Post on 29-May-2020
P L D 2010 Lahore 546
Before Syed Mansoor Ali Shah, J
IMRAN HUSSAIN---Petitioner
Versus
WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA
and 4 others---Respondents
Writ Petition No.6210 of 2010, decided on 15th July, 2010.
(a) Constitution of Pakistan (1973)---
----Art. 199---Constitutional jurisdiction of High Court---Scope---State owned companies are
amenable to constitutional jurisdiction under Art.199 of the Constitution.
Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD
2010 SC 676 fol.
(b) Constitution of Pakistan (1973)---
----Arts. 4, 18 & 25---Public sector company---Master and Servant, principle of---
Applicability---Scope---Mode and manner of recruitment followed by a public sector company-
--Objection regarding application of the principle of "master and servant" in the matter
was misconceived as matter in question was not the `terms and conditions of service'---In the
present case, it had been agitated that the Recruitment Policy had been violated; that in spite of
public advertisement, sham interviews had been conducted without any common and prefixed
objective criteria to transparently judge and evaluate the candidacy of the applicants; and that
the process adopted by the public sector company and its Selection Board was blatantly devoid
of due process and deprived the applicants of their right to lawful employment and livelihood
and discriminately ousted the petitioners from the recruitment process in violation of Arts.4, 18
& 25 of the Constitution---Held, objection regarding application of principle of `master and
servant', was misplaced and without force.
(c) Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Maintainability---Civil service---Recruitment---No
objective criteria was framed for the purposes of conducting interviews for recruitment---
Constitutional petition in circumstances, was maintainable.
(d) Discretion---
----Administrative discretion has to be structured, reasoned, rational, logical and objective---
Principles.
Administrative discretion has to be structured, reasoned, rational, logical and objective. One of
the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought-
out, carefully deliberated objective standard. This helps test various faculties of the interviewee
especially those, which the institution concerned requires. The standard can, therefore, cover
experience, alertness, initiative, general aptitude, behaviour, knowledge, dependability, etc.
which forms a uniform yardstick, gauge, scale or criteria for the exercise of discretion.
Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human
subjectivity, which is inescapably susceptible to error and indubitably arbitrary, ex facie
discriminatory, highly irrational and painfully illogical. The administrative compulsion and
wisdom to structure discretion (in the present case by providing a well-thought out objective
criterion/test or a score card) is to remove human subjectivity from exercise of discretion.
On an institutional level, structuring the discretion is to protect the institution and the public
from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and volatility
attached to human behaviour, translated into human dissection. These vices are a breeding
ground for corruption, nepotism and favourtism. These vices are like termites and if permitted to
exist, weaken the foundations of democratic public institution.
Wherever wide-worded powers conferring discretion exist, there remains always the need to
structure the discretion. Structuring of discretion only means regularizing it, organizing it,
producing order in it so that decision will achieve the high quality of justice. The seven
instruments that are most useful in the structuring of discretionary power are open plans, open
policy statements, open rules, open finding, open reasons, open precedents and fair informal
procedure. Somehow, in the context of Pakistan, the wide worded conferment of discretionary
powers or reservation of discretion, without framing rules to regulate its exercise, has been taken
to be an enhancement of the power and it gives that impression in the first instance but where the
authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the
Courts have to intervene more often, than is necessary, apart from the exercise of such power
appearing arbitrary and capricious at time.
Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It
has no internal check to ensure uniformity and objective application of mind across the board. It,
therefore, extends unequal treatment to equals. Absence of an objective criterion in exercise of
discretion especially in a case where thousand of candidates had applied is therefore,
discriminatory and hence violative of Article 25 of the Constitution.
Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry
of Finance, Islamabad and others PLD 1990 SC 1092; Chairman, Regional. Transport Authority,
Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14;
Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and
18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR
1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009
SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991
SC 101 ref.
(e) Civil service---
----Recruitment of employees---Good governance and institutional building---Requirements.
Good governance and institutional building require that the requirements, demands and needs of
the institution are tailored into the objective criteria/test so that the best suited human resource is
selected for the post. The proposed criteria can sub-divide total marks into areas like; experience,
skill, aptitude, educational background, intellect, extra-curricular, personality, ethics, etc. so the
interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity
from clogging them the minds.
The Letter issued by Managing Director of a public sector company changing the Recruitment
Policy at the behest of Minister besides offending fundamental right reflects of poor and reckless
governance.
(f) Civil service---
----Recruitment of employees---Appointment process solely based on interview---Demerits.
B. Ramakichenin Alias Balagandhi v. Union of India and others 2008 (1) SCC 362; Madhya
Pardesh Public Service Commission v. Navnit Kumar Potdar and another AIR 1995 SC 77; Ajay
Hasia and others v. Khalid Mujib Sehravardi and others and others AIR 1981 SC 487 and Ashok
Kumar Yadav and others v. State of Hayyana and others AIR 1987 SC 454 ref.
(g) Constitution of Pakistan (1973)---
----Arts. 4, 18, 25 & 199---Civil service---Public sector company---Recruitment of employees--
-Career and future prospects of employment and livelihood of the applicants for appointment
was subjected to an unstructured, unchecked, unguided and unfettered exercise of discretion---
Such process put the fragile career of the applicants hostage to corruption, political opportunism
and nepotism resulting in constitutional breach of Articles 4 and 18 of the Constitution---Letter
issued by Managing Director of the public sector company changing the Recruitment Policy at
the behest of Minister, besides offending fundamental rights, reflected of poor and reckless
governance--Impugned recruitment and appointment of candidates was declared to be
unconstitutional, illegal, without lawful authority and therefore set aside--High Court directed
that all the said posts shall be deemed to be vacant and filled again in terms of present judgment
and the Recruitment Policy unless the same was lawfully amended or modified---Public Sector
Companies, in the present case, had played fraud with the legitimate expectations of hundreds of
people who innocently applied desiring a decent lawful employment, however, instead of
carrying out transparent recruitment process and giving meaningful employment, these
institutions failed to perform their public duty and had abused the public trust reposed in them by
the people of Pakistan---Such situation called for strict accountability of the public functionaries
involved in the process including the Board Members of the companies who seemed to have
taken no note of such large-scale breach of trust--High Court, therefore, directed the Chairman
WAPDA to inquire into these unlawful appointments and to identify the real beneficiaries of
unlawful recruitment process--Chairman, WAPDA shall also hear and incorporate the views of
the candidates who were rejected as well as the ones whose appointment had been set aside
through the present judgment---Such report shall be placed before High Court within five months
from the date of present judgment.
(h) Constitution of Pakistan (1973)---
----Arts. 4 & 199---Due process of law---Civil Service---Recruitment of employees---
Administrative discretion---Scope---Article 4 of the Constitution provides for due process of law
and mandates that everyone is to be treated in accordance with law---Administrative discretion
which is structurally unfettered and unchecked cannot be said to have been exercised in
accordance with law and therefore fails to pass the test of "due process" under Art. 4 of the
Constitution---Walk-in-interviews, in the present case, were devoid of any objective criteria,
therefore, violative of "due process" and fundamental rights of the applicants---Such interviews
were declared to be ab initio unconstitutional and unlawful creating no right whatsoever in the
successful candidates.
(i) Company---
----Public sector company is not only to look after the interest of its shareholders alone but has a
wider responsibility as it acts as a t rus tee for the people of Pakistan---Higher standard of
governance stricter fiduciary duty and an institutional collegiality in decision making process is
an expected operational benchmark of a public sector company---Principles.
A public sector company is not only to look after the interest of its shareholders alone but
has a wider responsibility as it acts as a trustee for the people of Pakistan. Higher standard of
governance, stricter fiduciary duty and an institutional collegiality in decision making
process is an expected operational benchmark of a public sector company. The trusteeship of
the members of the Board of Directors of such company create a sacred obligation to ensure
that company is run and managed through the Board, which is an independent and an
autonomous body constituted to safeguard the interest of the public and of company and at
all times to firewall against political or bureaucratic opportunism. A Minister under the Rules
of Business is to provide the macro policy and fashion the vision of the Department
according to the political agenda of the Government in power. It is not the role or the
business of the Minister to interfere with the operational working of autonomous body like a
public sector company. In the present case, the Minister could have stressed the urgency to
employ manpower in various companies but could not have gone further to suggest and
direct the temporary modification of the Recruitment Policy unless the company after due
deliberation at the Board level and after giving reasons felt that such a modification is
required in the larger interest of the company and in public interest. Government and its
autonomous institutions are spread out in layers, every tier having its own independent role
and scope of operations and there is no room for dictation or pressure. Unless the structure of
governance laid out in the Rules of Business read with the constitutional principles, is
protected, the system of public administration will come crashing down, replacing public
interest with personal avarice and greed. This cannot be permitted.
Public sector companies shall take collective decision in their Board Meetings, giving
reasons as required under section 24-A of the General Clauses Act, 1897, a Board Resolution
through circulation, if there is urgency. Only in grave emergency, which has no room for
delay, the Chief Executive Officer may act singly in the welfare of the company and in
public interest, supported by written reasons for its urgency and the same must be ratified by
the Board of Directors within the shortest possible time. Board of Directors must also give
reasons for allowing the Chief Executive Officer to take such a decision and must give
reasons for its ratification.
Public sector company is an independent public company with its autonomous Board of
Directors. Decisions of Managing Director or the Board of Directors of the company are
required to be placed before Board of Directors of the company in order to take a decision.
The autonomy of the company and the independence of the Board of Directors is merely
fictional if directions issued, by individuals namely: Managing .Director (without seeking the
approval of the Board of Directors) are carried through by the management without having
received the blessing of its Board of Directors.
Public, Institutions .(company) can only contribute to national interest and welfare of the
people if they are run as an institution and in the public interest without any fear or favour. If
the Board Members are bypassed and are simply used to ratify orders passed single handedly
behind closed doors and without any plausible reasons, the future of public institutions is
bleak. In order to ensure independence, autonomy, national interest and interest of the
institution, the members of the governing bodies will have to vigilantly and actively play
their roles. To be on the Board of a public sector company is to perform a public duty in the
public interest of the people of Pakistan. This role has to be performed with full
responsibility, vigilance, courage, wisdom and for no other reasons.
Public institutions can prosper and progress and materially serve the people of Pakistan only
if the public functionaries incharge of running these institutions fearlessly guard their powers
and remain undeterred by extraneous pressure and influence.
Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285
distinguished.
Ameer Abdullah Khan Niazi for Petitioner.
Nasim Kashmiri, Dy. Attorney-General, Muhammad Ilyas Khan Aurangzeb Mirza, Shahid
Karim, Kh. Ahmad Tariq Raheem, Shahzad Shaukat, Muhammad Munir Khan, Mian Abdul
Qaddus, Sarfraz Ahmad Cheema and Alia Ijaz for Respondents.
Muhammad Arshad Javed, Ch. Ahmad Saif Ullah Khathana, Muhammad Arif Pervaiz Butt,
Azhar Igbal and Zia Shahid for Appointees.
Tanveer Safdar Cheema, Chief Executive FESCO. Ch. Muhammad Ashraf, Director (HR)
FESCO, Shabbir Ahmad, Senior Manager L&W PEPCO.
Dates of hearing: 29th April, 8th 12th, 13th and 15th July, 2010.
JUDGMENT
SYED MANSOOR ALI SHAH, J.--- This consolidated judgment shall also decide writ
petitions mentioned in Schedule A along with the titled petition. Petitioners had applied for
the posts of Assistant Lineman (ALM), Meter Reader, Commercial Assistant and Naib Qasid.
All these petitions air the same grievance and raise identical questions of law and facts and
are, therefore, being decided through this consolidated judgment.
2. Brief facts of the case are that Faisalabad Electric Supply Company ("FESCO") publicly
advertised vacancies in 22 different categories of posts, including the above posts, in Urdu
and English dailies namely: "Jang" and "Daily Express" on 2-11-2008. The said public
advertisement was restricted for candidates domiciled in Districts Bhakkar, Faisalabad, Toba
Tek Singh, Mianwali, Sargodha and Khushab.
3. Petitioners eagerly applied for the abovementioned posts under Direct Quota and
Employees' Children Quota along with their testimonials. Petitioners were issued Interview
Call Letters and thereafter they appeared to be interviewed by the concerned Selection Board
of the area. The requirement of written test was dispensed with, as is described more fully
later in the judgment. Principal grievance of the petitioners is that the Selection Boards
simply marked their presence as they went in for the interview. No question was asked and
they were told that the interview has been concluded. The mode and manner of conducting
interviews lead the petitioners to assume that FESCO is not interested to fill the said
vacancies. However, the petitioners later on found out to their dismay that all the posts had
been filled. Petitioners allege that they have been deprived of their long awaited chance to a
lawful employment and what has aggravated their injury is the skewed and selective
appointments based solely on political favourtism, disregarding merit. It is vehemently and
somewhat poignantly contended by the petitioners that appointments were even made from
outside the group of districts mentioned in the advertisement. It was submitted that the entire
recruitment process was the work of a hidden political hand, which successfully orchestrated
the recruitment process to its own advantage by dictating, autonomous public sector
companies to violate their own recruitment policy. It was argued that the appointments were
made in violation of the Recruitment Policy, 1992 which was heartlessly and unlawfully
modified to achieve the desired benefit for the concerned quarters.
4. Messrs Muhammad Ilyas Khan, Khawaja Tariq Rahim, Aurangzeb Mirza, Shahid Karim,
Mian Abdul Qudoos, and Muhammad Shahzad Shaukat, Advocates interchangeably appeared
on behalf of FESCO, as well as, Pakistan Electric Power Supply Company ("PEPCO").
Muhammad Ilyas Khan Advocate, one of the counsel for FESCO, vehemently, raised
preliminary objections to the maintainability of the instant petition.
5. His objections were that writ petition against FESCO does not lie as it is merely a
company incorporated under the Companies Ordinance, 1984. He further submitted that the
principle of "master and servant" applies in the present case as the petitioners are not
governed by any statutory rules of service and lastly, the instant matter involves factual
inquiry and therefore, writ is not an appropriate remedy. Learned Counsel placed reliance on
Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar
Dust Khan and others" 2006 SCMR 1630, Almas Ahmad Fiaz v. Secretary Government of
the Punjab, Housing and Physical Planning Development, Lahore and another 2006 SCMR
783 and Maqbool Ahmad v. Pakistan Agricultural and others 2006 SCMR 470.
6. On merits, counsel for PEPCO/FESCO submitted that as the last date for receipt of
applications was 15-3-2009. On the said date 86,102 applications were received, however,
only 44,656 candidates appeared in the interview under the Direct Quota out of which 1306
were appointed and only 1100 joined the said posts. Under the Employees' Children Quota,
3,477 candidates applied, 2,464 appeared in the interview and only 313 candidates were
appointed while only 247 joined the service. Therefore, a total number of 1,347 candidates
joined the posts and out of this 101 candidates were not domiciled from the group of
advertised districts.
7. It was submitted that the recruitment was initiated on the basis of Recruitment Policy,
1992 framed by WAPDA and adopted by the Board of Directors of PEPCO and FESCO
independently. The Recruitment Policy, 1992 was prepared in line with the "GOP
[Government of Pakistan] Policy Parameters like open advertisement of the vacancies in the
rational Press and conducting written tests and interviews of the eligible candidates." After
the public advertisement for the vacant posts on 2-11-2008, Managing Director ("M.D.")
PEPCO issued Letter dated 15-10-2009 on the direction of the Minister for Water and Power,
whereby deviation was made in the Recruitment Policy, 1992 and the requirement of written
test was dispensed with, replacing it with only a Walk-In Interview.
8. The marks for the written test (65 marks) were added into the interview marks making the
total marks allocated for the WALK IN INTERVIEW to be 90, while 10 marks were to be
awarded for higher qualifications. Counsel for FESCO/PEPCO submitted that 11 (eleven)
Selection Boards were constituted to conduct the Walk-In Interviews at various centres
located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha. It is contended that
the appointments were made strictly in accordance with law and on the basis of merit.
9. When counsel for the respondents were asked whether there was any objective criteria
framed for the purposes of carrying out interviews by PEPCO, FESCO or the Selection
Boards, the counsel candidly submitted that no objective criteria was framed and the
interviews were conducted purely on discretionary basis. Chief Executive Officer ("CEO"),
LESCO appeared in person and was directed to place on record the interview
proceedings/workings of the Selection Boards so that the Court could assess and satisfy itself
regarding the uniform basis and parameters employed by all the Selection Boards while
interviewing candidates for the posts. Chief Executive Officer categorically submitted that no
record of proceedings of the Selection Boards was available. Chief Executive Officer made a
statement to this effect in writing before the Court, which is dated 12-7-2010 and has been
placed on the record as mark "A" which states:---
"The undersigned had checked from the head of all Selection Boards constituted for
selection of FESCO employees in various categories. They informed that after the
induction/consolidation of the selection results at FESCO Headquarters, Faisalabad,
the officer incharge of selection board of various centres 'did not retain the record of
the proceedings of Selection Board, since they had signed consolidated computerized
results and as a record was not required to be retained under any rules."
10. The CEO also confirmed that no objective criteria was framed for the purposes of the
interviews by FESCO or the Selection Boards.
11. Counsel for PEPCO was asked how MD, PEPCO single handedly modified Recruitment
Policy, 1992, dispensing with the requirement of the written test which is provided for in the
Government of Pakistan Policy parameters for recruitment ? and whether the Board of
Directors of PEPCO had authorised the MD, PEPCO to issue letter dated 15-10-2009 ?
Counsel for PEPCO sought time and on the next date of hearing placed on record the extracts
of the Board Resolution passed by the Board of Directors of PEPCO dated 24-5-2010
whereby ex-post facto ratification was granted to the letter dated 15-10-2009 issued by MD,
PEPCO. He further submitted that PEPCO has to follow the Government Instructions, which
have been noted in letter dated 15-10-2009.
12. On 8-7-2010, Mr. Abid Ali Chaudhry, Assistant Registrar (Criminal-II) of this Court
was appointed as a Local Commissioner who was directed to immediately leave for the Head
Office of FESCO, Faisalabad and to undertake the following tasks:---
(1) To obtain a copy of the Recruitment Policy/notification followed by FESCO for the
present appointments.
(2) To obtain a copy of the notification/letter through which Selection Boards were
appointed, showing the names of the members of the said Selection Boards.
(3) Letter/notification showing the objective criteria framed by FESCO for the purposes of
carrying out interviews or the appointments in the present cases.
(4) The local commission will take up 10 cases at random of the petitioners (maintained by
respondent FESCO) and place his stamp and signatures on all the pages of the said files. He
will do the same by taking 10 cases at random of the persons appointed by FESCO and place
his -stamp and signatures on all the pages of the said files.
(5) In case any of the above is missing and FESCO fails to furnish the same to the
satisfaction of the local commission, he will record the statement of Director, HR&A to that
effect and procure the signatures of the said Director on the said statement."
13. The Report of the Local Commission dated 12-7-2010 has been placed on record. No
written objections have been filed against the said Report and none of the counsel
controverted the contents and findings of the said Report during their arguments.
14. On 29-4-2010, FESCO was directed to issue notices to all the candidates who were
appointed as Assistant Lineman, Meter Readers, Commercial Assistants and Naib Qasids so
that their presence before the Court is ensured. Notices were duly issued to all the appointees
in the above category out of which 65 appointees ,appeared before this Court through
counsel. Counsel for the appointees submitted that they have been appointed through a
lawful process of interview and once the said appointment has been made, any lapse or
irregularity committed by the department cannot affect the appointments of the said persons
and placed reliance on Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006
SCMR 285. They further argued that the principle of locus poenitentiae also applies in the
present case. They contended that they were appointed after fulfilling all the requirements
and the procedure laid out by respondent FESCO and, therefore, cannot be deprived of their
rightful appointment. It was also contended that the said appointments were for a period of
one year and already six months had elapsed, therefore, interference by this Court at this
stage would be harsh and will unduly affect the appointees.
15. Arguments heard. Record perused.
16. I shall first address the preliminary objections raised by Mr. Muhammad Ilyas Khan,
Advocate appearing on behalf of FESCO. Admittedly, FESCO is owned by the Federal
Government and is therefore a State owned company and hence an instrumentality of the
State performing functions in connection with the affairs of the Federation. It is now settled
and trite law that State owned companies are amenable to writ jurisdiction. Reliance is
placed on Pakistan International Airline Corporation. and others v. Tanweer-ur-Rehman and
others PLD 2010 SC 676.
17. The second preliminary objection regarding application of the principle of "master and
servant" is misconceived as it is not the terms and conditions of service which are under
challenge in the instant petitions but the mode and manner of recruitment followed by a
public sector company which is in question. It is an obligation of a public institution to act
fairly, justly, reasonably and transparently. In the present case, it has been agitated that the
Recruitment Policy, 1992 has been violated. In spite of public advertisement, sham
interviews have been conducted without any common and prefixed objective criteria to
transparently judge and evaluate the candidacy of the applicants. It is submitted by the
petitioners that the process adopted by FESCO and its Selection Boards is blatantly devoid of
due process; it deprives the petitioners of their right to lawful employment and livelihood
and discriminately ousts the petitioners from the recruitment process in violation of Articles
4, 18 and 25 of the Constitution. Therefore, the objection regarding "master and servant" is
misplaced and without force.
18. The last preliminary objection is regarding factual controversy involved in the present
case. This objection also has no force as it has been admitted by the counsel, as well as, the
Chief Executive Officer and the Director, Human Resource (later in the judgment) that no
objective criteria was framed for the purposes of conducting interviews. Further, the
authority of MD, PEPCO to issue Letter dated 15-10-2009 and the blind implementation of
the same by FESCO is a legal question that can be easily addressed in the present
constitutional proceedings. I, therefore, reject all the three preliminary objections raised by
respondent FESCO as being frivolous and misconceived.
19. On merits these petitions raise the following questions of public law and institutional
importance:---
(a) Can appointments be made on the basis of Walk-In Interviews without a pre-fixed
objective criteria shared amongst all the Selection Boards (interviewers) by FESCO or
PEPCO to maintain a uniform objective selection process? Whether failure to do so offends
Articles 4, 18 and 25 of the Constitution besides affronting the principles of social and
economic justice?
(b) Whether in the absence of any record, minutes or notes of the proceedings, it could be
inferred that discretion was not lawfully and transparently exercised by the interviewing
members of the Selection Boards?
(c) Whether M.D, PEPCO could single handedly on the "advice" of the Minister for Water
and Power, temporarily amend the Recruitment Policy framed by WAPDA under the
guidelines of the Federal Government?
(d) Whether Board of Directors of a public sector company is competent to grant ex post
facto ratification without giving reasons?
(e) Whether, management of FESCO could blindly implement the decision of M.D. PEPCO
without first placing the same (Letter dated 15-10-2009) before the Board of Directors of
FESCO and getting their approval?
20. To answer these questions, it will be useful to sketch the chronological sequence of
events:-.
(i) PEPCO (Human Resource Directorate) communicated to FESCO vide letter dated
30-10-2008, that Cabinet Secretariat, Establishment Division has been pleased to grant NOC
for "advertisement only" of 1195 vacant positions spread over 22 different posts from BPS-1
to 14.
(ii) Through the same letter FESCO was directed to ensure that advertisement appears
in two daily Urdu newspapers having wide circulation preferably for 2-11-2003 (Sunday).
(iii) The advertisement appeared in "Jhang" and "Daily Express" Faisalabad on 2-11-
2008. The public advertisements were for 22 different posts and specifically stated that the
posts had to be filled by residents domiciled in Districts: Faisalabad, Bhakkar, T.T. Singh,
Sargodha, Mianwali and Khushab (the geographical service region of FESCO). The present
petitioners applied for the posts of Assistant Lineman (ALM), Meter Reader, Commercial
Assistant and Naib Qasid.
(iv) Vide Letter dated 10-11-2008 with the subject: Exemption From Ban on
Recruitment, PEPCO informed FESCO that selection process of the advertised posts "is
restricted at this stage till further instructions." This was perhaps due to the Ban on
Recruitment as the title of the Letter suggests.
(v) Vide Letter dated 16-12-2008 of PEPCO, last date for submission of applications
was extended till 15- 1-2009. FESCO vide its Letter dated 17-1-2009 reported to PEPCO that
80,173 applications had been received in all 22 categories in response to advertisement dated
2-11-2008 with the closing date of 13-11-2008 and more applications were expected as the
date was extended.
(vi) PEPCO Vide Letter dated 12-2-2009 wrote to all the corporatized entities (including
FESCO) the following:---
"Corporatized Entities may complete the recruitment process in a fair and transparent
manner at their own strictly in line with the applicable instructions rules and
recruitment policy.... PEPCO, however, as a part of its mandate, will continue its
routine and normal surveillance, covering selection process through in-house
arrangements. This is issued with the approval of the Managing Director PEPCO"
(vii) Vide Letter dated 19-2-2009 issued by PEPCO, the last date for the receipt of
applications ; was once again extended to 15-3-2009. This was done in view of letter of
Ministry of Water and Power dated 19-22009 whereby the ban on recruitment was lifted.
(viii) On 26-3-2009 PEPCO informed the DISCOs (including LESCO) that "The competent
authority has been pleased to allow for further proceeding with Recruitment Process for the
posts, cleared for advertisement only. Please ensure strict compliance with laid down
procedures/recruitment policies and all applicable Service Rules and instructions issued from
time to time."
(ix) At the time of the Public Advertisement dated 2-11-2008 till the issuance of Letter dated
15-1-2020(?), the New Recruitment Policy for WAPDA Employees Grade-1-15 (settled vide
Office Memorandum dated 25-1-1992) was in vogue., The said Recruitment Policy states:---
NEW RECRUITMENT POLICY FOR WAPDA EMPLOYEES GRADE 1 --- 15
Adopting the new Recruitment (1) Policy of the -Federal Government, WAPDA has
accordingly modified its own Recruitment Policy. The new policy adopted by
WAPDA is at annexure "A" covering all grades of employees, with special emphasis
on merit, elimination of discretion and including the monitoring role of Public
Representatives. (2) Previously merit was determined with the help of
subjective/trade tests. Now only objective test has been introduced for Grade 3---15
recruitment, specimen of which is enclosed depending upon the specific recruitment
of each trade. Papers for objective tests may be prepared on these lines. (3) The new
Recruitment Policy is to be followed strictly in letter and spirit. Authority: Director
General (S&GA) WAPDA's Circular No. DG/AD(E.IB)/7225-Re-5045-5203 dated
25-1-1992. Annexure ."A" GUIDELINES FOR RECRUITMENT OF STAFF IN
BPS 1--15 (1) In supersession of all previous instructions on the subject anew
Recruitment Policy has been approved by WAPDA on the basis of the one announced
by the Federal Government, laying emphasis on elimination of discretion and the
monitoring role of Public Representatives. Salient; features of the new Recruitment
Policy are as under:--- (a) All recruitments will be made in February and August
every year. (b) Advertisement in the electronic media/National Newspapers (at least
in 2 dailies) will be made with 30 days notice and on Sundays only. (c) Posts in BPS
1---2 will not be advertised. Whenever there is a need to fill in these vacancies
concerned formation will ask for application from Secretary WAPDA in addition to
applications available in the concerned office. (d) Posts for various Grade i.e. (BPS
1---15) will be advertised. (e) Qualifications where prescribed by Service Rules for
various grades will be strictly adhered to. (f) All appointments are to be made strictly
on Merit basis on experienced / academic /technical qualification. (g) No weightage
will be given to interview, unless essential for the post. (h) No ad hoc appointments
will be made. (i) Age relaxation will not be allowed when candidates of correct age
are available. However, candidate who may become over age as a result of ban
imposed by the Government since November, 1990 the age limit may be relaxed by 1-
1/2 years till 31-12-1992. 2. Procedure for Recruitment Objective/Trade test will be
organized for all advertised post by the respective formations, where considered
necessary. 3. Selection Board Posts of BPS 1---4 . Members not below the rank of
BPS 17 officer. For all advertised posts.--Selection Board will be as per WAPDA
Service Rules. 4. Appointing Authority As per existing delegation of administrative
powers laid down in Service Rules. 5. Domicile All direct recruitees should be
domiciled of the Region (Area Electricity Board/Province) where the posts exist, as
per existing policy. BPS 3---15: As far as possible, recruitment in Head Office,
Power Stations and Dams is made on all Pakistan basis according to the Provincial
Quota prescribed by the Federal Government. 6. Quota The quota reserved for
various categories is given below:--- Employees Children 33.1/3% Disabled
1% Ex-Servicemen 10% Destitute/Orphan 5%
(x) Office Memorandum dated 19-11-2003 issued by PEPCO states---
PAKISTAN WATER AND POWER. DEVELOPMENT AUTHORITY
SERVICES & GENERAL ADMINISTRATION DIRECTOR GENERAL 332-
Wapda House, (S&GA) Shahrah-e-Quaid-i-Azam Lahore No.
DG(S&GA)/D(Rules)/07453/30/II1/55906-27206 Dated 19-11-2003. OFFICE
MEMORANDUM Subject: QUALIFICATION PARAMETERS FOR
RECRUITMENT OF STAFF Authority in its meeting held on 4-11-2003 has
decided as under:--- 1. The prescribed qualification to appointments in BPS 1 to BPS
4 and Sanitary Workers will be as under: (a) BPS 3 and BPS 4 Matric (b) BPS 1
and BPS 2 Middle except Sanitary Worker (c) Sanitary Worker Literate (who can
read newspaper and write a simple letter in any language) (2) All Service Rules
instructions of such categories will stand amended to the above extent. (3) Merit list
for appointments upto BPS-15 will be prepared as under:--- (a) Weightage to written
Test 65 Marks (b) Weightage in Interview 25 Marks (c) One step higher
qualification 10 Marks and above than the prescribed qualification in the relevant
Service Rules (No weightage to above One step higher qualification) (emphasis
supplied) Recruitment policy will stand amended to the above extent. (Sd.)
(Muhammad Akhtar Choudhary Director-General
(xi) However, quite abruptly, vide letter dated 15-10-2009, M.D, PEPCO issued the
following letter:
PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LTD. Ref.
Managing Director/D/A 4200-4218 Dated October 15, 2009 Chief Executive Officer
DISCOs, GENCOs & NTDC Subject: PRIORITY CONSIDERATION FOR
CRUCIAL VACANCIES/CLEARANCE OF OPERATIONAL ISSUES. Further
to communications on subject, priority redressal of Technical/Operational and
Revenue problems has become more pronounced now and thus cannot be left to
procedural handling. Of course, these can be resolved to a great extent through
improving on governance and supplementing the deficient HR base of the Companies
on immediate basis, presently touching critical levels for skilled/semi-skilled
categories like ALMs, ASSAs, LSs, Meter Inspectors, Meter Readers, Bill Distributors
and other ministerial staff. Whereas Companies have advertised the vacant posts
procedural requirements still mars the sincere efforts for early inductions. It has been
brought to the notice of Ministry of Water and Power that PEPCO is following
Recruitment Policy adopted from WAPDA, that is based on GOP Policy Parameters
like open advertisement of the vacancies in the National Press and conducting the
written tests and interviews of the eligible candidates, a process not likely to complete
within 4---5 months even if given straight going. The job has become difficult on
account of overwhelming response of the candidates for the advertised vacancies i.e.
running in hundred thousands. Still another very serious concern is on the law and
order situation as prevalent in the country, where holding of written test in
congregation of thousands of candidates is not without serious life threats. There is a
rising trend' of the insurgency and terrorism where mass gatherings are the obvious
and easy targets for the miscreants. It has been deemed appropriate to avoid providing
any chance to terrorists by avoiding holding of gathering of candidates for written
tests on certain placed and venues. . The position has been discussed and brought in
the notice of Minister of Water and Power and in the view of the aforementioned
circumstances, it has been advised to fill 50% of the vacancies in BPS 1---16 on
immediate basis in accordance with the Recruitment Policy with unavoidable
exception, where required. Additionally, the Minister of Water and Power has also
been kind to allow recruitment against vacancies for Engineers and Officers of
Common Cadre (BPS-17) including those pertaining to Revenues, Accounts and
Audit etc. Accordingly, Entities are required to immediately, start the selection
process against 50% of the vacancies for BPS 1--16 from amongst the candidates who
have applied against the advertised vacancies and also meet minimum prescribed
criteria in the relevant Service Rules, by curtailing the selection process given in
Recruitment Policy to the extent that all other steps will be strictly complied, but for
the entrance test exception. The candidates will be called for walk in interviews and
marks reserved for written test shall be added in the interview marks. The successful
candidates shall then be issued offer of appointments. It is further clarified that CEOs
may consider relaxation in age as already authorized to them and change the short
listing criteria, where warranted, but otherwise not in conflict with the Service Rules
to provide equal chances to all in view of persistent ban on recruitment. The above-
mentioned measures are interim arrangements to cater for the special circumstances,
called for by immediate staffing requirements, overwhelming response of candidates
and security concerns for holding written tests in large congregation of candidates
running in thousands, applicable to only 50% of the vacancies of BPS 1--16. The full
process will stand restored automatically on completion of instant recruitment against
allowed 50% vacancies as prevalent heretofore without any notice thereby, including
the provision of written test. The Recruitment Policy, however, will remain
applicable as such for induction in Officers category where arrangements are possible
for comparatively lesser number of candidates. The date, time and venue for
examination against the Officers Cadre (both Technical and Non- Technical), if not
already taken up, should be initiated for 50% of such vacancies on immediate basis in
observance of prescribed criteria in Recruitment Policy and Service Rules. All
concerned may note to ensure induction of staff against the vacancies to the level
allowed on Fast Track basis so as to supplement the deficient HR Base for alleviating
the operational problems of the Companies. (Sd.) Engr. Tahir Basharat Cheema,
Managing Director
(xii) Thereafter 11 Selection Boards were constituted and "WALK-IN" interviews were held
in five Centre located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha and as
a result the 1.347 vacant posts were filled. Details are as follows:---
Total No. of
Candidates applied
Total number of
Candidates who
appeared in the
Walk in Interview
Total No. of
Successful
candidates
Total No. of
Candidates who
joined the posts
89;579 47,120 1,619 1,347
21. On the basis of the above facts, I take up the first question i.e., the absence of a pre-fixed
uniform and shared Objective Criteria for awarding marks to candidates who appeared for
the WALK IN Interview., out of a total of 90 marks. Mr. Shahid Karim, Advocate appearing
on behalf of PEPCO, submitted at the bar, that no Objective Criteria was framed by P.EPCO
or FESCO for assessing the candidates in the interview. CEO, FESCO in his statement
tendered in writing before this Court dated 12-7-2010 (placed as Mark "A") admitted that the
record of the proceedings of the Selection Boards is not available as it was not retained by
the Selection Boards. When asked if an objective test or criteria was prepared and handed
over to the Selection Boards so that a uniform interviewing process could be carried out, he
submitted that no such criteria existed. No such objective criteria has been placed on the
record or finds mention in the parawise comments filed by FESCO.
22. Statement of Muhammad Ashraf Chaudhry, HR and Admin. Director, FESCO recorded
on 9-7-2010 by the Local Commissioner states that: "....Assessment of the candidates in
interview was not segregated in terms of different traits of character, personality, etc. but
overall assessment was evaluated by the Selection Board as no such written instructions
exist...."
23. It is therefore an admitted position that no Objective Criteria for evaluation of candidates
during the WALK IN Interviews was chalked out by PEPCO, FESCO or the Selection
Boards. The Office Order through which 11 Selection Boards for various areas were
constituted having a convenor and two members were given the following instructions.
Office Order dated 28-10-2009 constituting Selection Board for the Sargodha Centre, which
is similar to the others, is reproduced hereunder:
Faisalabad Electric Supply Company Limited (WATER AND POWER
DEVELOPMENT AUTHORITY) Tel # 041-9220370 OFFICE OF THE Fax # 041-
9220445 CHIEF EXECUTIVE OFFICER FESCO (WAPDA) FAISALABAD
No.8235/DDA/E-II/ DATED 28.10.2009 OFFICE ORDER 1. A Board of
following Officers will conduct walk in interviews of candidates for appointment on
contract basis in FESCO, for the categories mentioned below on the dates mentioned
against each at 0900 hrs in Sargodha Centre:--- (1) Mr. Abdul Razzaq, Manager
(L&L) FESCO Convenor (2) Mr. Aamil Hussain Siddiqi, Deputy Manager
(Operation) Member 1st Division, Sargodha. (3) Mr. Javed Hussain, Convenor
Deputy Manager (Operation) 2nd Division, FESCO, Sargodha (4) Mr. Riaz Hussain
Balock, Member Deputy Manager (Commercial) (5) Malik Ashfaq Ahmed,
Deputy Manager), Member (Technical) FESCO, Sargodha. (6) Mr. Saeed Ahmed
Qureshi, Deputy Manager, Member (MIS) FESCO, Sargodha. (7) Mr. Shahbaz
Mehmood Member Assistant Manager (CTC) FESCO Sargodha (8) Mr. Javed
Anwar Sandhu Member Assistant Manager (Operation) Tariqabad Sub-Division
FESCO Sargodha (9) Mr. Maroof Ahmed Member Assistant Manager
(Operation) City Sub-Division FESCO, Sargodha (10) Mr. Imran Ali, Member
Assistant Manager (Operation) Civil Lines Sub-Division FESCO Sargodha (11) Mr.
Muhammad Tariq Member Assistant Manager (Operation) Rural Sub Division
FESCO Sargodha (12) Mr. Ghulam Murtaza Member Assistant Manager
(Operation) Kot Farid Sub Division FESCO (13) Mr. Raza Ali Nawaz Member
Assistant Manager (Construction) FESCO Sargodha (14) Mr. Muhammad Rashed
Member Assistant Manager (SS&T) FESCO Sargodha (15) Mr. Yasir Farooq
Member Assistant Manager (P&I) SS&T FESCO Sargodha
Category Date
UDC 29-10-2009
LDC/TCC 30-10-2009
Chowkidar 30-10-2009
Naib Qasir 31-10-2009
Commercial Assistant 1-11-2009
ASSA 2-11-2009
Bill Distributor 3-11-2009
ALM 4-11-2009
Meter Reader 5-11-2009
Lorry Driver 6-11-2009
Assistant Head Clerk 7-11-2009
Note: (a) Arrangements will be made at Sargodah Centre by Manager (Operation)
Sargodha Circle FESCO Sargodah. (b) Convenor will farther constitute Sub
Committees of the above Board. (c) The officials already earmarked will be deputed
for document checking and getting attendance of candidates. The Convenor in
consultation with the Officers of the board will specify their assignment. (d) The
Convenor of the Board himself will be present at the Venue well before the start of
the interview and till completion. (e) No unauthorized/irrelevant Officer/official will
be allowed to enter at the place of Venue in any case except the Officers specifically
detailed for the purpose. (f) No candidate without original Call letter and National
Identity Card will be allowed. (g) No photocopy of the Board proceedings will be
retained in . any case by any member/official. (h) Board Proceedings and attendance
sheets will be provided by this Headquarters. (i) The Board members will report to
Convenor well before 30 minutes of the prescribed time on the date of interview. 2.
This is issued with the approval of Chief Executive Officer, FESCO. (Sd.)
Muhammad Gulzar Sheikh Manager (Admn.)
The most fundamental component i.e. the basis of assessment and evaluation during
the interview is starkly missing in the instructions at the fag end of the Office Order
under the heading "Note" (reproduced above).
24. Assuming for the sake of argument, that PEPCO lawfully modified the well-settled
Recruitment Policy, 1992 framed by WAPDA by morphing written test into a WALK-IN
Interview with total marks of 90 (as per Recruitment Policy: 65 marks were allocated for
written test and 25 marks for interview; the marks for written test were added into the total
marks for the interview), what needs to be seen 'is whether the Selection Boards constituted
for the purpose of holding WALK IN Interviews could have exercised lawful discretion in
the absence of an objective criteria.
25. It is settled law that administrative discretion has to be structured, reasoned, rational,
logical and objective. One of the ways to arrive at such a structured exercise of discretion is
to fashion it on a well-thought out, carefully deliberated objective standard. This helps test
various faculties of the interviewee especially those, which the institution concerned
requires. The standard can, therefore, cover experience, alertness, initiative, general,
aptitude, behaviour knowledge, dependability, etc. which form a uniform yardstick; gauge,
scale or criteria for the exercise of discretion. Discretion without a uniform yardstick or a
formula is a loose jumble of haphazard human subjectivity, which is inescapably susceptible
to error and indubitably arbitrary, ex facie discriminatory, highly irrational and painfully
illogical. The administrative compulsion and wisdom to structure discretion (in this case by
providing a well thought out objective criteria/test: or a score card) is to remove human
subjectivity from exercise of discretion. In the present case, this was not done.
26. Good governance and institutional building requires that the requirements, demands and
needs of the institution are tailored into the objective criteria/test so that the best suited
human resource is selected for the post. The proposed criteria can sub-divide total marks into
areas like; experience, skill aptitude, educational background, intellect, extra-curricular,
personality, ethics, etc. so the interviewers have a prefixed format to apply their mind on and
disallow unchecked subjectivity from clogging them the minds.
7. The downside of not having a clear formula or criteria is supported by the following facts:
Local Commission was directed to collect, at random, application forms/files of selected and
rejected candidates. This was duly done. A bare perusal of the files placed on the record and
attached to the Report of the Local Commission reveal as follows:
Post applied for Name of the
Rejected
candidate
Academic
qualifications
Name of an
appointed
candidate
Academic
Qualification
Meter Reader Atteeq-ur-
Rehman CNIC
38301- 188522-
3
Matric 51%
F.A. 61% B.A.
65%
Ghulam
Mukstafa
33104-
8953930-7
F.A.50.72%
Matric 40%
The appointed candidates has less qualification than the rejected one. The above
comparative chart is self-explanatory.
28. On an institutional level, structuring the discretion is to protect the institution and the.
public from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and
volatility attached to human behaviour, translated into human dissection. These vices are a
breeding ground for corruption, nepotism and favourtism. These vices are like termites and if
permitted to exist, weaken the foundations of democratic public institutions. Reference at
this stage is made to the case of Aman Ullah Khan and others v. The Federal Government of
Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092
at page 1147), relevant part of Para 62 reads as under:---
"Wherever wide-worded powers conferring discretion exist, there remains always the
need to structure the discretion/and it has been pointed out in the Administrative Law
Text by Kenneth Culp Davis that the structuring of discretion only means regularizing
it, organizing it, producing order in it so that decision will achieve the high quality of
justice. The seven instruments that are most useful in the structuring of discretionary
power are open plans, open policy statements, open rules, open findings, open
reasons, open precedents and fair informal procedure. Somehow, in our context, the
wide worded conferment of discretionary powers or reservation of discretion, without
framing rules to regulate its exercise, has been taken to be an enhancement of the
power and it gives that impression in the first instance but where the authorities fail
to, rationalize it and regulate it by Rules, or Policy statements or precedents, the
Courts have to intervene more often than is necessary, apart from the exercise of such
power appearing arbitrary and capricious at times". (Emphasis supplied)
29. The above principles have been consistently reiterated in the cases of Chairman,
Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited,
Rawalpindi PLD 1991 SC 14), Director Food, N.-W.F.P. and another v. Messrs Madina
Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1, Chief Secretary Punjab
and others v. Abdul Raoof Dasti 2006 SCMR 1876, Abdul Wahab and another v. Secretary,
Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation
V. D.T.C. Mazdoor Congress and others AIR 1991 SC 101.
30. Interview as the sole or major component of any recruitment or appointment process is
open to error, arbitrariness, favour and corruption. It is for this reason that Recruitment
Policy framed by WAPDA on the guidelines of the Federal Government allocated 25%
marks out 100 for interview, while 65 marks were allocated for written test and 10 marks for
higher qualifications. The midstream sudden and shift to WALK IN Interview is therefore
irrational and opposed to public policy. In case of large number of candidates interviews
become even less effective. Interviewing for two to three minutes per candidate cannot help
judge the candidate and is no more than an eye wash, not to mention how such rushed and
cursory interview can be abused to achieve oblique ends. In the present case, according to the
record, 44,656 candidates were interviewed in 11 days by 11 Selection Boards. This means
that on an average 377 candidates were interviewed per day by each Selection Board, which
is humanly impossible and turns the interview and recruitment process into a cruel joke. I
rely with advantage on the under-mentioned cases for demerits of an appointment process
solely based on interview.
31. In Ramakichenin alias Balagandhi v. Union of India and others 2008(I)SCC 362 it was
held:---
"It is well-settled that the method of short-listing can be validly adopted by the
Selection Body.... Even if there is no rule providing for short-listing nor any mention
of it in the advertisement calling for applications for the post, the Selection Body can
resort to a short-listing procedure if there are a lame number of eligible candidates
who apply and it is not possible for the authority to interview all of them. For
example, if for one or two posts there are more than 1000 applications received from
eligible candidates, it may not be possible to interview all of them. In this situation,
the procedure of short- listing can be resorted to by the Selection Body, even though
there is no mention of short-listing in the rules or in the advertisement. As observed
by this Court in Raman Dayaram Shetty v. The International Airport Authority of
India and others AIR 1979 SC 1628: "It is a well-settled rule of administrative law
that an executive authority must be rigorously held to the standards by which it
professes its actions to be judged and it must scrupulously observe those standards on
pain of invalidation of an act in violation of them. This rule was enunciated by Mr.
Justice Frankfurter in "William Vincent Vitarelli v. Fred A. Seaton" 359 US 535; 3 L
Ed 2nd 1012 (1959) where the learned Judge said: "An executive agency must be
rigorously held to the standards by which it professes its actions to be judged.
Accordingly, if dismissal from employment is based on a defined procedure, even
though generous beyond the requirements that binds such agency, that procedure must
be scrupulously observed. This judicially evolved rule of administrative law is now
firmly established and, if I may add, rightly so. He that takes the procedural sword
shall perish with the sword":
32. In Madhya Paradesh Public Service Commission v. Navnit Kumar Potdar and another
AIR 1995 SC 77 it was held:---
"But where the selection is to be made only on basis of interview, the Commission or the
Selection Board can adopt any rational procedure to fix the number of candidates who should
be called for interview. It has been impressed by the courts from time to time that where
selections are to be made only on the basis of interview, then such interviews/viva voce tests
must be carried out in a thorough and scientific manner in order to arrive at a fair and
satisfactory evaluation of the personality of the candidate... If large number of applicants are
called for interview in respect of four posts, the interview is then bound to be casual and
superficial because of the time constraint. The members of the Commission shall not be in a
position to assess properly the candidates who appear before them for interview". (Emphasis
supplied)
33. In Ajaz Hasia and others v. Khalid Mujib Sehravardi and others AIR 1981 SC 487 where
in it was held that interview of each of the candidates lasting only two or three minutes
asking formal questions relating to the candidates parentage and residence and without any
relevance to the subject for which marks were allocated.... "The oral interview test is
undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre
of candidates". Having regard to the drawbacks and deficiencies in the oral interview test and
the conditions prevailing in the country, particularly when there is deterioration in moral
values and corruption and nepotism are very much on the increase, allocation of' a high
percentage of marks for the oral interview as compared to the marks allocated for the written
test, is not free from the vice of arbitrariness.
34. In Ashok Kumar Yadav and others v. State of Haryana and others AIR 1987 SC 454 at
page 473:---
"….. candidate's initiative, alertness, resourcefulness; dependableness, cooperativeness,
capacity for clear and logical presentation, effectiveness in discussion, effectiveness in
meeting and dealing with others, adaptability, judgment, ability to make decision, ability to
lead, intellectual and moral integrity. Some of these qualities can he evaluated, perhaps with
some degree of error, by a viva voce test, much depending on the constitution of the
interview Board.... Glenn Stahl has pointed out in his book on Public Personal
Administration that the viva voce test does suffer from certain disadvantages such as the
difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable
record of an oral test and public suspicion of the oral test as a channel for the exertion of
political influence and as pointed out by this Court in Ajay Hasia's case AIR 1981 SC 487
(supra), also of other corrupt, nepotistic or extraneous considerations....:"
35. Constitutionally, unlimited and unchecked exercise of discretion is inherently
discriminatory. It has no internal check to ensure uniformity and objective application of
mind across the board. It, therefore, extends unequal treatment to equals. Absence of an
objective criteria in exercise of discretion especially in the present case where thousands of
candidates had applied is therefore discriminatory and hence violative of Article 25 of the
Constitution.
36. Petitioners, hailing from different districts of Punjab; with modest means and humble
background, desperately seeking appointment to public service (86,000 candidates applying
for 1347 posts highlights the noticeable elasticity of demand). To subject their career and
future prospects of employment and perhaps their only hope of livelihood to an unstructured,
unchecked, unguided and unfettered exercise of discretion, puts the fragile career of the
petitioner hostage to corruption, political opportunism and nepotism resulting in
constitutional breach of Articles 4 and 18 of the Constitution.
37. Article 4 of the Constitution provides for due process and mandates that everyone is to
be treated: in accordance with law. Administrative discretion which is 'structurally unfettered
.and unchecked cannot be said to have been exercised in accordance with law and therefore
fails to pass the test of due process under Article 4 of the Constitution.
38. The WALK IN Interviews in this case are devoid of an objective criteria and therefore
violative of the due process and the fundamental rights of the petitioners. The WALK IN
Interviews are therefore declared to be ab initio unconstitutional and unlawful creating no
right whatsoever in the successful candidates.
39. Coming to the Letter issued by MD, PEPCO and its ex post facto ratification. It is
important to note that the public advertisement for the vacancy of the posts in question were
allowed by PEPCO and it was directed that recruitment be made as per Recruitment Policy
framed by WAPDA vide Letters dated 12-2-2009 and 26-3-2009 (above). Still, M.D.,
PEPCO without the approval of its Board of Directors, under the political diktat of the
Minister, Water and Power issued Letter dated 15-10-2009. The relevant extracts of the letter
are reproduced hereunder for ready reference:---
It has been brought to the notice of Ministry of Water and Power that PEPCO is following
Recruitment Policy adopted from WAPDA, that is based on GOP Policy Parameters like
open advertisement of the vacancies in the National Press and conducting the written
tests and interviews of the eligible candidates, a process not likely to complete within 4 - 5
months even if given straight going. The job has become .difficult on account of
overwhelming response of the candidates for the advertised vacancies. i.e. running in
hundred thousands. Still another very serious concern is on the law and order situation as
prevalent in the country, where holding of written test in congregation of thousands of
candidates is not without serious life threats. There is a rising trend of the insurgency and
terrorism where mass gatherings are the obvious and easy targets for the miscreants. It has.
been deemed appropriate to avoid providing any chance to terrorists by avoiding holding of
gathering of candidates for written tests on certain placed and venues.
The position has been discussed and brought in the notice of Minister of Water and Power
and in the view of the aforementioned circumstances, it has been advised to fill 50% of the
vacancies in BPS 1---16 on immediate basis in accordance with the Recruitment Policy with
unavoidable exception, where required. Additionally, the Minister of Water and Power has
also been kind to allow recruitment against vacancies for Engineers and Officers of Common
Cadre (BPS-17) including those pertaining to Revenues, Accounts and Audit etc.
Accordingly, Entities are required to immediately start the selection process against 50% of
the vacancies for BPS 1---16 from amongst the candidates who have applied against the
advertised vacancies and also meet minimum prescribed criteria in the relevant Service
Rules, by curtailing the selection process given in. Recruitment Policy to the extent that all
other steps will be strictly complied, but for the entrance test exception candidates will be
called for walk in interviews and marks reserved for written test shall be added in the
interview marks. The successful candidates shall then be issued offer of appointments. It is
further clarified that CEOs may consider relaxation in age as already authorized to them and
change the short listing criteria, where warranted, but otherwise not in conflict with the
Service Rules to provide equal chances to all in view of persistent ban on recruitment.
40. The said letter dispensing with the written test and adding the marks for the same into
the total score for the WALK IN Interview has poorly masked the political caprice visible
between the lines. It has been reasoned, with little logic, that if written tests are held the
process will not be concluded within 4 to 5 months due to large number of applications.
Secondly, the rise of insurgency and terrorism require that mass gathering ought to be
avoided, hence the WALK IN Interviews. It may be noted, that in such an eventuality, where
candidates hugely out-number the limited number of vacant posts, recourse to short-listing is
the made.(sic.) By setting a standard based on academic qualifications, candidates can be
short-listed and the small number of shortlisted candidates be subjected to the recruitment
process comprising a written test and an interview.
41. Clause 1(g) of the Guideline for Recruitment of Staff BPS 1-15 states: "No weightage
will be given to the interview unless essential for the post." It is now settled on good
authority, as discussed earlier in the judgment, that interview must always be a small
component of the recruitment process and primacy be given to the written tests as it involves
less subjectivity and is a better test of abilities. It is, therefore, surprising that M.D. PEPCO
on the behest of the Minister, Water and Power, without placing it before its own Board of
Directors, hurriedly issued letter dated 15-10-2009 deleting the requirement of a written test
and hinging the recruitment process on to the weakest modes of assessment i.e., interview.
42. The urgency and the compelling reasons that coaxed MD PEPCO to modify an
established Recruitment Policy and that too after the process of recruitment had begun is not
forthcoming from Letter dated 15-10-2009. The said arrangement is also temporary and for
the remaining 50% seats the original recruitment policy will be adopted.
43. Further, the ex post facto ratification by the Board of Directors fails to give reasons of
urgency,' failing to explicate why ratification was allowed. The Board of Directors of
PEPCO also failed to inquire why the established Recruitment Policy had to be modified and
whether short listing was an option that was not placed on the table. The decision of Board of
Directors dated 25-4-2010 blandly states:---
Item 15. RATIFICATION OF PRIORITY CONSIDERATION FOR CRITICAL
VACANCIES/CLEARANCE OF OPERATIONAL ISSUES Through an Item
Note on the subject and in the ensuing discussion piloted by the General Manager
(HR),PEPCO, the Board meeting, ex post facto Ratification No. MD/GM(HR)
/HRD/A-551(09)4200-4218 dated 15-10-2009. Concerning the need for
supplementing the deficient HR base on a fast track basis alleviating the operational
problems of the Companies. The Board of Directors ratified the aforesaid
instructions, as requested.
44. The Board item note (above) fails to mention why the decision had to be taken by M.D.,
PEPCO without the approval of the Board and the Board also miserably failed to review the
reasons why such a decision was taken and failed to deliberate whether the decision was
correct. It is important to note that decision dated 15-10-2009 is ratified by the Board of
Directors on 25-4-2010, while the decision of the MD, PEPCO stood implemented and
impugned appointments were made on 6-1-2010.
45. Even though ex post facto ratification is permissible under the Companies Ordinance,
1984 for companies, however, in the case of autonomous bodies/sector, the use of ex post
facto ratification needs a revisit. A public sector company is not only to look after the
interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the
people of Pakistan. Higher standard of governance, stricter fiduciary duty and an institutional
collegiality in decision making process is an expected operational benchmark of a public
sector company. The trusteeship of the members of the Board of Directors of PEPCO create a
sacred obligation to ensure that PEPCO is run and managed through the Board, which is an
independent and an autonomous body constituted to safeguard the interest of the public and
of PEPCO land at all times to firewall against political or bureaucratic opportunism. A
Minister under the Rules of Business is to provide the macro policy and fashion the vision of
the Department according to the political agenda of the Government in power. It is not the
role or the business of the Minister, (in this case Minister for Water and Power) to interfere
with the operational working of autonomous body like PEPCO. In this case the Minister
could have stressed the urgency to employ manpower in various power companies but could
not have gone further to suggest and direct the temporary modification of the Recruitment
Policy unless PEPCO after due deliberation at the Board level and after giving reasons felt
that such a modification is required in the larger interest of PEPCO and in pubic interest.
Government and its autonomous institutions are spread out in layers, every tier having its
own independent role and scope of operations and there is no room for dictation or pressure.
Unless the structure of governance laid out in the Rules of Business read with the
constitutional principles, is protected, the system of public administration will come crashing
down, replacing public interest with personal avarice and greed. This cannot be permitted.
46. I, therefore, hold that public sector companies e.g. PEPCO, FESCO) shall take collective
decision in their Board Meetings, giving reasons as required under section 24-A of the
General Clauses Act, 1897, a Board Resolution through circulation, if there is urgency. Only
in grave emergency, which has no room for delay, the CEO may act singly in the welfare of
the company and in public interest, supported by written reasons for its urgency and the same
must be ratified by the Board of Directors within the shortest possible time. Board of
Directors must also give reasons for allowing the CEO to take such a decision and must give
reasons for its ratification.
47. The Letter issued by Managing Director PEPCO changing the Recruitment Policy at the
behest of Minister besides offending fundamental right (as discussed above) reflects of poor
and reckless governance.
48. As per the website of WAPDA i.e., www.WAPDA.gov.pk.
"Since October, 2007, WAPDA has been bifurcated into two distinct entities i.e. WAPDA
and Pakistan Electric Power Company (PEPCO). WAPDA is responsible for water and
hydropower development whereas PEPCQ is vested with the responsibility of thermal power
generation, transmission, distribution and billing. WAPDA is now fully responsible for the
development of Hydel Power and Water Sector Projects. PEPCO has been fully empowered
and is responsible for the management of all the affairs of corporatized nine Distribution
Companies (DISCOs), four Generation Companies (GENCOs) and a National Transmission
Dispatch Company (NTDC). These companies are working under independent Board of
Directors (Chairman and some Directors are from Private Sectors). The Companies are
administratively autonomous and leading to financial autonomy by restructuring their
balance sheets by bringing their equity position to at least 20 per cent, required to meet the
prudential regulations and to facilitate financing from commercial sector (approved by
ECC)."
49. FESCO is an independent public company with its autonomous Board of Directors.
Decision of M.D. PEPCO or Board of Directors of PEPCO are required to be placed before
the Board of Directors of FESCO in orders to take a decision regarding the recruitment
process employed at FESCO. No such Board meeting took place. The autonomy of FESCO
and the independence of the Board of Directors of FESCO is merely fictional if directions
issued by individuals namely: M.D. PEPCO (without seeking the approval of the Board of
PEPCO) are carried through by the management of FESCO without having received the
blessing of its Board of Directors.
50. Public Institutions can only contribute to national interest and welfare of the people if
they are run as an institution and in the public interest without any fear or favour. If the
Board Members are bypassed and are simply used to ratify orders passed single handedly
behind closed doors and without any plausible reason, the future of public institutions is
bleak. In order to ensure independence, autonomy, national interest and interest of the
institution, the members of the governing bodies will have to vigilantly and actively play
their roles. To be on the Board of a public sector company is to perform a public duty in the
public interest of the people of Pakistan. This role has to be performed with full
responsibility, vigilance, courage, wisdom and for no other reason. Sadly, this is not the case
here.
51. The arguments raised by the counsel for the appointees have no force. Reliance placed
on Muhammad Zahid and others v. D.E.O. Mandan and others 2006 SCMR 285 is
misconceived. In the present case prospective candidates have brought the process of
recruitment under challenge and it is not a case where the departmental authority has
cancelled appointment due to some irregularity in the process with no third party interest.
The facts of the present case are very different. The judgment cited has no application to the
present case.
52. Before parting with the judgment I wish to re-emphasize that public institutions can
prosper and progress and materially serve the people of Pakistan only if the public
functionaries incharge of running these institutions fearlessly guard their powers and remain
undeterred by extraneous pressure and influence. The words of the founder of our nation
Muhammad Ali Jinnah are a timely reminder.---
"The first thing that I want to tell you is this, that you should not be influenced by any
political pressure, by any political party or individual politician. If you want to raise the
prestige and greatness of Pakistan, you must not fall a victim to any pressure, but do your
duty as servants to the people and the State, fearlessly and honestly. Service is the backbone
of the State. Governments are formed, Governments are defeated, Prime Ministers come and
go. Ministers come and go, but you stay on, and, therefore, there is a very great
responsibility placed on your shoulders. You should have no hand in supporting this political
party or that political party, this political leader or that political leader---this is not your
business ...While impressing this upon you on your side, I wish also to take the opportunity
of impressing upon our leaders and politicians in the same way that if they ever try to
interfere with you and bring political pressure to bear upon you, which leads to nothing but
corruption, bribery and nepotism---which is a horrible disease and for which not only your
Province but others too, are suffering---if they try and interfere with you in this way, I say,
they are doing nothing but disservice to Pakistan1.
1. [Informal talk to Civil Officers at Government House, Peshawar 14-4-1948 from Jinnah - Speeches and
Statements 1947-1948-Oxford]
53. For the above reasons, the impugned recruitment and appointment of candidates to the
posts of ALM, Meter Readers, Commercial Assistants and Naib Qasids by FESCO is
declared to be unconstitutional, illegal, without lawful authority and therefore set aside. All
the said posts shall be deemed to be vacant and filled again in terms of this judgment and the
Recruitment Policy of WAPDA unless the same is lawfully amended or modified by PEPCO
or FESCO.
54. From the above facts and the record placed before this court it is clear that the PEPCO
and FESCO have played fraud with the legitimate expectations of hundreds of people who
innocently applied desiring a decent lawful employment. However, instead of carrying out
transparent recruitment process and giving meaningful employment to the youth of this
country, these institutions failed to perform their public duty and have abused the public trust
reposed in them by the people of Pakistan. This calls for strict accountability of the public
functionaries involved in the process including the Board Members of PEPCO and FESCO
who seem to have taken no note of this large-scale breach of trust. I, therefore, direct
Chairman WAPDA to inquire into these unlawful appointments and to identify the real
beneficiaries of this unlawful recruitment process. Chairman WAPDA shall also hear and
incorporate the views of the candidates who were rejected as well as the ones whose
appointment has been set aside through this judgment. This report shall be placed before this
Court within five months from today.
55. Office is directed to place the report before this Court on the judicial side as a Report
Case.
56. For the above reasons, these petitions are allowed with costs of Rs.10,000 per
petitioner, which shall be paid equally by the PEPCO and FESCO within a month from
today.
SCHEDULE - A
Sr.
No.
Writ Petition No. Title
1. W.P. No.14921 of 2010 Syed Muhammad Waris Shah v. WAPDA and others
2. W.P. No.6212 of 2010 Muhammad Mushtaq v. WAPDA and others
3. W.P. No.6214 of 2010 Abdul Waheed Khan v. WAPDA and others
4. W.P. No.6215 of 2010 Sikandar Hayat v. WAPDA and others
5. W.P. No.6216 of 2010 Muhammad Nazir v. WAPDA and others
6. W.P. No.6217 of 2010 Shujat Ali Shah v. WAPDA and others
7. W.P. No.2693 of 2010 Aman Ullah v. WAPDA and others
8. W.P. No.4985 of 2010 Hafiz Junaid Latif v. WAPDA and others
9. W.P. No.4987 of 2010 Aamir Hayat Khan v. WAPDA and others
10. W.P. No.4989 of 2010 Ghulam Abbas v. WAPDA and others
11. W.P. No.4990 of 2010 Muhammad Rehan Faisal v. WAPDA and others
12. W.P. No.4991 of 2010 Adnan Raza v. WAPDA and Others
13. W.P. No.4992 of 2010 Natiq Ali v. WAPDA and others
14. W.P. No.4993 of 2010 Nazir Mukhtar v. WAPDA and others
15. W.P. No.4994 of 2010 Muhammad Saqib v. WAPDA and others
16. W.P. No.4995 of 2010 Muhammad Kamran Shehzad v. WAPDA and others
17. W.P. No.4996 of 2010. Sajid Khan v. WAPDA and others
18. W.P. No.4997 of 2010 Muhammad Amjad v. WAPDA and others
19. W.P. No.6794 of 2010 Muhammad Afzal v. WAPDA and others
20. W.P. No.6795 of 2010 Basit Saeed v. WAPDA and others
21. W.P. No.6796 of 2010 Muhammad Asif Khan v. WAPDA and others
22. W.P. No.6798 of 2010. Saqib Javid and others v. WAPDA and others
23. W.P. No.6799 of 2010 Zulqarnain v. WAPDA and others
24. W.P. No.6800 of 2010 Muhammad Mumtaz v. WAPDA and others
25. W.P. No.6801 of 2010 Shahid Amin v. WAPDA and others
26. W.P. No.8455 of 2010 Muhammad Saleem v. WAPDA and others
27. W.P. No.8456 of 2010 Zafar Iqbal v. WAPDA and others
28. W.P. No.8457 of 2010 Zafar Hayat v. WAPDA and others
29. W.P. No.8459 of 2010 Ghulam Jaffar v. WAPDA and others
30. W.P. No.8460 of 2010 Mujahid Hussain v. WAPDA and others
31. W.P. No.8461 of 2010 Muhammad Imran v. WAPDA and others
32. W.P. No.8463 of 2010 Muhammad Waris v. WAPDA and others
33. W.P. No.8559 of 2010 Hafiz Muhammad Azam v. WAPDA and others
34. W.P. No.5831 of 2010 Shahid Waheed v. Government of Pakistan and others
35. W.P. No.6717 of 2010 Rehan Ali v. Government of Pakistan and others
36. W.P. No.11901 of 2010 Muhammad Farooq v. WAPDA and others
37. W.P. No.11902 of 2010 Hadayat Ullah Khan v. WAPDA and others
38. W.P. No.11903 of 2010 Muhammad Farooq v. WAPDA and others
39. W.P. No.11905 of 2010 Muhammad Hayat Khan v. WAPDA and others
40. W.P. No.11907 of 2010 Sikandar Hayat v. WAPDA and Others
41. W.P. No.11908 of 2010 Sikandar Hayat v. WAPDA and others
42. W.P. No.11910 of 2010 Zulfiqar v. WAPDA and others
43. W.P. No.11911 of 2010 Sana Ullah v. WAPDA and others
44. W.P. No.11912 of 2010 Muhammad Saleem v. WAPDA and others
45. W.P. No.11913 of 2010 Azam Hussain v. WAPDA and others
46. W.P. No.11916 of 2010 Hadayat Ullah Khan v. WAPDA and others
47. W.'P. No.11917 of 2010 Muhammad Nazir v. WAPDA and others
48. W.P. No.11942 of 2010 Kamran v. WAPDA and others
49. W.P. No.14922 of 2010 Rizwan Qamar v. WAPDA and others
M. A. K. /I-46/L Petitions allowed.