SECRETARY FINANCE and others vs GHULAM SAFDAR

' RANA BHAGWANDAS, J.--- Both the appeals arising out of identical facts and similar questions of law with the leave of this Court arise out of judgments of Lahore High Court dated, 17-9-1997 followed in subsequent writ petition decided on 6-3-2000 whereby High Court issued a writ of mandamus against the appellants directing them to appoint the respondents as Assistant National Savings Officers in the Directorate of National Savings in the case of respondent-Ghulam Safdar with effect from 31-5-1996 while in the case of respondent-Muhammad Ishaq, direction was made for issuance of appointment letter without specifying any date.

2. Facts leading to two writ petitions filed by the respondents appear to be that the Director- General, National Savings Organisation invited applications for the posts of Assistant National Savings Officers by advertisement in different newspapers dated 24-7-1995. Respondents, possessing requisite qualifications, applied for the posts. They were called for written test and subsequently for interview as well, but, as no merit list was issued and they were not apprised of the result despite enquiries, they filed separate writ petitions before the Lahore High Court seeking following reliefs:-- "It is, therefore, respectfully prayed:-- ' that a writ of mandamus may kindly be issued with the direction to the respondents to declare the result of the written test and interview taken on 16-1-106 and 15-5-1996 respectively for the post of Assistant National Savings Officer (BS-11).

' It is further prayed that the respondents may be ordered/directed to produce the record of the written test and interview taken for the said post in this Honourable Court immediately.

' It is further prayed that if according to the result the petitioner is found eligible and come on merit, the respondents may also be ordered/directed to appoint the petitioner on the said post with effect from 31-5-1996 with all service benefits."

3. It was averred in the memo. Of petitions that the respondents having appeared in the written test and interview, as per the terms and conditions prescribed by the appellants, the latter were legally bound to declare the result. According to them, the respondents were being adversely affected by inaction or refusal of the appellants to declare their results, who were duty bound to act in accordance with law. Mala fide intentions and ulterior motives were also attributed to the appellants with the assertion that in fact they intended to accommodate certain persons of their own choice.

4. Writ petitions were seriously contested on facts and in law. It was contended that the respondents had no locus standi to invoke the Constitution of the High Court. Appearance of the respondents in the written test and interview was not disputed but it was explained that as a matter of fact and as per existing practice, policy and procedure the results were never communicated to any candidate and remained confidential. It was denied that there was any mala fide intention or ulterior motive behind non-declaration of results or that the appellants intended to accommodate certain persons of their choice. It was clarified that appointment order was not issued to any applicant due to ban on fresh recruitment imposed by the Government of Pakistan vide circular letter dated 23-11-1996 issued by the Establishment Division, Government of Pakistan. Appellants also claimed that recommendation pertaining to the respondents' recruitments were likely to be completed by the end of October, 1996 and were about to be sent to the Establishment Division through Finance Division in November, 1996 when the Government of Pakistan imposed ban on fresh recruitment. Besides the recommendations required vetting/clearance of the Establishment Division for appointment under the Centralised System of Recruitment till it was discontinued vide Establishment Division circular dated 18-11-1996. Initially, Establishment Division, Government of Pakistan was not impleaded as party to the first writ petition but under the High Court order the said Division was impleaded as respondent No,5. Parawise comments furnished by the said Division are almost the same as by the Government of Pakistan, Finance Division with the further disclosure that respondentGhulam Safdar was selected against quota reserved for the Province of Punjab and his name appeared at Serial No,2 of the merit list. In the writ petition filed by respondent-Muhammad Ishaq, while Establishment Division was arrayed as respondent Nol., Finance Division was not impleaded as party to the petition. From the copy of parawise comments filed on behalf of respondents, it appears that these were signed by Director (Legal) Central Directorate of National Savings, Islamabad but it is not clear whether Establishment Division had authorized the said Director (Legal) to file comments on its behalf or separate parawise comments were filed by the Establishment Division like the other petition.

5. Learned Judge in Chambers of the Lahore High Court, vide judgment, dated 17-9-1997, dilated upon Office Memorandum dated 19-6-1994 issued by the Establishment Division requiring Ministries, Divisions and Attached Departments to process the recruitments against vacant posts under Centeralised System of Recruitment through Establishment Division. This circular directed various functionaries that before finalizing the results, the same should be sent to Establishment Division for vetting/clearance. Learned Judge observed that plain reading of the above clause would show that the Establishment Division was not vested with the power of approval and the expression "vetting/clearance" could not be equated with the term approval. Learned Judge was of the opinion that the provisions of the said Office Memorandum if read in conjunction with the above instructions, would clearly show that the directions contained therein were in the nature of instructions only meant for internal administration and mere instructions could not be placed on higher pedestal so as to treat them as rules nor could the same be read to mean that the competence of the appointing authority was, in any way, eroded by the said instructions. It was observed that the procedure meant for selection having been completed, the result was to be announced and by creating a bar of vetting/clearance, the same could not be set at naught by taking away competence of appointing authority or by passing total procedure meant therefor.

Resultantly, High Court held that refusal on the part of the appellants to appoint respondent- Ghulam Safdar to a post he was already selected was without lawful authority, absolutely illegal and unwarranted in the facts and circumstances. Consequently, writ petition of respondent- Ghulam Safdar. Was allowed in terms as mentioned earlier. Writ petition of respondent- Muhammad Ishaq, filed after about two years of the first judgment; was allowed on the basis of the judgment in the earlier writ petition.

6. We have heard Mrs. Naheeda Mehboob Ellahi, learned Deputy Attorney-General for the appellants and Sahibzada Ahmad Raza Khan Qasuri, learned Senior Advocate Supreme Court for respondent-Ghulam Safdar and gone through the record.

7. Learned Deputy Attorney-General vehemently contended that learned Judge in Chambers of the Lahore High Court grossly fell into error by observing that there was variation in the stand of the appellants and the Establishment Division in that the Centralised System of recruitment was discontinued by the Federal Government vide Office Memorandum, dated 18-11-1996 whereas ban on recruitment was imposed vide circular letter dated 23-11-1996. In this context, she invited our intention to the contents of circular letter, dated 18-11-1996 captioned as "Recruitment procedure" which, apart from conveying the decision of the Cabinet reiterated its decision dated 6-11-1996 (already circulated) regarding ban on fresh appointments. Although the decision imposing ban on fresh appointments was taken by the cabinet in its meeting held on 6-11-1996, Centralised System of Recruitment was discontinued through decision in the Cabinet Meeting held on 11-11-1996. It appears that the Cabinet decision with regard to ban on fresh recruitment was circulated vide circular letter dated 23-11-1996 while decision regarding recruitment procedure notified earlier vide Office Memorandum dated 18-11-1996. Fact of the matter, however, remains that the circular letter dated 18-11-1996 did convey the decision of the Cabinet imposing ban on fresh appointments Learned Deputy Attorney-General is absolutely correct and, to this extent any observation by the High Court in the impugned judgment, is contrary to facts and manifestly suffers from misreading of record.

8. Learned Deputy Attorney-General then submitted that appearance of the respondents in the written examination and the interview test followed by their selection did not, per se, vest them with any legal right, muchless fundamental right, to be enforced through a writ of mandamus within the purview of Article 199(1)(c) of the Constitution of Islamic Republic of Pakistan. Learned counsel emphasized on the language used in this clause of the Constitutional enactment, which clearly stipulates that a High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any aggrieved person, make an order, give such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Right conferred by Chapter 1 of Part II. There appears to be much substance in the submission of the learned Law Officer representing the appellant- Government. These are indeed the essential requirements and prerequisite guidelines for the exercise of writ jurisdiction.

9. Learned counsel for the respondent did not dispute the position that the respondent was seeking the enforcement of his right under the above said clause of the Constitution but was unable to refer to any particular Fundamental Rights conferred upon the respondent for enforcement whereof he could be legally held to be entitled to enforce any of such rights secured and guaranteed by the Constitution. Mr. Qasuri vehemently emphasized that once the facts of the case surfaced on the record of the High Court that the respondent test and Ghulam Safdar had secured second position in the merit list, High Court could not shut its eyes and permit the appellants to deny the appointment to him to a post advertised by them.

10. Be that as it may, it is difficult to sustain the prayer of the respondents since mere selection in written examination and interview test would not, by itself, vest candidates with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court.

Admittedly, the appellants had not issued any offer of appointment to the respondents and their appointment was subject to clearance by the Establishment Division under the Centralised System of Recruitment till it was discontinued in November, 1996, which again coincided with the imposition of ban on fresh recruitments, which could not be safely ignored by the appellants. Thus, the High Court was not right in overlooking this aspect of the case and issuing a writ of mandamus of the nature prayed for.

11. "Mandamus" literally means a command. It differs from writs of prohibition' or 'certiorari' in its demand for some activity on the part of the body or person to whom it .Is addressed, for the performance of public duty. In other words, it is a command directed to State or corporation, officer or, inferior Court, requiring the performance of a particular duty therein specified, which duty results from the official position of the party to whom the writ is directed, or from operation of law.

The writ of mandamus is a high prerogative writ of a most extensive remedial nature and is, in form, a command issuing from the High Court, directing any person, corporation, or inferior Court requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to do the justice; in all cases where there is a specified legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient; beneficial and effective. To sum up, a writ of "mandamus" commands the person to whom it is addressed to perform some public or quasi public legal duty, which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy.

In the light of Constitutional mandate, subject to other conditions, it is absolutely necessary that the law should impose on the officer concerned the duty to do what' he is refusing or omitting to do and that petitioner should be an aggrieved party having no other adequate and efficacious remedy.

12. Writ of mandamus is, therefore, appropriate extraordinary remedy. The writ of this nature is described in the celebrated authority of Constitutional Law by E.S.C. Wade and G. Godfrey Phillips in the following words:- "Mandamus is a peremptory order, issuing out of the King's Bench Division of the High Court, commanding a body, or person, to do that which it is its, or his, duty to do. This issue of the order is entirely a matter for the discretion of the Court, which 'will render it, as far as it can the supplementary means of substantial justice in every case where there is no other specific legal remedy for a legal right; and will provide as effectually as it can that others exercise their duty wherever the subject-matter is properly within its control. Per Lord Ellenborough, C.J. In the King v.

Archbiship of Canterbury (1812) 15 East 117, 136."

13. In the case in hand, it is hard to accept whether the respondents had a vested legal right for enforcement under Article 199 of the Constitution on the date when they filed the writ; or that the appellants were under a legal duty to issue order of appointment without completing and observing all legal requirements and lastly that respondents had no other adequate and legal remedy available under the law. It is equally difficult to subscribe to the view that the appellants in the performance of their statutory duties had refused or omitted to discharge the performance of an act, which the law obliged them to do. Grant of relief in writ jurisdiction, irrespective of its kind, is always discretionary, which is required to be exercised judiciously. The writ is not to issue as a matter of course on sheer technicalities or at the whim of the Court. No hard and fast rule can be laid down for the exercise of discretion by the Court for grant or refusal of the relief in the exercise of extraordinary jurisdiction. We are of the view that in the facts and circumstances of the case, in which the appellants had commenced the process of recruitment, they were within their jurisdiction to recede as no decisive steps were taken towards the logical conclusion of the selection process on account of imposition of general ban on fresh recruitment, which was binding on the appellants being functionaries of State under a duty to meticulously follow and abide by the decisions of the highest body, like the Cabinet. Refer Pakistan v. Muhammad Himayatullah PLD 1969 SC 407. Position would have been different had the appellants been found to be guilty of treating the respondents with discrimination or withholding their appointment after due approval of the competent authority and observance of all codal formalities. It would have been a case for interference should the appellants be found guilty of pick and choose and discriminating the respondents in the matter of enforcement of their legal right to appointment after final selection and approval of recommendations by the competent authority.

14. For the aforesaid, facts, reasons, and circumstances, we are of the view that this was not an appropriate case for the exercise of extraordinary writ jurisdiction in favor of the respondents and it was not incumbent upon the High Court to decide the question of appointment of the respondents to a particular post, which fell within the exclusive domain of the public functionaries.

15. We would, therefore, allow these appeals and set aside the impugned judgments of the High Court with the observation that this judgment shall not hinder the prospects of the respondents in the matter G of selection and appointment to the posts applied for . By them and hopefully the appellants would consider their cases on merit and strictly in accordance with law.