Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
C. P. No. D – 197 of
2011
along with C. Ps. Nos. D – 3130 of
2011, 1335 of 2013 and 5188 of 2016
Petitioners Miss Hina, Muhammad Rizwan Qureshi and Muhammad Adnan
Qureshi, present in person.
Mr. Kalander Bakhsh M. Phulpoto, Advocate for respondents No. 254,
283, 305 and 317 in C. P. No. D-197/2011.
Mr. Inayatullah Morio, Advocate for respondents No. 173 to 186 and
234 to 237 in C. P. No. D-197/2011.
Syed Abdul Latif Shah, Advocate for respondent No.273 in C. P.
No. D‑197/2011.
Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh.
Date
of hearing: 04.10.2018.
Date
of judgment: 27.11.2018.
J U D G M E N T
MUHAMMAD SHAFI SIDDIQUI, J. – Subject
matter of these petitions is the “recruitment process” undertaken by the
Provincial Government in appointing Auditors (BS-14), Sub-Accountants (BS-11),
Junior Clerks (BS‑07) and Record Keepers (BS-07) vide advertisement dated
16.01.2011.
2. It is claimed that
the entire process, as involved, was non-transparent, deceitful and only blue
eyed candidates were catered. With this background, the petitioners, who are
appearing in person, have argued that petitioners No.1 and 2 in C. P. No.
D-197/2011 were appointed under National Internship Program by D.C.O. Sukkur,
and they joined the office of the District Accounts Officer Sukkur, and were
performing their duty when the recruitment was processed. While their
contractual tenure was coming to an end, the Provincial Government advertised
the vacancies as referred above with the requisite educational qualifications
and the age limit. The appointments were required to be made all over Sindh
i.e. Karachi, Hyderabad, Mirpur Khas, Sukkur and Larkana Divisions, having
their respective domiciles.
3. It is claimed that
the candidates were required to appear in a written test and interview to be
taken by the authority. Insofar as the candidates, who were appearing from
Sukkur Division are concerned, the candidates were required to appear and
assemble at Government Comprehensive Higher Secondary School, Shikarpur Road
Sukkur, as mentioned in the advertisement.
4. On 23.01.2011,
when the candidates, including the petitioners, appeared at the venue, they
were informed verbally that the venue has been changed and new place for the
test and interview would be “Public School Sukkur”, and all the candidates on
their own may approach the rescheduled site when in between 04:00 to 05:00 p.m.
written test would be taken. It is significant to note that on the original
site approximately 10,000 candidates appeared which in fact was/is not denied
by all respondents. The reasons given for changing the venue was that it was
humanly impossible to manage test and interview of all those candidates who
appeared as there was disturbance and chaos and in fact it was total failure on
the part of the Provincial Government as far as the entire recruitment process
is concerned, as virtually there were neither questionnaires available with the
candidates nor they have sufficient copies for distribution to enable the
candidates to answer the questions, hence, quit a few left the site in
distress. It was subsequently revealed to all those who appeared at rescheduled
site that a self-made list of the candidates who allegedly appeared in the
written test as well as interview was notified.
5. This list shows
that out of 10,000 approximately, the candidates who appeared for the subjects
posts and passed their written test, were interviewed on the same day and were
given marks accordingly. Those who qualified the written test were around
4,931. This list was prepared on 23rd January, 2011.
6. It is the case of
the petitioners that it was not only humanly impossible to have taken the
written test of 10,000 candidates in between 04:00 to 5:00 p.m. but also to interview
them, as practically none of them was interviewed. Petitioners submit that when
the written test was allegedly taken between 04:00 to 5:00 p.m., how and in
what way the interviews were taken, is thus inconceivable.
7. Respondent No.4
and 5 i.e. Secretary, Finance Department, Government of Sindh filed their para
wise comments and in terms of Para 15, they have conceded that the venue for
written test and interview was changed on account of non-availability of
sufficient accommodation. In reply to Para 16 of petition, they have conceded
that due to occurrence of some ugly and untoward incidents at the new venue,
the time was changed from 09:00 a.m. to 04:00 p.m., and all candidates were
informed of this change through megaphone, and they appeared for the test at
changed venue. In the comments, however, the Finance Department is unable
to explain as to how and in what way they interviewed approximately 5,000
candidates on the same day, who, according to them passed written test.
8. We have heard the
petitioners and the learned counsel, and perused the record.
9. There is nothing
on record to appreciate that the test and recruitment was organized in a manner
that was transparent and venue was conducive for the candidates who appeared.
When enquired as to whether the question paper is available either on record or
in the file of learned AAG, he was unable to respond. When enquired as to
whether the answer sheets are intact, learned AAG was unable to satisfy the
Court that such answer sheets could be presented as and when asked for. It is
significant to note that this petition was filed soon after the alleged
recruitment and the record should have been saved. Learned AAG was also unable
to explain as to how 10,000 written sheets were checked in minutes out of which
4,931 candidates passed with flying colors. They were unable to explain as to
how it was humanly possible to interview more than 4,931 candidates as that
could only be possible once the copies of the candidates, who appeared in the
written test, were checked, as only successful candidates could have appeared
in the interview and not all. If a minimum time of 5 minutes was taken to check
one copy of written test, it would have taken 5 x 10,000 = 50,000 minutes to
check the copies which makes 34.7 (more than 34) days. Similarly, if a minimum
time of 5 minutes was spent to interview, it would have taken 24,655 minutes to
interview 4,931 candidates which makes 17.1 (more than 17) days.
10. These petitioners
were experienced in the sense that they have been appointed earlier though on
internship basis but had an experience in the field. It is, thus, inconceivable
that they, who had been appointed at such posts and were doing their
internship, have succeeded in the written test, having obtained 100% marks but
failed in an attempt to pass the interview. In fact, there appears to be no
cavil to this proposition that there was no such interview that had taken place
or in fact, the written test. The entire process was deceitful.
11. Learned AAG has
categorically denied to have any record of the written test, hence, was unable
to produce the same which could only demonstrate sorry state of affairs.
Surprisingly, respondents, at one point of time, were even willing to offer
appointment to the petitioners but then at the conclusion of arguments withdrew
such option after consultation.
12. We are mindful of
the fact that almost 336 candidates were given appointment letters who are
working since long but these appointments are the result of sham, bogus and
deceitful proceedings under the garb of written test and interview. There was,
in fact, no such written test or interview and these successful candidates who
are being represented by Mr.
Kalander Bakhsh M. Phulpoto, Mr. Inayatullah Morio and Syed Abdul Latif Shah,
advocates, have nothing in their defence. Mr. Morio, in fact, to some extent,
without prejudice to competence of his clients, has conceded that the
“transparency” is lacking but supported the case of the respondents in the
sense that they are now working since last seven (07) years.
13. In view of such a sorry state of affairs, we thought of scraping the entire process of recruitment since it was
only a deceitful and non-transparent process, by directing respondent to issue
“fresh advertisement” but this would only add up to the miseries of those who
appeared on 23.01.2011. At this point, we need to make it clear that we are
quite conscious of following legally established
principles, so enunciated by honourable Apex Court i.e:
14. In the case of Contempt Proceeding against Chief Secretary, Sindh & Ors 2013
SCMR 1752 while dealing with question of locus
poenitentiae it was observed as:-
174. Locus poenitentiae is the power of receding
till a decisive step is taken but it is not a principle of law that order once
passed becomes irrevocable and past and closed transaction. If the order is illegal then perpetual
rights cannot be gained on the basis of an illegal order. In the
present case, the benefits extended to different employees or civil servants
through the impugned legislations are not only violative of law but are also
ultra vires of the Constitution referred hereinabove. In such like situation
the principle of locus poenitentiae does not attract and in this regard this
Court in the cases of…………. has held that principle
of locus poenitentiae would not be attracted in a case under which the benefit
has been extended by a law, which is violative of the provisions of the
Constitution.
15. In another case of Province of Punjabh through Secretary v.
Zulfiquar Ali 2006 SCMR 678 it was held as:
“7. We are afraid that the contention so
raised by him is not correct as the Director Agriculture appointed him on
10.11.1990 and thereafter his service was regularized w.e.f the same date in
the year of 1993. He served the department for about 11 years as a regular
employee and during course whereof, there was no complaint of whatsoever nature
against him, calling for action under the Punjab Civil Servants (Efficiency and
Discipline) Rules, 1975. It may be noted that these rules contemplate an action
against an employee who is guilty for the breach of good service order
indiscipline, misconduct etc, but it does not contain any provision on the
basis of which appointment of an employee can be cancelled on the ground that
it has been made illegally. In other
words in such-like situation instead of taking action against an appointee it
is appropriate if an action is taken against the Appointing Authority who
apparently committed a misconduct by making such appointment, as it has
been observed by this Court in the case of Abdul Hafeez Abbasi and others v.
Managing Director, Pakistan International Airlines Corporation, Karachi and
others 2002 SCMR 1034.
16. However, since
possibility of competence of appointed candidates, as claimed by them, cannot
be brushed aside straight-away as they have been serving since seven years nor
it would be in the interest of justice to deprive petitioners of their undeniable
rights to have fair-competition. Therefore,
to ensure a balance, we do not find
it proper to order for fresh process of recruitment by re-advertisement. We
find it in all fairness to provide a fair-opportunity
of proving their eligibility only
to those, who, having eligibility, to
test the competence. Worth to add
that fresh advertisement would make it open for all, eligible today, which may result in prejudicing the eligibility of those, who otherwise were
eligible at such time (about seven
years ago). Thus, in short, fresh competition amongst those who appeared
earlier could be the best solution that we have for them. Needless to add that
if they (private respondents) are and were competent they would sail and, if
not, will sink and in such eventuality they
would not press application of Locus poenitentiae with reference to their length
of service because legally seven
years of service cannot overshadow the non-transparent and deceitful
recruitment process as same was / is nothing but a premium, being given to them,
on account of a cheating undertaken by the officials who conducted the
recruitment process.
17. We are sure that
all those who are deserving, competent and intelligent will sail through this
process and even their seniority would not be altered and they would continue
to serve as if they were rightly and lawfully appointed earlier but all those
who would sink in this recruitment process have to take this bitter pill. This
is just a scrutiny test for their own betterment which shall also remove the
clog on them of being non-deserving and blue eyed candidates.
18. We cannot give a license to the Government of Sindh that they
may continue to act in a manner which is not in consonance with the judgments
of the Hon’ble Supreme Court as well as law and, hence, no premium could be
given either to the Government or to the candidates. Here, it may well be added
that State is like a mother who knows no discrimination
among her children. We would further add that every parents, while sending
their children, for education purpose do ‘dream’ for chances of a better life
by recruitment in government services. Thus,
it is absolute responsibility of the appointing authority that such
recruitment process is so transparent that
it eliminates all the possibilities of any misuse
of such authority. Since, what
came to surface during hearing of these petitions, was / is an example how the ‘authorities’ misuse the trust
in them, therefore, to bring an end to such practice so also to avoid plea of any perpetual rights on ill-gotten, we deem it appropriate to dispose
of these petitions as under:
a)
that all these 336 candidates
whose list is available alongwith petitioner shall be issued notices to
reappear in the written test as well as interview which shall be conducted by
Institute of Business Administration (I.B.A.) Sukkur in consultation with Finance
Department of Government of Sindh. The papers should be prepared by the
Professors of I.B.A. Sukkur;
b)
that all successful
candidates of above process shall be interviewed by the nominated Professors of
I.B.A. Sukkur in presence of the committee of the Finance Department;
c)
the merit list in respect
of the written test as well as of the interview shall be prepared by the
nominated Professors of I.B.A. Sukkur, whereafter deserving candidates be given
appointment letters; and,
d)
those who were appointed
earlier if sail through the process shall also be given seniority accordingly.
While parting, we also direct the Government of Sindh that
recruitments in all government institutions for posts of BPS-5 or above, shall
be conducted through IBA / NTC or any other third
party i.e recognized testing
services. This, however, would
not be applied for the posts of BPS-1 to
BPS-4 respectively which criterion
already settled.
19. All these petitions along with pending applications, if any,
stand disposed of in the above terms.
J U D G E
J U D G E