Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 197 of 2011
along with C. Ps. Nos. D – 3130 of 2011, 1335 of 2013 and 5188 of 2016

Petitioners Miss Hina, Muhammad Rizwan Qureshi and Muhammad Adnan Qureshi,
present in person.
Mr. Kalander Bakhsh M. Phulpoto, Advocate for respondents No. 254, 283, 305 and 317
in C. P. No. D-197/2011.
Mr. Inayatullah Morio, Advocate for respondents No. 173 to 186 and 234 to 237 in C. P.
No. D-197/2011.
Syed Abdul Latif Shah, Advocate for respondent No.273 in C. P. No. D-197/2011.
Mr. Mehboob Ali Wassan, Assistant Advocate General Sindh.

Date of hearing: 04.10.2018.

Date of judgment: 27.11.2018.

JUDGMENT

MUHAMMAD SHAFI SIDDIQUI, J. – Subject matter of these petitions is the “recruitment

process” undertaken by the Provincial Government in appointing Auditors (BS-14), Sub-
Accountants (BS-11), Junior Clerks (BS-07) and Record Keepers (BS-07) vide advertisement
dated 16.01.2011.
2. It is claimed that the entire process, as involved, was non-transparent, deceitful and only
blue eyed candidates were catered. With this background, the petitioners, who are appearing in
person, have argued that petitioners No.1 and 2 in C. P. No. D-197/2011 were appointed under
National Internship Program by D.C.O. Sukkur, and they joined the office of the District
Accounts Officer Sukkur, and were performing their duty when the recruitment was processed.
While their contractual tenure was coming to an end, the Provincial Government advertised the
vacancies as referred above with the requisite educational qualifications and the age limit. The
appointments were required to be made all over Sindh i.e. Karachi, Hyderabad, Mirpur Khas,
Sukkur and Larkana Divisions, having their respective domiciles.

3. It is claimed that the candidates were required to appear in a written test and interview to
be taken by the authority. Insofar as the candidates, who were appearing from Sukkur Division
are concerned, the candidates were required to appear and assemble at Government
Comprehensive Higher Secondary School, Shikarpur Road Sukkur, as mentioned in the
advertisement.

4. On 23.01.2011, when the candidates, including the petitioners, appeared at the venue,
they were informed verbally that the venue has been changed and new place for the test and
interview would be “Public School Sukkur”, and all the candidates on their own may approach
the rescheduled site when in between 04:00 to 05:00 p.m. written test would be taken. It is
significant to note that on the original site approximately 10,000 candidates appeared which in
fact was/is not denied by all respondents. The reasons given for changing the venue was that it
was humanly impossible to manage test and interview of all those candidates who appeared as
there was disturbance and chaos and in fact it was total failure on the part of the Provincial
Government as far as the entire recruitment process is concerned, as virtually there were neither
questionnaires available with the candidates nor they have sufficient copies for distribution to
enable the candidates to answer the questions, hence, quit a few left the site in distress. It was
subsequently revealed to all those who appeared at rescheduled site that a self-made list of the
candidates who allegedly appeared in the written test as well as interview was notified.

5. This list shows that out of 10,000 approximately, the candidates who appeared for the
subjects posts and passed their written test, were interviewed on the same day and were given
marks accordingly. Those who qualified the written test were around 4,931. This list was
prepared on 23rd January, 2011.

6. It is the case of the petitioners that it was not only humanly impossible to have taken the
written test of 10,000 candidates in between 04:00 to 5:00 p.m. but also to interview them, as
practically none of them was interviewed. Petitioners submit that when the written test was
allegedly taken between 04:00 to 5:00 p.m., how and in what way the interviews were taken, is
thus inconceivable.
7. Respondent No.4 and 5 i.e. Secretary, Finance Department, Government of Sindh filed
their para wise comments and in terms of Para 15, they have conceded that the venue for written
test and interview was changed on account of non-availability of sufficient accommodation. In
reply to Para 16 of petition, they have conceded that due to occurrence of some ugly and
untoward incidents at the new venue, the time was changed from 09:00 a.m. to 04:00 p.m., and
all candidates were informed of this change through megaphone, and they appeared for the test at
changed venue. In the comments, however, the Finance Department is unable to explain as to
how and in what way they interviewed approximately 5,000 candidates on the same day, who,
according to them passed written test.

8. We have heard the petitioners and the learned counsel, and perused the record.

9. There is nothing on record to appreciate that the test and recruitment was organized in a
manner that was transparent and venue was conducive for the candidates who appeared. When
enquired as to whether the question paper is available either on record or in the file of learned
AAG, he was unable to respond. When enquired as to whether the answer sheets are intact,
learned AAG was unable to satisfy the Court that such answer sheets could be presented as and
when asked for. It is significant to note that this petition was filed soon after the alleged
recruitment and the record should have been saved. Learned AAG was also unable to explain as
to how 10,000 written sheets were checked in minutes out of which 4,931 candidates passed with
flying colors. They were unable to explain as to how it was humanly possible to interview more
than 4,931 candidates as that could only be possible once the copies of the candidates, who
appeared in the written test, were checked, as only successful candidates could have appeared in
the interview and not all. If a minimum time of 5 minutes was taken to check one copy of written
test, it would have taken 5 x 10,000 = 50,000 minutes to check the copies which makes 34.7
(more than 34) days. Similarly, if a minimum time of 5 minutes was spent to interview, it would
have taken 24,655 minutes to interview 4,931 candidates which makes 17.1 (more than 17) days.

10. These petitioners were experienced in the sense that they have been appointed earlier
though on internship basis but had an experience in the field. It is, thus, inconceivable that they,
who had been appointed at such posts and were doing their internship, have succeeded in the
written test, having obtained 100% marks but failed in an attempt to pass the interview. In fact,
there appears to be no cavil to this proposition that there was no such interview that had taken
place or in fact, the written test. The entire process was deceitful.

11. Learned AAG has categorically denied to have any record of the written test, hence, was
unable to produce the same which could only demonstrate sorry state of affairs. Surprisingly,
respondents, at one point of time, were even willing to offer appointment to the petitioners but
then at the conclusion of arguments withdrew such option after consultation.
12. We are mindful of the fact that almost 336 candidates were given appointment letters who
are working since long but these appointments are the result of sham, bogus and deceitful
proceedings under the garb of written test and interview. There was, in fact, no such written test
or interview and these successful candidates who are being represented by Mr. Kalander Bakhsh
M. Phulpoto, Mr. Inayatullah Morio and Syed Abdul Latif Shah, advocates, have nothing in their
defence. Mr. Morio, in fact, to some extent, without prejudice to competence of his clients, has
conceded that the “transparency” is lacking but supported the case of the respondents in the
sense that they are now working since last seven (07) years.

13. In view of such a sorry state of affairs, we thought of scraping the entire process of
recruitment since it was only a deceitful and non-transparent process, by directing respondent to
issue “fresh advertisement” but this would only add up to the miseries of those who appeared on
23.01.2011. At this point, we need to make it clear that we are quite conscious of
following legally established principles, so enunciated by honourable Apex Court i.e:

14. In the case of Contempt Proceeding against Chief Secretary, Sindh & Ors 2013 SCMR
1752 while dealing with question of locus poenitentiae it was observed as:-

174. Locus poenitentiae is the power of receding till a decisive step is taken but it
is not a principle of law that order once passed becomes irrevocable and past and
closed transaction. If the order is illegal then perpetual rights cannot be gained
on the basis of an illegal order. In the present case, the benefits extended to
different employees or civil servants through the impugned legislations are not only
violative of law but are also ultra vires of the Constitution referred hereinabove. In
such like situation the principle of locus poenitentiae does not attract and in this
regard this Court in the cases of…………. has held that principle of locus
poenitentiae would not be attracted in a case under which the benefit has been
extended by a law, which is violative of the provisions of the Constitution.

15. In another case of Province of Punjabh through Secretary v. Zulfiquar Ali 2006 SCMR
678 it was held as:

“7. We are afraid that the contention so raised by him is not correct as the
Director Agriculture appointed him on 10.11.1990 and thereafter his service was
regularized w.e.f the same date in the year of 1993. He served the department for
about 11 years as a regular employee and during course whereof, there was no
complaint of whatsoever nature against him, calling for action under the Punjab
Civil Servants (Efficiency and Discipline) Rules, 1975. It may be noted that these
rules contemplate an action against an employee who is guilty for the breach of good
 service order indiscipline, misconduct etc, but it does not contain any provision on
the basis of which appointment of an employee can be cancelled on the ground that
it has been made illegally. In other words in such-like situation instead of taking
action against an appointee it is appropriate if an action is taken against the
Appointing Authority who apparently committed a misconduct by making such
appointment, as it has been observed by this Court in the case of Abdul Hafeez
Abbasi and others v. Managing Director, Pakistan International Airlines
Corporation, Karachi and others 2002 SCMR 1034.

16. However, since possibility of competence of appointed candidates, as claimed by them,

cannot be brushed aside straight-away as they have been serving since seven years nor it would
be in the interest of justice to deprive petitioners of their undeniable rights to have fair-
competition. Therefore, to ensure a balance, we do not find it proper to order for fresh process of
recruitment by re-advertisement. We find it in all fairness to provide a fair-opportunity of
proving their eligibility only to those, who, having eligibility, to test the competence. Worth to
add that fresh advertisement would make it open for all, eligible today, which may result in
prejudicing the eligibility of those, who otherwise were eligible at such time (about seven years
ago). Thus, in short, fresh competition amongst those who appeared earlier could be the best
solution that we have for them. Needless to add that if they (private respondents) are and were
competent they would sail and, if not, will sink and in such eventuality they would not press
application of Locus poenitentiae with reference to their length of service because legally seven
years of service cannot overshadow the non-transparent and deceitful recruitment process as
same was / is nothing but a premium, being given to them, on account of a cheating undertaken
by the officials who conducted the recruitment process.

17. We are sure that all those who are deserving, competent and intelligent will sail through
this process and even their seniority would not be altered and they would continue to serve as if
they were rightly and lawfully appointed earlier but all those who would sink in this recruitment
process have to take this bitter pill. This is just a scrutiny test for their own betterment which
shall also remove the clog on them of being non-deserving and blue eyed candidates.

18. We cannot give a license to the Government of Sindh that they may continue to act in a
manner which is not in consonance with the judgments of the Hon’ble Supreme Court as well as
law and, hence, no premium could be given either to the Government or to the candidates. Here,
it may well be added that State is like a mother who knows no discrimination among her
children. We would further add that every parents, while sending their children, for education
purpose do ‘dream’ for chances of a better life by recruitment in government services. Thus, it is
absolute responsibility of the appointing authority that such recruitment process is
so transparent that it eliminates all the possibilities of any misuse of such authority. Since, what
came to surface during hearing of these petitions, was / is an example how
the ‘authorities’ misuse the trust in them, therefore, to bring an end to such practice so also to
avoid plea of any perpetual rights on ill-gotten, we deem it appropriate to dispose of these
petitions as under:

a) that all these 336 candidates whose list is available alongwith

petitioner shall be issued notices to reappear in the written test as
well as interview which shall be conducted by Institute of Business
Administration (I.B.A.) Sukkur in consultation with Finance
Department of Government of Sindh. The papers should be prepared
by the Professors of I.B.A. Sukkur;
b) that all successful candidates of above process shall be interviewed
by the nominated Professors of I.B.A. Sukkur in presence of the
committee of the Finance Department;
c) the merit list in respect of the written test as well as of the interview
shall be prepared by the nominated Professors of I.B.A. Sukkur,
whereafter deserving candidates be given appointment letters; and,
d) those who were appointed earlier if sail through the process shall
also be given seniority accordingly.

While parting, we also direct the Government of Sindh that recruitments in all
government institutions for posts of BPS-5 or above, shall be conducted
through IBA / NTC or any other third party i.e recognized testing
services. This, however, would not be applied for the posts of BPS-1 to BPS-4
respectively which criterion already settled.

19. All these petitions along with pending applications, if any, stand disposed of in the above
terms.

JUDGE

JUDGE