ANWAR SHAH and 5 others vs SECRETARY GOVERNMENT OF BALOCHISTAN
This constitutional petition was filed before the Balochistan High Court seeking a writ of mandamus to direct respondent No. 1 to issue appointment orders to the petitioners, who stood first on the approved merit list for various posts ranging from PBS-5 to PBS-7 after participating in tests and interviews. Their appointment orders were kept in abeyance at the advice of the Minister, Irrigation and Powers Department, based on an alleged prior agreement favoring land affectees of the Sabakzai Dam. The core legal question was whether the respondents could lawfully withhold appointment orders of duly selected candidates on the basis of a subsequent policy or agreement that contradicted the advertised criteria. The Court held that withholding the appointment orders and re-advertising the posts was arbitrary, illegal, and actuated by mala fide, as the petitioners had acquired vested rights upon selection and the advertisement invited candidates from District Zhob generally without any restrictive condition regarding the Sabakzai area. The Court laid down the principle that vested rights created through a transparent selection process cannot be undone by administrative somersaults or extraneous agreements, and that landowners affected by a project must be compensated under the statutory framework of the Land Acquisition Act rather than by infringing upon the employment rights of lawfully selected candidates.
- Whether appointment orders of successfully selected candidates can be withheld on the basis of an administrative agreement executed prior to the advertisement?
- Does a candidate acquire a vested right to an appointment upon successfully passing tests and interviews and appearing at the top of an approved merit list?
- Can the respondents legally refuse to issue appointment orders by altering the eligibility criteria stipulated in the original job advertisement?
- How are landowners affected by a public project required to be compensated under the law?
- Section 1, Land Acquisition Act 1894
' GHULAM MUSTAFA MENGAL, J.--- Through this constitutional petition, the petitioners seek directions in shape of writ of mandamus against respondent No,1 to issue appointment orders of the petitioners.
2. The brief facts as narrated in the petition are that the petitioners applied for various post (P.B.S-5 to P.B.S-7) and they participated in the written test as well as inter view conducted by the respondent No,1 and stood at S.No,1 of the merit list, which was duly approved by the respondent No,1, but he kept the appointment orders of the petitioners in abeyance without any legal justification at the advice of the Minister, Irrigation and Powers Department.
3. On notice of this petition counter affidavit has been filed on behalf of respondents, wherein it has been disclosed that when the above mentioned posts were advertised a dispute arose between the two tribes of Sabakzai area, whose agricultural lands were affected due to construction of Sabakzai Dam. Further it has been stated that on 17th January, 2007 an agreement was executed in between the representative of the affected tribes and the administration of Zhob District and as per agreement all vacancies of Sabakzai Dam will be distributed amongst the affectees of Dam, who have surrendered their houses and lands for construction of the said Dam. It was further stated that except Muhammad Ismail all the candidates are the residents of Zhob City, therefore, their appointment orders could not be issued due to administrative serious problems and also in pursuance of the agreement dated 17th January, 2007.
4. We have heard Mr. Masoom Khan Kakar, learned counsel for the petitioners and Mr. Amanullah Tareen, learned Additional Advocate-General appearing on behalf of respondents and have carefully considered the submissions of the learned counsel for the parties and perused the material placed on record.
5. There is no denial of the fact that the petitioners right from their forefathers and by birth are the permanent residents of Zhob. This fact could not be refuted by the respondents in any manner.
There is also no denial of the fact that at the time of test and interviews the respondents have not raised any objection that they are not local of District Zhob and an agreement has been executed between the affectees and the respondents. Moreover, no condition was mentioned in the publication that only the residents of Sabakzai area can apply for these posts. Perusal of the record shows that the agreement was executed between the parties on 17th January, 2007; whereas, applications from the candidates were invited through advertisement, which was published in the daily newspaper Jung, Quetta on 6th May, 2010 and 6th May,.
2011. Even the petitioners were not informed at the time of tests and interviews that it is not possible for them to perform their duties at the Dam as they are residents of Zhob area. The said status of the petitioners was accepted when they were selected by the Selection Committee. Thus the matter had become past and closed chapter for all intent and purpose. Perusal of the publications dated 6th May, 2010 and 6th May, 2011 also show that the application for the said posts was invited from the candidates of District Zhob. The subsequent somersault made by the respondents at the behest of some influential persons having vested interest in the matter, declining to issue the appointment orders of the petitioners on the ground that they are not residents of Sabakzai area, appears to us a clear act of mala fide on the part of respondents. The object was to undo an act, which had created vested rights of inviolable in favour of the petitioners. These rights could not be snatched in the manner as has been done by the respondents.
6. So far as the case of land owners/affectees of the Sabakzai Dam is concerned, the provisions of Land Acquisition Act, 1894 deals with the compensation to the land affected owners, thus they could be compensated under the Land Acquisition Act, 1894. When the learned Additional Advocate General was confronted with the above fact he was helpless to make proper reply and to defend the impugned action taken by the respondents, therefore, we are of the firm view that the impugned action taken by the respondents, withholding the appointment orders of the petitioner's and re-constitution of the Departmental Recruitment Committee as well as re-advertisement of the posts on fallacious grounds, was without lawful authority, arbitrary and unjustified, as such, B the same are not sustainable in the eyes of law.
7. For the foregoing reasons, the impugned order of the respondents with regard to withholding the appointment orders of the petitioners and re-constitution of Departmental Recruitment Committee is hereby declared illegal. Resultantly, the respondents are directed to issue the appointment orders of the petitioners Nos.1 to 6 immediately.
8. Petition is allowed in the above terms.
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