ZAKIR HUSSAIN Versus PROVINCE OF SINDH through Chief Secretary to Government of Sindh
ORDER
SALAHUDDIN PANHWAR, J.---- Through instant petition, Petitioners have sought for following relief(s):- "a. To declare that the appointments of Respondents Nos.11 to 182 are equally done in one process based on the illegal as well as irregular practice based on favoritism and corruption the same are illegal, null and void. b To restrain the Respondents Nos.2 and 3 to issue salaries to Respondents Nos.12 to 182 till the final disposal of the petition. c. To direct the Respondent No.02 to cancel / terminate appointments of Respondents Nos.11 to 182 and to get a fresh appointments conducted in respect of the vacancies through honest Medical Officers team. d. To direct the Respondent No.01 to form JIT comprisjng members of Respondent Nos.09 and 10 to hold inquiry against the Respondents Nos.07 and 08 on the appointments of Respondents Nos.11 to 182 and take legal action as per law against the Respondents. e. Any other relief which this Honourable Court deem fit may kindly be awarded to the Petitioner."
2. Learned counsel for the Petitioners at the very outset contends that certain numbers of posts of para medical staff for Liaquat University Hospital Hyderabad / Jamshoro were announced by Respondent No.7 in newspapers; that Respondent No.7 constituted a team / selection committee to conduct interview for such posts; however surprisingly the said selection committee was consisted upon staff members of lower staff such as Ward Servant, Nursing Orderly, who were incompetent to conduct such interview; that the Petitioners who applied for the posts of ward servants, observed the environment for conducting interviews and calling the candidates was purely based on favoritism and negligent one just for fulfilling the formalities for appointments, resultantly incompetent persons, more faces from one family / caste and out districts outside of the criterion, were appointed against the vacancies; that out of the successful candidates, Respondents Nos.18 and 19 were sons of Respondent No.07 as well certain family members of Respondent No.8 were appointed; that several appointments of one family's members have been done by the respondent No.7, as Respondents Nos.12 to 15, Respondents Nos.16 and 17, Respondents Nos.18 and 19, Respondents Nos.21 and 22, Respondents Nos.36 and 37 are brothers to each other, who were appointed while depriving the poor and eligible candidates, besides it, the said practice was also condemned by the Honourable Supreme Court of Pakistan; that against the said illegal appointments, aggrieved persons moved complaints before Respondents Nos.2 and 10, as well petition bearing C.P. No.D-105/2019 filed by the Petitioners / Respondents Nos.12 to 182 for seeking relief of restraining order against the official respondents was also filed before this court; that the respondents Nos.4 and 5 medically examined the candidates and passed the over aged persons determining them fit; that the petitioners are aggrieved persons as their fathers retired from the service and the petitioners were working on daily wages and are entitled to be appointed.
3. It has come on record that recruitment of around 182 candidates against posts from BPS-1 to BPS-5 were made by the committee comprising of the Secretary Health, Additional Secretary S&GAD and the concerned Medical Superintendents. However, due to complaints of illegality, allegedly committed by that committee, the Chief Minister Sindh initiated an inquiry, on such directions, the probe was conducted and the fact finding committee, comprising of the Special Secretary Health and Deputy Secretary Health, reached at the conclusion that all the recruitments are illegal.
4. Without prejudice to the merits of the case in C.P.No.D 105 of 2019 as stated above, learned A.A.G Sindh contends that basically the rules provide appointment from BPS-1 to BPS-5 by D.H.O and M.S concerned, however such rules were relaxed and the provincial level committee was formed, in similar fashion of District Recruitment Committee, which are existing under the Chairmanship of the Deputy Commissioners. It in matter of record that earlier appointments made by D.H.O Health, Districts Tharparkar and Mirpurkhas, were also cancelled and thereafter Anti-Corruption initiated an inquiry and appointees challenged that order before this Court. In one petition (C.P.No.D-1644/2015) their prayer was allowed and in other petition (C.P.No.D-1546/2015) their prayer was not allowed.
5. Prima facie, the recruitments were for the posts of BPS-1 to BPS-5 which, normally and legally, are considered as 'low-paid' and even normally do not require any special skills however in different department job requirement is different requiring special skill-experience. We would be safe in adding that rules and procedure for recruitment legally are meant to make appointments) on pure merits regardless as to for what (big or low) post, the same is being made. The criterion or eligibility, per requirement of posts, normally is meant to choose the best by excluding possibility of choosing the blue-eyed at the cost of merit / fitness. In short, a fair and transparent recruitment process is the only way to choose the best regardless as to for what post the recruitment is meant which, however, it shall always be subject to chalked out criterion or eligibility. Thus, to ensure such contest shall always be a 'MUST' responsibility of quarter concerned even if the recruitment is being made for such like posts.
6. The recruitment in question were also meant from BPS-1 to BPS-5 but what the fact finding committee found at the end of the day was nothing but illegality in such process. An illegality in such process shall, we emphasis, always be at the cost of rights (entitlement) of one, therefore, such illegality cannot be approved. The position, being so, is an admission that illegalities and abuse of powers can easily be made particularly when recruitments are meant for such like posts even. A fair contest (opportunity) is fundamental right of every eligible person while choosing the best is the bounden obligation of authority therefore, recruitment process even for such like posts must not only receive duly publication but must be done in the manner and fashion excluding possibility of such like illegality or abuse of power.
7. When confronted with the Secretary Health and learned A.A.G, they are agreed that a third party intervention even in such like recruitments would help in excluding possibility of illegalities or improper use of authority at the cost of rights and entitlement of suitable candidates. They, in one voice, contended that in the light of the judgment passed by the learned Apex Court in the case of appointment of police through NTS, same procedure, followed in Anti-Corruption by order dated 08.02.2017 passed by Apex Court in Criminal Miscellaneous Application No.27 of 2017, two departments (Police and Anti-Corruption) are already recruiting the candidates through NTS / IBA Sukkur. The Secretary Health Sindh as well Additional Secretary contend that it would be proper and justify if the recruitment are made through a third party on the existing vacancies which course shall not only rule out the illegalities in the recruitment process but will also redress the complaints generally are made at large by the public.
8. The Secretary Health further contends that in the cabinet meeting the issue of appointment through NTS was discussed and it was decided that APT Rules can be relaxed for the present procedure as mentioned above. Further, he contends that a committee is formed by cabinet to amend the APT Rules. At this juncture, the Medical Superintendent, Civil Hospital contends that at present around 1500 posts are vacant and therefore they are facing great hardships in the hospital because the daily OPD in a civil hospital is around 9000 patients.
9. In view of what was guided by honourable Apex Court as well acknowledged by present representative of province, it is hereby ordered that all the fresh appointments of Health Department and other departments from BPS-1 to BPS-5 be made through IBA of the respective region in whole province of Sindh. However, with regard to criterion for such posts in health-department, a committee comprising of Dr. Muhammad Ibrahim Memon, Deputy Secretary and Muhammad Akhlaque, Ex-Director General Health and any officer of BPS-18 from services shall be constitute. Such notification shall be issued within two days. In similar way Chief Secretary Sindh shall form committees in very department , Committees, shall frame the guideline in view of criterion appended by the department and chalking out eligibility on principle of equity and fair-play and submit before this Court as well same will be applicable for all the posts from BPS-1 to BPS-5 in every department including the Health Department. The committee shall submit such criterion within two weeks as well active role of third party in such like recruitment (s) after issuance of such notifications.
10. Needless to mention that the advertisement, made by the departments, shall be cancelled and on division level the recruitment shall be conducted through a third party (IBA Sukkur/Karachi/NTS). Since IBA will meet expenses through candidates, accordingly departments shall not be burdened. In view of this statement, since the petitioners have remedy to appear again in the examination, which will be conducted by any institution, hence they are satisfied and therefore this petition is disposed of in above terms.
11. With regard to the recruitment, since there is huge number of the vacant posts in Health and. other Departments, therefore, the recruitment process shall be completed within three months. In order to avoid the difficulties in future with regard, to shortcoming of different facilities due to vacant posts, the recruitment shall be made in every department yearly in the first quarter of every financial year. Needless to mention the rider of third party test will not be applicable on reserved, disable and deceased quota as well as post of sweeper, which also pertains to special category, as in view of earlier decision muslim shall not be appointed on the post of Sweeper. Copy of this order shall be circulated to all departments through Secretaries, Chief Secretary and IGP Sindh.
Petition stands disposed of in above terms.
SA/Z-20/Sindh Order accordingly.