUFAIL KHAN (2004 PLC (CS) 892), the Honble Supreme Court of Pakistan held as under:Civil servant was selected on political dictation--Neither any advertisement was made to fill the vacancy nor any interview was held---Codal formalities for the appointment of the post were flagrantly violated---Effect---Such-like entrants in civil service could not be countenanced as it might generate frustration and despondency among all persons who were having excellent merit but every time they were bypassed through such-like back door entries on political interference---Everybody who matters in the functioning of the society has always propagated for the adoption of transparency and merit in appointments which are cardinal principles of good governance.---When it comes to actual practice, such principles are blatantly ignored---Courts are duty bound to upheld the Constitutional mandate and to keep up the salutary principles of rule of law---In order to upheld such principles it has been stated time and again by the superior courts that all appointments are to be made after due publication in a transparent manner after inviting applications through Press from all those who are eligible deserving directions, and such desirous. salutary In spite of all are these being principles

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38

frustrated within impunity---Such malady which has plagued the whole society has to be arrested with iron hands and the principles of merit have to be safeguarded, otherwise, it would be too late to be correct. 29. The transparency is the hallmark of any effective

system. Transparency and fairness of actions of governmental functionaries can be assessed only on the touchstone of fundamental rights and here in these cases their actions have not been found protecting the constitutional guarantees. As I have discussed in detail the act of the respondents in the light of Articles 2-A, 4, 9, 14, 18, 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973, and it has been observed that the actions of the respondents by which they appointed the persons who did not belong to the MEPCO territory, have violated their own recruitment policy earlier followed by them for about two decades, procedure and the conditions mentioned in the advertisement, reserving

disproportionate interview marks by ignoring the qualification criteria. 30. The narrative of the facts and circumstances of the case

in hand would make it abundantly clear that the actions of the respondents were violative of the provisions contained in Articles 2-A, 4, 9, 14, 18, 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973. In the case ASSAD ULLAH MANDI and others vs. PAKISTAN INTERNATIONAL

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39

AIRLINES CORPORATION and others (2005 SCMR 445), the Honble Supreme Court of Pakistan held as under:An action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner. 31. Accordingly, the above contumacious actions of the

respondents are declared to be ultra vires to the constitution and are set-aside on the ground:i) ii) iii) The respondents made impugned recruitments beyond the scope of advertisement; No stipulated and transparent procedure for recruitment has been followed; Amendment in the recruitment procedure after publication of advertisement was not permissible in law; The respondents reserved higher percentage of interview marks, in derogation to the judgment of this court as discussed above; and The actions of respondents are against the principles of natural justice and fundamental rights, enshrined in Article 2(a), 4, 9, 14, 18 and 27 of the Constitution of Islamic Republic of Pakistan, 1973.

iv)

v)

32.

For what has been discussed above, I allow these writ

petitions in the following terms:I) All appointments made amongst the

candidates from outside the MEPCO territorial

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jurisdiction, pursuant to the advertisement of the respondents, subject matter of these writ petitions, are declared to be malafide and ultra vires of the Constitution of Islamic Republic of Pakistan void ab-initio, and are set-aside accordingly; II) The persons appointed against respective posts having domicile of within the MEPCO territorial jurisdiction shall provisionally continue as such. These appointments are being provisionally protected on two grounds, as:a) These appointees otherwise, prima facie fulfill the basic criteria of being the residents of the same MEPCO territorial jurisdiction, as advertised; and b) By their immediate expulsion from service, there may occur unnecessary vacuum in MEPCO which may even result in adding to the miseries of general public in these days of scorching heat, searching for electricity. III) The respondents authorities are directed to short list the applications received from the candidates from within the MEPCO territory by making a transparent and fair criteria and then arrange for written test where after, at least five candidates shall be called for interview for each post. In case of less number of candidates apply/qualify/pass for any post, this condition shall not apply; IV) The interview marks, as discussed above, shall not be more than 25%; and

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V)

For women quota as notified by the Federal Government considering shall the strictly of be observed posts suitability such

keeping in view the dignity of the women, but this classification should not be based on arbitrariness. (MUHAMMAD QASIM KHAN) JUDGE. APPROVED FOR REPORTING. JUDGE.

Javed*