P L D 2013 Lahore 386

Before Ijaz ul Ahsan and Syed Mansoor All Shah, JJ

TANVEER AHMAD KHAN---Appellant versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and 3 others--Respondents

Service Appeal No.2 of 2009, decided on 16th January, 2013.

(a) High Court (Lahore) Establishment (Appointment and C o n d i t i o n s o f

S e r v i c e ) Rules---

----Rr. 26, 7 & 20---Lahore High Court Notification No 10218/ Gaz.1. V. Z.2(a), dated 10-7-2009--
-Promotion to post of Deputy Registrar, (Lahore) High Court---Selection process ---Power of
competent authority/Chief Justice to appoint or promote any person/officer ---Scope---
Prontotees/respondents were promoted to the post of Deputy Registrar, (Lahore) High Court by the
impugned order of Chief Justice---Appellant, who was Reader, was superseded by the promotees,
contended that impugned order of promotion did not furnish any reasons for superseding him; that
despite being senior to the promotees he was not promoted; that no "objective criteria" had been
evolved for. selection to the post of Deputy Registrar, therefore, the impugned order amounted to
discrimination---promotees contended that they were preferred over the appellant because of their
better educational qualification, and that under R.26 of High Court (Lahore) Establishment
(Appointment and Conditions of Service) Rules, the Chief Justice of the Lahore High Court had
unlimited powers to appoint and promote any officer of the High Court---Validity---Service record of
appellant and promotees showed that one of the promotees and the appellant had the same
educational qualification,- and that appellant was senior.to some of the promotees---Impugned order
failed to furnish reasons as to why the appellant stood superseded when his service record and
educational qualification were at par with one of the promotees---Impugned order also did not state
as to why said promotee was selected for promotion when four other Readers in the selection pool,
holding better educational qualification, were ignored--Recruitment under R.7 of the High Court
(Lahore) Establishment (Appointment and Conditions of Service) Rules front amongst the pool of
officers awaiting promotion on the basis of an open, transparent and intelligent objective criteria
followed by a speaking order, was in the public interest and in the larger interest of the institution---
Power of selection under R.7 of the said Rules could not be used to select or pick and choose any
officer of liking from amongst the officers without considering all the officers awaiting promotion in
the pool---Although educational qualification was a valid parameter for the purpose of selection posts
but was not the sole parameter---Power vested with the competent authority/Chief Justice under R.26
of High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules did not vest
hint with unfettered and unguided power to override the regular selection process under R.7 of the
said Rules or to brush aside the vested rights of officers, who were awaiting their turn to be
considered for promotion---Rule 26 could not be invoked to pick and choose any officer awaiting
promotion or otherwise without first considering all the fficers in the pool--:Impugned order of
promotion to the extent of one 0f the promotees, who was Junior to the 'appellant and possessed the
state educational qualification, was set aside in circumstances and appellant was promoted as Deputy
Registrar, w.e.f: 10-7-2009, without back benefits, while the remaining promolees were to retain their

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inter seniority as maintained prior to their promotion---High Court directed that all appointments- and
promotions to selection posts should be made in accordance with R.7 of High Court (Lahore)
Establishmejt (Appointment and Conditions of Service) Rules by considering the service record and other
antecedents of the officers by employing an objective criteria, and that Registrar, High Court should place
all the orders passed by the competent authority (now or in the past) under R.26 or R.7 (without
consideration of the officers in the pool) before the competent authority for appropriate orders in
accordance with law---Appeal was allowed accordingly.

Service Appeal No.10 of 1999 distinguished.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 rel.

(b) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---

----Rr. 24 & 20 & Schedule II ---Order of appointment or promotion to the post of Deputy Registrar,
Assistant Registrar and Private Secretary made by Chief Justice of the High Court---Appeal against such
an order-Scope-Where the order passing authority was the Chief Justice of the High Court, the appellate
authority against such an order would be a bench of two Judges of the High Court.

Service Appeal No.10 of 1999 distinguished.

(c) Civil service---

----Selection-post---Suitability of candidate, determination of---Merit---Scope---Selection post was to be

filled purely on merit by carefully evaluating the suitability of the officer for the post---Suitability of the
officer for a selection post, was not to be simply gauged on the basis of seniority or eligibility but required
a deeper subjective assessment of the meritoriousness of a candidate---To evaluate merit, the ability and
achievement demonstrated by the officer in the post held by him played a pivotal role---Competent
authority, therefore, had to devise a strategic formulae or intelligent objective criteria or smart parameters
that were geared towards evaluating the suitability of the candidate and helped to select the best person for
the job.

Tariq Aziz-ud-Din and other's 2010 SCMR 1301 rel.

(d) Civil service-

--Selection-post---Selection process---"Discretion" of competent authority---Scope---Discretion at work

behind the selection process must be structured, rational, logical and objective---Discretion without a
uniform yardstick or a formula' was a loose jumble of haphazard human subjectivity, which was
inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and
illogical---Administrative compulsion and wisdom to structure discretion was to remove human
subjectivity from exercise of discretion---Intelligent objective criteria or smart parameters were tools for
the selecting authority to logically fashion its discretion--Constitutional and jurisprudential importance of
structured discretion was that it nursed the requirement of due process, fairness and fair trial and
safeguarded the discretion against the vice of discrimination and arbitrariness. [pp. 398, 399, 400] D, E, F
&G

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Tariq Aziz-ud-Din and others's case 2010 SCMR 1301; Imran Hussain v. Water and Power
Development Authority through Chairman WAPDA and 4 others PLD 2010 Lah. 546;
Corruption in Hajj Arrangements in ' 2010 PLD 2011 SC 963; Muhammad Yasin v.
Federation of Pakistan through Secretary, Establishment Division, Islamabad and others
PLD 2012 SC 132; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others
1997 SCMR 641; Muhammad lqhal Khokhar and 3 others v. The Government of the
Punjab, through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991
SC 35 and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6
others 2012 PLC (C.S.) 1062 rel.

(e) Civil service-

---Selection-post-Selection order made by competent authority---Scope---Non-speaking selection order---

Effect---Exercise of structured discretion was incomplete if it was not translated into a speaking order,
furnishing reasons---Unreasoned and non-speaking order generated mistrust, suspicion, dubiety and
frustration amongst the officers and compelled them to harbour doubts about the recruitment process
hence lowering the prestige and credibility of the selection process and as a result of the institution---Such
an order also had a dispiriting effect on the officers who continued to work with wavering interest and
loyally thus putting down the overall productivity of the institution.

Messrs Airport Support Services v. The Airport Manager, Quaid-a-Azam International

Airport, Karachi and others 1998 SCMR 2268; Liaqat Ali Memon and others v. Federation
of Pakistan and others PLO 1994 SC 556; Secretary to Government of N.-W.F.P. and
another v. Muhammad Nawaz and another PLD 1996 SC 837; Rukhsar Ali and II others v.
Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC
(C.S.) 1453; Pakistan International: Airlines Corporation through Chairman and others v,
Shahzad Farooq Malik and another 2004 SCMR 158 and Ashfaq Hussain v. Government of
the Punjab and others 2011 PLC (C.S.) 799 rel.

(f) Civil service---

----Selection post---Criteria for selection---Seniorit y of candidate S i gni fi cance - --
S eni ori t y was not the d et erm i ni n g factor in a selection post but co ul d tilt the scal es
in favour of the seni or o f f i c e r in case of a tie.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 and Liaqat All Chugtai v.
Federation of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.

(g) High Court (Lahore) Establishment (Appointment and Conditions of S e r v i c e )

Ru l es ---

----Rr. 26 & 7---Constitution of Pakistan Arts.4, 10A & 25---Power of com pe t e nt

authority/Chief Justice of the (Lahore) High Court to appoint or promote any
person/officer of the High Court---Scope---Power vested with the competent
authority/Chief Justice under R.26 of High Court (Lahore) Establishment (Appointment and
Conditions of Service) Rules did not vest him with unfettered and unguided power to

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override the regular selection process under R.7 of the said Rules or to brush aside the
vested rights of o f f i c e r s , who were awaiting their turn to be considered for promotion--
-Such an interpretation would offend the constitutional obligation of due process and
fair trial under Arts.4 and 10A of the Constitution---Rule 26 of High Court (Lahore)
Establishment (Appointment and Conditions of Service) Rules could not equip the competent
authority with the license to pick and choose any o f f i c e r for promoti on as that would be
facially discriminatory, o f f e n d i n g Art.25 of the Constitution---Rule 26 of High Court
(Lahore) Establishment (Appointment and Conditions of Service) Rules appeared to
empower the competent authority with unabridged power but in substance the said Rule
itself regulated and harnessed the power by providing. its exercise "in a unanner as may
appear to him [competent Authority] to be just and equitable-Power vested under R.26
was and ex cepti on and had a limited use and could be invoked in special emergent
circumstances---For purposes of appointment and promotion R.26 of High Court (Lahore)
Establishment (Appointment and Conditions of Service) Rules would be available to the
competent authority only when all the o f f i c e r s available in the talent pool for
appointment or promotion to the post in question had been (MY c o n s i d e r e d and not
found suitable through a speaking order---Exercise of such special power was h a r n e s s e d
by strict requi r em ent of detailed deliberations by the com pet ent authority followed by a
wel l-reasoned cider that would justify side tracking the normal procedure un de r t h e
Rules.

Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab, through the Secretary
to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 and Manzoor Hussain and 2
others v. Muhammad Ashraf and another 1999 PLC (C.S.) 279 rel.

(h) D i s c r e t i o n - - -

---Exercise of---Principles---Discretion without a uniform yardstick or a formula was a loose

jumble of haphazard human subjectivity, which was inescapably susceptible to error and
indubitably arbitrary, ex facie discriminatory, highly, irrational and illogical ---
Administrative compulsion and wisdom to structure discretion was to rem ov e human
subjectivity from ex er ci se of discretion---Constitutional and jurisprudential importance of
structured discretion was that it nursed the requirement of due process, fairness and fair
trial and safeguarded the discretion against the vice of discrimination and
arbitrariness.

Syed Ijaz Qutab for Appellant.

Shahid Mubeen along with Hafiz Muhammad Sajjad, Assistant Registrar (Gazette-II), Lahore
High Court, Lahore.

Respondents Nos.2 to 4 in person.

Syed Aamir, Ali, Assistant Registrar (Legislation), on Courts' call.

Date of hearing: 22nd November, 2012.

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JUDGMENT

SYED MANSOOR ALI SHAH, J.---This is an appeal under Rule 24' of the High Court
Establishment (Appointment and Conditions of Service) Rules' ("Rules") against order
dated 10-7-2009 passed by the Hon'ble Chief Justice of this Court (also referred to as the
"Competent Authority" or "HCJ) under Rule 7 of the Rules and notified on the same day
whereby nine, (9) officers of this Court were promoted to the post of Deputy Registrar (BS -
19) from amongst the Private Secretaries, Readers and Assistant Registrars of this Court.

2. The main grievance of the appellant, who is a Reader of this Court, is th at the impugned
order of promotion passed by the Competent Authority does not furnish any reasons for
promoting respondents Nos.2 to 4 (also Readers of this Court) and for superseding the
appellant. He submits that his service record is at par with the res pondent officers besides
being senior to them (in the seniority list of the Readers) still he has not been promoted. He
submitted that no "objective criteria" has been evolved for selection to the post of Deputy
Registrar, therefore, the impugned order amounts to discrimination.

3. Learned counsel representing the Registrar of this Court, Hafiz Muhammad Sajjad,.
Assistant Registrar (Gazette-II) Lahore High Court and respondents Nos.2 to 4 appearing in
person collectively made their submissions. They raised a preliminary objection at the
outset that the instant appeal against order of promotion passed by the Competent
Authority under Rule 7 of the Rules is not maintainable and placed reliance on an
unreported judgment of the Division Bench of this Court dated 12-12-2001 passed in
Service Appeal No.10 of 1999 which holds that appeal under Rule 24 is provided only
against an order of seniority under Rule 20(c).

4. On merits, they submitted that respondents Nos.2 to 4 were preferred over the appellant
because of their educational qualification. They referred to the decision of the Competent
Authority dated 30-9-2008 whereby Masters or an LLB degree was set as qualification for
the candidates to be considered for promotion to the post of Deputy Registrar (BS -19).
They further submitted that, it is assumed, that the competent Authority, being the Chief
Justice of this Court, must have carefully examined the service record and other
antecedents of the candidates hence there is no requirement for the impugned order to carry
reasons. It was also contended that under Rule 26 of the Rules, the Hon'ble Chief Justice
has unlimited powers to appoint and promote any officer of this Court,, therefore, the
grievance of the appellant Is unfounded.

5. Arguments heard. Rules and the original record maintained by the Assistant Registrar
(Gazette-II) have been perused.

PRELIMINARY OBJECTION

6. High Court Establishment (Appointment and Conditions o' Service) Rules have been
promulgated in exercise of powers conferred by Paragraph 6 of Part-II of the Third
Schedule to the Constitution of the Islamic Republic of Pakistan, 1956 read with Article

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 227(5) of the said Constitution.'

RULE 24.

7. Under Ruler 24 an appeal is available against an order passed under Rules 20 and 23 of
the said Rules before the Authorities indicated in Schedule-II of the said Rules (Schedule-
II has been reproduced at the 'end of this judgment for ready reference). Rules 7 and 20
provide as under:

Rule 7. "The Posts of, Deputy Registrar, Assistant Registrar and Private Secretary to the
Chief Justice shall be filled by selection by the Chief Justice and that of the Personal
Assistant to the Registrar by the Registrar ordinarily from the High Court establishment,
provided that where the appointment is made from outside, the provisions of rule 6(i) shall
apply."

Rule 20. "Subject to the provisions of rule 7, all matters relating to appointment, promotion
and seniority shall be decided by the Registrar, if specially empowered;' or in the absence
of such powers by the Administrative Judge; provided that an appeal shall lie against;

(a) An order of substantive appointment, by promotion or otherwise to a permanent post or

pensionable post the maximum pay of which is Rs.60 or more per mensem;

(b) An order of temporary appointment which is to last for more than three months in respect
of a post, the maximum pay of which is Rs.60 or more per mensem, and

(c) An order fixing the seniority of any member of the establishment,

Such appeal shall lie to the authorities indicated in Schedule-II attached to these rules."
(emphasis supplied)

8. Perusal of the above provisions, inter alia, show that appointment or promotion to
the post of Deputy Registrar, Assistant Registrar and Private Secretary shall be thro ugh
SELECTION by the Ron'ble Chief Justice. It further shows that appeal will lie against an
order of appointment, promotion or seniority before the appellate A authorities mentioned
in Schedule II. In case the order is passed by the HCJ the appellate auth ority is a bench of
two judges of this Court. In other matters the appeal lies before the Administrative Judge or
the Chief A Justice. The unreported judgment cited by the learned counsel for the Registrar
passed by the learned Division Bench of this Court dated 12-12-2001 passed in Service
Appeal No.10 .of 1999 proceeds on the assumption that appeal is available only against an
order of seniority under Rule 20(c) and fails to consider that appeal is also available against
orders of appointment, promotion and temporary appointment as provided under Rules
20(a) and (b). It appears that the Bench was not properly assisted and Rules 20(a) and (b)
were not brought to their notice.

9. For the above reasons we are of the view that all the orders envisaged in sub -rules (a),

6
(b) and (c) of Rule 20 are appealable before the appropriate appellate authority as provided
in Schedule-II read with Rule 245 of the Rules. The preliminary objection raised by the
respondents, therefore has no force and is hereby overruled.

ON MERITS

10. Assistant Registrar (Gazette-II) of this Court submitted that in the year 1998 the matter
regarding promotion to the post of Deputy Registrar was placed before the then Hon'ble
Chief Justice (Mr. Justice Rashid Aziz Khan) who passed the following order:---

"Promotion to the post of Deputy Registrar shall be made in rotation from amongst the
three feeding Cadres, namely, the Private Secretaries, Readers and Superintendents (now
Assistant Registrars)."

11. Thereafter, the then Hon'ble Chief Justice vide order dated 30-9-2008 set qualifications
for the officers to be considered for promotion to the post of Deputy Registrar in the
following manner:--- .

"Master degree or equivalent in any subject from a recognized university or institut ion or
LL.B."

Keeping in view the above decisions,. the Private Secretaries, Readers . and Assistant
Registrars of this Court have been promoted to nine vacant posts of Deputy Registrar
through impugned order on rotational basis. Respondents emphasized t hat only officers
holding Masters or LL$ degree could be considered for the post of Deputy Registrar; hence
the appellant was rightly superseded.

12. The impugned order dated 10-7-2009 passed by the Hon'ble Chief Justice is as follows:

Hon'ble Chief Justice 18. Taking into consideration the educational qualification
and perusing the service record of the officers, following promotions are made to
the posts of Deputy Registrars from the dates mentioned against each officer: --
1 Pervaiz Khalid, Private Secretary With immediate
effect to make up
the previous
deficiency.
2 Muhammad Sarwar, Private Secretary With immediate
effect
3 Abdul Hafeez, Reader With immediate
effect
4 Abid Hussain Bokhari, Assistant Registrar With immediate
effect
5 Muhammad Asghar, Private Secretary With immediate
effect
6 Iftikhar Ahmed Samdani, Reader With immediate
effect

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7 Sheikh. Muhammad Nadeem, Assistant Registrar
With immediate
effect
8 Arshad Mahmood Baig, Private Secretary With immediate
effect
9 Riaz Hussain Shahid, Reader w.e.f. 1-8-2009.
(emphasis supplied) (KHAWAJA MUHAMMAD SHARIF) CHIEF JUSTICE 10-7-
2009

LAHORE HIGH COURT, LAHORE NOTIFICATION No.10218/Gaz. 1 .V.

Z.2(a) Dated Lahore the 10th July, 2009 The Hon'ble Chief Justice has been pleased
to select and promote the following officers of this Court, as Deputy Registrar
Lahore High Court, Lahore, in the public interest, with immediate effect:--- 1. Mr.
Pervaiz Khalil. Private 2. Mr. Muhammad Sarwar, Private Secretary 3. Mr. Abdul
Hafeez, Reader 4. Mr Abid Hussain Bokhari, Assistant Registrar 5. Mr.
Muhammad Asghar, Private Secretary 6. Mr. Iftikhar Ahmad Samdani, Reader 7.
Sheikh Muhammad Nadeem, Assistant Registrar. 8. Mr. Arshad Mahmood Baig,
Private Secretary. 9. Mr. Riaz Hussain Shahid, Reader; (w.e.f. 1-8-2009).
(emphasis supplied) (ABDUS SATTAR ASGHAR) DISTRICT AND SESSIONS
JUDGE (ESTT.) FOR REGISTRAR

13. It needs to be seen whether the above orders have been passed after considering the
educational qualification and service record of the officers. Summary of the service
record of 14 Readers was placed before the Competent Authority for three posts of
Deputy Registrar on rotational basis from amongst the Readers. Notification' dated 6 -
11-1997 showing, inter se, seniority of the appellant and respondents 2 to 4 has been
placed on the record as Mark "A" and is undisputed. The following extract shows the
service record put up before the Competent Authority' pertaining to the appellant and
the Readers who were selected i.e. respondents 2 to 4. Further perusal of the record
shows that the service record of the other Readers was also in the same format:

Tamar Ahmed Khan Abdul Hafeez Iftikhar Ahmad Riaz Hussain

Appellant B.A. Respondent No.2 Samdani Shahid Respondent
B.A., LL.B. Respondent No.3 No.4 B.A.
B.A., LL.B.
He joined as junior He joined in this He started his career H e started his
clerk on 26-7-1980 Court as as junior clerk in career as junior
He was appointed as Stenographer in the 1979 and promoted clerk(w.e.f 28-10-
Assistant during the year 1994. He was as Senior Clerk in 1979). He was
year 1986. He was appointed as Reader the year 1982. He selected as Junior
appointed as Reader on 6.11-1997. He is was recruited as Translator and
in the year 1997 " He being considered for Reader in 1997. He then promoted as
is being considered for promotion of Deputy is being considered Senior Translator
promotion of Deputy Registrar for first time. for promotion of in 1997. He was
Registrar for first time. Presently, no Deputy Registrar for recruited as Reader
Presently, no departmental first time. Presently, in 1997. He is being
departmental inquiry/proceedings no departmental considered for

8
 inquiry/proceedings are pending against inquiry/proceedings promotion of Deputy
are pending against him. are pending against Registrar for first
him. him. time. Presently, no
departmental
inquiry/proceedings
are pending against
him.

From the above information it is noticed that the selection was based on the following
factors:---

(i) Educational qualifications;

(ii) A brief service record of the officers, establishing their inter se seniority;

(iii) That the officers were being considered for the post for the first time;

(iv) That no departmental proceedings were pending against the said officers.

14. The above record establishes that respondent No.4 and the appellant have the same
educational qualification i.e., B.A. Additionally, the appellant is senior to respondents
No.2 to 4. The impugned order reproduced above, fails to furnish reasons why the
appellant (who was senior to respondent No.4) stood superseded in the above facts and
circumstances of the case when the record and educational qualification of the appellant
and respondent No.4 were at par. It is also not clear why respondent No 4 was selected
for promotion when four other Readers`' in the pool (two of them senior to respondent
No.4)holding higher educational qualification i.e., an LLB degree were ignored.

RULE 7:

15. Under Rule 7 of the Rules, the post of Deputy Registrar is to be filled by Selection
by the Hon'ble Chief Justice. It is settled legal position that selection post is to be filled
purely on merit" by carefully evaluating the suitability of the officer for the post, while
non-selection post is to be filled on the basis of seniority-cum-fitness. In a selection post,
suitability of the officer is not to be simply gauged on the basis of seniority or eligibility
but requires a deeper subjective assessment of the meritoriousness of a candidate. To
evaluate MERIT, the ability and t achievement demonstrated by the officer in the post held
by him plays a pivotal role. The Competent Authority, therefore has to devise a strategic
formulae or intelligent objective criteria or smart arameters12 that are geared towards
evaluating the suitability of the candidate and help select the best person for the jo b as if
separating the wheat from the chaff .In essence the discretion at work behind the selection
process must be structured, rational, logical and objective. In Imran Hussain's c a s e this
Court held that ".... 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

9
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 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.

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 back l round, 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." (emphasis
supplied)

16. The need to have intelligent objective criteria or smart parameters, therefore, cannot be
over emphasized. Such criteria or parameters are tools for the selecting authority to
logically fashion its discretion. Reliance is placed on Tariq Aziz-ud-Din and others (2010
SCMR 1301), Corruption in Raj] Arrangements in 2010 (PLD 2011 SC 963), Muhammad Yasin
v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD
2012 SC 132), Messrs Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR
641) and Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab, through the
Secretary to Government of the Punjab, Lahore and 2 others (PLD 1991 SC 35). On the concept
of institutional discretion, this Court has held in Liagat Ali Chugtai v. Federation of Pakistan
through Secretary Railways and 6 others (2012 PLC (C.S.) 1062):---

35. 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

10
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".

36. The above principles have been consistently reiterated in the cases of Chairman,
Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Com any 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)."

17. The constitutional and jurisprudential importance of structured discretion is that it

nurses the requirement of due process, fairness, fair trial and other fundamental rights as
enshrined in the Constitution. and 0 safeguards the discretion against the vice ,of
discrimination and arbitrariness. Exercise of structured discretion is incomplete if it is not
translated into a speaking order, furnishing reasons as mandated under section 24-A of the
General Clauses Act, 1897. Reliance is placed on H Messrs Air ort Su ort Services v. The Air,
ort Mana. er, I uaid-e-Azam International Air. on, Karachi and others (1998 SCMR 2268), Liagat
Ali Menton and others v. Federation of Pakistan and others (PLD 1994 SC 556), Secretary to
Government o N.-W.F.P. and another v. Muhammad Nawaz and another (PLD 1996 SC 837),
Rukhsar Ali and 11 others v. Government o N.W.F.P. through, It Secretor Education, Peshawar and
3 others (2003 PLC (C.S.) 1453), Pakistan International Airline's Corporation through Chairman
and others V. Shahzad Farooq Malik and another (2004 SCMR 158) and Ashfaq Hussain v.
Government of the Punjab and others (2011 PLC (C.S) 799). An unreasoned and non-speaking
order generates mistrust, suspicion, dubiety .and frustration 'amongst the officers. They are
compelled to harbour doubts about the recruitment process, hence lowering the prestige and
credibility of the selection process and as a result of the 1 institution. It also has a
dispiriting effect on the officers who continue to work with wavering interest and loyalty
thus 'putting down the overall productivity of the institution. Such are the demerits of an
unstructured, unreasoned and closed door recruitment process in a public sector. Therefore,
it is in the public interest and in the larger interest of the institution if recruitment under
Rule 7 of the Rules is from amongst thed pool of officers awaiting' promotion on the basis
of an open an transparent intelligent objective criteria followed by a speaking order. It is
reiterated for clarity that the power of selection under Rule 7 can be used to select or pick
and choose any officer of liking from amongst the officers without considering all the
officers awaiting', promotion in the pool.

18. Educational qualification is a valid parameter for the said purpose but not the sole
parameter. The impugned order also establishes ] the same as respondent No:4 holding a
B.A. degree was promoted and similarly vide order dated 13-1-2010 one Imran Safdar
(Reader) holding a B.A. degree was promoted as Deputy Registrar. Similarly, seniority is
not the determining factor in a selection post but can tilt the scales in 1 favour of the senior

11
officer in case of a tie. Reliance is placed on Tariq Aziz-ud-Din and others (2010 SCMR 1301)
and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others (2012
PLC (C.S.) 1062. Therefore, impugned order fails to give reasons for superseding the
appellant and for selecting respondent No.4 over several others including the appellant.

RULE 26.

19. Respondents also laid emphasis on Rule 26 of the Rules to justify the impugned order.
We have, therefore carefully examined this Rule which is reproduced hereunder for ready
reference:

"Nothing in these rules shall be deemed to limit or abridge the powers of the Chief Justice
to appoint or promote any person who has neither passed nor qualified at an examination
held by the Public Service Commission or under these rules or to deal with the case of any
person in such manner as may appear to him to be, just and equitable." (emphasis supplied)

20. The said Rule has an unsavoury history and has achieved an unpalatable notoriety over
the years as it allows officers to jump the queue without necessarily being the best man for
the job. The power under the aforesaid Rule does not vest the Competent Authority with
unfettered and unguided power to override the regular selection process under Rule 7 or to
brush aside the vested rights of officers, who await their turn to be considered for
promotion. Any such interpretation will offend the constitutional obligation of due process
and fair trial under m Articles 4 and 10A of the Constitution. The said R ule cannot possibly
equip the Competent. Authority with the license to pick and choose any officer for
promotion as this would be facially discriminatory, offending Article 25 of the
Constitution. The said Rule cosmetically appears to empower the Competent Authority
with unabridged power but in substance the Rule itself regulates and harnesses the power
by providing its exercise "in a manner as may appear to him [Competent Authority] to be
just and equitable". Mr. Rustam S. Sidhwa, J. speaking for the augus t supreme Court of.
Pakistan in Muhammad Iqbal Khokhar's case' while discussing section 22 of the Punjab Civil
Servants Act, 1974 which is almost similar to Rule 26, held as follows: ---

"7 .... What is 'just and equitable'? The Word 'just' denotes that which is right and proper,
that which can be justified in law. Since we are dealing with the rights of civil servants
under the Punjab Civil Servants Act. 1974 and the various rules that are framed thereunder
or are already in force, the word 'just' would mean that which is legal and proper under the
said Act or the rules or that which imports the exercise of good judgment or discriminatory
appraisal within the bounds of reason and which negatives the presence of any arbitrary,
unreasonable or capricious determination, or anything which causes injury to a person. The
word `equitable' means that which is founded in equity, i.e. that which is fair, reasonable,
unbiased, impartial, even handed; the construction of a matter according to its reason and
spirit. Thus, the section creates a balance. The learned Governor, in appraising the case of a
civil servant, can ignore limiting or abridging factors contained in the Act or in any rule
but he must confine himself within the limits of justice and equity, for no soon er he finds
he is about to transgress those limits, a cut off point arises and he must control impetuosity
and stay further transgression, so that the purpose of the law or rule may not be flagrantly

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violated or defeated under the guise of its exercise...."

21. The power under Rule 26 has a limited use and can be invokedlr in special emergent
circumstances. In the context of the present case, Rule 26 cannot' be invoked to pick and
choose any officer awaiting promotion or otherwise without first considerin g all the
officers in the t pool. It, however, can be used where there is no officer available in the
pool and the post requires to be filled on an emergency basis, Exercise of this special
power is harnessed by strict requirement of detailed deliberations by the Competent
Authority followed by a well-reasoned order that would justify side tracking the normal
procedure under the Rules.

22. In a country governed by laws and not men where rule of law reigns supreme, no public
functionary, who is a trustee on behalf of the people, has the Power or the authority to
bestow personal favours or largesse at the expense of the institution. Higher the office of
the public functionary, higher the responsibility in discharging the sacred trusteeship. All
the judges of this Court are public functionaries and hold their post as a trustee on behalf of
the people of Pakistan in terms of the oath under Article 194 of the Constitution which
provides that they will not allow their personal interest to influence their official conduct
or official decisions and in all circumstances will do right to all manner of People
according to law without fear, favour, affection or ill-will. Every administrative decision of
the Hon'ble Chief Justice, under the Rules, most therefore be for the benefit and welfare of
the institution i.e. Lahore High Court provided it passes the test of due process. Even
though the impugned order mentions that it is in the public interest it P fails to meet the
requirement of due process as it lacks reasons.

23. Even on the administrative side, no other institution more than the judiciary is under a
moral obligation to maintain the highest standards of fairness in its internal procedure and
be reckoned as a ' citadel of meritocracy, setting trends in good governance, fairplay,
openness and transparency for other institutions to emulate. We, therefore, hold that Rule
26 is to be invoked by the Competent Authority in special circumstances after thorough
deliberation and by furnishing detailed reasons for its exercise. Rule 26 is, therefore, an
exception and not a general rule and must be sparingly invoked in special S circumstances.
Reliance is placed on Manzoor Hussain and 2 others v. Muhammad Ashraf and another (1999 PLC
(C.S.) 279). It is further held that in cases of appointment and promotion Rule 26 will be
available to the Competent Authority only when all the officers available T in the talent
pool for appointment or promotion to the post in question have been duly considered and
not found suitable through a speaking order.

24. All the appointments and promotions to selection posts shall be in accordance with
Rule 7 by considering the service record and other antecedents of the officers by employing
an objective criteria as discussed above. Registrar of this Court will ensure that all future
appointments in the High Court seek guidance from the principles laid down above. He will
also place all the orders passed by the Competent U Authority (now or in the past) under
Rule 26 or Rule 7 (without consideration of the officers in the pool) before the Competent
Authority for appropriate orders in accordance with law so that even the slightest
Perception of taint, if any, of nepotism and jobbery is plucked out of its roots by our

13
institution.

REVISION OF EXISTING RULES.

We have been informed by Syed Aamir Ali, Assistant Registrar (Legislation) of this Court
that the present Rules which have been framed under the Constitution of the Pakistan, 1956
have been put up for revision several times but the exercise has not yet been completed.
Sindh High Court has framed fresh Rules in 2006 Under Article 208 of the Constitution of
the Islamic Republic of Pakistan, 1973 and so has the Peshawar High Court. The Registrar
will, at the earliest, place the matter of revision of the Rules under Article 208 of the
Constitution before the Competent Authority for appropriate orders along with the copies
of the revised Rules framed by the other High Courts.

RELIEF

26. For the above reasons, this appeal is allowed and impugned order of, promotion dated
10-7-2009 to the extent of respondent No.4 is set aside and the appellant is hereby
promoted as Deputy Registrar w.e.f. 10-7-2009. The appellant and respondents Nos.2 and 3
shall retain their inter-seniority as maintained prior to their promotion''. Learned Counsel
for the appellant had submitted that the appellant would forgo his right to back benefits if
his appeal is allowed. Therefore, the appellant is promoted without back benefits to the
post of Deputy Registrar (BS-19) w.e.f 10-7-2009. Respondent No.4 will be considered for
promotion on his own turn16 in accordance with Rule 7 and the r o t a t i o n a l policy.

27. This appeal is allowed in the above terms and copy of the judgment shall be supplied to
all the departments of the High Court for strict compliance and future guidance.

SCHEDULE II

Authority passing the order Appellate Authority

1. Registrar Administration Judge
2. Administration Judge Chief-Justice
3. When Chief Justice is the Administration Judge, or A Bench of two Judges
when acting under Rule 23(b) nominated by the Chief
Justice.

MWA/T I/L
Appeal allowed.

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