2015 P L C (C.S.) 253
[Balochistan High Court]
Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J
MUHAMMAD YOUSAF
Versus
DIRECTOR, CULTURE BALOCHISTAN 3 others
Constitutional Petitions Nos.818 and 822 of 2011, decided on 24th July, 2014.
Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---
----R. 49(2) & (3) ---Constitution of Pakistan Art.199---Constitutional petition --- Illegal/irregular
appointment --- Lack of prescribed qualification, experience and artisti c skill---Effect ---Non -
existence of names of respondents in the merit list---Contention of the petitioner was that the
appointment of respondents had been made by an incompetent Departmental Selection
Committee in violation of principles of transparency as well as merit--- Validity ---Chairman of
the Departmental Selection Committee was on leave, therefore, Deputy Director could not
advertise the post, convene a meeting or make recommendations for making the appointments ---
Deputy Director knew that he did not have authority and in the minutes of the meeting and the
final merit list of the candidates provided by the official respondents was signed by Deputy
Director instead of the Chairman of the Departmental Selection Committee, which was in utter
violation of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009---
Respondents did not have the stipulated qualification had no required two years' experience and
did not possess any artistic skill ---Non -possessing the stipulated qualification and experience
was sufficient to establish the case of the petitioner and the mala fide of the members of the
Departmental Selection Committee in the illegal appointments of respondents ---Respondents
having no demonstrable artistic ability had further ero ded their ability, integrity and competence -
--High Court directed the competent authority to take disciplinary action against the delinquents -
--Constitutional petition was allowed in circumstances.
Abdul Malik Baloch for Petitioners.
Muhammad Qadir Shah for Private Respondents.
Humayun Tareen, Addl. A.- G. for Official Respondents.
Date of hearing: 2nd June, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- The petitioner through Constitutional Petition
No.818 of 2011 has assailed the appointment order dated 2nd November 2011 of the respondent
No.3 Dil Murad and respondent No.4 Abdul Qahir as Art Teachers (B -11) issued by respondent
No.2 (hereinafter referre d as to "the authority"), whereas in Constitutional Petition No.822 of
2011, the petitioners have assailed the appointments of respondent No.3 Abdul Hakeem as Mali
(B-2), respondent No.4 Muhammad Ali and respondent No.5 Zahoor Ahmed as Farash (B -2)
issued by respondent No.2 vide appointment letter dated 2nd November, 2011. Since common
question of law and facts are involved in both the petitions, therefore, the same are disposed of
by means of this common judgment.
2. The petitioners in both the petitions sought relief of striking down the appointments of
the above private respondents made by the authority on the recommendation of a purported
selection committee against the posts of Mali and Farash (B -2) and Art Teacher (B -11)
advertised in the newspaper on 16th October, 2014.
3. In both the petitions, the petitioners have sought annulment of the said appointments on
the ground that these appointments suffer from non- transparency, violation of the prescribed
procedure and made on the recommendation of a purported Committee having no lawful
authority.
4. The official respondents Nos. 1 and 2 (in C.P. No.818 of 2011) had filed parawise
comments and controverted the contentions of the petitioner. The private respondents while
filing counter affidavit in C.P . No. 822 of 2011 contested the contentions of the petitioners.
5. The learned counsel for the petitioner in C.P. No. 818 of 2011 contended that the private
respondents were not eligible for the appointments as they lack academic qualification, i.e. B.A.
Fine Arts, and two year experience while petitioner met the qualification plus experience; that
the respondents Nos.3 and 4 neither applied for the post nor appeared in the test, therefore, their
appointments amounted to granting them undue advantages; th at in the merit list, the name of
petitioner was at Serial No.1 while the private respondents' name did not appear in the said list.
6. In C.P. No.822 of 2011, the learned counsel for the petitioners contended that the
petitioner No.1 applied for the pos t of Mali (B -2) and petitioners Nos.3 and 4 for the post of
Farash (B -2). After test and interview their names appeared at serial Nos.4, 5 and 7 respectively,
while private respondents' names were not mentioned in the merit list, therefore, their
appointme nts were due to undue advantages and utter violation of the merit.
7. Against this the learned A.A.- G., contended that the appointments were made in a
transparent manner and the recruitment process was neither tainted nor suffered from any
violation of r ules and regulations.
8. The learned counsel for the private respondents stated that the process of appointment
was recommended by duly constituted Selection Committee and approved by the competent
authority, i.e. respondent No.2; that the members of Sel ection Committee appeared before this
Court and all the relevant documents pertaining to test conducted by the Selection Committee in
respect of CP No.818 of 2011 were produced and acknowledged the due process of the
recruitments/appointments; that the petitioners have raised controversial questions of law and
facts, which under the law are not admissible in the Constitutional Petition.
9. We have heard the learned counsel for the parties and have gone through the record as
well as documents filed by the parties. The petitioner in CP No.818 of 2011 has challenged the
appointment of respondents Nos.3 and 4 as Art Teachers (B -11) in the Directorate of Culture
Balochistan, Quetta and in this respect relied upon the merit list purportedly prepared for
'Assista nt Art Teacher (B -11)' and according to the petitioner the name of private respondents
did not appear therein. The official respondents in their parawise comments denied the said list.
Therefore, in this regard, the said list cannot be adjudged in the writ jurisdiction. It is evident
from the documents filed by the official respondents that pursuant to advertisement dated 16th
October, 2011, a Departmental Selection Committee comprising the following was constituted
for the completion of the recruitment process, including the appointments that have been
challenged in both the CPs: ---
(1) Mr. Muhammad Hashim Khan Director Culture Balochistan,
Quetta. Chairman
(2) Dr. Rashid Khan Jaffar, Deputy Secretary, Culture, Tourism
and Archives Department. Member
(3) Mr. Sanaullah Khan Under Secretary (Admn), Culture and
Tourism, Balochistan, Quetta. Member
(4) Mr. Abdul Manan Under Secretary -1 Culture and Tourism,
Balochistan, Quetta. Member
10. The petitioner vide C.M.A. No.4101 of 2011 had filed a letter dated 25th November,
2011, issued by Mr. Muhammad Hashim Khan, Director of Culture, and the designated
Chairman of the Committee, addressed to the Secretary Government of Balochistan Culture,
Tourism and Archive Quetta. Notice of the said application was i ssued vide order dated 5th
December 2012, reproduced herein below: ---
C.M.A. No.4101 of 2011.--- Through this application, the learned counsel for the
petitioner seeks to bring on record letter of Mr. Muhammad Hashim Khan, Director of Culture
Department and certificate issued by PTV. Learned Addl. A.- G. and Mr. Muhammad Qahir
Shah, Advocates, waive notice thereof. Learned counsel for the petitioner is directed to provide
the copy of application to the learned Addl: A.- G. and Mr. Qahir Shah, Advocate, who, if
required may file their replies.
Learned counsel for petitioner states that the petitioner holds the B.F.A. -Sculpture in Fine
Arts in 1st Division, which is the stipulated condition in the advertisement for the post in
question, however, when we ca lled upon the learned counsel for petitioner that whether he has
annexed the copy of such degree, he stated that he has not annexed the copy of same and sought
time to .file the same and other documents upon which he relies. Advance copy of document that
are filed be provided to the office of learned A. -G. and Mr. Muhammad Qahir Shah, Advocate
and in case the learned A. -G, or Mr. Muhammad Qahir Shah, Advocates, want to file any reply
or document in rebuttal, they are permitted to do so. The documents to be filed by the petitioner
within two days.
In view of the serious allegations that have been raised, the official respondents are
directed to produce through a responsible officer the original record of the tests, merit list and
file pertaining to the app ointments made in the Director of Culture Department."
Neither the counsel for the private respondents nor the learned A.A.- G. filed a reply to the said
CMA nor controverted the letter placed on record. The letter dated 25th November, 2011 is
reproduced hereunder: ---
"DIRECTORATE OF CULTURE BALOCHISTAN GOVERNMENT OF
BALOCHISTAN
No.19- DOC -1/2011/736- 38 Dated Quetta, the 25th Nov. 2011
To,
The Secretary,
Government of Balochistan,
Culture, Tourism and Archive Quetta.
ATTENTION. 1. MR. HASH IM KHETHRAN (DEPUTY DIRECTOR
TOURISM/ACTING DIRECTOR CULTURE FROM 13 -10-2011 TO 12 -11-2011.
2. DEPUTY SECRETARY CULTURE.
3. SECTION OFFICER (ADMN) CULTURE DEPARTMENT.
Subject: VERY SERIOUS IRREGULARITIES OBSERVED DURING TEST AND
INTERVIEWS CONDUCTED FOR NON -GAZETTED TECHNICAL STAFF (B.P.S.1 -15)
This is with reference to aforementioned subject and copy of a petition filed by Mr.
Yousaf (Art teacher)(F/A), that the under -signed was on one month leave from 13- 10-2011 to
12-11-2011. During this 30 days leave period, very serious irregularities have been observed by
the administrative team which are mentioned below.
1. Mr. Hashim, Khaitran (D.D. Tourism) was directed to look after the charge of the post of
Director Culture (Normally look after charge is described as to just check the daily mail and to
carry routine work).
2. But very astonishingly during these thirty days period, the Acting Director Culture
advertised the very important technical posts of Directorate of Culture with consent of Admin
Department. All process of advertising test, interview, selection of candidates and issuance of
their formal orders were completed in just 15 days; (from 15- 10-2011 to 30 -10-2011)(PB).
3. The undersigned before proceeding on leave had clearly written to the Department that
service rule of all these posts have not been framed yet by the Government/Competent authority,
so it will be illegal to fill these posts as there are all technical posts like Cameraman, Fine Art
Teacher, Script Editor, Stage Manager, Stage Assistant etc. So the service rules of these posts
must have to be framed first because these are permanent posts and these individuals have to
serve till their retirement in Directorate of Culture. They will be the backbone of Culture
Department for next 30 to 35 years of future and also the promotion quota of already serving
staff was to be fixed through framing service rules of these mentioned posts (F/C). During the
making of service rules, already serving contingent paid staff like art teacher, Mali, Frash, Naib
Qasid had to be given the priority in selection.
4. But opposite to all these facts, all posts were advertised with clear malicious intentions
and differen t non- technical persons have been issued with appointment order, who are roaming
here and there and spreading different rumors about their selection process. This is also to worth
mention that on the post of Art Teacher (female), a male participant has bee n appointed.
5. In the meanwhile the lower scale permanent staff of Directorate of Culture has
approached different legal forms like Provincial Ombudsman, Chief Secretary, Chief Minister
and Chief Justice High Court asking them for help on getting their right of promotion and on all
these irregularities observed during selection of these candidates.
6. The most serious irregularity is that the persons who have been issued with appointment
orders for these technical posts are totally non -technical and do not know at all of their
concerned file and technical assignment against which they have been nominated for example
Cameraman, who does not know how to handle camera; neither he has any related Diploma or
Degree. In addition Art Teachers are unaware of an y art work. They are also without Diploma or
certificate, and same is the case with Stage Manager, Assistant Script Editor and all other
technical posts. I wonder what specific criterion has been observed during selection of these
posts?
7. This entire s cenario is reflecting very had name to the Culture Department and very soon
entire selection process will he questioned through any higher legal, forum, therefore the
undersigned has not taken or accepted the joining report of any new appointee and they al l have
been returned till the final decision of competent authority.
8. Another serious issue is observed that the record of all selection process including test,
interview, marking etc is still not handed over to the undersigned which also need to be sorted
out very soon Otherwise it will create serious complications. In view of all above mentioned
points, I find it my duty as Director Culture and custodian of the Directorate of Culture, to bring
all these irregularities in the knowledge of higher ups and competent authorities and requesting
you to cancel all these appointments as soon as possible, as I have not yet taken the joining of
any new appointee. As a custodian of Directorate Culture, I reserve the right to approach any
higher forum to rescue the Directorate of Culture, from the above mentioned irregular
appointments. If these non- technical and having no experienced, Diploma or Degree person's
will joined (sic) the Culture Directorate than it will prove to be great loss which will be
irreversible and irrecoverable for ever.
Sd/-
(M. Hashim Khan)
Director of Culture"
11. The perusal of the above reveals that Mr. Muhammad Hashim Khan Director of Culture,
Government of Balochistan, Quetta (Chairman Selection Committee), was on leave from 13th
October, 2011 to 12th November, 2011 (one month), and in his absence, Deputy Director Mr.
Muhammad Hashim Kethran, without having any lawful authority not only advertised the posts
but also convened a meeting on 30th October, 2011 of the 'Department Select ion Committee'.
That since the Chairman of the Department Selection Committee, namely Mr. Muhammad
Hashim Khan was on leave, the Deputy Director neither could advertise the post, convene a
meeting or make recommendations for making the appointments. The De puty Director (Mr.
Muhammad Hashim Khetran) knew that he did not have authority and in the minutes of the
meeting and the final merit list of the candidates provided by the official respondents, the name
of Chairman Selection Committee is mentioned as Mr. Muhammad Hashim Khan, however, the
same is signed by Mr. Muhammad Hashim Kethran, the then Deputy Director (and not by Mr.
Muhammad Hashim Khan), which was in utter violation of Balochistan Civil Servants
(Appointment, Promotion and Transfer) Rules, 2009.
12. The other aspect of the matter in C.P. No. 818 of 2011 is that the required qualification
for the posts of Art Teacher (B -11) as advertised by respondent No.1 was to have a Bachelor
Degree of Fine Art ('BFA') and two years experience. Admittedly, the respondents Nos.3 and 4
who were appointed to the post did not possess either Bachelor Degree of Fine Arts nor had two
years experience. The said respondents were specifically provided an opportunity, vide order
dated 5th May 2014, to attend to the stated discrepancy: ---
"Respondents Nos.3 and 4 and their counsel are also called absent. In case respondents
Nos 3 and 4 possess the requisite degree and have the requisite qualifications they are directed to
file the same."
However, they failed to submit their Bachelor Degree of Fine Art, or proof of the required
experience, thus confirming that they did not have the prescribed qualifications. Possessing of
the required educational qualification and experience was a mandatory requirement of the
advertisement which the private respondents did not possess. Sub- Rules (2) and (3) of Rule 9 of
the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 provides as
under: ---
(2) initial appointments to the posts in basic pay scales 1 to 15 and equivalent shall be made
on the recommendations of the Departmental Selection Committee, after these vacancies have
been advertised in leading newspapers.
(3) A candidate for initial appointment to a post must possess the educational qualification
(s) and experience and be within the age limit as laid down for the post."
The said private respondents admittedly did not possess the required qualification and
experience, hence their appointments on this ground too was illegal and contrary to the cited
Rules. In contrast the petitioner holds the requisite qualification of B.F.A. in first division and
worked as a set designer in Pakistan Television from July, 2006 till August, 2008 and as an Art
teacher with the Department from April, 2011 till November, 2011, but has fallen victim to
nepotism and corruption.
13. Another aspect of CP No.818 of 2011 is also significant. The applicants for the post were
required to demonstrate their drawing ability. The original file containing the drawings was
produced be fore us and the selection of the private respondents on the basis of the appointment
skill demonstrated by them therein appeared highly suspect. However, since we were not
qualified in this regard we called upon the Fine Arts department of the University o f Balochistan
to depute two competent experts to examine the said drawings. In this regard order sheet dated
14th April, 2014 is reproduced:
"Pursuant to orders dated 20th March 2014 and 3rd April, 2014 Mr. Nisar Ahmed, B.F.A.
and Syed Mubarak Shah, B.F .A. both of whom are Lecturers in the Fine Arts Department,
University of Balochistan are present. They state that Bachelor of Fine Arts is a post -graduate
degree equivalent to M.A. We asked them to go through the original file submitted by the
department and whether they agree with the marks that were given by the Department Selection
Committee. After a couple of hours we took up this petition again and they stated that out of the
19 persons whose drawings are contained in the file the drawings of 11 persons are far better
than those of respondents Nos. 3 and 4, and they would not give a passing mark to either of the
said respondents."
It is therefore established that the private respondents in C.P. No.818 of 2011 did not possess the
stipulated qualification (BFA), did not have the required two years experience and also failed to
possess any artistic skill. That not possessing the stipulated qualification and experience was
sufficient to establish the case of the petitioner and the mala fide of the 'Committee' members on
the illegality of the appointments. The additional fact that the private respondents had no
demonstrable artistic ability, but still the `Committee' appointed them further erodes their ability,
integrity and competence.
14. Mr. Muhammad Hashim Khan, the then Director Culture, whilst on a month leave,
provided an opportunity to Messrs (1) Muhammad Hashim Khetran, Deputy Director, (2) Rashid
Khan Jaffar, Deputy Secretary Culture, (3) Sanaullah Khan, Under Secretary (Admin) and (4)
Abdul Manan, Under Secretary -I to recommend persons of their choice for appointment. There
was also an additional element of dishonesty on their part as they all signed the Minutes of the
'Departmental Selection Committee' held on 30th October, 2011 that showed 'Mr . Muhammad
Hashim Khan', as 'Director' and 'Chairman' of the Committee, whereas the same was signed by
Mr. Muhammad Hashim Khetran, Deputy Director. We had issued them notices vide order dated
20th December, 2012 and also provided them an opportunity to fi le replies vide order dated 20th
March, 2013. Mr. Muhammad Hashim Khan, Director Culture, on his part demonstrated honesty
and courage by writing letter dated 25th November, 2011 (reproduced in para 10 above) and
brought the illegalities committed to the n otice of the Secretary Culture, but he not only
disregarded the same but also supported the illegal appointments. We cannot be unmindful of the
manner in which the private respondents and others were selected. We can therefore conclude
that gross violation of the Rules took place and principles of transparency, competition and
fairness were violated. Mala fide conduct on behalf of the four gentlemen, who made the
recommendation namely, Messrs Muhammad Hashim Khetran, Rasheed Masood Khan Jaffar,
Sanaullah Kh an and Abdul Manan is also established.
15. In view of the above both the Petitions Nos. 818 and 822 of 2011 are allowed and the
appointment orders all dated 2nd November, 2011 issued on the recommendation of the
purported 'Departmental Selection Committ ee' of private respondents Dilmurad son of Noor
Hassan and Abdul Qahir son of Abdul Zahir (in CP No.818 of 2011), Abdul Hakeem son of
Noor Ambia, Muhammad Ali son of Muhammad Usman and Zahoor Ahmed son of Muhammad
Amir (in CP No.822 of 2011) are set aside. Persons who are illegally appointed managed to get
salaries and other benefits to which they were not entitled, however, we are restraining ourselves
from passing orders directing them to repay such amounts solely on the ground that the persons
who made t he recommendations for their appointment could not have been forced to. However,
disciplinary action may be initiated against Messrs Muhammad Hashim Khetran, the then
Deputy Director Culture, Dr. Rasheed Masood Khan Jaffar, the then Deputy Secretary, Sanaullah
Khan, the then Under Secretary (Admin) and Abdul Manan, Under, Secretary -I, Culture,
Tourism and Archives by the competent authority/Chief Secretary in accordance with law. We
would also recommend that they never serve as member of any departmental selection
committee. Other persons were also recommended by the same purported `Departmental
Selection Committee', however as they were not parties and as notices were not issued to them
hereto we are not ordering their removal, however, the competent author ity may take action if
their recommendations and/or appointment was contrary to applicable rules or otherwise illegal.
The official respondents are directed to re- advertise the posts and process the appointments of
the incumbent strictly in accordance with law. Petitions allowed in the said terms with costs in
the sum of five thousand rupees payable to each petitioner.
Copy of this judgment be sent to the Chief Secretary and Secretary, Culture, Tourism and
Archives, Government of Balochistan for informat ion and compliance.
SA/62/Bal.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,
let us know.