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

PLJ 2018 Islamabad 302

Present: Mohsin Akhtar Kayani, J.

RASHID AMEER--Petitioner

versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and 4 others--Respondents

W.P. No. 1631 of 2017, decided on 29.12.2017.

Constitution of Pakistan, 1973--

----Art. 199--Initial Appointment to Civil Posts (Relaxation of upper age limit) Rules 1993, R 3--Civil Servants (APT) Rules 1993, R 12--Recruitment in Counter Terrorism Force--Personnel of Islamabad Police seeking upper age relaxation--Notification of age relaxation issued by Establishment Division---SRO No. 1079/1/93--Minimum age prescribed was 18 to 25 years--Applicability of Respondents invited applications for post of ASI in Counter Terrorism Force, petitioner’s application was turned down being over-aged by 4 years, 1 month & 10 days--Inspector General Police denied age relaxation on ground that notification of establishment division does not apply on Islamabad Police Validity--Establishment Division made rules under title Initial Appointment to Civil Posts (Relaxation of Upper age limit) Rules 1993, whereby relaxation in recruitment rules was provided in respect of different candidates--Vide another office Memo, clarification regarding general relaxation of 5 years in upper age limit prescribed in Recruitment Rules was made--Rule 3 of Rules 1993 as well as office Memo clearly establish that any person, who is working in government department and has completed two years continuous service on closing date of receipt of application, 10 years age relaxation is permissible to him, whereas, at time of advertisement for post of ASI, petitioner was 29 years old--Petitioner cannot be deprived from his valuable right, which has accrued in his favor through office memo--Petition was allowed.

                                                   [Pp. 305, 306, 308 & 309] A, B, C & D

Sardar Muhammad Tariq Fareed Gopang, Advocate for Petitioner.

Mr. Arshad Mahmood, Superintendent Establishment Division for Respondents.

Mr. Abdul Rauf, Inspector Legal Islamabad Police on behalf of Respondents Nos. 3 & 4.

Ms. Saima Naqvi, State Counsel.

Date of hearing: 21.12.2017.

Judgment

Through this writ petition, the petitioner has assailed the order dated 27.04.2017, passed by Inspector General of Police, Islamabad/Respondent No. 3, whereby application filed by the petitioner for relaxation in age limit to apply for the post of ASI (BPS-11) in Islamabad Police Counter Terrorism Force (CTF) was dismissed on the ground that the petitioner is over aged by 4 years, 1 month and 10 days against the prescribed age limit of 25 years.

2.  Brief facts, necessary for disposal of the instant writ petition are that the petitioner is a constable in Islamabad Police and performing his duties since 10.07.2007. Father of the petitioner died during his service on 03.11.2011 as DSP in Sindh Police, Karachi. Respondent No. 4 published vacancies for the post of ASI and the petitioner in order to apply for the said post moved an application to Inspector General of Police/Islamabad/Respondent No. 3 on 18.04.2017 for relaxation in age, however, the application of the petitioner was turned down vide impugned order dated 27.04.2017 on the ground that requisite age for the post of ASI is 25 years, whereas petitioner is over aged by 4 years, 1 month and 10 days.

3.  Learned counsel for the petitioner has contended that order of rejection of the application filed by the petitioner is against the rules, whereas Establishment Division vide office memorandum dated 24.06.2010 gave clarification regarding general relaxation in upper age limit, which is also applicable to Islamabad Capital Territory Police but Respondent No. 3 did not consider the said office memorandum, which is misconduct on part of Respondent No. 3. Learned counsel for the petitioner further argued that the petitioner being already in service is entitled for age relaxation as per office memorandum of Establishment Division; that Establishment Division/Respondent No. 2 in its report submitted before this Court regarding age relaxation has also acknowledged that office memorandum dated 24.06.2010 provides 05 years general age relaxation to all citizens of Pakistan and 10 years to those employees, who have completed 02 years continuous government service on the closing date for receipt of application.

4.  Conversely, Inspector Legal, Islamabad Police argued that office memorandum dated 24.06.2010 is not applicable to Islamabad Police and the advertisement published for the recruitment of ASI was duly approved by the Establishment Division through Ministry of Interior, Islamabad but the Establishment Division did not refer any such office memorandum at that time. He further argued that if relaxation in age limit is allowed, it will open Pandora box; that recruitment process of ASI (CTF) has already been completed and selected candidates are getting training in Hangu Police College since 25.11.2017. He further argued that petitioner will be given chance in the next recruitment process for the post of ASI subject to his clearance under the rules.

5.  I have heard the arguments and gone through the record.

6.  From perusal of the record, it has been observed that Respondent No. 3 made advertisement in different newspapers inviting applications from suitable Pakistani Nationals for the post of ASI in Counter Terrorism Force, Islamabad, Capital Territory Police [CTF(ICT Police)]and as a result whereof, the petitioner being a constable in ICT, Police filed an application before Inspector General of Police, Islamabad/Respondent No. 3 for relaxation in age limit to apply for the said post, which was turned down vide impugned order/letter dated 27.04.2017 mainly on the ground that petitioner is over aged by 4 years, 1 month and 10 days, whereas prescribed age limit for the post of ASI is 25 years and no relaxation in age is admissible as per advertisement. The application submitted by the petitioner before Respondent No. 3 is reproduced as under:

بخدمت جناب انسپکٹر جنرل آف پولیس اسلام آباد۔

عنوان:  عمر میں رعایت برائے بھرتی بطور ASI سال 2017

جناب عالیٰ!

گزارش ہے کہ فدوی مورخہ 10.7.2007 کا بطور کنسٹیبل بھرتی شدہ ہے۔ فودی کو بذریعہ اخبار معلوم ہوا ہے کہ محکمہ اسلام آباد پولیس میں ASI کی پوسٹ کیلئے چند آسامیاں خالی ہیں۔ فدوی ASI کی پوسٹ کے مطلوبہ میعار پر پورا اترتا ہے۔ جبکہ فدوی کو بذریعہ اشتہار معلوم ہوا کہ ASI کی پوسٹ کیلئے عمر کی حد 25سال مقرر کی گئی ہے۔ جبکہ فدوی کی عمر 29 سال ہے، فدوی محکمہ ہذا میں تقریبا 10 سال سے ڈیوٹی سر انجام دے رہا ہے لہذا فدوی جناب سے بذریعہ درخواست استدعا  کرتا ہے کہ فدوی کو محکمہ ہذا میں بطور کنسٹیبل ہونے کی بنا پر ASI کی پوسٹ کے لئے اپلائی کرنے کیلئے عمر میں رعایت دی جائے تاکہ فدوی ترقی حاصل کر سکے۔

فدوی نے درخواست کے ہمراہ (Relaxation of Upper Age Limit) Rules, 1993 مجاریہ Government of Pakistan, Cabinet Secretariat Establishment Division کے نوٹیفیکیشن نمبر S.R.O. 1079(1)/93 کی کاپی بھی لگائی ہے جس کے تحت فدوی Part-II General Relaxation  کی سیریل نمبر (iii) اور سیریل نمبر  (v) پر پورا اترتا ہے۔

سیریل نمبر (iii) کے مطابق فدوی متعلقہ اسامی کی آخری تاریخ تک فدوی اپنی 02 سالہ ملازمت پوری کرچکا ہے۔ اور اس لئے فدوی کو 10 تک کی رعایت حاصل ہے۔

سیریل نمبر (v) کے مطابق فدوی کے والد Civil Servant ﴿سندھ پولیس میں بطور DSP﴾ تھے جو دوران سروس وفات پا گئے تھے۔ اس طرح فدوی 5 سال کی رعایت کا مستحق ہے۔

فدوی کی آپ جناب سے گزارش ہے کہ دونوں میں سے کسی بھی ایک Rule کے تحت فدوی کو ASI کے لئے Apply کرنے کی اجازت دی جائے۔ جناب کی عین نوازش ہوگی۔

7.  The above referred application was forwarded to Respondent No. 3 by Superintendent of Police Headquarters, Islamabad on 18.04.2017. Respondent No. 3 while deciding the same did not considered the law referred in the application in its true perspective.

8.  It has been observed from the record that Establishment Division vide S.R.O. No. 1079(I)/93 in pursuance of rule 12 of the Civil Servants (Appointment, Promotion Court and Transfer) Rules, 1993, made rules under the title Initial Appointment to Civil Posts (relaxation of Upper Age Limit) Rules, 1993, whereby relaxation in the recruitment rules was provided in respect of the different candidates. Rule 3 of Initial Appointment to Civil posts (relaxation of Upper Age Limit) Rules, 1993 is reproduced as under:--

“(3) Maximum age limit as prescribed in the recruitment rules shall be relaxed in respect of the candidates mentioned in column (2) below to the extent mentioned against each under column (3):--

Sl No.	Category of candidates	Age relaxation admissible.
1	2	3
i)	(a) Candidates belonging to Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all posts under the Federal Government	3 years.
	(b) Candidates belonging to Sindh (R) and Balochistan for posts in BPS-15 and below under the Federal Government.	3 years
ii)	Released or retired Officers/personnel of the Armed Forces of Pakistan.	15 years or the number of years actually served in the Armed Forces of Pakistan, whichever is less.
iii)	Government servants who have completed 2 years continuous Government service on the closing date for receipt of applications.	10 years, upto the age of 55 years.
iv)	Disabled persons for appointment to posts in BPS-15 and below.	10 years
v)	Widows, son or daughter of a deceased civil servant who dies during service	5 years

9.  Besides the above, referred rule, vide office memorandum of Establishment Division dated 24.06.2010 clarification regarding general relaxation of 5 years in upper age limit prescribed in Recruitment Rules was made and this very fact has been admitted by Respondent No. 2/Establishment Division in its report submitted before this Court in the instant writ petition. Relevant paragraphs of the above referred office memorandum are reproduced as under:--

“2.  In light of the recommendation of the Senate Standing Committee, the Ministries/Divisions/Departments are advised that hence-forth, the concession of 5 years general relaxation in upper age limit shall be clubbed with the maximum limit of the post in their advertisements. In case usual upper age limit of posts in various Basic Pay scales is as in column (2) below:--

Basic pay Scale (1)	Age Limit. (2)	General Age Relaxation (3)	Maximum Age Limit (4)
1-15	25 years	+5 years	30 years
16	28 years	+5 years	33 years
17	30 year	+5 years	35 years
18	35 years	+5 years	40 years
19	40 years	+5 years	45years
20	45 years	+5 years	50 years
21	50 years	+5 years	55 years

3.  The Ministries/Divisions are further advised that the following relaxation in upper age limit available to the category of candidates specified below (to the extent mentioned against each) should be clearly mentioned in their advertisements for vacant posts:--

Sl. No.	Category of candidates	Age relaxation admissible
1	2	3
(i)	(a) Candidates belonging to Scheduled Castes Buddhist Community, recognized tribes of the Tribal Areas, Azad Kashmir and Northern Areas for all posts under the Federal Government.	3 years.
	(b) Candidates belonging to Sindh(R) and Balochistan for  posts in BPS-15 and below under the Federal Government.	3 years.
(ii)	Released or retired Officers/personnel of the Armed Forces of Pakistan.	15 years or the number of years actually served in the Armed Forces of Pakistan, whichever is less.
(iii)	Government servants who have completed 2 years continuous Government service on the closing date for receipt of applications.	10 years, upto the age of 55 years.
iv	Disabled persons for appointment to posts in BPS-15 and below.	10 years
(v)	Widows, son or daughter, of a deceased civil servant who dies during service	5 years

Note:  Where a candidate is entitled to age relaxation under more than one categories specified above, he shall be allowed relaxation in age only in one category.

4.  In addition to above, the President/Prime Minister may, on extreme compassionate grounds, grant age relaxation to an individual candidate for a period not exceeding three years.

5.  Further, where the Ministries/Divisions/Departments have recently advertised various posts and the candidates have appeared in written test but their interviews are yet to be held i.e. their selection process is not over, the said posts may be re-advertised for additional applications with clear rule position about age limit and age relaxations as at paras 2 & 3 above.

10.  The above referred Rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010 clearly establish that any person, who is working in the government department and has completed two years continuous service on the closing date of receipt of the application, 10 years age relaxation is permissible to him, whereas at the time advertisement for the post of ASI, the petitioner was 29 years old but his request for relaxation in age to apply for the post of ASI was turned down by Respondent No. 3

11.  The stance taken by Islamabad Police Department in its report/reply to the writ petition is based upon advertisement, wherein age limit was mentioned 18 to 25 years for both categories alongwith other pre-requisite.

12.  In the light of office memorandum of Establishment Division dated 24.06.2010, an order was passed in CM No. 01/2017 on 21.06.2017, whereby the IG of Islamabad Police was directed to issue direction to the relevant authorities to include the name of the petitioner for his participation in the recruitment process but surprisingly Respondent No. 3 did not bother to obey the said order. The Conduct of the police official is highly disregarded to the Court’s orders.

13.  Islamabad Police also acknowledged passing of order dated 21.06.2017 in CM No. 01/2017 in its report/reply to the writ petition, however, Islamabad Police took the stance that all the selected candidates have joined the Hangu Police College for training on 25.11.2017 and it is not possible for them to accommodate the petitioner this stage.

14.  The petitioner cannot be deprived from his valuable right, which has accrued in his favour through office memorandum of Establishment Division dated 24.06.2010.

15.  Moreover, clause 5 of the said office memorandum further strengthen case of the petitioner that if the advertised posts are under the process of selection and interviews have not yet been taken, the said post will be re-advertised for additional application with clear rule position about age limit and age relaxations, therefore, it can safely be concluded that Islamabad Police being under the Administrative control of Ministry of Interior was under obligation to follow the law regarding age relaxation in stricto sensu and despite Rule 3 of Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010, Respondent No. 3 did not extend the benefit of relaxation in age to the petitioner, which is contrary to the law.

16.  Keeping in view the background and law on the subject referred above, this Court is of the considered view that the process of recruitment of ASI, in which the petitioner was not granted relaxation in age by ignoring Rule 3 of Initial appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 1993 as well as office memorandum of Establishment Division dated 24.06.2010, Islamabad Police Department has deprived the petitioner to apply for the post of ASI in clear cut violation of the rules. Depriving the petitioner to apply for the post of ASI by ignoring the relevant rules is also violation of  Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, which guarantees equal protection of law.

17.  For the foregoing reasons, instant writ petition is accepted and the petitioner is declared to be eligible to apply for the post of ASI on the basis of relaxation in age by 10 years as he is serving in Islamabad Police as constable since his appointment i.e 10.07.2007, therefore, impugned order dated 27.4.2017 is hereby set aside and instant writ petition is allowed.

18.  As per report/reply of Islamabad Police Department the recruitment process has been completed and selected candidates have joined their training on 25.11.2017, therefore, at this stage, if this Court set asides the entire recruitment process, it will affect the other selected candidates, who have already earned their legitimate right after due process of law and they should not be suffered for the wrong of Respondent No. 3, who did not bother to follow the rules, law and even order of this Court. While relying upon the judgments 2011 PLD SC 365 (Shahid Orakzai vs Pakistan through Secretary Law, Ministry of Law, Islamabad) & (PLJ 2011 [Lahore] 32) (DB) (All Pakistan Textile Mills Association vs. FOP), whereby the relief can be molded in the changed circumstances, Respondents No. 3 & 4 are directed to reinitiate recruitment process for the post of ASI (BPS-11) in Islamabad Police (CTF) only to the extent of petitioner, wherein the petitioner shall apply and participate in written test, physical test or any other test, which were taken by the Recruitment Committee in the cases of previously selected candidates. This recruitment process shall be completed on merits within 30 days from the date of announcement of this judgment under intimation to this Court through learned Registrar. If the petitioner successfully completes all the stages of recruitment process, he shall be appointed and sent to training in Hangu Police College, where the already selected candidates are getting training.

19.  Inspector General of Police Islamabad/Respondent No. 3 is dircted to strictly follow office memorandum of Establishment Division dated 24.06.2010 regarding relaxation is age in future recruitments and if any advertisement regarding recruitment in Islamabad Police is made in violation of the said office memorandum as well as Rule 3 of Initial Appointment to Civil Posts (relaxation of Upper Age Limit) Rules, 1993, the same shall be illegal, hence, Secretary Establishment is directed to convey the said office memorandum to the Secretary Ministry of Interior as well as Chief Commissioner, Islamabad and Inspector General of Police for ready reference and application of the rules regarding relaxation in age.

20.  As earlier mentioned in Para 12 of the judgment that order passed in C.M No. 01/2017 on 21.06.2017 was not complied with by Respondent No. 3 despite the fact that the order was passed in the presence of Abdul Rauf, Inspector Legal, Islamabad Police, Tahir Jamil Ahmed, D.S (R-II) Establishment Division and M.Waqar, P.A (R.6) Establishment Division, therefore, office is directed to issue notice to the Inspector General of Police and Assistant Inspector General Police (Estabishment), i.e. Respondents No. 3 & 4 to explain their position as to why the petitioner was not allowed to participate in the recruitment

process and contempt of Court proceedings may not be initiated against them for willful defiance of this Court’s order dated 21.06.2017. The Inspector General of Police shall submit detailed report comprising of recruitment process, stages, dates of recruitment and after fixing the responsibility of the delinquent police official who has not complied with the Court order.

21.  The replies of above mentioned persons shall reach to this Court within 15-days from the date of announcement of this judgment, whereafter office shall register this case as criminal original and place before this Court on 25.1.2018 for further proceedings.

(Z.I.S.)            Petition allowed

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Appointment of Counsel at State Expense

PLJ 2010 Cr.C. (Lahore) 617

Present: Ijaz Ahmad Chaudhry, J.

MUHAMMAD ADNAN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and others--Respondents

Crl. Revision No. 521 of 2009, heard on 8.12.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 540, 435 & 439--Revision--Application for re-examination of PWs--Ground--Engaged a private counsel, which did not seem to be a good ground for re-examination of the witnesses, who have already undergone the lengthy test of the cross-examination and respondent has failed to show any reason that how he has been prejudiced in his defence--Held: Provisions of Section 540 Cr.P.C. cannot be exercised just for filling up the lacunas--To provide opportunity for engaging counsel is the right of the accused but the accused cannot be allowed to misuse the said concession and if he fail to engage the counsel, the trial cannot be lingered on and the Courts are competent to decide the matter after opportunity the counsel at state expense--Witnesses cannot be burdened to appear again and again in the Court for re-examination without any reason, who are already reluctant to become witnesses due to fear of the accused--Revision allowed--Impugned order set aside.     [P. 620] A

Mr. Muhammad Irfan Nasir Cheema, Advocate for Petitioner.

Mr. Muhammad Azhar, Advocate for Respondent No. 2.

Ch. Amjad Hussain, DPG for State.

Date of hearing: 8.12.2009.

Judgment

This revision petition under Sections 435 & 439 Cr.P.C., has been filed by Muhammad Adnan petitioner against the order dated 10.06.2009 passed by a learned Additional Sessions Judge, Wazirabad, District Gujranwala whereby he accepted an application filed by Respondent No. 2 under Section 540, Cr.P.C. for recalling the witnesses already recorded by the learned trial Court.

2.  Brief facts of the case are that the petitioner is complainant of case FIR No. 216 dated 4.5.2006, registered under Sections 302/148/ 149/109/452 PPC at Police StationGhakhar Mandi District Gujranwala. The trial of the said case was pending adjudication in the Court of learned Additional Sessions Judge, Wazirabad against Respondent No. 2 and his real father Muhammad Nawaz. After framing of charge, the learned trial Court summoned the evidence, the co-accused of Respondent No. 2 engaged his counsel but Respondent No. 2 failed to engage his counsel whereupon the learned trial Court appointed the counsel for Respondent No. 2 at state expenses. The statements of six PW-s were recorded by the learned trial Court and PW-1 to PW-4 were duly cross-examined by the counsel appointed at the state expenses on behalf of Respondent No. 2, whereas, cross-examination on PW-5 & PW-6 was kept reserved. At this stage, Respondent No. 2 engaged his private counsel and on very first date the Respondent No. 2 filed an application under Section 540, Cr.P.C. for re-summoning of PW-1 to PW-6 for cross-examination, which has been dismissed to the extent of PW-3 and PW-4 while the same has been accepted to the extent of PW-1 and PW-2 for re-summoning of both the PW-s for cross-examination on behalf of Respondent No. 2, vide order dated 10.6.2009, which has been challenged through this revision petition.

3.  The learned counsel for the petitioner contends that since the witnesses have already been examined, therefore, the impugned order passed by the learned Additional Sessions Judge for recalling the said witnesses is unwarranted by law; that the witnesses who have already been examined and cross-examined should not be allowed to be re-examined merely on the ground that the accused has engaged new counsel, but the learned trial Court without going into the merits of the case has re-called the PW-s for re-examination in an illegal and unlawful manner, which would amount to fill up the lacunas, and that there being no good cause for re-examination of the witnesses the impugned order is liable to be set aside as if such a practice is allowed, there will be no end of the criminal cases and the will be over burdened.

4.  On the other hand, learned counsel for Respondent No. 2 contends that originally in the FIR Zafar Iqbal and five accused etc were named with specific roles, but after seven months the complainant having entered into compromise with them has introduced Respondent No. 2 and his father as accused; that there were strained relations between the father and Respondent No. 2 as father of Respondent No. 2 had sold the land to complainant party as the deceased was real brother of Muhammad Nawaz co-accused and subsequently Respondent No. 2 and his father have been introduced to avenge the litigation started due to the sale of the land and due to the intervention of Respondent No. 2; that Respondent No. 2 has no sources to engage the counsel and father of Respondent No. 2 who is his co-accused is not interested in the defence of Respondent No. 2 due to the strained relations; that challan was submitted in the Court on 10.2.2008 while the accused were summoned on 2.12.2008, when the copies were supplied and state counsel was engaged to appear on behalf of Respondent No. 2 and subsequently statements of the witnesses have been recorded and then Respondent No. 2 became in a position to engage the counsel and now he has engaged counsel and in the interest of justice, Respondent No. 2 may be allowed to cross-examine the witnesses. Relies upon NLR 2008 Criminal 14, PLJ 2006 Lahore 113 and PLD 1991 S.C. 430.

5.  I have heard the learned counsel for the parties and also gone through the impugned order passed by the learned Additional Sessions Judge, with due care and caution. The instant case was registered on 4.5.2006 and then after framing of the charge PW-1 and PW-2, the alleged eye-witnesses were examined on 5.1.2009, who were duly cross-examined by the learned counsel appointed on behalf of Muhammad Imran Respondent No. 2 at state expense. Now on 20.05.2009 after about five months of their examination, Respondent No. 2 moved an application for re-examination of the PW-S under Section 540 Cr.P.C. on the ground that he has engaged a private counsel, which does not seem to be a good ground for re-examination of the witnesses, who have already undergone the lengthy test of the cross-examination and Respondent No. 2 has failed to show any reason that how he has been prejudiced in his defence. The engagement of another counsel at the later stage is not a ground for affording him opportunity as well for cross-examination on the witnesses, who have already been examined as it will start an unending litigation resulting into over burdening the Courts, which are already crowded with litigation and it is settled law that the provisions of Section 540 Cr.P.C. can not be exercised just for filling up the lacunas. To provide opportunity for engaging counsel is the right of the accused, but the accused cannot be allowed to misuse the said concession and if he fails to engage the counsel, the trial cannot be lingered on and the Courts are competent to decide the matter after opportunity the counsel at state expense. The impugned order has been passed on the flimsy ground without disclosing that how the re-examination of the eye-witnesses (PWs. 1 & 2) is necessary to reach at the just conclusion of the trial. The witnesses can not be burdened to appear again and again in the Court for examination without any reason, who are already reluctant to become witnesses due to fear of the accused.

6.  For the fore-going discussion, this criminal revision is allowed, the impugned order is set aside and the learned trial Court is directed to continue with the trial from the present stage, which should be concluded at least within two months after the receipt of copy of this order as it has already become an old matter.

(A.S.)   Revision allowed.