No vested Right for Appointment in Service

 PLJ 2017 Islamabad 101

Present: Shaukat Aziz Siddiqui, J.

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC)--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 2808 of 2013, decided on 18.11.2016.

Wafaqi Mohtasib (Ombudsman) Order, 1983--

----Arts. 9 & 29--General Clauses Act, 1897, S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Mal-administration--Order of ombudsman--Post of management trainee officer--Recruitment--Offer letters were issued--No vested right for appointment in service--Provincial quota--Jurisdiction--Question of--Whether ombudsman while recording findings fell in error or not--Determination--Ombudsman could have exercised jurisdiction, if any allegation of mal-administration was made; therefore, complainant should have been rejected on that score alone--President issued direction to accommodate complainant in next available training--Decision on representation is not based on finding of mal-administration--When Ombudsman had no jurisdiction to entertain complaint then President was also not vested with any authority to issue directions to “accommodate”--Petition was allowed.  [Pp. 105 & 106] A & B

Mr. M. Umer Khan Vardag, Advocate for Petitioner.

Mr. Arshad Mehmood Kiyani, learned DAG and Mr. Muhammad Bashir Khan, Advocate for Respondent No. 2.

Date of hearing: 4.11.2016.

Judgment

Petitioner, PIAC invoked the constitutional jurisdiction of this Court by way of filing instant petition with the following prayer:--

“It is therefore, respectfully requested that this writ may please be allowed and the impugned order dated 28.09.2012 may graciously be declared to be illegal, void and of no legal consequence and may please be set aside.

It is further requested that meanwhile the operation of the impugned order dated 28.09.2012 may please be suspended in the interest of justice.”

AND presented the facts as under:--

2.  That Respondent No. 2 applied for the post of Management Trainee Officer in Pay Group-V on the basis of Punjab domicile as per newspaper advertisements which appeared in different national dailies on behalf of petitioner Corporation. That the prescribed qualification for the said posts were MBA or equivalent with minimum GPA 2.6 and 70% marks. The age limit for the post was 27 years with a general relaxation of 07 years in the upper age limit as per policy of the Govt. of Pakistan. That after scrutiny of the application forms and fulfillment of all the other formalities including test and interviews, 125 applicants holding Punjab Domicile were selected in order of serial wise merit list and were issued offer letters for appointments. Further, candidates at Serial Nos. 270 to 291 were placed in stand-by on the merit list; however, no letters were issued to the stand-by candidates. That in response to letters containing offer of appointments sent to 125 candidates, 103 candidates holding Punjab Domicile gave their willingness and joined the Petitioner Corporation and 22 seats remained vacant for candidates having Punjab Domicile. Thereafter 22 stand-by candidates on the list from Sr. Nos. 270 to 291 were issued offer letters on the basis of Punjab Domicile. That Respondent No. 2 was not issued an offer letter as his name on the list was at Serial No. 295 which was even lower than those who were on the said stand-by list. That 07 candidates did not join the petitioner Corporation before the commencement of training on the above said scheduled dates, hence, total number of eligible applicants who finally joined the petitioner Corporation were 119. That no further appointment letters were issued as the prescribed scheduled training had commenced and remaining 07 positions on Punjab Domicile quota were carried over for further induction/recruitment process under the rules.

That Respondent No. 2 aggrieved of not being offered appointment in petitioner Corporation filed a complaint before the learned Wafaqi Mohtasib, Islamabad on 10.02.2010 after five months of finalization of the induction process. On receiving notice, petitioner also appeared before Wafaqi Mohtasib and filed report. After hearing the parties, learned Wafaqi Mohtasib dismissed the complaint of Respondent No. 2 vide impugned order dated 03.06.2010. Thereafter, Respondent No. 2 filed a representation dated 02.07.2010 before the President under Article 32 of Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983. Petitioner Corporation on receiving a notice also filed Para wise comments to the representation filed by Respondent No. 2 vide letter dated 20.01.2011. The same representation was forwarded to the Law and Justice. Division for processing under Rule of Business, 1973. That Respondent No. 1 without hearing the petitioner Corporation and affording an opportunity to present its defence and the same remaining dormant for over a year after filing of the comments by petitioner corporation, set aside the order dated 03.06.2010 of the learned Wafaqi Mohtasib vide its order dated 28.09.2012 and accepted the representation field by Respondent No. 2.

3.  Learned counsel for petitioner argued that impugned order dated 28.09.2012 is in violation of the Section 24-A of General Clauses Act and is not an order/judgment in legal sense. That after completion of the process of the induction and beginning of the training of newly recruited ‘Management Trainee Officers there was no occasion for any further offer letters to the stand-by applicants. That those stand-by applicants/candidates who were not issued any offer letters had no vested right for appointment into the service of Petition Corporation. That Respondent No. 1 failed to appreciate that provincial quotas are for the province and not for any particular person and that provincial quota does not go waste rather under the rules it is carried over to the next induction process. That as per Esta Code, Establishment Division O.M No. F.8/9/72-TRV, dated 31st August, 1973, the “Vacancies which cannot be filled by candidates belonging to the Province or region to which the vacancy is allocated, should be carried over and re-advertised at a later date.” That Respondent No. 1 also failed to appreciate that the Corporation is a business entity and the whole induction process of any class of employees is based on needs of the Corporation and business environment. It is further contended that in the impugned order there are no findings as what is the mal-administration for which petitioner Corporation is responsible, therefore, impugned order/letter dated 28.09.2012 is without jurisdiction and ultravires of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order of 1983.

4.  On the other hand, Respondent No. 1 filed its reply and parawise comments and controverted the assertions made in the Writ Petition. Learned DAG also assisted by learned counsel for Respondent No. 2, contended that petition is not maintainable in view of the directions contained in O.M dated 31.07.2003 (Annex-A). They further submitted that the President has taken into consideration cogent reason, legal justification and logical conclusion before passing his orders and the President has full powers to upheld, vary or set aside the recommendations of the Wafaqi Mohtasib.

5.  I have heard the learned counsel for the parties and perused the order passed by the learned Ombudsman and also order passed on representation. Without going into merits of the case, I find it appropriate to dilate upon the question as to whether learned ombudsman while recording the findings fell in error or not? For convenience para-6 under the heading of “FINDINGS” is reproduced herein below:

“The Agency filed the photocopies of the entire relevant record regarding the process of test/interview, offer of appointment, joining reports etc. to substantiate its contentions. The Agency submitted that 250 vacancies, out of which 125 were selected with Punjab Domicile against the reserved Provincial quota. However 22 candidates did not join, hence another 22 candidates on the merit waiting list were issued letters of offer. The complainant was 24th on the waiting list and as such could not qualify for appointment in the Agency. The complainant could not deny or controvert the record of the Agency and as such the issue is decided in the negative.

In view of the above position, the instant complaint is rejected for having no merit.”

6.  Admittedly, respondent through his complaint never alleged about mal-administration on the part of petitioner. Even in the order passed by the learned ombudsman, despite rejection of complaint there is no reference of mal-administration. Article-9 of establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983 is being reproduced herein below to determine the grounds of complaint and authority to be exercised by the ombudsman.

“9.  Jurisdiction, functions and powers of the Mohtasib: (1) The Mohtasib may on a complaint by any aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court of a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation or maladministration on the part of any Agency or any of its officers or employees:

Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which--

(a)      are sub-judice before a Court of competent jurisdiction or tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him; or

(b)      relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or government; or

(c)      relate to, or are connected with, the defence of Pakistan or any part thereof, the military, naval and air forces of Pakistan, or the matters covered by the laws relating to those forces.

(2)  Notwithstanding anything contained in clause (1) the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matters relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein.

(3)      For carrying out the objectives of this Order and, in particular for ascertaining the root causes of corrupt practices and injustice, the Mohtasib may arrange for studies to be made or research to be conducted and may recommend appropriate steps for their eradication.

(4)  The Mohtasib may set up regional offices as, when and where required. “

7.  As is evident from above provisions of law, the ombudsman could have exercised the jurisdiction, if any allegation of mal-administration was made; therefore, the complainant should have been rejected on this score alone. Since learned ombudsman dismissed the complaint on merit, therefore, on representation by the respondent under Article-32, the order was passed with following direction:

“Accordingly, the President has been pleased to accept complainant’s representation and modify the recommendations of the Mohtasib with the direction to the Agency to accommodate the complainant in the next available training.”

8.  Worthy President issued direction to accommodate the complainant in the next available training. The decision on the representation is not based on the finding of maladministration. Even otherwise, the act called into question by way of filing complaint was an executive function which fell out of the domain of learned ombudsman. The august Supreme Court in a case titled Peshawar Electric Supply Company Ltd. vs. Wafaqi Mohtasib (Ombudsman), Islamabad and others reported as PLD 2016 S.C 940 held as under:--

“Matters of appointment and recruitment in a public sector company--Appointment and/or recruitment in a public sector company was an executive function and such function could not be performed by the Wafaqi Mohtasib under Art.9 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, which excluded his jurisdiction to entertain a complaint of such nature.“

9.  When learned Ombudsman had no jurisdiction to entertain the complaint then Worthy President was also not vested with any authority to issue directions to “accommodate” the Respondent.

In this view of the matter, instant petition is allowed and impugned order dated 28.9.2012 is set aside.

(R.A.)  Petition allowed