Dr. MARVI SHAH and 9 others vs PROVINCE OF SINDH through Chief

ORDER

ANWAR ZAHEER JAMALI, C.J.--- By this order, we propose to dispose of the above titled three constitutional petitions, being identical in nature.

2. Briefly stated, the facts of the case are that the petitioners, in response to the advertisement, got published by the respondent No,2 in newspaper daily Kawish, Karachi, dated 25-1-2006, inviting applications for the posts of Woman Medical Officer/Medical Officer (Male) (BPS-17), being qualified for such posts, made necessary applications for their appointments against such vacancies. During the process of selection, all of them cleared their written tests and subsequently they also successfully passed the process of interviews through Sindh Public Service Commission.

The summary for their appointments was accordingly sent by respondents Nos.2 and 3 to the Government vide letter, dated 4th March, 2008 for necessary approval, but the Government failed to issue appointment letters despite their protest, which necessitated filing of these petitions with identical prayers, which read thus:---

(a) Declare that the respondents Nos.1 and 2 are legally bound to issue appointment orders of the petitioners on the final recommendations of the respondent No,3, Sindh Public Service Commission.

(b) Declare the action of the respondents Nos.1 and 2, if any, in bypassing the final recommendation of the Sindh Public Service Commission as to the appointment of the petitioners and others, as detailed in the newspapers, or taking any decision contrary to the recommendation, to be null and void and of no legal effect.

(c) Direct the concerned respondents to issue necessary offer letters/appointment letters of the petitioners for the post of Woman Medical Officer/Medical Officer (Male).

(d) Restrain the respondents Nos.1 and 2 not to appoint any other candidate against the posts on which petitioners have been declared successful and final recommendations have been sent by the Sindh Public Service Commission for their appointment on the said post.

(e) Any other relief(s) as this Honourable Court may deem fit and appropriate in the circumstances of the case may also be granted.

3. On notice, parawise comments/counter-affidavit have been submitted by respondent No,2, mentioning therein that since the written tests were conducted by the department and Sindh Public Service Commission had only conducted interviews of the candidates, who were declared successful in the written tests of the department, therefore, in order to ensure transparency and merit, it was decided that written tests and viva voce be conducted by the Sindh Public Service Commission, and consequently, such a proposal was extended, which was approved by the Government as per rule 7(3) of the Sindh Public Service Commission (Functions) Rules, 1990, and the Sindh Public Service Commission was requested to conduct written tests afresh.

4. The respondent No,3 in their comments did not deny the case of the petitioners, rather supported it by making clarification that these vacancies, being on contract basis for one year, were not required to be filled through regular process of Sindh Public Service Commission, but they were only requested by respondent No,2 for conducting viva voce/interviews of those candidates, who had earlier cleared the written tests, conducted by the respondent No,2, which exercise was undertaken by the Commission and recommendations were sent accordingly vide letter, dated 4- 3-2008.

5. Based on above noted facts, the grievance of the petitioners seems to be that they have been non-suited and discriminated for no valid reason, as the process of their selection has taken place in accordance with the directions of the Government, therefore, vested rights have been created in their favour and merely due to change in the Government setup, they cannot be penalized in a summary manner without even affording any opportunity of hearing to them.

6. To fortify their submissions, learned counsel for the petitioners have squarely placed reliance upon the case of Salman Adil Siddiqui and others v. Province of Sindh and others 2008 PLC (C.S.)

220, wherein, according to them, in somewhat similar circumstances, a Division Bench of this Court, headed by the then Chief Justice of this Court, had disposed of the petition with the following observations:- ".... We would allow this petition and direct that the decision on a summary be taken within one month from today and in case no decision is effected, all the recommended would be deemed to have been duly appointed with effect from the date of the expiry of period of one month. Copy of this order be provided-to A.A.-G. Abdul Jabbar Lakho..."

7. Learned counsel for petitioners states that in the facts and circumstances of the present petitions, they will be satisfied with the disposal of these petitions in the terms directing the Government either to issue appointment orders to the petitioners within one month from the date of the order on the basis of recommendations, made by the Sindh Public Service Commission, or to pass a speaking order for rejecting such recommendations.

8. On the last date of hearing, learned Additional Advocate-General Mr. Masood Noorani, had taken time to seek instructions in the matter and today he has made a statement before this Court that the Government will bow before the orders of this Court, as at their level, they have already taken a decision in the matter, as detailed in para.7 of the parawise comments/counter-affidavit of Mr. Abdul Rehman Panja, on behalf of respondent No,2 and referred to in paragraph 3, ante.

9. After hearing the learned counsel for parties, we are of the opinion that the decision referred to by the learned Additional Advocate-General, if any, does not reflect the correct position, as at the whims of the Government, the recommendations of Sindh Public Service Commission cannot be brushed aside or distracted by the new Government set-up, merely for the reason that the procedure followed was not according to their wishes, but as per the decision of the previous Government. There is no denial of the fact that according to the procedure laid down by the then Government the petitioners have appeared in the selection process for the contract post of BPS-17 advertised by the Government and have successfully cleared their written tests held by the respondent No,2 and interviews held by the Sindh Public Service Commission. The posts advertised were not permanent posts, refer to the Sindh Public Service Commission, but contractual, for one year only, therefore, per rule 4(i) of Sindh Public Service Commission (Functions) Rules, 1990, written test through Commission was not mandatory in their case, but the petitioners are now being denied such appointments for no valid reasons. Indeed, transparency is required in the appointments of all officers in Government service even on contract basis, but a process of selection, which has been completed in an orderly manner cannot be upset on this pretext, in an arbitrary manner without disclosing a single instance of obscurity or foul play. It is pertinent to mention that respondent No,1 has even not bothered to place on record copy of any such proposal/order, which the learned Additional Advocate-General has referred to from para.7 of the parawise comments/counter-affidavit of Section Officer Mr. Abdul Rehman Panja.

10. This being the position, we set aside the earlier decision of the Government, as referred to in para.7 of the counter-affidavit of Mr. Abdul Rehman Panja (ibid), and direct the Government to either approve the recommendations of the Sindh Public Service Commission, and issue offer letters/appointment letters to the petitioners, within one month from the date of this order, or in case the Government declines to accept such recommendations a speaking order should be passed for that purpose. It is further clarified that if within the stipulated time, no decision is taken, then the recommendations of the Commission would be deemed to have been duly approved by the Government and the petitioners duly appointed with effect from the date of expiry of such period. A copy of this order be delivered to the learned Additional Advocate-General for its compliance.