MUHAMMAD FAROOQ M. MEMON Versus GOVERNMENT OF SINDH

ABDUL QADEER CHAUDHRY, J.‑‑ In the year 1981 Sind Public Service Commission invited applications for appointment of Civil Judges in the Cadre of Provincial Judicial Civil Service. The petitioner applied for one of the posts. He was declared successful by the Public Service Commission and in order of merit was placed at Serial No. 9.

By the letter, dated 1‑2‑1982 the respondent Government intimated to the petitioner that it was considering the petitioner for appointment of the post of Civil Judge. The petitioner was called upon to fill up the requisite pro forma. This was complied within the stipulated period by the petitioner and he was called upon to appear on 16‑2‑1982 before the Medical Board by letter Annexure 'C'. The Medical Report was sent to the Accountant‑General Sind. It is contended that there were 12 vacancies for the posts of Civil Judges who were to be appointed by the respondent and the petitioner being No. 9 on the list of successful candidates and having been declared fit medically, therefore, eligible to be appointed to one of such posts. The contention of the petitioner that there existed vacancies has not been controverted by the respondent. Even otherwise documents filed alongwitn this petition supports this contention. In the notification, dated 21‑6‑1982 issued by the respondent Government regarding appointment of Civil Judges, the name of the petitioner did not appear in the said notification. The petitioner made enquiries from the Government quarters and he was informed that as he was associated with a political party, therefore, he was not considered for the said appointment. The petitioner being aggrieved has filed the present petition.

2. The respondent has not filed any counter‑affidavit denying the averments made by the petitioner in the petition. As such the facts of the case as stated by the petitioner in the petition have been admitted. A The learned A.A.‑G. appearing on behalf of the respondent has also not disputed the facts. The learned A.A.‑G. has shown us the reply of the respondent wherein it has been stated that the petitioner has been convicted by the Malitary Court and sentenced to six months, therefore, he was not considered eligible for the said post. The learned A.A.‑G. has further submitted that on further enquiries he was told that this information given to him was not correct. Now it is alleged against the petitioner that he was challaned in a criminal case being crime No. 39 of 1981. The petitioner has filed affidavit that he was not challaned in that case. Copy of the First Information Report in that case has also been filed and the name of the petitioner does not appear as one of the accused. This contention of the petitioner has also not been repudiated. A counter‑affidavit has been filed by one Dilsher Khan, Section Officer, S&GAD, Government of Sind in which he was stated that the petitioner was detained under M.L.O. 12 alongwith eight other prominent defunct PPP members on 23‑3‑1981. He was however released on 24‑4‑1981 on the orders of Martial Law Authorities on furnishing Good Character Bond for Rs.10,000. This assertion is not supported by any document and the Section Officer who was present in person has no personal knowledge about this fact. This counter‑affidavit is based on the report of Deputy Inspector‑General of Police, dated 2‑3‑1986 and a copy of the daily diary. In such circumstances we called the Deputy Inspector‑General of Police, Special Branch. His statement was recorded and he has failed to furnish any document in support of the report about the detention of the petitioner under MLO 12 and furnishing Good Character Bond. According to him only oral orders were made for the detention of the petitioner and he was released on the oral orders. It cannot be believed that the petitioner has been detained on oral orders as alleged by the respondent, or released by oral orders. His detention in the prison must be recorded in the jail where he was detained and so also when he was released from‑ jail. Such entry must have been recorded in the Jail Register. No such documents have been produced. The Bond of good behaviour has also not been produced. In the absence of any documents/evidence it cannot be urged that the petitioner was detained under MLO. The earlier stand of the police was that the petitioner was convicted. Now the DIG has conceded that report was incorrect and that there was no guilty intention in submitting such incorrect report.

3. The learned A.A.‑G. has frankly conceded that there is no material against the petitioner. The respondent as well as police had taken contradictory stands at different stages and have failed to substantiate the same through any material. The petitioner had qualified the examination. He was examined by the Medical Board and was declared fit. The petitioner has fulfilled all necessary qualifications and had been declared successful by the Public Service Commission. A vested right had accrued in his favour, therefore, the petitioner was entitled to be appointed to the post of Civil Judge. Under the service rules appointment is to be made on the basis of examination or test to be conducted by the Public Service Commission and since the petitioner was declared successful by the Public Service Commission he was entitled to be appointed for the post, to which he had applied for.

4. Now the question arises whether we can give such a direction to the Government to appoint the petitioner as Civil Judge. The learned counsel for the petitioner has referred to 1984 P L C (C.S.) 1569 in support of the contention that powers to recede available till a decisive step is taken and in the present case Merit List having been prepared, it cannot be revised when same has taken legal effect after series of decisive steps and in pursuance thereof certain rights have been created in favour of the selectees by their appointment.

The next case cited by the learned counsel is the case of Mazhar Hussain v. Province of Punjab reported in P L D 1985 Lah. 394 and in this case in para. 13 of the judgment it has been observed as under;‑

"In the circumstances of the present case, as observed above, refusal of the respondent Government to appoint the petitioner Civil Judge in spite of his having qualified the prescribed competitive examination and having been recommended for appointment by the Public Service Commission, is not warranted by the Punjab Civil Servants Act, 1974 and the relevant rules made thereunder. Such refusal is, therefore, unlawful and the impugned action of the Government in this behalf has to be regarded as with‑out lawful authority and of no legal. It is ordered accordingly and.‑the writ petition is thus allowed. The respondent Government is directed to appoint the petitioner as Civil Judge on the basis of the result of his competitive examination. There shall however, be no order as to costs."

5. On the facts of the case and the authorities quoted by the learned counsel we are also of the opinion that as a vested right has l been created in favour of the petitioner, therefore, a writ can be issued against the respondent and we, therefore, direct the respondent to appoint the petitioner as Civil Judge.

The petition is accepted as such with no order as to costs.

The petition was allowed by short order, dated 20‑3‑1986 and the above are the reasons for the same.

A.A. Petition accepted