HCJDA-38

JUDGMENT SHEET
IN THE LAHROE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No. 5801 of 2010
JUDGMENT
DATE OF HEARING 05.05.2010.

PETITIONERS BY Ch. Muhammad Younas, Advocate for

petitioner in W.P.No.5801/2010.
Ch. Fiza Ullah Advocate for petitioner in
W.P.No.8649 of 2010.
RESPONDENTS BY Mr. Muhammad Illyas Khan, Advocate
a/w Hashmat Ali Kazmi HR Director
GEPCO.

MUHAMMAD FARRUKH IRFAN KHAN J. Through

this judgment I intend to decide both the W.P.No.5801 of

2010 and W.P.No.8649 of 2010, as identical questions of

law and fact are involved in both these petitions.

2. The main grievance of the petitioners is that

the respondents filled up various posts in Gujranwala

Electric Power Company Limited (hereinafter referred to

as “GEPCO”) in utter disregard of the recruitment policy,

in violation of terms and conditions of the

advertisements in the national press and under political

intervention/direction in sheer discrimination to the rights

of the petitioners.

3. Briefly, the facts of the case as put forth by

the petitioners are that the respondent No.3 invited

applications for various posts of BPS-1 to 15 through an

W.P.No.5801 of 2010. 2

advertisement in the Daily Jang dated 02.11.2008. The

petitioners having requisite qualification applied for the

said posts. On 06.11.2009 the petitioners appeared for

interview before the respondent authorities. Despite the

fact that the petitioners have high grades in their

academic qualifications they were ignored and

appointment letters were issued in favour of the

candidates recommended by the Federal Minister for

Water and Power Development Authority (WAPDA) in

complete disregard to the merit policy hence, this writ

petition.

4. Learned counsels for the petitioners submits

that there are serious irregularities in the recruitment

process; that no written test was held as per terms and

conditions of the advertisement; that the posts were

reserved for the candidates belonging to the area of

GEPCO but this vital requirement has been ignored and

candidates belonging to other divisions in particular

Rawalpindi District have been selected; that the

appointments have been made in total disregard to the

terms and conditions of the advertisement; that no merit

list was prepared after the interview as per policy and as

was required in the terms of the advertisement; that out

of the total 437 appointees 72 were over age; that the

whole process of appointment was a result of nepotism

W.P.No.5801 of 2010. 3

and favourtism; further that the applications of most of

the appointees did not bear the signatures of the

applicants, were undated and were addressed to the

Minister for Water and Power Development Authority

which is sufficient proof of illegality, colorable exercise of

jurisdiction, mala fide and political influence in the

selection process; that the appointments are made in

derogation of the merit policy and have deprived the

petitioners of their legitimate expectation of being

appointed or at least being considered against the said

posts on the basis of their qualifications, written test and

interview; that the appointments for State jobs are not

the personal bounty of any one person and authority

and have to be made on merit; that the persons

appointed against the posts were not even eligible to

be considered as most of them belonged to areas not

falling within the jurisdiction of GEPCO, were over age,

did not apply in the prescribed manner, within the

stipulated time, and have been appointed without

observing the due process in contravention of the rights

of the bonafide applicants; Finally submits that the

appointment orders are violative of articles 4, 18 and 25

of the Constitution of the Islamic Republic of Pakistan,

1973.
W.P.No.5801 of 2010. 4

5. Conversely, the learned counsel for the

respondent Nos.1 to 3 submits that the respondent No.2

is a public limited company and is not governed by any

statutory rules, therefore, this Court lacks the jurisdiction

to entertain matters against it under Article 199 of the

Constitution of the Islamic Republic of Pakistan, 1973;

that what has been raised in the instant petitions are

matters of factual controversies which cannot be

resolved in the Constitutional jurisdiction of this Court;

that the selection procedure followed by the GEPCO/

respondent Nos.1 to 3 is based upon the policy of the

Government and the documents were scrutinized in

terms of the Service Rules; that a Selection Board

recommended the candidates who fulfilled the requisite

criteria and also were found to be on merit by the Chief

Executive Officer after due scrutiny and evaluation; that

only filing of applications for the said posts cannot

create any vested right in favour of the petitioners; that

no doubt according to the terms and conditions of

advertisement, the seats were reserved for the

inhabitants of the area of GEPCO, but the applications

were received from all over the Punjab, therefore,

keeping in view the policy of PEPCO dated 11.10.2009

(Annexure R/4 to the parawise comments dated

14.04.2010) opportunity was given to the candidates

W.P.No.5801 of 2010. 5

from all over the Punjab; that the person who publishes

an advertisement can change or modify the terms of

the same at any stage; that a corrigendum in this regard

has also been published in various newspapers; that a

written test was not conducted because about

“hundred thousands” candidates applied for the said

posts and keeping in view the law and order situation in

the country the competent authority decided not to

conduct the written test (Annexure:R/2 dated 15.10.2009

of the parawise comments); that according to the

policy competent authority can grant relaxation in the

upper age limit upto ten years; that all the

appointments were made in an open and fair manner

without violating the constitutional provisions in the

selection process; that merit was the only criteria for the

selection of candidates who fulfilled all other

requirements laid down by the Hon’ble Superior Courts

of the country which has been followed in the selection

process by GEPCO/respondent; that no appointment

was made on the recommendation of the Minister for

Water and Power Development Authority.

6. I have heard the arguments and have gone

through the record of the petitions. I find it essential to

deal with the question of maintainability of these

petitions first.
W.P.No.5801 of 2010. 6

7. It is an admitted fact that the petitioners

applied for the posts advertised by the respondent No.3

but were not recruited, therefore, they do not fall within

the category of a civil servant and as such the bar

contained in Article 212 of the Constitution does not

apply while dealing with the instant constitutional

petitions. Reliance in this regard is placed on Ahmad

Salman Waris ..vs.. Nadeem Akhtar ( PLD 1997 SC 382).

8. As to the other contention of the learned

counsel for the respondent Nos.1 to 3 that respondent

No.2 is a public limited company whose service rules are

not statutory in nature as such the jurisdiction of this

Court under Article 199 of the Constitution cannot be

invoked against the said respondent-company. In order

to deal with this postulation it is essential to make a

reference to sections 3, 4,5,6, 8(2)(ii) and 8(5)(a) of the

Water and Power Development Authority Act, 1958

which are reproduced as under:-

“3. Constitution of the Authority.—(1) There shall

be established an Authority to be known as the
Pakistan Water and Power Development Authority for
carrying out the purposes of this Act.
(2) The authority shall be a body corporate, shall
be entitled to acquire, hold and dispose of property,
shall have perpetual succession and a common seal
and shall by the said name sue and be sued.
(3) The Federal Government may, from time to
time, issue such directives as it may consider
necessary on matters of policy and the Authority shall
comply with such directives: and if a question arises
W.P.No.5801 of 2010. 7

whether any directive relates to a matter of policy,

the decision of the Federal Government shall be
final.”
4. Appointment and term of office of Chairman and
Members.----(1) The Authority shall consist of a
Chairman and not more than (three) Members
appointed by the Government:
Provided that till such time as the Authority is
fully constituted, the Chairman shall exercise the
powers, functions and duties of the Authority.
(2) ………………………………..
(3) ……………………………….
(4) The Chairman or any Member may at
time resign: provided that his resignation shall not
take effect until accepted by the Government.
5. Remuneration and conditions of
service.---the Chairman and each member shall
receive salary and allowances and be subject to
such conditions of service as may be prescribed by
the Government, and shall perform such duties as are
assigned to them under this Act or by any Regulations
framed under it.
6. Removal of Chairman or Member.-----
The Government may by notification remove the
Chairman or any Member---
(a) if he refuse or fail to discharge or
becomes in the opinion of the
Government, incapable of discharging
his responsibilities under this Act: or
(b) if he has been declared insolvent; or
(c) if he has been declared to be
disqualified for employment in or has
been dismissed from the service of
Pakistan, or has been convicted of an
offence involving moral turpitude; or
(d) if he has knowingly acquired or
continued to hold without the
permission in writing of the Government,
directly or indirectly or through a
partner, any share or interest in any
contract or employment with or by or
on behalf of the Authority, or in any land
or property which, in his knowledge, is
likely to benefit or has benefited as a
result of the operation of the Authority.
W.P.No.5801 of 2010. 8

8(2)(ii). General powers and duties of the

Authority and framing of Schemes.----
(1). ……………………….
(2). ……………………….
(i) ……………………….
(ii) the generation, transmission and
distribution of power; and the
construction, maintenance and
operation of power houses and grids
8(5)(a)
undertake any joint venture or work in
association with the Provincial
Government, and agency, corporation,
company, authority or any person and
may subscribe to the equities and
acquire such other rights and
obligations as may be necessary for
such joint venture or association.”

9. A perusal of the above provisions makes it

quite clear that the Government or the Competent

Authority to carry out the functions of the Federation

may frame schemes for a Province or any part thereof

providing for inter alia, the generation, transmission and

distribution of power. The respondent No.2 and seven

other distributing companies were thus created to

perform the functions in connection with the affairs of

the Federation.

10. The primary test as to whether a body politic

or a body corporate may be regarded as a person

performing functions in connection with the affairs of the

Federation or a Province is laid down in the case of

W.P.No.5801 of 2010. 9

Salahuddin versus Frontier Sugar Mills and Distillary Ltd.

(PLD 1975 S.C. 244), which requires

i). whether the functions entrusted to the

organization or person concerned are
indeed functions of the State involving
some exercise of sovereign or public
power;
ii). Whether the control of the organization
vests in a substantial manner in the hands
of Government; and
iii). Whether the bulk of funds is provided by
the State.

Further what has been laid down in the case of Aitchison

College, Lahore through Principal versus Muhammad

Zubair (PLD 2002 S.C.326) also applies squarely to the

respondent No.2 as it is performing the functions of the

State involving exercise of the public powers.

11. Moreover, from the very conduct and the

stance taken by the respondent No.2 in its pleadings,

the following floats to the surface:

(a) the advertisement dated 02.11.2008, inter

alia, states that.
W.P.No.5801 of 2010. 10

(b) It is the case of the respondent Nos.2 and 3 in

para 3 of their parawise comments dated
14.04.2010 “That the procedure for selection
followed by GEPCO Limited is based upon
the policy of the Government”;
(c) In paragraph 5 of the parawise comments it
is stated that “thereby it was decided in
terms of the policy of the Government, sent
by PEPCO through letter dated 11.12.2009
(Annexed R/4) to expand the process of
selection of the candidates in terms of this
policy of the Government of Pakistan”
(d) The annexure R/4 being a letter from PEPCO
states “please find enclosed a letter
No.1(17)2007-I&C dated 23.11.2009 on the
subject received from Section Officer (I&C),
Ministry of Water and Power, GOP,
Islamabad, for information and strict
compliance ”.
(e) The annexure-R/2 is the direction from the
Ministry of Water and Power through PEPCO
which reads as follows:-
“It has been brought to the notice of
Ministry of Water & Power that PEPCO is
following Recruitment Policy adopted
from WAPDA, that is based on GOP
Policy parameters like open
advertisement of the vacancies in the
National Press and conducting the
written tests and interviews of the
eligible candidates, a process not likely
to complete within 4-5 months even if
given straight going. The job has
become difficult on account of
overwhelming response of the
candidates for the advertised
vacancies i.e. running in hundred
thousands. Still another very serious
concern is one the law and order
situation as prevalent in the country,
where holding of written test in
congregation of thousands of
candidates is not without serious life
threats. There is a rising trend of the
insurgency and terrorism where mass
gatherings are the obvious and easy
targets for the miscreants. It has been
deemed appropriate to avoid
W.P.No.5801 of 2010. 11

providing any chance to terrorists by

avoiding holding of gathering of
candidates for written tests on certain
places and venues.
The position has been discussed
and brought in the notice of Minister of
Water & Power and in the view of the
aforementioned circumstances, it has
been advised to fill 50% of the
vacancies in BPS-1-16 on immediate
basis in accordance with the
Recruitment Policy with unavoidable
exception, where required.
Additionally, the Minister of Water and
Power has also been kind to allow
recruitment against vacancies for
Engineers and Officers of Common
Cadre (BPS-17) including those
pertaining to Revenues, Accounts and
Audit etc.”
(the underlining is mine)

Therefore, it is established from the exercise carried out

hereinabove that the respondent-company is entrusted

and performing functions which are undoubtedly

functions of the State involving exercise of public and

sovereign power, where control vests exclusively in the

hands of the Government. All the Directors, Chief

Executive and the Chairman of the respondent No.2 are

nominated members/employees of PEPCO/Water and

Power Development Authority and are to hold office at

the pleasure of PEPCO/ Water and Power Development

Authority. These Directors have no discretion to do any

act or process or formulate any policy independently

without the prior approval of PEPCO/ Water and Power

W.P.No.5801 of 2010. 12

Development Authority. Although nothing has been

adverted to in this regard by the learned counsel for

respondent Nos.1 to 3, it can be safely assumed that all

the funds are also provided by the State for carrying on

of its functions to respondent No.2. Thus a corporate veil

or layers of hierarchy would not be sufficient to hide the

very engine which runs the entire system of the

respondent Nos.1 to 3 being none other then the Federal

Government. Therefore, this Court holds that the

respondent Nos.1 to 3 are amenable to the writ

jurisdiction under Article 199 of the Constitution of the

Islamic Republic of Pakistan, 1973.

12. Now let me proceed further to consider the

merits of the case and begin with the examination of the

requirements for the applicants for the posts advertised

for 34 various designations in the advertisement dated

02.11.2008. The relevant provisions to be considered

being (b) and (c) are reproduced below:-

W.P.No.5801 of 2010. 13

13. The conditions ibid stated in the said

advertisement find their basis in the guidelines of the

respondent No.2 for recruitment of staff which are

reproduced, for ease of reference, as under:-

(a) ……………………………………………………
(b) Advertisement in the electronic
media/national newspapers (at least in 2
dailies) will be made with 30-days notice and
on Sundays only.
(c) ……………………………….
(d) Posts for various Grade i.e. (BPS-1-15) will be
advertised.
(e) …………………
(f) All appointments are to be made strictly on
Merit basis on experience/academic/
technical qualification.
2. Objective/Trade test will be organized for all
advertised post by the respective formations,
where considered necessary.
3-b or all advertised posts: Selection Board will be
as per WAPDA Service Rules.
5. Domicile
All direct recruitees should be domiciled of
the Region (Area Electricity Board/Province) where
the posts exist, as per existing policy.
BPS-3-15. As far as possible, recruitment in
Head Office, Power Stations and Dams is made on
all Pakistan basis according to the Provincial Quota
prescribed by the Federal government.
9. The appointing authority may not disagree
with the recommendation of the Selection Board
without cogent reasons. Waiting list if any shall
remain effective for a period of three months.

14. According to the policy given in the Water

and Power Development Authority Office Memorandum

W.P.No.5801 of 2010. 14

dated 19.11.2003 paragraph 3 whereof being relevant is

reproduced as under:-

“3. Merit direct appointment upto BPS-15 will be

prepared as under:-

a) Weightage to written test 65 marks

b) Weightage to interview 25 marks

c) One step worker qualification and

about than the prescribed
qualification in the relevant service
Rules (No weightage to above one
step higher qualification). 10 marks

(the underlining is mine)

15. Therefore, according to the learned counsel

for the petitioners by giving this advertisement in the

newspapers a promise was made to and a hope was

kindled in the petitioners for the appointments on merit.

The applications were called for from the candidates

belonging to the districts falling within GEPCO region

(Gujranwala, Sialkot, Hafizabad, Narowal, Gujrat and

Mandi Baha ud Din) only, as according to the learned

counsel for the petitioners similar posts were advertised

for their respective divisions like FESCO, LESCO and

MESCO etc. This being based on the rational that

candidates from respective divisions are to be

employed in the same division circle of the respondent

Nos.1 to 3 having its basis in the policy (ibid) of the

respondent No.2 requiring that all direct recruitees

W.P.No.5801 of 2010. 15

should be domiciled in the region (Area Electricity

Board/Province) where the posts exist, as per existing

policy. Thus, the advertisement restricted the said posts

to the candidates belonging to the District within the

work area of GEPCO and did not extend to the whole of

the Province.

16. The respondent Nos.1 to 3 after much

persuasion have placed on record a list of district wise

recruitments which is reproduced as under:

(Chart is annexed with this judgment as Mark-A)

17. This chart reveals that out of 437 appointees

254 belong to districts other than GEPCO and in

particular out of 254 appointees 242 hail from Rawalpindi

district. The learned counsel for the respondent Nos. 1 to

3 states that the competent authority decided to

expand the recruitment process to all over the Punjab

and in this regard a corrigendum was also issued. The

Corrigendum published in the newspaper is placed on

record which is reproduced as under:-

Corrigendum

1. Reference advertisement published in the

national dailies on 02.11.2008 and 29.11.2008 for
recruitment of employees ranging BPS 01 to 17.
Last date for receipt of applications regarding
above has been extended upto 15.03.2009,
while other terms and conditions remain the
same.
2. The candidates, who have already routed
applications, need not to apply afresh.
W.P.No.5801 of 2010. 16

18. This corrigendum did not mention extending

the invitation of the applications to the whole of the

Province of the Punjab, and in fact only extended the

date of receiving the applications upto 15.03.2009 while

stating that the “other terms and conditions shall remain

the same”. Thus re-emphasizing the respondent No.1 to

3’s promise that the requirements laid down in the

advertisement dated 02.11.2008 would be followed

strictly. It is the contention of the learned counsels for the

petitioners that the advertisement in the news paper was

in fact not only an eye wash but a misrepresentation to

the citizens of the area of GEPCO, as the respondents

from the very beginning had the intention not to recruit

and to follow the conditions laid down therein. The

written test was not undertaken and the appointments

were made on the basis of recommendations by the

Minister for Water and Power Development Authority.

Moreover, it is very astonishing that GEPCO area

comprises of Gujranwala, Sialkot, Hafizabad, Narowal,

Gujrat and Mandi Baha ud Din districts and even in the

illegal appointments only 183 candidates could get

employment from this area, while from Rawalpindi

district alone 242 candidates have been selected.

W.P.No.5801 of 2010. 17

19. The act of placing an advertisement is called

“advertising” (a verb). Black’s Law Dictionary (8th Edition)

defines advertising as follows:

“The act of drawing the public’s attention to

promote it.”

In the case reported as Muhammad Intizar ul Hassan

versus University of Agriculture, Faisalabad and 2 others

(1997 PSC 855) this Court has very elaborately defined

the functions of an advertisement for a job. Relevant

observations are reproduced here below:-

“The purpose of making advertisements for

the purpose of recruitment against various
posts in the government and public
institutions is that fair opportunity should be
granted to all eligible persons who may
apply and contest for appointment. While
on the one hand, it gives an opportunity to
the eligible persons to contest for a
particular post, on the other hand it gives
opportunity to the employer to select the
best person for the job in question. The
requirement of due publicity of the post in
the press is also relatable to the
Constitutional guarantee provided by Article
25 of the Constitution, which enjoins that all
citizens are equal before law and are
entitled to equal protection of law. This
means that in the matter of appointments in
the Government or Government controlled
agencies all eligible citizens should have
equal opportunity to contest for the
appointments against posts in the public
sector.”

In the case reported as Amir Hamza versus Government

of Balochistan and others (2005 PLC (C.S.) 1201) the

Hon’ble Supreme Court of Pakistan in a case where the

W.P.No.5801 of 2010. 18

appellant was denied a job as he did not meet the

quota requirement which the Provincial Government

issued but was not mentioned in the advertisement

despite the said policy being very much in force

observed on the sanctity and value of the contents of

the advertisement for the post in the following terms:-

“The policy having a statutory backing attains

the legal status and is required to be adhered
to in letter and spirit by all the Departments of
the Government, including the Board of
Revenue, being one of the Department of the
Provincial Government under the Rules of
Business, 1976, therefore, they owe a duty to
mention in the advertisement about the
bifurcation of the posts according to rotation-
wise quota of the relevant Divisions.”

20. It is therefore to be noted that an

advertisement is a promise stating all the rules which the

authority undertakes to observe in consideration for

giving employment to the most suitable candidate.

Ordinarily, there should be no deviation from the said

advertisement requirements. However, for the general

good and/or to overcome some legal deficiency if any

deviation has to be made from the originally advertised

conditions, then such changes should be advertised in

the same manner as the original advertisement and also

to be notified to each and every applicant, if the

process of filling up of the posts has commenced in the

meanwhile. This is so, because the authority bringing

W.P.No.5801 of 2010. 19

about the change in the advertised employment

conditions has a much more onerous responsibility to

discharge once the process of employment has begun

and the un-suspecting candidates are drawn into the

said process with full vigour and zeal, for some of whom

this may be the start of a new phase in life, placing full

trust in the appointing authority and the system

prevalent in the country, thus dreaming and planning

their future on the basis of their getting through the

“advertised” conditions on merits. The Superior Courts of

this country have always tried to preserve this “trust” of

the society in the procedure to be adopted following

‘promise’ made in the course of an advertisement for

employment, admission to an institution etc. to avoid

any ambiguity, arbitrariness deviation from transparency

and transgression from authority. Guidance can be had

in this respect from the case reported at Ghulam

Mustafa versus The Mehran University of Engineering and

Technology, Jamshoro and 7 others (1986 CLC 1056

Karachi) which holds that vested rights accrue to an

applicant after the passing of the last date for the

submission of documents as stipulated in the

advertisement. Relevant quotation is reproduced as

below:-
W.P.No.5801 of 2010. 20

“The determination of such date is necessary

as once a vested right is created any
amendment in the admission Rules affecting
such vested right cannot be allowed. The
admission policy is announced by
publication of the prospectus. On the basis
of such prospectus the applications are
invited upto a particular date. These
applications are considered and scrutinized
immediately on the expiry of the last date for
their submission. The applicants are then
interviewed and selected for admission. In
this process for admission the moment date
for submission of application expires the
applicant becomes entitled to be
considered for admission. This seems to be a
reasonable and proper approach to the
problem. After the expiry of the last date no
one can apply for admission. The applicants
are to be considered on the basis of
conditions, categories and criteria laid down
in the prospectus or rules of admission. If the
concerned authorities are allowed to
amend the rules or policy after the last date
and at any time before the admission
process is completed, then it is likely to result
in serious abuses, mal practice, manipulation
and favoritism. Even if the authority honestly
and bona fide amends during this period it is
likely to be viewed with suspicion and will
injury the reputation and prestige of august
bodies like Syndicate. Amendment after the
expiry of the date before submission of
application is fraught with serious
consequences and likely to cause mistrust.”

Therefore, there was no moral or legal jurisdiction vested

in the respondents to deviate from the conditions as laid

down in their departmental policy and/or the

advertisements dated 02.11.2008 and 29.11.2008 and to

circumvent the procedure as laid down therein to make

the appointments in such a brutal massacre of merit and

fairplay. Thus trampling upon the spirit of ambition, desire

W.P.No.5801 of 2010. 21

of progress through merit, and taking up the challenges

of life in a fair and square manner of thousands of

young aspirants of the jobs on merit. Causing a

permanent scar on their psyche which could encourage

them to give up the path of merit and to wander in the

fathomless desolation of the hells of illegality, nepotism,

corruption and coercion. The above acts are also

against the doctrine of “advertising substantion” which

inter alia, makes it an unfair and deceptive act to put

out an advertisement unless the advertisee first has a

reasonable basis for believing that each statement/

claim/condition in the advertisement is true and will be

followed diligently.

21. This Court also summoned the records of the

selected candidates which was provided with much

pain and hesitation by the respondents. While examining

the said record it was observed that most of the

applications of selected candidates are incomplete,

some of the “so-called applications” are just the

testimonials of the applicants without a covering note or

the prescribed application form, which appear to have

been removed rather hastily from the said records

before submission in this Court and some even do not

bear the signatures of the candidates. This state of affairs

is very alarming. The letter of Chief Executive GEPCO,

W.P.No.5801 of 2010. 22

Gujranwala dated 23.01.2010 is available on the record

which depicts that some political forces transgressed

their powers and did what they were not supposed to

do and the authorities competent to make the

appointment in their keenness obeyed their illegal

orders, flouted the rules with utmost impunity and

crossed all limits of consciousness. No words are strong

enough to deprecate this tendency, which has

unfortunately seeped into the very foundations of our

society, thus slowly creating major fissures which threaten

the entire edifice built thereon, resulting in chaos while

destroying Governmental departments and similar

institutions. The departmental authorities competent to

make appointments are expected to exercise their

authority and discretion honestly, objectively and in

accordance with law without being influenced by any

external forces including their superiors. As has been

most instructively observed by the Apex Court in case

reported at Dr.Naveeda Tufail and 72 others versus

Government of Punjab and others (2003 SCMR 291) that,

“the appointments in the public sector is a trust in the

hands of public authorities and it is their legal and moral

duty to discharge their function as trustee with complete

transparency as per requirement of law so that no

person who is eligible to hold such posts is excluded from

W.P.No.5801 of 2010. 23

the process of selection and is deprived of his right of

appointment in service.” The appointments in question

being void ab inito from every angle and by all

standards are not sustainable.

22. The learned counsels for the petitioners have also

drawn the attention of the Court to a further misconduct

and fraud played by respondent Nos.1 to 3 on this Court

as in W.P.No.3708/10 Asad Mehmood Khalid petitioner

assailed the said appointments and this Court vide order

dated 25.02.2010, suspended the operation of the order

dated 30.01.2010 regarding appointments challenged in

these writ petitions as well. An application

(C.M.No.1200/2010) dated 08.03.2010 was moved by the

learned counsel for the respondents No.1 to 3 for

vacation of stay which came up for hearing before

another learned Bench of this Court and vide order

dated 11.03.2010 the learned Judge directed the office

for placement of the said application for hearing before

this Court. Alongwith the said application appointment

letter of Asad Mehmood Khalid dated 30.01.2010 was

annexed which was a sufficient bate for the petitioner

and an attempt to hush up the things. The petitioner got

the case fixed before another learned Bench of this

Court and withdrew his petition (W.P.No.3708/10). This

W.P.No.5801 of 2010. 24

obviously is a further proof of the conduct of the

respondents No.1 to 3, who issued a back dated

appointment letter in favour of the said writ petitioner,

otherwise, if it had been issued on the date as

mentioned in the said appointment letter, there would

have been no occasion for the said writ petitioner to

approach this Court. It is worth-mentioning that Asad

Mehmood Khalid approached this Court with the prayer

that appointments on various posts are against the

policy, rules, advertisement and be declared illegal and

void having no sanctity of law. He further prayed that

the respondent Nos.1 to 3 be directed to scrutinize the

process of fresh appointments in accordance with

prescribed procedure and recruitment policy. The act of

the respondents Nos.1 to 3 of issuing the appointment

letter in the back date in favour of the said writ petitioner

was an attempt to prevent the flood gates from being

opened against the illegal acts of the respondents No.1

to 3 by other aggrieved persons. However, this turned

out to be of no avail but rather exposed the illegal and

fraudulent acts of the respondent Nos.1 to 3 in issuing a

back dated appointment letter in favour of the said writ

petitioner.
W.P.No.5801 of 2010. 25

23. For what has been discussed above, this

petition is allowed with costs of Rs.25000/- to each of the

petitioners. All the appointments made by the

respondents are declared void ab initio, illegal, without

lawful authority, of no legal effect and are set aside

accordingly. The process of appointment will re-

commence from where the deviation was made therein

in a fair and transparent manner in accordance with the

terms of advertisements dated 02.11.2008 and

29.11.2008. The appointment process of all the posts shall

be completed by 30.12.2010.

24. The public functionaries have been

repeatedly reprimanded and warned by this Court and

the Apex Courts for taking actions in utter disregard to

the lawful authority and for such dereliction Courts have

burdened them with costs. Reliance is placed on case of

Khurshid Ahmed Naz Faridi versus Bashir and 3 otherse

(1993 SCMR 639) which has been followed by this Court

in case of M.Zafar Abbas versus Commissioner and

others (1999 PLC 931). In the instant case, hesitation of

the officials to produce the official record, tampering

with it and efforts to defeat the ends of justice by

concealing the facts of the case requires that the

concerned officials be burdened in their personal

W.P.No.5801 of 2010. 26

capacity rather then to pay the same in their official

capacity. It is ordered that the Chief Executive Officer

GEPCO Gujranwala and Director Human Resources and

Administration GEPCO, Gujranwala will pay a further sum

of Rs.25,000/- as compensatory costs to each of the

petitioners for the mental torture and agony that they

have suffered in this process. The costs are to be paid to

the petitioners before 30.12.2010 by the respondent

No.2. However, all these costs shall be recovered by

respondent No.2 from the personal salaries of the said

officials on monthly basis during the period of next three

years or so according to the length of the service of the

official concerned.

25. Before parting with this judgment although

this point has not been agitated by the learned counsel

for the petitioners or the respondents I would like to deal

with the question of the fate of all the persons who have

been appointed through illegal acts of the respondent

Nos.1 to 3. Having considered from every angle it is an

admitted position that the so-called selectees have

managed to obtain “appointments” which cannot be

termed as lawful appointments, as these have been

made by ab initio illegal acts undertaken by the

respondent Nos.1 to 3 by curtailing the due process of

W.P.No.5801 of 2010. 27

recruitment in violation of the policy, rules and the

conditions of the advertised posts and without following

the due process in an arbitrary and capricious manner

apparently under the pretext of discretion. Exercise of

discretion is bound by the rules of reasons which must be

guided by law and must not be exercised in an arbitrary

or fanciful manner. Reliance is placed on the case

reported as Zubair Ahmad and another versus Shahid

Mirza and 2 others (2004 SCMR 1747).

26. Due process has not been applied in the so

called appointments, as such no vested right has been

created in the said 437 so-called appointees and their

appointments have been declared as void ab initio by

this Court herein before. In case reported as Nazir

Ahmad Panhwar versus Government of Sindh through

Chhief Secretary Sindh (2009 PLC (C.S.) 161) it has been

ruled that, “the person against whom action was

contemplated to be taken prima facie had a vested

right to defend the action and in those cases where the

claimant had no basis or entitlement in his favour he

would not be entitled to protection of the principles of

natural justice.” I am further fortified by the dictum laid

down in case reported as Justice Khurshid Anwar

W.P.No.5801 of 2010. 28

Bhinder and others versus Federation of Pakistan and

another (PLD 2010 S.C.483).

27. Vested right if any has to be treated in

accordance with law and due process. Vested right has

been only created in favour of the applicants who

responded to the advertisement for the posts, including,

if any, of the so called appointees. The appointment

process would commence from the point where it was

abandoned by the respondent No.2. If any of the so

called appointee has applied for the said posts in

accordance with the advertisements dated 02.11.2008

and 29.11.2008 he/she will have an equal and fair

opportunity to compete with the rest of thousands of the

applicants to be considered on merits after due process

has been observed. For those who did not apply within

the prescribed time limit and in accordance with the

requirements laid down in the advertisements dated

02.11.2008 and 29.11.2008 no locus standi or vested

interest accrued in their favour that can be protected

by this Court.

28. The original record requisitioned by this Court

vide order dated 28.04.2010 shall be kept by the office

sealed in Record Room till the time this judgment attains

finality or is requisitioned by the appellate Court if an

 W.P.No.5801 of 2010. 29

occasion so arises. Thereafter, the said record be sent

back to the HR Director GEPCO, Gujranwala through its

authorized officer.

Disposed of.

(MUHAMMAD FARRUKH IRFAN KHAN)

JUDGE

Approved for Reporting

JUDGE

*A.KHOKHAR *
 W.P.No.5801 of 2010. 30

HCJDA-38

JUDGMENT SHEET
IN THE LAHROE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Writ Petition No. 8649 of 2010
JUDGMENT
DATE OF HEARING 05.05.2010.

PETITIONERS BY Ch. Fazal Ullah Advocate for petitioner.

RESPONDENTS BY Mr. Muhammad Illyas Khan, Advocate

a/w Hashmat Ali Kazmi HR Director
GEPCO.

MUHAMMAD FARRUKH IRFAN KHAN J. For the

reasons recorded in my detailed judgment of even date

passed in W.P.No.5801 of 2010 this writ petition is

disposed of with the observations and directions that all

the appointments made by the respondents are

declared void ab initio, illegal, without lawful authority, of

no legal effect and are set aside accordingly. The

process of appointment will re-commence from where

the deviation was made therein in a fair and transparent

manner in accordance with the terms of advertisements

dated 02.11.2008 and 29.11.2008. The appointment

process of all the posts shall be completed by 30.12.2010.

(MUHAMMAD FARRUKH IRFAN KHAN)

JUDGE

*A.KHOKHAR *