2015 P L C (C.S.) 1246
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
REHMAT SANOBER
versus
BALOCHISTAN PUBLIC SERVICE COMMISSION through Chairman and 2 others
C.P.No.67 of 2014, decided on 29th June, 2015.
(a) Balochistan Government Initial Appointment to Civil Service Posts (Age and
Relaxation of Upper Age Limit), Rules, 2012 ---
----R.5---General Clauses Act (X of 1897), S.21 ---Constitution of Pakistan, Art.199 ---
Constitutional petition ---Advertisement for appointment of Lecturer (Urdu) ---Relaxation in
upper age limit ---Earlier policy of Government ---Effect ---Vested rights ---Notification ---Locus
poenitentiae, principle of ---Applicability ---Petitioner was declared successful through press
release but subsequent press release was issued cancelling the earlier press release and
petitioner's name was excluded on the ground of being over -aged and respondent was declared
eligible for appointment ---Validity ---Petitioner was within age limit prescrib ed by Government
when advertisement for appointment was made ---Petitioner applied and was found eligible for
the post in question followed by her participation in written test ---Petitioner secured first position
in the concerned zone ---Petitioner was found eligible, qualified, competent and was
recommended for appointment by the Public Service Commission ---Vested right had accrued to
the petitioner ---Notification could not be made applicable with retrospective effect ---Notification
issued subsequently would apply prospectively ---Legal and valid right accrued to the petitioner
could not be snatched by way of issuing the second press release ---Maximum relaxation in upper
age limit was extendable up -to next three years ---Petitioner was under protection of earli er
policy of the Government ---Age limit provided in the subsequent notification was no more in the
field---Relaxation in upper age limit being a policy matter extended by the Government earlier
was not in violation of any Fundamental Right or law nor did i t suffer from any infirmity,
inherent legal defect or want of authority ---Principle of locus poenitentiae was attracted in the
present case ---Petitioner had also done Master's in Social Work and had topped the University ---
Person with such a caliber and ex tra academic qualification must be allowed to benefit the
educational institution in the interest of society ---Petitioner had been condemned unheard while
issuing the impugned press release ---Such illegality on the part of authorities could not be
ignored ---Impugned press release was set aside and Administrative Department was directed to
issue appointment letter in favour of petitioner forthwith ---Constitutional petition was accepted
in circumstances.
Chairman, Selection Committee/ Principal, King Edwar d Medical College, Lahore and 2
others v. Wasif Zamir Ahmad and another 1997 SCMR 15 rel.
(b) Notification ---
----Notification could not be made applicable with retrospective effect.
Muhammad Qahir Shah and Akram Shah for Petitioner.
Shai Haq Baloch, A.A. -G. and Ehsan Rafiq Rana for Respondents.
Date of hearing: 15th June, 2015.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. --- The petitioner has called in question the
legality, propriety and validity of Press Release No.PSC -2014/R.B./292014 da ted 29th January,
2014 issued by the respondent No.1 whereby the recommendations for appointment of the
petitioner were done away with on the ground of over age.
2. Facts relevant for the disposal of instant petition are that in response to advertisement
made by the respondent No.1 on 22nd February, 2013 inviting applications from the eligible
candidates for the posts of Lecturers in Collegiate Branch, Education Department, the petitioner
offered her services for one of the same in Urdu subject from Sibi Zone. The petitioner applied,
she was found eligible and allowed to participate in process of examination. The petitioner duly
appeared in written test on 18th September, 2013 and out of 20 candidates, only 3 candidates
including the petitioner were declar ed successful. According to petitioner she stood first in the
written test. Accordingly, the petitioner was interviewed on 27th January, 2014 as the petitioner
was found qualified, as such, the Secretary, Balochistan Public Service Commission vide Press
Release dated 29th January, 2014 declared the petitioner and other candidates qualified for
appointment to the post of Lecturer. However, afterwards the respondent No.1 issued a
subsequent Press Release canceling the earlier Press Release of the even date an d simultaneously
the petitioner's name was excluded on the ground of being over -age and the respondent No.3 was
declared eligible for appointment as Lecturer, hence the instant petition.
3. Learned counsel for the petitioner contended that pursuant to pu blication issued by
Balochistan Public Service Commission the petitioner applied for the post of Lecturer (B -17) and
as per press release dated 29th 2014 her candidature was recommended for appointment.
However, by another press release of the same day the Commission withdrew the earlier press
release by omitting her name and substituting her name with respondent No.3 on the ground that
the petitioner was over age. Learned counsel further contended that the impugned order/Press
Release and Rejection Memo da ted 29th January, 2014 issued by the respondent No.1 regarding
the appointment of respondent No.3 are illegal, unlawful and in excess of authority, as such,
liable to be set aside.
The learned A.A. -G. supported the contention of learned counsel for the petitioner by
maintaining that the earlier notification pertaining to ten years relaxation in upper age limit was
in field when the publication by the respondent No.1 for the post in question were made. So the
subsequent notification dated 25th February, 2 013 legally does not take away the right that was
available to petitioner on 22 -2-2013 as the notification applies prospectively and not
retrospectively. He made a reference to Rule 2 of Notification dated 25 -2-2013.
Learned counsel for the respondent N o.3 opposed the submission tooth and nail by
maintaining that the petitioner applied within the cut date when the notification dated 25 -2-2013
was in field. The petitioner being disqualified as she had already crossed upper age limit when
she filed her can didature. The employees of respondent No.1 due to bona fide mistake
entertained the documents but neither the entertaining of documents nor the subsequent
participation in the process of test and interview could cloth the petitioner with any right for the
simple reason that she was ineligible to apply or participate as a candidate being beyond the
prescribed age limit. He submitted that a right has been accrued in favour of respondent No.3 and
she has been found competent, qualified and is on merit, as such , the respondent No.1 rightly
issued the second Press Release. According to learned counsel for respondent No.3 the petitioner
was rightly dislodged and the petition smacks mala fide, therefore, the same is liable to be
dismissed.
4. We have heard the le arned counsel for the petitioner and gone through the available
record with their able assistance. The perusal of record reflects that the petitioner applied for the
post in question at the strength of publication made by the Balochistan Public Service
Com mission on 22nd February, 2013, operative portion covering age proposition reads as
under: ---
"Age Limit (For S.No.5 and 6): - Minimum=21 Years and Maximum =35 Years (for fresh
candidates) and 40 years for Government servants having two years continuous service on
closing date for receipt of applications Plus 10 years upper age relaxation granted by the
Government of Balochistan."
5. There is no controversy, cavil or dispute among the parties that by 22nd February, 2013
the age limit as contained in the publication, the petitioner was within age limit. However, the
controversy is whether Notification No.S.O(R -I)3 (12)/2013 -S&GAD/808 -907 dated 25th
February, 2013 issued by the Government of Balochistan would have retrospective effect to
disentitle the pet itioner from the benefits that had accrued to her consequent upon prevalent Rule
and age relaxation extended by the Government of Balochistan at relevant time. We have given
anxious thoughts to the proposition involved and have arrived at a conclusion that submissions
made by the learned counsel for the petitioner supported by learned A.A. -G. have got sufficient
force for a variety of reasons. Firstly, because as stated earlier that there is no doubt regarding
the fact that by 22nd February, 2013 when the p ublication was made the petitioner was within
age limit prescribed by Government and mentioned by the Balochistan Public Service
Commission in publication dated 22nd February, 2013. Secondly, the petitioner applied and was
found eligible for the post in qu estion followed by her participation in written test and she
successfully secured the first position in concerned Zone. Thirdly, she was called for interview
vide letter dated 19th January, 2014 which reads as under: ---
"To,
Rehmat Snober
son of (sic ) Muhammad Hayat
Roll No.2020
Subject: INTERVIEW FOR THE POST OF LECTURER URDU (FEMALE) BPS -17 IN THE
EDUCATION DEPARTMENT.
1. With reference to your application for the post mentioned above, you are informed to
appear before the Commission for interview on (Monday) 27 -1-2014 at 9:30 AM and bring the
following documents in original for verification on (Friday) 24 -1-2014 at 10:00 AM
(a) All Certificates of Academic Qualification.
(b) Domicile/Local Certificate.
(c) Detail Marks Certificate.
(d) Certificate of Distinction (if any).
(e) Any other document relating to experience etc.
2. You are advised to submit/complete original and attested copies following documents
personally with respect to your candidature one day before the date of interview failing which
you will not be allowed to appear for interview: ---
Matric and Inter DMCs.
3. No T.A./D.A. will be paid."
6. Fourthly, the petitioner was found eligible, qualified, competent and recommended for
appointment vide Press Release No.PSC -2014/RB/292014 dated 29th January, 2014 issued by
the Secretary, Balochistan Public Service Commission which is to the following effect:
"Press Release
No.PSC -2014/ R.B./292014. --- The following candidates are declared qualified for
appointme nt to the posts of Lecturer (B -17) in the subject mentioned against each in the
Collegiate Branch of Education Department and their names are being recommended to the
Administrative Department as such:
S.No. R.No. Name of Candidate Father's name Subject
-- -- -- --- ---
-- -- --- --- ---
-- -- --- --- ---
1. 2020 Rehmat Snober Muhammad Hayat Urdu
(Female)"
7. So, the above stated position brings someone to irresistible conclusion that a vested legal
right accrued to petitioner. Now the paramount question that requires attention is as to whether
the Press Release No.PSC -2014/R.B/292014 dated 29th January, 2014 c ould be undone by the
Balochistan Public Service Commission on the ground that as per the Notification dated 25th
February, 2013 the age relaxation available to the petitioner as per previous policy of the
Government of Balochistan is no more available to her and she could be deprived of the right
that had accrued to the petitioner? In our considered opinion the answer to this query must be a
big No, because, the Notification dated 25 -2-2013 cannot be made applicable with retrospective
effect nor the notifi cation dated 25th February, 2013 provides that any right accrued to a
candidate in the light of the earlier policy stands snatched. A bare perusal of the notification
dated 25th February, 2013 reflects that it applies prospectively as per Rule (2) of the B alochistan
Government Initial Appointment to Civil Service Posts (Age and Relaxation of Upper Age
Limit), Rules, 2012 which reads as under: ---
"Government of Balochistan Services
and General Administration Department
(Regulation section -I)
Dated Que tta, the 25th February, 2013
NOTIFICATION
No.S.O. (R -I)3 (12)/2013 -S&GAD/808 -907.--- In exercise of the powers conferred by
Section 25 of the Balochistan Civil Servants Act, 1974 (Act No. IX of 1974), the Government of
Balochistan is pleased to make t he following Rules, namely: ---
PART I - GENERAL
Short title, Commencement and application. --- 1. (1) These Rules may be called the
Balochistan Government Initial Appointment to Civil Service Posts (Age and Relaxation of
Upper Age Limit), Rules, 2012.
2. They shall come into force at once."
8. Further the notification dated 25 -2-2013 contemplates a specific mode and procedure for
publication which was never adopted in the case in hand as frankly conceded by the learned
A.A. -G. and Law Officer of Bal ochistan Public Service Commission (BPSC) that no
advertisement in the wake of the notification dated 25th February, 2013 has been made with
respect to posts in question. Sub -Rule (4) of Rule 4 of Rules, 2012 provides the procedure and
for the sake of faci lity the same is reproduced: ---
"(4) Subject to sub -rule (2) of rules 3 and 4, whenever vacancies are advertised and an upper
age limit as prescribed in the recruitment rules is mentioned in the advertisement, it should be
clearly highlighted in the adve rtisement the concession of relaxation in upper age limit shall be
clubbed with the maximum age limit of the post available to the candidates."
9. Admittedly, this requirement has not been complied with. As discussed above in
preceding paras the petitioner applied, her documents were found genuine and she was allowed
to participate in written test. After remaining successful in the written test she was called to
appear for viva voca vide letter dated 09th January, 2014. She successfully crossed th is bridge
which culminated in issuance of Press Release No.PSC -2014/R.B./292014 dated 29th January,
2014. In the light of these circumstances, a legal and valid right accrued to the petitioner could
not be snatched by respondent No.1 by way of issuing the second Press Release No.PSC -
2014/R.B./292014 dated 29th January, 2014 on the same day resulting in her substitution for
respondent No.3 Fatima Mirza daughter of Shah Muhammad. It is pertinent to mention here that
Rule 5 of the Rules, 2012 wherein maximum r elaxation in upper age limit has been provided was
extendable up -to next three years but soon this Rule was relaxed and notification was superceded
by notification dated 24th June, 2014 wherein 10 years general relaxation in upper age limit was
granted, wh ich reads as under: ---
"NO. S.O. (R -I)3 (12)/2014 -S&GAD/ 1117 - 1216. --- In exercise of the powers conferred
by sub -rule (5) read with sub -rule (6) of rule 4 and in relaxation of sub -rule (3) of rule 4 of the
Balochistan Government Initial Appointment to Civil Service Posts (Age and Relaxation of
Upper Age Limit), Rules, 2012 and in suppression of this Department's Notification
No.S.O.(R.I)3(20)/2013 -S&GAD/1944 -2043 dated 19th July, 2013, the Government of
Balochistan is pleased to grant ten (10) years ge neral relaxation in Upper Age Limit prescribed
in sub -rule (2) of rule (3) of the aforesaid rules or in the relevant Service Rules for a period of
three years in the interest of public service with immediate effect and up till 23rd June, 2017."
10. So, w e can confidently observe that the petitioner was under protection of the earlier
policy of the Government of Balochistan as mentioned in the publication dated 22 -2-2013 and
even now when this matter is going to be decided the age limit provided by Notific ation dated
25th February, 2013 is no more in the field. We are satisfied to hold that this is a policy matter
and the relaxation in upper age limit extended by the Government of Balochistan earlier was not
in violation of any fundamental right or a law no r did it suffer from any infirmity, inherent legal
defect or want of authority. Thus, in these circumstances, the principle of `Lucus Poenitentiae'
fully attracts in this case and a legal vested right accrued to the petitioner cannot be taken away.
By hold ing the view we are fortified by the dictum laid down by the Hon'ble apex Court in its
judgment titled as 'Chairman, Selection Committee/ Principal, King Edward Medical College,
Lahore and 2 others v. Wasif Zamir Ahmad and another' reported in 1997 SCMR 15 (relevant at
pages 17 -18) wherein it has been observed as under: ---
"3. We have heard the learned counsel for the parties and have also perused the record with
their assistance. We do not find any substance in the arguments of the learned counsel for th e
petitioners and as such, these are repelled. The above narration of facts demonstrates that
respondent No.1 was presumably given admission on merits by the competent College
Authorities after considering his case. The requisite fee was accepted by them i n lieu of valid
receipts. He was directed to join 1st year class of MB.B.S. It is admitted that the respondent is
likely to complete the second year course of M.B.B.S. This being the position, by lapse of time,
the respondent had obtained a valid right to continue his studies. In the given situation, he could
not be held to be at fault. It is well -settled that once a right is created in favour of a litigant, in
due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission wa s
given to respondent. No.1 by accepting his credentials and in the result necessary dues were
accepted by the concerned authorities. The learned High Court was eminently justified in
accepting the plea of respondent No.1 to meet the ends of justice. The p etitioners cannot be
allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent
No.1 to be entitled to get admission and at the belated stage, they took a turn by stating that
respondent No.2 had been accommodated by giv ing admission instead of respondent No.1. This
was not possible for the petitioners to do so under the settled law. If this was so, it surely
occurred because of their gross negligence for which the respondent could not be held
responsible. The decision of the petitioners to give admission to the respondent No.1 was
implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he
had earned on the basis of act of the petitioners. See Chief Secretary, Government of Sindh and
another v. Sher Muhammad Makhdoom and 2 others (PLD 1991 SC 973) wherein it was
observed: ---
"It is quite apparent that restrictions imposed in para.4 of the Revenue Department's
Notification mentioned above, pertain to the appointment as Mukhtiarkar and in the cases under
consideration will have no bearing for the reason that respondents were granted exemptions in
accordance with circulars, requirements of which were duly fulfilled by them and not only that
but exemptions were implemented and they receiv ed necessary training, as such valuable rights
had accrued to them which could not be interfered with. In this context, reference can be made to
section 20 of General Clauses Act and guidelines laid down in the case of Pakistan v.
Muhammad Himayatullah Far ukh (PLD 1969 SC 407), in which it is held that principle of locus
poenitentiae is available to the Government or relevant authorities and further authority which is
competent to make order has power to undo it, but such order cannot be withdrawn or rescin ded
once it has taken legal effect and created certain rights in favour of any individual. It appears that
Service Tribunal has allowed appeals of the respondents mainly on this ground with cogent
reasons in support thereof. View taken by the Service Tribu nal is correct and we find no reason
whatsoever to interfere with the impugned judgment, which is hereby upheld and leave is
refused. In the circumstances, petitions are dismissed."
11. Furthermore, the perusal of documents annexed with the petition reve al that besides
being M.A. in Urdu the petitioner has done Master in Social Work and had topped the
University, so the person with such a caliber and extra academic qualification, must to be
allowed to benefit the educational institution in the greater int erest of society. Last but not the
least, the petitioner was condemned unheard because the respondent No.1 while issuing the
impugned Press Release and the rejection memo. did not issue any notice to petitioner nor the
petitioner was heard and this illegal ity on the part of respondent No.1 cannot lightly be ignored.
In the light of above discussion, we are inclined to accept this petition and set aside
second Press Release No. PSC -2014/R.B./292014 dated 29th January, 2014 as well as Rejection
Memo. No.PS C/(R.B)/ 290114/55 dated 29th January, 2014. Resultantly, Press Release No.PSC -
2014/R.B./292014 dated 29th January, 2014 occupies the field. Thus, the Administrative
Department is directed to issue appointment letter in favour of the petitioner forthwith. The
parties shall bear their own costs.
ZC/83/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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