PLJ 2018 Quetta
Present: Naeem Akhtar Afghan and Muhammad Kamran Khan Mulakhail, JJ.
FATIMA--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary M/O Commerce Islamabad and 2 others--Respondents
C.P. No. 434 of 2015, decided on 28.3.2017.
Locus Poenitentiae--
----General Clauses Act--S. 24--Constitution of Pakistan
Mr. Baz Muhammad Kakar, Advocate (Martyred in the Suicide bomb blast of Civil Hospital Quetta dated 8th August 2016) & Mr. Abdul Ghani Khilji, Advocate for Petitioner.
Mr. Aminuddin Bazai, D.A.G. for State.
Mr. Fayaz Aslam Dar, Advocate for Respondents No. 2 & 3.
Dates of hearing: 12, 19, 23.5, 6.6, 15, 12, 16, 20 & 23.12.2016.
Judgment
Muhammad Kamran Khan Mulakhail, J.--Brief facts leading to file the instant petition are that in the backdrop of Prime Minister’s directives, the Cabinet Secretariat/Establishment Division, Government of Pakistan had issued office memorandum F.No. 1-11/2009/DS(Coord:) Islamabad, the 4th April 2014, to the effect that the “Prime Minister has been pleased to desire that all posts under Aghaz-e-Haqooq-e-Balochictan (AHBP) lying vacant in all Federal Ministries/Divisions/Autonomous Bodies, should be filled with in one month.” It was also observed that “according to data available with the Establishment Division, they have 3055 position (BS-1 to 22) lying vacant as on 03.04.2013, as per laid down quota (6% of Balochistan)”, while in compliance of the said directives a schedule was also stipulated, i.e. for advertisement, (April 5-6, 2013) tests and interview (April 16, 2013) preferably at Quetta, scrutiny of papers/finalization (April 17-25, 2013) of the candidates followed by issuance of offer letter/joining (April 26-30 of 2013) with further direction that for the positions within the purview of Federal Public Service Commission (FPSC), requisition of the same may be sent to FPSC and progress reports as on 15th April and 30th April 2013 was also directed to be submitted to the Prime Minister’s Secretariat.
The Respondent No. 1 (Ministry of Commerce) directed the Respondent No. 2 the State Life Insurance Corporation of Pakistan (the “Corporation”) to ensure the implementation of the instructions of the Prime Minister. The Respondent No. 2 floated an advertisement and invited the applications against the vacant posts, which was published in the ‘Daily Jung Quetta’ on 19the April 2013. In the afore referred advertisement applications for the post of Manager (legal) were also invited, wherein the candidates having LLB degree with five years working experience with the upper age limit of 40 years were eligible to apply for the post. The petitioner appeared in the test and interview and finally a merit list was displayed in the office of Respondent No. 3 wherein the petitioner stood at S. No. 1 by securing 68 marks.
2. Meanwhile, the “State Life Insurance Employees Union” (CBA) through its general secretary filed a petition before the Member, National Industrial Relations Commission (NIRC), Quetta Bench, Quetta , whereby initially the restraining order was passed against the Respondent No. 2 by directing him to stop the recruitment process. However, vide order dated 8.5.2013 the petition was dismissed as with-drawn. The petitioner on securing highest marks was expecting to receive the appointment letter, when a complaint under Section 33(6) of the Industrial Relation Act, 2012, was filed before the worthy Chairman NIRC at principle seat Islamabad, wherein it was mainly contended that the NIRC has already passed a restraining order against the recruitment in the Corporation on 16.1.2013, therefore for willful defiance of the NIRC’s order, passed by the Karachi and Lahore Benches of NIRC, a contempt proceeding was solicited. In pursuance whereof, a Show-Cause notice dated 20.5.2013 was directed to be issued to the Respondent No. 2 to the effect “as to why action should not be taken against him for violation of injective orders of the Commission”.
The Respondent No. 2 submitted his reply to the show-cause notice, averring therein that posts were advertised in pursuance of directive of the Cabinet Secretariat/Establishment Division vide office memorandum dated 4th April, 2013 for recruitment under Aghaz-e-Haqooq-e-Balochistan package, approved under the Act of Parliament. It was further contended that the said advertisement was for the province of Balochistan
3. However, the petitioner continued to approach the Corporation for issuance of her appointment letter, when she finally learnt that the case related to new recruitments has been stayed by the NIRC’s Commission, therefore on order of appointment can be issued till final disposal of the aforesaid case. The matter remained pending before the NIRC when vide order dated 22.5.2013, Show-Cause notice was discharged after recording the Corporation’s stance and with consent of the parties to the following effect:
“The learned counsel for the respondent corporation in the back drop of the deprivations of the people of the Province of Balochistan and in the peculiar circumstances, and in view of the special package; applications against the vacancies have been invited through advertisement in Daily Jang Quetta need be filled in by selection on merit. The president of the federation when confronted to this aspect of the matter being processed pursuant to the directive of the Prime Minister, he submitted that the petitioner shall not grudge the selection and appointments against the vacancies meant for the workmen subject to the condition that in case the petitioner is successful in substantiating the claim of 33% of the vacancies reserved for the children of workmen being enforceable; the respondent-corporation shall without any reservation or exception appoint on merit the children of the workmen from Balochistan, keeping in view the number of appointments made pursuant to the advertisement in daily Jang, Quetta as per allocated quota. This offer is categorically accepted on behalf of the respondent-corporation by Mr. Shahid Hashmi (Assistant Manager) under instruction from Dr. Ghazala Nafeez, GM/Disisional Head obtained on telephone a couple of mimutes before and this offer being reasonable is accepted Order accordingly.
9. Reply to the show-cause notices has been filed on behalf of the respondents. Consequently in view of the above noted position show-cause notices dated 20.5. 2013 issued in terms of order dated 17.5.2013 stand discharged.”
However since the complaint was clubbed with the main case, which was still pending adjudication before the worthy Commission, and was finally disposed of, vide order dated 25.11.2014 in the following manner:
2. The learned counsel for the respondents submitted that the State Life Insurance Employees Federation of Pakistan (petitioner/complainant) is no more in existence and the complainant federation stands extinct consequent upon having obtained the registration an industry wise trade union Moreover, the body (officers) who instituted the complaint is no more in existence hence; the matter is not being pursued for having lost the interest for the afore-stated reason.
In view of the above stated position, this matter since cannot proceed further, therefore, the same is disposed of accordingly.”
4. The petitioner soon after having come to know about final disposal of the lis before the Hon’ble Commission, again submitted a representation dated 2.3.2015 before Respondent No. 2 with request for issuance of her appointment order as Manager (Legal) in the Balochistan zone of the Corporation. The needful could not be done, therefore, the petitioner filed the instant Constitutional Petition before this Court on 9.5.2015.
5. On receipt of notice, the respondent entered appearance and after availing the copy of petition on 18.6.2015, filed a reply/para-wise comments on 29.6.2015, while learned Deputy Attorney General appearing on behalf of the Respondent No. 1 stated that he does not intend to file para-wise comments and would rather rely on the comments already filed by the Respondent Nos. 2 and 3. The case remained pending, due to lack of attendance of the parties or their respective counsel. Therefore vide order dated 19.12.2015 again a notice was sent to the Respondent No. 3 to ensure the appearance of its counsel. The counsel for Respondents No. 2 and 3 appeared on 22.12.2015 and filed a miscellaneous application along with certain additional documen’s, copies whereof were supplied to the other side. On 8.3.2016 the counsel for the petitioner filed reply/objections to the Miscellaneous Application filed by the respondents and also partly argued the case.
Mr. Baz Muhammad Kakar (martyred) learned counsel for the petitioner regularly appeared and advanced arguments in this case. After his said demise/martyrdom in the Quetta Civil Hospital
Dr. Marvi Shah and nine others v. Province of Sindh
Dr. Shoukat Pervez v. Federation of Pakistan
Muhammad Ismail v. Secretary Education, Government of Punjab and another, 2000 PLC (S.C) 112).
Imran Hussain v. Water and Power Development Authority (2011 PLC (C.S) 116).
Munir Ahmed v. Minister Home and Tribal Affairs, Government of Balochistan, Quetta
Muhammad Asghar Wassem v. Secretary, Local Government (2009 PLC (C.S) 586).
6. Mr. Fayyaz Aslam Dar, Advocate appearing on behalf of Respondent No. 2 and 3, strongly opposed the contention and reiterated his stance, as agitated in para-wise comments submitted by the official respondents. He propounded that the question of appointment cannot be agitated and raised before this Court as a part of vested right of the petitioner; that the recruitment and appointment of a new selectee falls within the domain of administrative authority for which no writ can be issued; that the petition is hit by the principle of latches; that the official respondents cannot be held responsible for not appointing the petitioner due to restraining orders passed by the different Benches of the Hon’ble NIRC. He urged with vehemence that petitioner is not entitled for the relief claimed for, therefore, petition is liable to be dismissed. To support his arguments the learned counsel placed reliance on the judgments in the cases of Muhammad Bilal and Seven others v. Government of Khyber Pakhtunkhwa (2014 PLC (C.S) 769), Mst. Basharat Jehan v. Director General, Federal Government Education, FGEI (C/Q) Rawalpindi (2015 PLC (C.S) 1519) and Federal Public Service Commission v. Altaf Hussain (2015 SCMR 581).
7. On query posed by the Court that after discharging a show-cause notice relating to contempt of Court proceeding before the NIRC and thereafter on final disposal of the lis, why no plausible reason has been furnished in para-wise comments for not appointing the petitioner, on which the learned counsel sought time to address the query and to file certain leftover documents.
8. The case was fixed on 22.3.2016, when the Court posed the following questions:
(i) whether process of recruitment against the post of Manager (legal) initiated earlier has been withdrawn at any stage?
(ii) what is the guideline issued by the Cabinet Secretariat/Establishment Division?
In response to the said questions the learned standing counsel as well as learned counsel appearing for the respondents once again sought time to assist the Court, During pendency of the petition the respondents filed certain letters of Establishment Division, and propounded that on account of ban on recruitment process in Federal Ministries, Divisions Autonomous Bodies, Corporations, vide letter dated 20th June, 2013 and 25th July 2013, with further clarification vide Office Memorandum dated 6th February, 2014, and 14th March 2014, the appointment letter of the petitioner could not be issued. It was further averted that on account of said ban a guideline was solicited by the corporation vide letter dated 25th July 2013, it was also asserted that vide Office Memorandum dated 25th July 2013 though the ban was lifted but with the stipulation that separate guideline will be issued in this regard by the Cabinet Secretariat/Establishment Division, Again a query was posed to the learned counsel that reply/para-wise comments in the instant case were filed on 29.6.2015, whereas the office memorandum relating to ban on fresh recruitments was issued in the year 2013 and 2014, how come the para-wise comments do not speak of such ban. The learned counsel did not make any categorical statement and stated that the Corporation is waiting for the final guidelines.
9. The learned DAG adopted the arguments advanced by the learned counsel for the Respondent Nos. 2 and 3, however, he added that without issuing of appointment letter, no vested right has been created in favour of the petitioner, therefore a writ in terms of mandamus cannot be issued her favour.
10. We have heard the learned counsel for the parties and have gone through the record with their able assistance.
Since the maintainability of this petition has seriously been disputed by the respondents, therefore before adverting to the resolution of aforesaid question, it is wroth noting that the question of laches raised by the respondents, may not detain us any longer because in the para-wise comments filed by the respondents they themselves pleaded that on account of restraining order passed by different Benches of Hon’able NIRC, the respondents’ Corporation was not in a position to issue appointment order to the petitioner. It was also asserted that the respondents’ corporation was facing a contempt proceeding before the NIRC and since the main case of the Corporation’s CBA Union was subjudice before the NIRC, therefore they could not take any decisive step in respect of appointment of the petitioner or anyone else. The record shows that the lis pending before the NIRC was finally disposed of vide order dated 25.11.2014, According to the petitioner she was regularly approaching the respondents’ Corporation for issuance of her appointment order but on their failure to pay any heed, she had finally filed a representation on 2.3.2015 and again on respondent’s failure to respond to her representation, she filed the instant petition on 9.5.2015, therefore we are of the considered opinion that the petition is not hit by the principles of laches.
11. The respondents further stated that the recruitment of any citizen falls within the administrative domain of the respondent’s Corporation and on the strength of principle of policy, same cannot be assailed before this Court. We are afraid that contention raised by the respondents is misconceived and under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 this Court is competent enough to issue a writ against any public entity, which functions in connection with the affairs of the federation, a province or a local authority, subject to the Constitution any order can be issued by this Court for enforcement of any of the fundamental right conferred by Chapter 1 of part-II of the Constitution, therefore the right of individual to be dealt with in accordance with law (Artilce-4) equality of citizen (Article-25) and safeguard against the discrimination in services (Article-27) are inalienable rights of any citizen of Pakistan and this Court under Article-199 of the Constitution can pass any order to give a material effect and to protect the aforesaid rights of any citizen. Therefore the objection raised by the respondents in respect of the maintainability of the petition being based on wrong notion is overruled.
12. The grievance of the petitioner is that she has been denied the benefit of appointment, which was completed in all respects, except the issuance of appointment order in her favour; that no valid reasons have been shown for withholding the petitioner’s appointment, rater she has arbitrarily been victimized which is an exemplary abuse of authority.
It is established law that once the process of selection is completed in an ordinary manner, it cannot be upset in an arbitrary manner. The process of the recruitment was completed and all decisive steps had been taken for petitioner’s appointment, thus any lapse or delay in executing, a simple clerical or inconsequential formality would not render such process incomplete as a right had accrued to the petitioner for job against vacancy for which she had been selected. It would be seem that the process of selection starting form inviting application from various candidates, which culminate with the display of merit list, which was displayed after completion of requisite process. Indeed a right was created in favour of the petitioner by displaying a merit list and no powers of locus poenitentiae were left with the respondents to retract their steps.
13. During the course of the arguments the learned counsel for the respondents was asked time and again to satisfy the Court that wither said post has been abolished or at least, if he can place any documents on record to show that the executive authority has altered the requisite qualification for the post of Manager (Legal) or whether the Board of Directors of the corporation have decided to re-advertise the post and if son, the minutes of the board meeting shall be placed on record, but these questions were not attended and the earlier stance was reiterated that selection of the petitioner does nor confer any vested right upon her for appointment against the vacant position.
Thus in view of above discussion, it is held that the respondents could have retracted their steps till such time that the merit list had not left the fold of their office. But once, it had been made public thereby creating right in favour of the petitioner and the respondents’ power to withheld the same had been taken away by the law. In the circumstances, it is obvious that issuance of appointment letter is only consequential step which at the best be termed to be ministerial, because on completion of selection process a valid and tangible vested right has been accrued in favour of the petitioner.
14. The Hon’able Supreme Court of Pakistan in the case “Regarding Pensionary Benefits of the Judges of Superior Courts” (PLD 2013 SC 829) while rendering the interpretation of the “Doctrine of Legitimate Expectation” observed as under.
“As far as the rule of legitimate expectation is concerned, such rule is not a part of any codified law, rather the doctrine has been coined and designed by the Courts primarily for the exercise of their power of judicial review of the administrative actions. As per Halsbury’s Laws of England, Volume 1(1), 4th Edition, Para 81, at pages 151-152, it is prescribed:
“A person may have a legitimate expectation of being treated in certain way by an administrative authority even though he has on legal right in privae law to receive such treatment. The expectation may arise from a representation or promise made by the authority including and filled representation or from consistent past practice.
In S. v. Secretary of State of Transport Exporte Greater London
“Legitimate, or reasonable, expectation may arise from an express promise given on behlf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. The expectation may be based on some statement or undertaking by or on behalf of the public authority which has the duty of taking decision.”
In the judgment reported as Union of India v. Hindustan Development Corporation (1993)3 SCC 499 at 540, it has been held:
“The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or established procedure followed in regular and natural sequence. It is also distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.”
It is thus clear from the above that the doctrine only has nexus to administrative decisions and actions.
15. Once the petitioner has been selected after securing the highest marks and her name was placed at S.No. 1 of the merit list, she develops legitimate expectation to be considered for appointments as soon as the lis before the NICR attained finality, denial appointment to the petitioner for which no valid reason and implicit justification was rendered, when neither the requisite qualification for the vacant post was altered not the post was abolished by the public authority. Moreover, when the official respondents have patently failed to give any valid reason for denying the appointment of the petitioner. The public authority under the ‘Doctrine Of Promissory Estoppel’ was also bound to fulfill its promise to the citizen in respect of her inalienable right protected under the Constitution, and she on having been selected for the post of Manager (Legal) is rightly expecting the legitimate expectation under the rule of prudence. Denying the appointment to petitioner for no valid reasons amounts to offend her legitimate expectations in view of Articles 4.18 and 27 of the Constitution.
16. Mr.Justice ® Fazal Karim Khan in his renowned book “Judicial Review of Public Action” at Pages 1365 to 1367 defines the ‘Doctrine of Legitimate Expectation’ in the following manner.
“Chapter 7.
Legitimate expectation; promissory estoppels
Their relationship
The justification for treating ‘legitimate expectation’ and ‘promissory estoppel’ together as grounds for judicial review is one, that they both fall under the general head ‘fairness’; and two, that ‘legitimate expectation’ is akin to an estoppels. As was explained by Simon Borwn LJ in R.v. Devon CC, the various authorities show “that the claimant’s right will only be found established when there is a clear and unambiguous representation which it was reasonable for him to rely. Then the administrator or the other body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it”. The relationship between them is more clearly brought out by what Bingham LJ stated in Rv. IRC exp IMK:
“If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or stopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness”.
And in the Indian case of National Buildings Construction Corp. v. S. Raghunathan, Saghir Ahmed J. Said:
“But claims based on ‘legitimate expectation’ have been held to require reliance on representation and resulting detriment to the claimant in the same way as claim based on promissory estoppels.”
Legitimate Expectation, its evolution and Meaning
The introduction of the phrase and the concept of ‘legitimate expectation’ in English law owes its origin, as many other phrases and concepts do to Lord Denning. In Schmidt v. Secretary of State for Home Affairs, the Home Secretary refused to extent the stay in England of foreign students, and this was impugned, inter alia, on the ground that a hearing had not been given, Lord Denning MR said:
“It all depends on whether he had some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”
The judicial evolution of ‘legitimate expectation’ was traced in the opinion of the judicial Committee delivered by Lord Fraser in AG of Hong Kong v. Ng Yuen Shiu, Lord Fraser thought that the word ‘legitimate’ in that expression “falls to be read as meaning ‘reasonable’. Accordingly legitimate expectations in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis”. In CCSU case, however, Lords Diplock and Roskill preferred to use ‘legitimate expectation’. The principle “may now be said to be well-entrenched in this branch of law” namely judicial review.
Thus, when a person invokes ‘legitimate expectation’ he does not rely upon an enforceable common law or statutory right; he is merely asking to be dealt with fairly. As Lord Browne Wilkinson said in R v. Secretary of State for Home, where the Parliament left the enforcement of an Act to the Minister thereby creating a legitimate expectation that the Act would henceforth govern a particular class of person, but the Minister refused to enforce the Act, “an executive decision which effects the legitimate expectation of the application (even though it does not infringe his legal rights) is subject to judicial review.”
Role of the Court
The Court’s role when what is in issue is a promise as to how it would behave in the future made by a public body when exercising a statutory function, that is to say, when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way, is to ask, as a starting point, “what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in Findlay Findlay ’s case. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.”
It can be Procedural or Substantive
‘Legitimate expectation’ may be procedural or substantive Promises or representations giving rise to expectations of being heard or consulted are typical examples of procedural legitimate expectation. A promise or representative of home for life and remission of sentence of imprisonment which is not a right, but which creates a legitimate expectation on the knowledge that the prisoner will be granted the maximum remission permitted by the rules if no disciplinary award of forfeiture of remission is made against him are examples of substantive legitimate expectation. Another example of substantive legitimate expectation is where an alien, who has no right to enter a country other than his own, is allowed to stay for a period of time but his permit is revoked before that time. He is it was held in Schmidt v. Secretary of State. “to be given an opportunity of making representations, for he would have a legitimate expectation of being allowed to stay for the permitted time.”
Thus in view of above discussion and subject to Articles 4, 18 and 27 of the Constitution of Pakistan, the doctrine of legitimate expectation comes into play and petitioner becomes entitled to get the benefit thereof.
17. As observed hereinabove that parawise comments of the Respondent No. 2 and 3 were filed on 29.6.2015 and the respondents except raising preliminary legal objection and rendering an evasive denial remained silent on their failure to issue appointment order to the petitioner after final disposal of the lis before the NICR. However on question raised by the Court in the order dated 22.3.2016 to the effect:--
(i) whether process of recruiting against the post of Manager (Legal) initiated earlier has been withdrawn at any stage?
(ii) What are the guideline of Cabinet Secretariat/ Establishment Division?
In response to aforesaid queries, the respondents have filed office memorandum dated 22nd October, 2014, issued by Cabinet Secretariat/Establishment Division Government of Pakistan captioned as “Recruitment Policy for the Federal Services/Autonomous Bodies/Corporations”. But except filing the aforesaid police along with State Life Employees (Service) Regulation 1973 (Amended up to 31.12.1991) copy of advertisement in respect of appointment in the Health Insurance Projects of the Corporation and copy relating to powers of the Zonal Heads, did not address the aforesaid questions but just placed reliance on the judgments reported in the cases of Muhammad Bilal and seven others vs. Government of Khyber Pakhtunkhwa (2014 PLC (C.S) 769), Mst. Basharat Jehan v. Director General, Federal Government Education. FGEI (C/Q) Rawalpindi
The judgments referred by the learned counsel are distinguishable and being not applicable to the proposition involved in the instant case are of no help to the respondents.
18. Thus, it clearly manifests that the post of Manager (Legal) has never been withdrawn at any stage. However prior to aforesaid application, the respondents have filed another miscellaneous application relating to ban imposed by the Federal Government on fresh recruitments, which brought us to ponder;
‘whether ban could be applied retrospectively or pro-respectively’.
It is not difficult to find the answer. The ban imposed subsequent to the selection could not take away the rights of the petitioner which has already accrued to her and was also finalized. The ban, if any, could at the best be applied retrospectively and that being so the case of the petitioner is safe but the petitioner is now being denied such appointment for no valid reason and process of selection which has been completed in an ordinary manner cannot be upset on this pretext, in an arbitrary manner without disclosing a single instance of foul play. The reference is made to the case of Dr. Marvi Shah v. Province of Sindh
19. Needless to observe that under the principle of ‘locus poenitentiae’ the authority passing or making order, no doubt had the power to recall, modify or cancel the said order, but said order is subject to exception that where the order had taken legal effect and in pursuance thereof certain right had been created in favour of an individual, such order could not be withdrawn or rescinded to the determent of those rights. The case of the petitioner is to the effect that merit list having been displayed, the selection was completed, therefore the ban could not be applied retrospectively. The powers/discretion available under the principles of locus poenitentiae were no more available to the respondents to annul the process of selection already completed.
20. Mr. Baz Muhammad Kakar (martyred) in response to Civil Miscellaneous Application filed by the respondents relating to ban imposed by the Federal Government on new recruitments, filed a reply/objection and the office memorandum dated 28th July 2014 issued by Establishment Division, Management Service Wing of Government of Pakistan is also appended therewith, reads as follows:
“The Prime Minister has now been pleased to relax the ban on recruitment against 3692 positions under the Aghaz-e-Haqooq-e-Balochistan Package in the Federal Ministers/Divisions/ Departments/Attached Departments/Subordinate Offices/ Autonomous Bodies/Semi-Autonomous Bodies/Corporations/ Companies/Programmes/Commissions/Authorities/Foundations/Trusts with immediate effect. A list of posts of Ministries/Divisions is enclosed.”
Through aforesaid letter/office memorandum, we have come to know that the ban imposed by the Federal Government was recalled on 28th July, 2014. Thus at presently or even at the time of filling para wise comments, there was no impediment or ban in employing the petitioner who was already selected. For rendering this view that subsequently imposed ban on new recruitment applies pro-retrospectively and not retrospectively, we have been supported with the dictum laid down by the Hon’ble apex Court in the case of Secretary of Government of N.W.F.P, C&W Department v. Jamal Abdul Nasir (2003 PLC (C.S) 977), wherein it was held that:
“The perusal of the official correspondence placed on the record would show that at the time of selection and recommendations made by Public Service Commission, there was no ban on recruitments and the posts of Research Assistants were also available against which the appointments of the selectees of public Service Commission were made after fulfilling the departmental requirements. The subsequent change in policy regarding imposition of ban on fresh appointments and requirement of approval of Chief Minister before sending the requisition to the Public Service Commission would not undo the appointments already made against the vacant posts’. The policy of the Government regarding ban on the appointments under the economy derive due to financial constraints or for any other reason, would not operate retrospectively and effect the appointments made in consequence to the recommendations of Public Service Commission before the introduction of policy in question which was not enforceable from a back date and to be given retroactive operation to effect existing rights of the individuals. This is an established principle that such policies always operate prospectively and if an order has been given effect or acted upon, the concerned authority would have no power to rescind such an order.
In Shahbaz v. Crown (PLD 1956 F.C. 46) it was held that locus poenitentiae refers to the powers of receding till a decisive step is taken. If a decisive step is taken other considerations would arise but if that step is yet to be taken there is no reason to restrict the power to modify or cancel. The same view was taken in Mahboob Rabani v. Government of Pakistan (PLD 1963 Lah. 53), Adnan Afzal v. Copt. Sher Afzal (PLD 1969 SC 187) and Pakistan v. Muhammad Himayat Ullah (PLD 1969 SC 407).
In view of the legal position explained above, we hold that the appointment of respondent as Research Assistant in C&W Department, Peshawar , having already taken effect, would be out of reach of the petitioner to rescind the same in the light of principle of locus poenitentiae. The petitioners having taken decisive steps were no more empowered to retrace their steps and rescind the appointment of respondent.”
21. Thus, the aforesaid discussion bring us to the irresistible conclusion that subsequently issued ban if allowed to operate retrospectively nullifying all the steps taken for selection of the candidates, it will not only erode the confidence of the people in the public functionary but also in the Government itself. Thus subject to legitimate hope raised in the mind of candidate that she has the backing of the State and she is protected under the Constitution, will also be diminished, if her legitimate expectation was not fulfilled on pretext of subsequently issued ban imposed on new recruitments.
22. We, therefore observe with dismay that the official respondents just to save themselves from the operation of law in contempt proceedings before the NIRC took a special plea that no injunctive order has been violated and subject posts were advertised as a special package on special directives of the Prime Minister of Islamic Republic of Pakistan, in consequences whereof the Show-Cause Notice relating to contempt proceedings was discharged. Rather than being penitent for not furnishing even a single explicit reason in their reply for not issuing appointment letter of the petitioner, they introduced an entirely divergent plea at a subsequent stage relating to imposition of ban by the Federal Government, prompting them not to issue the
appointment letter. The manner and procedure adopted by the official respondents and their uncalled for tendency to deal with the case of the petitioner has dragged her to the unnecessary litigation for her legitimate right. It is all the more reprehensible for the respondents that due to their reluctance to discharge their lawful authority with diligence, the petitioner has now gone over-aged and if she is not appointed against the subject post, there will hardly be any chance of her getting appointment in a public sector institution in future.
22. We, therefore, allow this petition direct the respondents to issue formal appointment letter in favour of the petitioner for the post of Manager (Legal) in the State Life Corporation of Pakistan (Balochistan Region) within a period of one month positively after communication of this judgment. The respondents are also directed to submit compliance report for our perusal in chamber.
Copy of this judgment be also sent to the Chairman, State Life Insurance Corporation of Pakistan for information and compliance.
(W.I.B.) Order Accordingly
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