2020 P L C (C.S.) 650
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
SADIA ANWAR
Versus
SECRETARY EDUCATION DEPARTMENT and another
C.P. No.943 of 2018, decided on 24th February, 2020.
Establishment of the Office of Ombudsman for the Province of Balochistan Ordinance
(VI of 2001)
----Ss.9 & 11---Constitution of Pakistan Art. 199---Jurisdiction functions and powers of the
Ombudsman--- Recommendations for implementations of Provincial Ombudsman--- Civil
Service---Recruitm ent---Provincial Ombudsman's jurisdiction vis -à-vis recruitment /
appointment to Government Departments ---Constitutional petition ---Question before High
Court was whether forums provided for in Establishment of the office of Ombudsman for the Province of B alochistan Ordinance, 2001 had jurisdiction to dilate upon matters of
appointment/recruitment of persons in Government Departments ---Held, that scheme and
spirit of Establishment of the office of Ombudsman for the Province of Balochistan
Ordinance, 2001 di d not empower Provincial Ombudsman to adjudicate upon matters of
appointments in Government Departments ---Under said law, having considered a matter of
being case of maladministration, Ombudsman could only move to concerned Department for taking disciplina ry action against any public servant under applicable law ---Provincial
Ombudsman, therefore, could not direct for making or de -notifying appointment of a
candidate who applied for appointment in a Government Department ---Constitutional
petition was dispose d of, accordingly.
PLD 2016 SC 940 rel.
Jalal -ud-Din for Petitioner.
Nadeem Ahmed Sheikh for Respondent Zarmina Kakar, Zahoor Ahmed Baloch,
Assistant Advocate -General for Respondents.
Date of hearing: 17th December, 2019.
JUDGMENT
ROZI KHAN BARRECH, J.----Concisely the facts, as emerged from the record are
that; towards 23.11.2014, the Education Department advertised certain posts of teaching
cadre, inviting applications from interested persons for different posts, including the posts of
J.V. Teachers . Petitioner Sadia Anwar interested in the job of J.V.T. applied in capacity of
being resident of District Killa Saifullah and after test and interview, in merit list, her name appeared at S.No.3. Although as per merit list, she was eligible for appointmen t, but her
candidature was not considered by the District Recruitment Committee (in short "DRC") for
want of local/Domicile Certificate of District Killa Saifullah. She thus filed an application
before the Complaint Redressal Cell, Zhob Division (in short "CRC"), along with
'Nikahnama' showing that she is the wife of one Abdul Rehman son of Ghulam Hassan, who is resident of Killa Saifullah Bazar. The CRC in its meeting dated 17.12.2015, accepted her appeal and directed for revising the merit and made recomm endations for her appointment as
J.V. Teacher.
It so happened that one of the other contesting candidate namely Ms. Zarmina Kakar
daughter of Amir Muhammad challenged the decision of CRC before the Provincial Ombudsman, who accepted her appeal in case No.1148/PMS vide order dated 25.05.2017 setting aside the order of CRC. Petitioner challenged the decision of Provincial Ombudsman before the Appellate Forum i.e. the Worthy Governor, Balochistan, who dismissed her appeal on 16.01.2019. Hence this petition.
2. We have heard the learned counsel for parties and with their valuable assistance,
minutely perused the available record.
3. At the outset, it may be observed that in this petition, the crucial question, without
determination of which, one cannot proceed further, is; whether the orders passed the Forums defined in Provincial Ombudsman Ordinance, 2001, (in short "Ordinance of 2001) are with
or without lawful authority and jurisdiction? To dilate upon this question; we have minutely studied the schem e and spirit of the Ordinance of 2001, which in our concrete estimation,
does not bestow the powers of examining the cases of appointments and recruitments in Government departments to the Forums defined by Ordinance of 2001, because such like mattes are t he executive functions, over which the said forums had no jurisdiction. It would
be beneficial to see the jurisdiction, functions and powers of the Ombudsman as defined in section 9 of the Ordinance of 2001, which reads as under:
"9. Jurisdiction,, functi ons and powers of the Ombudsman.
(1) The ombudsman may on a complaint by an aggrieved person, on a reference by the Governor, or the Provincial Assembly or on a motion of the Supreme Court or a High Court made during the course of any proceedings before i t or his own motion,
undertake any investigation into any allegation of mal -administration on the part of
any Agency or any of its officers or employees; "
Further it may be seen that as per spirit of section 11 of the Ordinance of 2001, the
Provincial Ombudsman is recommendatory body. For sake of convenience the said section is also reproduced herein -below:
"Recommendations for implementations.
(1) If, after having considered a matter on his own motion, or on complaint or on a
reference by the Governor, or the Provincial Assembly, or on a motion by Supreme
Court or a High Court, as the case may be, the Ombudsman is of the opinion that the
matter, considered amounts to Maladministration, he shall communicate his findings to the Agency concerned.
(a) to con sider the matter further;
(b) to modify or cancel the decision, process, recommendation, act or omission;
(c) to explain more fully the act or decision in question;
(d) to take disciplinary action against any public servant of any Agency under the relevant laws applicable to him;
(e) to dispose of the matter of case within a specified time;
(f) to take action" on his findings and recommendation to improve the working and efficiency of the Agency within a specified time; or
(g) to take any other steps specif ied by the Ombudsman."
A mere glance over the above provisions envisage that upon a complaint, the
Provincial Ombudsman shall undertake any investigation into allegation of maladministration and if it amounts to mal- administration he shall communicate his findings
to the Agency concerned. The matter of appointments and recruitments by the Government department being an executive function is on different parlance and therefore such functions cannot be performed by the Provincial Ombudsman. Reliance is place d on PLD 2016 SC
940, wherein it has been observed as under:
"It is not possible to mould the term "maladministration" used in Article 9 (I) of the Order under a rigid definition. The dictionary meaning of the term "maladministration" is "to handle a matter inefficiently or improperly". In its wider sense, it refers to various types of mal -practices which are opposed to law, fair play
and principles of equity and justice. In common parlance, the introduction of the office of the Ombudsman and the confe rment of powers upon it through the Order
was styled to check administrative excess and abuses of bureaucracy. However these powers, within the Order, are not absolute and are subject to the restrictions contained in Article 9 of the Order. In other words, the Wafaqi Mohtasib can only exercise
powers which are not in conflict with the language of Article 9(1) and (2) of the Order. The term "maladministration" has been intercepted by this Court in a number of cases reported as Muhammad Mumtaz Khan Bhaba v. S pecial Court of Mr. Justice
Munir A Shaikh, (1994 SCMR 728), Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 SC 142) and Capital Development Authority v. Zahid Iqbal (PLD 2004 SC 99).
It was further held that:
"In this backdrop we are satisfied t hat the jurisdiction of Wafaqi Mohtasib, is limited
as provided under Article 9 of the Order and he cannot order and or recommend
appointment of a person in the Petitioner -company under any of the categories
mentioned hereinabove which power rests with the executive authorities."
4. The crux of above is that, the scheme and spirit of the Ordinance of 2001, does not
empower the Provincial Ombudsman to dilate upon the matters of appointment of a person in
Government departments as the above reproduced provisi ons explicitly state that after having
considered the matter being of maladministration, the Provincial Ombudsman could only move the concerned Agency for taking disciplinary action against any public servant of that Agency, under the relevant laws applica ble to him, meaning thereby, the said Authority
could not dilate or direct for making or de -notifying appointment of one or the other
candidate, being made by Government under relevant provisions of law.
5. Since the object, scope and purpose of the Ordina nce of 2001 does not empowers the
Provincial Ombudsman to dilate upon the maters of appointments, like the one in hand, therefore, we have no hesitation in declaring the above referred orders passed the Forums defined in Ordinance of 2001 to be coram non j udice, being without lawful authority and
jurisdiction.
6. Now coming to the merits of the case, it may be observed that the certain documents
were produced before the Provincial Ombudsman, which were not before the CRC, who accepted the appeal of petition er, merely on the basis of Nikahnama, produced by her, thus in
all fairness, it would be appropriate if the Complaint Redressal Cell, Zhob Division before whom, the matter shall be deemed pending, take into account all relevant facts and documents produced by the petitioner and Ms. Zarmina Kakar, and decide the same after
issuing notice to all concerned and giving them an opportunity of hearing.
With these observations, the petition stands dispose of, leaving the parties to bear
their own costs.
KMZ/17/Bal. Order accordingly.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.