ZAHEER AHMED Versus D.I.G.
ORDER
MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners seek direction to the respondent-department for issuance of No Objection Certificates.
2. Learned counsel for the petitioners contends that the petitioners were inducted as constables in the Punjab Highway Police Department seven years ago; that the education department invited applications for various posts of educator and the petitioners applied for the said posts through proper channel and were selected on merit; that the petitioners moved a written application for issuance of No Objection Certificate but respondent No.1 did not take any action on their application which constrained them to tender resignations; that the petitioners meritoriously served the department and they have every right to further progress in life by availing better opportunities; that act of respondent No.1 for not issuing NOC is discriminatory inasmuch as one of the colleagues of the petitioners namely Ghulam Abbas was granted departmental permission to apply for the post of teacher.
3. Conversely, learned Law Officer submits that as per explanation of Section 4 of Punjab Civil Services (Applications for Posts) Rules, 1987 the appointing authority is vested with powers to withhold such departmental permission; that normally the candidates who are selected against contract posts, return back to their parent department after same time and then it is difficult to accommodate them because Punjab Highway Police is a disciplined force and cannot afford to keep any post vacant for indefinite period; that since the petitioners have tendered their resignations they are, therefore, no more employees of the department.
4. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
5. Learned Law Officer while referring to Explanation of Section-4 of the Rules ibid has laid a lot of emphasis that Appointing Authority is vested with power to withhold such permission to any of its employees but he remained oblivious of subsection (2) of section 4 of the rules ibid which provides as under:--
"If any civil servant applies for permission and is otherwise eligible for recruitment to any other post his application shall always be forwarded."
The word "shall" used in the aforesaid law makes it abundantly clear that if a candidate is eligible to apply for other post the competent authority is bound to forward his application. Explanation of said section relied upon by the learned Law Officer reads as follows:--
"The appointing authority may withhold permission to apply, if for reasons to be recorded in writing such permission is considered to be against public interest."
6. No doubt by virtue of the said explanation the Appointing Authority is vested with power to exercise its discretion in this regard but such discretion must be exercised reasonably, judiciously, honestly, objectively and in the public interest. Reliance is placed on Abdul Wahab and another v. Secretary, Government of Balochistan and another (2009 SCMR 1354) wherein it has been held as under:--
"No one could be allowed irrespective of the fact who is who to act in an arbitrary, fanciful and whimsical manner and they had got to be judicious, fair and just in taking such decision. We are not persuaded to agree with the learned Additional Advocate General that the question of retention and dispensation squarely falls within discretion of department for the reason that the "Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power of exercise of discretion would not authorize such Authorities to act arbitrarily, discriminately and mala fide. They have to act without any ulterior motive. Where the Article 58(2)(b) of the Constitution were found to be violative of terms and spirit of that Article, the orders were struck down ."
7. Even on the basis of said explanation the Appointing Authority was bound to pass a written order while declining such request but here in the present case no such order was passed and the petitioners remained in limbo and consequently on their appointment in the new department they were constrained to tender their resignations.
8. The main ground for non-issuance of NOC urged before this Court is that after some time the employees of the respondent who are selected in other departments come back and claim benefits on the basis of their right of lien, which causes embarrassment to the parent department which in the meanwhile have appointed other persons in their place. Learned counsel for the petitioners, however, undertakes that his clients will neither return to their earlier posts nor claim lien or any other benefit from the respondent-department. In this eventuality, there remains no justification for the respondent-department for refusal to grant NOC to the petitioners. Even otherwise every person has equal right to progress in life by availing better opportunities and the same cannot be restricted without any justifiable reasons.
8(sic) So far as the contention of the learned Law Officer, that the petitioners have tendered their resignations and are no more employees of the PHP is concerned, suffice it to say that the same was done due to inaction of the respondent-department. If a written order for declining NOC had been issued then the petitioners would have had the opportunity to challenge the same at the relevant time. Non-passing of order by the Appointing Authority forced the petitioners to tender their resignations in order to join their new assignment, therefore, the resignations tendered by them is not a hurdle for them to claim NOC from their parent department.
9. It is also evident from the record that one of the colleagues of the petitioners namely Ghulam Haider No.9006 has been granted departmental permission by respondent No.2 to apply for a job in the Education Department. Thus denial of respondent No.1 for issuance of NOC in favour of the petitioners is sheer discrimination and against the principle of equality. In case reported as Suleman Daud v. Lahore Development Authority through Director General (2008 CLD 850) it has been laid down as under:--
"The concept of equality is indeed negation of arbitrariness. Every power has its extent and legal limits. The exercise of such power should be based on fairness and reasonableness. Persons in similar circumstances should have similar treatment, unless the differentiation is based upon a valid classification, which should not have the taint of arbitrariness that is the hallmark of any ideal dispensation of justice."
10. Act of respondent No.1 is also violative of Article 25 of the Constitution of the Islamic Public of Pakistan as well as the dictum laid down by the Hon'ble Supreme Court of Pakistan in case reported as Mehar Muhammad Nawaz, EX-OG-I Small Business Finance Corporation Multan v. Managing Director, Small Business Finance Corporation and 2 others 2009 SCMR 187 wherein it has been held as follows:--
"Equal treatment of all similarly situated is the basic principle on which rests justice under the law. If even handed justice is not administered, it can have many adverse frustration in the social set-up. There can be no denial that social justice is an objective and enshrined in our Constitution."
11. The upshot of the above discussion is that this writ petition is allowed. Respondent-department is directed to issue required NOC to the petitioners within a period of four weeks from the date of receipt of certified copy of this order. However, the petitioners will not be entitled to claim any lien or any other benefit from the respondent-department.
ZC/Z-23/L Petition allowed.