IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

C.P. No. D-1255 of 2019

a/w C.P Nos. D-1271, 1272 of 2019

C.P. Nos. D-369, 658, 977, 1218, 1247 & 1446 of 2021

 

                                      Before:

Mr. Justice Muhammad Junaid Ghaffar

                                      Mr. Justice Zulfiqar Ali Sangi

 

 

Petitioners:                                        Nadeem Ahmed and others through  M/s. Nisar Ahmed Bhanbharo, Abdul Waheed Bhanbharo, Irfan Mehdi, Sundar Khan Chachar, Abdul Wahab Shaikh and Bashir Ahmed Shar, Advocates.

Respondents:                                    Province of Sindh and others through Mr. Zulfiqar Ali Naich, AAG alongwith Inspector Muhammad Aslam, Inspector Javed, SIP Ameer Ali and Inspector Ghulam Shabir Larik.

Date of hearing:                                 03.11.2021.

Date of decision:                                03.11.2021.

 

O R D E R

 

Zulfiqar Ali Sangi, J:              By this common order, we would like to dispose of all these petitions arising out of the same recruitment process of Driver Police Constable in Police Department Sukkur Range.

 

2.       Briefly stated the facts as averred in the memo of petitions are that the Respondent No.3/Deputy Inspector General of Police Sukkur Range invited applications for recruitment to the post of Driver Constable (BS-05) lying vacant in different districts of Province of Sindh including district Sukkur, through advertisement published in daily Kawish and other newspapers. The minimum qualification for applying the post of Driver Constable was also mentioned in the advertisement to which petitioners fulfilling the criteria as laid down by the department, applied for the posts of driver constable. The Respondents No.3 & 4 conducted test in which Petitioners and other candidates participated and they were declared successful. The petitioners were called by the office of Respondent No.4 for medical fitness and they were referred to Agha Khan University Laboratory for different diseases and screening of Hepatitis B & C and expenses thereof were borne by Petitioners themselves from which they declared fit and reports were also submitted with the Respondent No.4. The petitioners approached Respondent No.4 for further process of recruitment, which he ensured to be materialized as soon as the permission from Respondent No.2 is received, but yet not completed the process of such appointment.

 

3.       Mr. Nisar A. Bhanbharo, advocate representing the Petitioners in some petitions, at the very outset, submitted that the Petitioners have completed all the requirements which entitled them for issuance of appointment orders as Driver Police Constable; that the Petitioners firstly were called for their physical test where Petitioners were declared successful and thereafter they were directed to get fitness certificate from Agha Khan University Laboratory, which was also obtained by the Petitioners on their own expenses and declared fit; however, Respondent No.4 kept them on false and hollow hopes in the sense that their further test will be organized as and when permission received from the competent authority; that Petitioners again and again approached the office of concerned Respondents but their right of appointment on merits have been denied just to recruit favorite candidates in violation of merit and to appease the ruling party politicians; that Respondents No.1 & 2 have issued appointment orders to the qualified candidates belonging to Karachi Range; however petitioners belonging to Sukkur Range are being treated differently without any reason; that the case of the present petitioners are identical to the candidates of Karachi Range, who have been issued appointment orders by the Respondent No.2; that the failure act of Respondents to adopt further process of recruitment is illegal, ab-inito, arbitrary, null and void; besides in violation of fundamental rights guaranteed under Articles 4, 9 & 25 of the Constitution of Islamic Republic of Pakistan, hence this prayed that the petitions may be allowed as prayed.       

 

4.       Counsels appearing for the Petitioners in other connected petitions have adopted the arguments advance by Mr. Nisar A. Bhanbharo, advocate for the Petitioners and submit that Petitioners are liable to be appointed as Driver Police Constable as they have been declared successful in Physical as well as Medical Fitness Test; however regarding further process i.e. written test and interview, it is the responsibility of Respondents to do so. They further submit that if further recruitment process is commenced, petitioners will definitely appear and if they declared successful, they may be appointed for the posts of Driver Police Constable.   

 

5.       Learned AAG, at the very outset, submitted that as per recruitment committee, the recruitment process had to be initiated by incorporating 3rd party Testing Service from the beginning of the recruitment till end of the process; however, in this Range, such process has not been adopted by the concerned authorities, hence all process of recruitment has been cancelled by the competent authority as the same was in clear violation of recruitment policy. He further contended that the process of recruitment was not completed and was cancelled therefore no right of petitioners is occurred for appointment.

 

6.                We have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.  

 

7.       On issuance of notices, Respondent No.3 has filed Para wise comments wherein it is mentioned that the meeting of Sindh Police Recruitment Board was held on 18.12.2018 under the chairmanship of Additional IGP Sindh CPO Karachi in which the board has recommended to cancel the Physical Test conducted in various Districts of Sukkur Range, regarding recruitment of Driver Police Constables against 473 existing vacancies, as the services of 3rd Party Testing Service was not incorporated for the said test. The said recruitment process shall be re-initiated by chairman of the Recruitment Committee and service of reputable 3rd party Testing Service shall be incorporated from the beginning of the recruitment till end of the process.

 

8.       In compliance of order dated 27.05.2021, AIGP Legal-II for Inspector General of Police, Sindh Karachi, submitted his report wherein it is submitted that Committee for recruitment of Driver Police Constable was constituted vide office order No.12247-80/EB-III/T-7/S&S dated 03.11.2017, directing therein to the Chairman of respective Recruitment Committee that services of reputable Testing Services shall be incorporated from beginning of recruitment till end of the process and they shall be bound down that bio-metric system will be adopted for verification of the candidates at the entry of examination center. The process of physical test was got conducted through representative of Pak Army directly only by the Recruitment Committee without incorporating 3rd Party testing service as well as representative of CPLC in the recruitment committee and even without adopting the policy of the CPO’s conveyed to all Ranges/ Units. The instructions in respect of bio-metric system at the entry were also not followed. 

 

8.                We have noted from the comments of respondents, even had not been denied by the petitioners that the requirement process was not completed and during the process the policy was announced that the test would be conducted through 3rd party testing service only to give fair and transparency effect to the appointments and also by adopting bio-metric system at the time of entry for the test. No doubt, a valid final selection of the candidates is of legal importance but the legal right vests when on the basis of such recommendations the matter is finalized and candidates selected are appointed. Before occurrence of final step of appointment, neither vested right is legally created nor does cause of action arise. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. However, once a right is accrued to the petitioners by appointment letters issued after complying with all the codal formalities could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary. Such right once vests, cannot be destroyed or withdrawn as legal bar would come into play under the well doctrine of locus poenitentiae, well recognized and entrenched in our jurisprudence. Reliance may be place on the case of Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan (1996 SCMR 1350) and Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others. (2015 SCMR 1418).

 

9.       In the case in hand the appointments ought to have been made in the police department as driver police constable and the said posts also have some importance, therefore, more care and caution is required in the appointments which includes transparency. The Hon’ble Supreme Court of Pakistan in the case of Chief Secretary Punjab and others vs. Abdul Raoof Dasti (2006 PLC (CS) 1278), has 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.”

 

10.              In view, thereof we find that since the appointment process has not been completed and posts were re-advertized to be filled through 3rd party testing service and by adopting bio-metric system at the entry place to give fairness and transparency effect, therefore, no vested right has been accrued in favour of the petitioners. We have also been informed that after the cancelation of process the said posts were re-advertised to be filled through 3rd party testing service (P.T.S) and some of the petitioners have applied to, therefore, we direct the respondents to follow the rules and the regulations for appointment and make sure that the appointments so made will also be followed by fairness and transparency. These are the reasons of our short order dated: 03-11-2021, whereby, the petitions were dismissed.

 

 

J U D G E

J U D G E