P L D 2010 Lahore 546

Before Syed Mansoor Ali Shah, J

IMRAN HUSSAIN---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA

and 4 others---Respondents

Writ Petition No.6210 of 2010, decided on 15th July, 2010.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---State owned companies are

amenable to constitutional jurisdiction under Art.199 of the Constitution.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD

2010 SC 676 fol.

(b) Constitution of Pakistan (1973)---

----Arts. 4, 18 & 25---Public sector company---Master and Servant, principle of---

Applicability---Scope---Mode and manner of recruitment followed by a public sector company-

--Objection regarding application of the principle of "master and servant" in the matter

was misconceived as matter in question was not the `terms and conditions of service'---In the

present case, it had been agitated that the Recruitment Policy had been violated; that in spite of

public advertisement, sham interviews had been conducted without any common and prefixed

objective criteria to transparently judge and evaluate the candidacy of the applicants; and that

the process adopted by the public sector company and its Selection Board was blatantly devoid

of due process and deprived the applicants of their right to lawful employment and livelihood

and discriminately ousted the petitioners from the recruitment process in violation of Arts.4, 18

& 25 of the Constitution---Held, objection regarding application of principle of `master and

servant', was misplaced and without force.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Civil service---Recruitment---No

objective criteria was framed for the purposes of conducting interviews for recruitment---

Constitutional petition in circumstances, was maintainable.

(d) Discretion---

----Administrative discretion has to be structured, reasoned, rational, logical and objective---

Principles.

Administrative discretion has to be structured, reasoned, rational, logical and objective. One of

the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought-

out, carefully deliberated objective standard. This helps test various faculties of the interviewee

especially those, which the institution concerned requires. The standard can, therefore, cover

experience, alertness, initiative, general aptitude, behaviour, knowledge, dependability, etc.

which forms a uniform yardstick, gauge, scale or criteria for the exercise of discretion.

Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human

subjectivity, which is inescapably susceptible to error and indubitably arbitrary, ex facie

discriminatory, highly irrational and painfully illogical. The administrative compulsion and

wisdom to structure discretion (in the present case by providing a well-thought out objective

criterion/test or a score card) is to remove human subjectivity from exercise of discretion.

On an institutional level, structuring the discretion is to protect the institution and the public

from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and volatility

attached to human behaviour, translated into human dissection. These vices are a breeding

ground for corruption, nepotism and favourtism. These vices are like termites and if permitted to

exist, weaken the foundations of democratic public institution.

Wherever wide-worded powers conferring discretion exist, there remains always the need to

structure the discretion. Structuring of discretion only means regularizing it, organizing it,

producing order in it so that decision will achieve the high quality of justice. The seven

instruments that are most useful in the structuring of discretionary power are open plans, open

policy statements, open rules, open finding, open reasons, open precedents and fair informal

procedure. Somehow, in the context of Pakistan, the wide worded conferment of discretionary

powers or reservation of discretion, without framing rules to regulate its exercise, has been taken

to be an enhancement of the power and it gives that impression in the first instance but where the

authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the

Courts have to intervene more often, than is necessary, apart from the exercise of such power

appearing arbitrary and capricious at time.

Constitutionally, unlimited and unchecked exercise of discretion is inherently discriminatory. It

has no internal check to ensure uniformity and objective application of mind across the board. It,

therefore, extends unequal treatment to equals. Absence of an objective criterion in exercise of

discretion especially in a case where thousand of candidates had applied is therefore,

discriminatory and hence violative of Article 25 of the Constitution.

Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry

of Finance, Islamabad and others PLD 1990 SC 1092; Chairman, Regional. Transport Authority,

Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14;

Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and

18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR

1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009

SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991

SC 101 ref.

(e) Civil service---

----Recruitment of employees---Good governance and institutional building---Requirements.

Good governance and institutional building require that the requirements, demands and needs of

the institution are tailored into the objective criteria/test so that the best suited human resource is

selected for the post. The proposed criteria can sub-divide total marks into areas like; experience,

skill, aptitude, educational background, intellect, extra-curricular, personality, ethics, etc. so the

interviewers have a prefixed format to apply their mind on and disallow unchecked subjectivity

from clogging them the minds.

The Letter issued by Managing Director of a public sector company changing the Recruitment

Policy at the behest of Minister besides offending fundamental right reflects of poor and reckless

governance.

(f) Civil service---

----Recruitment of employees---Appointment process solely based on interview---Demerits.

B. Ramakichenin Alias Balagandhi v. Union of India and others 2008 (1) SCC 362; Madhya

Pardesh Public Service Commission v. Navnit Kumar Potdar and another AIR 1995 SC 77; Ajay

Hasia and others v. Khalid Mujib Sehravardi and others and others AIR 1981 SC 487 and Ashok

Kumar Yadav and others v. State of Hayyana and others AIR 1987 SC 454 ref.

(g) Constitution of Pakistan (1973)---

----Arts. 4, 18, 25 & 199---Civil service---Public sector company---Recruitment of employees--

-Career and future prospects of employment and livelihood of the applicants for appointment

was subjected to an unstructured, unchecked, unguided and unfettered exercise of discretion---

Such process put the fragile career of the applicants hostage to corruption, political opportunism

and nepotism resulting in constitutional breach of Articles 4 and 18 of the Constitution---Letter

issued by Managing Director of the public sector company changing the Recruitment Policy at

the behest of Minister, besides offending fundamental rights, reflected of poor and reckless

governance--Impugned recruitment and appointment of candidates was declared to be

unconstitutional, illegal, without lawful authority and therefore set aside--High Court directed

that all the said posts shall be deemed to be vacant and filled again in terms of present judgment

and the Recruitment Policy unless the same was lawfully amended or modified---Public Sector

Companies, in the present case, had played fraud with the legitimate expectations of hundreds of

people who innocently applied desiring a decent lawful employment, however, instead of

carrying out transparent recruitment process and giving meaningful employment, these

institutions failed to perform their public duty and had abused the public trust reposed in them by

the people of Pakistan---Such situation called for strict accountability of the public functionaries

involved in the process including the Board Members of the companies who seemed to have

taken no note of such large-scale breach of trust--High Court, therefore, directed the Chairman

WAPDA to inquire into these unlawful appointments and to identify the real beneficiaries of

unlawful recruitment process--Chairman, WAPDA shall also hear and incorporate the views of

the candidates who were rejected as well as the ones whose appointment had been set aside

through the present judgment---Such report shall be placed before High Court within five months

from the date of present judgment.

(h) Constitution of Pakistan (1973)---

----Arts. 4 & 199---Due process of law---Civil Service---Recruitment of employees---

Administrative discretion---Scope---Article 4 of the Constitution provides for due process of law

and mandates that everyone is to be treated in accordance with law---Administrative discretion

which is structurally unfettered and unchecked cannot be said to have been exercised in

accordance with law and therefore fails to pass the test of "due process" under Art. 4 of the

Constitution---Walk-in-interviews, in the present case, were devoid of any objective criteria,

therefore, violative of "due process" and fundamental rights of the applicants---Such interviews

were declared to be ab initio unconstitutional and unlawful creating no right whatsoever in the

successful candidates.

(i) Company---

----Public sector company is not only to look after the interest of its shareholders alone but has a

wider responsibility as it acts as a t rus tee for the people of Pakistan---Higher standard of

governance stricter fiduciary duty and an institutional collegiality in decision making process is

an expected operational benchmark of a public sector company---Principles.

A public sector company is not only to look after the interest of its shareholders alone but

has a wider responsibility as it acts as a trustee for the people of Pakistan. Higher standard of

governance, stricter fiduciary duty and an institutional collegiality in decision making

process is an expected operational benchmark of a public sector company. The trusteeship of

the members of the Board of Directors of such company create a sacred obligation to ensure

that company is run and managed through the Board, which is an independent and an

autonomous body constituted to safeguard the interest of the public and of company and at

all times to firewall against political or bureaucratic opportunism. A Minister under the Rules

of Business is to provide the macro policy and fashion the vision of the Department

according to the political agenda of the Government in power. It is not the role or the

business of the Minister to interfere with the operational working of autonomous body like a

public sector company. In the present case, the Minister could have stressed the urgency to

employ manpower in various companies but could not have gone further to suggest and

direct the temporary modification of the Recruitment Policy unless the company after due

deliberation at the Board level and after giving reasons felt that such a modification is

required in the larger interest of the company and in public interest. Government and its

autonomous institutions are spread out in layers, every tier having its own independent role

and scope of operations and there is no room for dictation or pressure. Unless the structure of

governance laid out in the Rules of Business read with the constitutional principles, is

protected, the system of public administration will come crashing down, replacing public

interest with personal avarice and greed. This cannot be permitted.

Public sector companies shall take collective decision in their Board Meetings, giving

reasons as required under section 24-A of the General Clauses Act, 1897, a Board Resolution

through circulation, if there is urgency. Only in grave emergency, which has no room for

delay, the Chief Executive Officer may act singly in the welfare of the company and in

public interest, supported by written reasons for its urgency and the same must be ratified by

the Board of Directors within the shortest possible time. Board of Directors must also give

reasons for allowing the Chief Executive Officer to take such a decision and must give

reasons for its ratification.

Public sector company is an independent public company with its autonomous Board of

Directors. Decisions of Managing Director or the Board of Directors of the company are

required to be placed before Board of Directors of the company in order to take a decision.

The autonomy of the company and the independence of the Board of Directors is merely

fictional if directions issued, by individuals namely: Managing .Director (without seeking the

approval of the Board of Directors) are carried through by the management without having

received the blessing of its Board of Directors.

Public, Institutions .(company) can only contribute to national interest and welfare of the

people if they are run as an institution and in the public interest without any fear or favour. If

the Board Members are bypassed and are simply used to ratify orders passed single handedly

behind closed doors and without any plausible reasons, the future of public institutions is

bleak. In order to ensure independence, autonomy, national interest and interest of the

institution, the members of the governing bodies will have to vigilantly and actively play

their roles. To be on the Board of a public sector company is to perform a public duty in the

public interest of the people of Pakistan. This role has to be performed with full

responsibility, vigilance, courage, wisdom and for no other reasons.

Public institutions can prosper and progress and materially serve the people of Pakistan only

if the public functionaries incharge of running these institutions fearlessly guard their powers

and remain undeterred by extraneous pressure and influence.

Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285

distinguished.

Ameer Abdullah Khan Niazi for Petitioner.

Nasim Kashmiri, Dy. Attorney-General, Muhammad Ilyas Khan Aurangzeb Mirza, Shahid

Karim, Kh. Ahmad Tariq Raheem, Shahzad Shaukat, Muhammad Munir Khan, Mian Abdul

Qaddus, Sarfraz Ahmad Cheema and Alia Ijaz for Respondents.

Muhammad Arshad Javed, Ch. Ahmad Saif Ullah Khathana, Muhammad Arif Pervaiz Butt,

Azhar Igbal and Zia Shahid for Appointees.

Tanveer Safdar Cheema, Chief Executive FESCO. Ch. Muhammad Ashraf, Director (HR)

FESCO, Shabbir Ahmad, Senior Manager L&W PEPCO.

Dates of hearing: 29th April, 8th 12th, 13th and 15th July, 2010.

JUDGMENT

SYED MANSOOR ALI SHAH, J.--- This consolidated judgment shall also decide writ

petitions mentioned in Schedule A along with the titled petition. Petitioners had applied for

the posts of Assistant Lineman (ALM), Meter Reader, Commercial Assistant and Naib Qasid.

All these petitions air the same grievance and raise identical questions of law and facts and

are, therefore, being decided through this consolidated judgment.

2. Brief facts of the case are that Faisalabad Electric Supply Company ("FESCO") publicly

advertised vacancies in 22 different categories of posts, including the above posts, in Urdu

and English dailies namely: "Jang" and "Daily Express" on 2-11-2008. The said public

advertisement was restricted for candidates domiciled in Districts Bhakkar, Faisalabad, Toba

Tek Singh, Mianwali, Sargodha and Khushab.

3. Petitioners eagerly applied for the abovementioned posts under Direct Quota and

Employees' Children Quota along with their testimonials. Petitioners were issued Interview

Call Letters and thereafter they appeared to be interviewed by the concerned Selection Board

of the area. The requirement of written test was dispensed with, as is described more fully

later in the judgment. Principal grievance of the petitioners is that the Selection Boards

simply marked their presence as they went in for the interview. No question was asked and

they were told that the interview has been concluded. The mode and manner of conducting

interviews lead the petitioners to assume that FESCO is not interested to fill the said

vacancies. However, the petitioners later on found out to their dismay that all the posts had

been filled. Petitioners allege that they have been deprived of their long awaited chance to a

lawful employment and what has aggravated their injury is the skewed and selective

appointments based solely on political favourtism, disregarding merit. It is vehemently and

somewhat poignantly contended by the petitioners that appointments were even made from

outside the group of districts mentioned in the advertisement. It was submitted that the entire

recruitment process was the work of a hidden political hand, which successfully orchestrated

the recruitment process to its own advantage by dictating, autonomous public sector

companies to violate their own recruitment policy. It was argued that the appointments were

made in violation of the Recruitment Policy, 1992 which was heartlessly and unlawfully

modified to achieve the desired benefit for the concerned quarters.

4. Messrs Muhammad Ilyas Khan, Khawaja Tariq Rahim, Aurangzeb Mirza, Shahid Karim,

Mian Abdul Qudoos, and Muhammad Shahzad Shaukat, Advocates interchangeably appeared

on behalf of FESCO, as well as, Pakistan Electric Power Supply Company ("PEPCO").

Muhammad Ilyas Khan Advocate, one of the counsel for FESCO, vehemently, raised

preliminary objections to the maintainability of the instant petition.

5. His objections were that writ petition against FESCO does not lie as it is merely a

company incorporated under the Companies Ordinance, 1984. He further submitted that the

principle of "master and servant" applies in the present case as the petitioners are not

governed by any statutory rules of service and lastly, the instant matter involves factual

inquiry and therefore, writ is not an appropriate remedy. Learned Counsel placed reliance on

Executive District Officer Schools and Literacy, District Dir Lower and others v. Qamar

Dust Khan and others" 2006 SCMR 1630, Almas Ahmad Fiaz v. Secretary Government of

the Punjab, Housing and Physical Planning Development, Lahore and another 2006 SCMR

783 and Maqbool Ahmad v. Pakistan Agricultural and others 2006 SCMR 470.

6. On merits, counsel for PEPCO/FESCO submitted that as the last date for receipt of

applications was 15-3-2009. On the said date 86,102 applications were received, however,

only 44,656 candidates appeared in the interview under the Direct Quota out of which 1306

were appointed and only 1100 joined the said posts. Under the Employees' Children Quota,

3,477 candidates applied, 2,464 appeared in the interview and only 313 candidates were

appointed while only 247 joined the service. Therefore, a total number of 1,347 candidates

joined the posts and out of this 101 candidates were not domiciled from the group of

advertised districts.

7. It was submitted that the recruitment was initiated on the basis of Recruitment Policy,

1992 framed by WAPDA and adopted by the Board of Directors of PEPCO and FESCO

independently. The Recruitment Policy, 1992 was prepared in line with the "GOP

[Government of Pakistan] Policy Parameters like open advertisement of the vacancies in the

rational Press and conducting written tests and interviews of the eligible candidates." After

the public advertisement for the vacant posts on 2-11-2008, Managing Director ("M.D.")

PEPCO issued Letter dated 15-10-2009 on the direction of the Minister for Water and Power,

whereby deviation was made in the Recruitment Policy, 1992 and the requirement of written

test was dispensed with, replacing it with only a Walk-In Interview.

8. The marks for the written test (65 marks) were added into the interview marks making the

total marks allocated for the WALK IN INTERVIEW to be 90, while 10 marks were to be

awarded for higher qualifications. Counsel for FESCO/PEPCO submitted that 11 (eleven)

Selection Boards were constituted to conduct the Walk-In Interviews at various centres

located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha. It is contended that

the appointments were made strictly in accordance with law and on the basis of merit.

9. When counsel for the respondents were asked whether there was any objective criteria

framed for the purposes of carrying out interviews by PEPCO, FESCO or the Selection

Boards, the counsel candidly submitted that no objective criteria was framed and the

interviews were conducted purely on discretionary basis. Chief Executive Officer ("CEO"),

LESCO appeared in person and was directed to place on record the interview

proceedings/workings of the Selection Boards so that the Court could assess and satisfy itself

regarding the uniform basis and parameters employed by all the Selection Boards while

interviewing candidates for the posts. Chief Executive Officer categorically submitted that no

record of proceedings of the Selection Boards was available. Chief Executive Officer made a

statement to this effect in writing before the Court, which is dated 12-7-2010 and has been

placed on the record as mark "A" which states:---

"The undersigned had checked from the head of all Selection Boards constituted for

selection of FESCO employees in various categories. They informed that after the

induction/consolidation of the selection results at FESCO Headquarters, Faisalabad,

the officer incharge of selection board of various centres 'did not retain the record of

the proceedings of Selection Board, since they had signed consolidated computerized

results and as a record was not required to be retained under any rules."

10. The CEO also confirmed that no objective criteria was framed for the purposes of the

interviews by FESCO or the Selection Boards.

11. Counsel for PEPCO was asked how MD, PEPCO single handedly modified Recruitment

Policy, 1992, dispensing with the requirement of the written test which is provided for in the

Government of Pakistan Policy parameters for recruitment ? and whether the Board of

Directors of PEPCO had authorised the MD, PEPCO to issue letter dated 15-10-2009 ?

Counsel for PEPCO sought time and on the next date of hearing placed on record the extracts

of the Board Resolution passed by the Board of Directors of PEPCO dated 24-5-2010

whereby ex-post facto ratification was granted to the letter dated 15-10-2009 issued by MD,

PEPCO. He further submitted that PEPCO has to follow the Government Instructions, which

have been noted in letter dated 15-10-2009.

12. On 8-7-2010, Mr. Abid Ali Chaudhry, Assistant Registrar (Criminal-II) of this Court

was appointed as a Local Commissioner who was directed to immediately leave for the Head

Office of FESCO, Faisalabad and to undertake the following tasks:---

(1) To obtain a copy of the Recruitment Policy/notification followed by FESCO for the

present appointments.

(2) To obtain a copy of the notification/letter through which Selection Boards were

appointed, showing the names of the members of the said Selection Boards.

(3) Letter/notification showing the objective criteria framed by FESCO for the purposes of

carrying out interviews or the appointments in the present cases.

(4) The local commission will take up 10 cases at random of the petitioners (maintained by

respondent FESCO) and place his stamp and signatures on all the pages of the said files. He

will do the same by taking 10 cases at random of the persons appointed by FESCO and place

his -stamp and signatures on all the pages of the said files.

(5) In case any of the above is missing and FESCO fails to furnish the same to the

satisfaction of the local commission, he will record the statement of Director, HR&A to that

effect and procure the signatures of the said Director on the said statement."

13. The Report of the Local Commission dated 12-7-2010 has been placed on record. No

written objections have been filed against the said Report and none of the counsel

controverted the contents and findings of the said Report during their arguments.

14. On 29-4-2010, FESCO was directed to issue notices to all the candidates who were

appointed as Assistant Lineman, Meter Readers, Commercial Assistants and Naib Qasids so

that their presence before the Court is ensured. Notices were duly issued to all the appointees

in the above category out of which 65 appointees ,appeared before this Court through

counsel. Counsel for the appointees submitted that they have been appointed through a

lawful process of interview and once the said appointment has been made, any lapse or

irregularity committed by the department cannot affect the appointments of the said persons

and placed reliance on Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006

SCMR 285. They further argued that the principle of locus poenitentiae also applies in the

present case. They contended that they were appointed after fulfilling all the requirements

and the procedure laid out by respondent FESCO and, therefore, cannot be deprived of their

rightful appointment. It was also contended that the said appointments were for a period of

one year and already six months had elapsed, therefore, interference by this Court at this

stage would be harsh and will unduly affect the appointees.

15. Arguments heard. Record perused.

16. I shall first address the preliminary objections raised by Mr. Muhammad Ilyas Khan,

Advocate appearing on behalf of FESCO. Admittedly, FESCO is owned by the Federal

Government and is therefore a State owned company and hence an instrumentality of the

State performing functions in connection with the affairs of the Federation. It is now settled

and trite law that State owned companies are amenable to writ jurisdiction. Reliance is

placed on Pakistan International Airline Corporation. and others v. Tanweer-ur-Rehman and

others PLD 2010 SC 676.

17. The second preliminary objection regarding application of the principle of "master and

servant" is misconceived as it is not the terms and conditions of service which are under

challenge in the instant petitions but the mode and manner of recruitment followed by a

public sector company which is in question. It is an obligation of a public institution to act

fairly, justly, reasonably and transparently. In the present case, it has been agitated that the

Recruitment Policy, 1992 has been violated. In spite of public advertisement, sham

interviews have been conducted without any common and prefixed objective criteria to

transparently judge and evaluate the candidacy of the applicants. It is submitted by the

petitioners that the process adopted by FESCO and its Selection Boards is blatantly devoid of

due process; it deprives the petitioners of their right to lawful employment and livelihood

and discriminately ousts the petitioners from the recruitment process in violation of Articles

4, 18 and 25 of the Constitution. Therefore, the objection regarding "master and servant" is

misplaced and without force.

18. The last preliminary objection is regarding factual controversy involved in the present

case. This objection also has no force as it has been admitted by the counsel, as well as, the

Chief Executive Officer and the Director, Human Resource (later in the judgment) that no

objective criteria was framed for the purposes of conducting interviews. Further, the

authority of MD, PEPCO to issue Letter dated 15-10-2009 and the blind implementation of

the same by FESCO is a legal question that can be easily addressed in the present

constitutional proceedings. I, therefore, reject all the three preliminary objections raised by

respondent FESCO as being frivolous and misconceived.

19. On merits these petitions raise the following questions of public law and institutional

importance:---

(a) Can appointments be made on the basis of Walk-In Interviews without a pre-fixed

objective criteria shared amongst all the Selection Boards (interviewers) by FESCO or

PEPCO to maintain a uniform objective selection process? Whether failure to do so offends

Articles 4, 18 and 25 of the Constitution besides affronting the principles of social and

economic justice?

(b) Whether in the absence of any record, minutes or notes of the proceedings, it could be

inferred that discretion was not lawfully and transparently exercised by the interviewing

members of the Selection Boards?

(c) Whether M.D, PEPCO could single handedly on the "advice" of the Minister for Water

and Power, temporarily amend the Recruitment Policy framed by WAPDA under the

guidelines of the Federal Government?

(d) Whether Board of Directors of a public sector company is competent to grant ex post

facto ratification without giving reasons?

(e) Whether, management of FESCO could blindly implement the decision of M.D. PEPCO

without first placing the same (Letter dated 15-10-2009) before the Board of Directors of

FESCO and getting their approval?

20. To answer these questions, it will be useful to sketch the chronological sequence of

events:-.

(i) PEPCO (Human Resource Directorate) communicated to FESCO vide letter dated

30-10-2008, that Cabinet Secretariat, Establishment Division has been pleased to grant NOC

for "advertisement only" of 1195 vacant positions spread over 22 different posts from BPS-1

to 14.

(ii) Through the same letter FESCO was directed to ensure that advertisement appears

in two daily Urdu newspapers having wide circulation preferably for 2-11-2003 (Sunday).

(iii) The advertisement appeared in "Jhang" and "Daily Express" Faisalabad on 2-11-

2008. The public advertisements were for 22 different posts and specifically stated that the

posts had to be filled by residents domiciled in Districts: Faisalabad, Bhakkar, T.T. Singh,

Sargodha, Mianwali and Khushab (the geographical service region of FESCO). The present

petitioners applied for the posts of Assistant Lineman (ALM), Meter Reader, Commercial

Assistant and Naib Qasid.

(iv) Vide Letter dated 10-11-2008 with the subject: Exemption From Ban on

Recruitment, PEPCO informed FESCO that selection process of the advertised posts "is

restricted at this stage till further instructions." This was perhaps due to the Ban on

Recruitment as the title of the Letter suggests.

(v) Vide Letter dated 16-12-2008 of PEPCO, last date for submission of applications

was extended till 15- 1-2009. FESCO vide its Letter dated 17-1-2009 reported to PEPCO that

80,173 applications had been received in all 22 categories in response to advertisement dated

2-11-2008 with the closing date of 13-11-2008 and more applications were expected as the

date was extended.

(vi) PEPCO Vide Letter dated 12-2-2009 wrote to all the corporatized entities (including

FESCO) the following:---

"Corporatized Entities may complete the recruitment process in a fair and transparent

manner at their own strictly in line with the applicable instructions rules and

recruitment policy.... PEPCO, however, as a part of its mandate, will continue its

routine and normal surveillance, covering selection process through in-house

arrangements. This is issued with the approval of the Managing Director PEPCO"

(vii) Vide Letter dated 19-2-2009 issued by PEPCO, the last date for the receipt of

applications ; was once again extended to 15-3-2009. This was done in view of letter of

Ministry of Water and Power dated 19-22009 whereby the ban on recruitment was lifted.

(viii) On 26-3-2009 PEPCO informed the DISCOs (including LESCO) that "The competent

authority has been pleased to allow for further proceeding with Recruitment Process for the

posts, cleared for advertisement only. Please ensure strict compliance with laid down

procedures/recruitment policies and all applicable Service Rules and instructions issued from

time to time."

(ix) At the time of the Public Advertisement dated 2-11-2008 till the issuance of Letter dated

15-1-2020(?), the New Recruitment Policy for WAPDA Employees Grade-1-15 (settled vide

Office Memorandum dated 25-1-1992) was in vogue., The said Recruitment Policy states:---

NEW RECRUITMENT POLICY FOR WAPDA EMPLOYEES GRADE 1 --- 15

Adopting the new Recruitment (1) Policy of the -Federal Government, WAPDA has

accordingly modified its own Recruitment Policy. The new policy adopted by

WAPDA is at annexure "A" covering all grades of employees, with special emphasis

on merit, elimination of discretion and including the monitoring role of Public

Representatives. (2) Previously merit was determined with the help of

subjective/trade tests. Now only objective test has been introduced for Grade 3---15

recruitment, specimen of which is enclosed depending upon the specific recruitment

of each trade. Papers for objective tests may be prepared on these lines. (3) The new

Recruitment Policy is to be followed strictly in letter and spirit. Authority: Director

General (S&GA) WAPDA's Circular No. DG/AD(E.IB)/7225-Re-5045-5203 dated

25-1-1992. Annexure ."A" GUIDELINES FOR RECRUITMENT OF STAFF IN

BPS 1--15 (1) In supersession of all previous instructions on the subject anew

Recruitment Policy has been approved by WAPDA on the basis of the one announced

by the Federal Government, laying emphasis on elimination of discretion and the

monitoring role of Public Representatives. Salient; features of the new Recruitment

Policy are as under:--- (a) All recruitments will be made in February and August

every year. (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) Posts in BPS

1---2 will not be advertised. Whenever there is a need to fill in these vacancies

concerned formation will ask for application from Secretary WAPDA in addition to

applications available in the concerned office. (d) Posts for various Grade i.e. (BPS

1---15) will be advertised. (e) Qualifications where prescribed by Service Rules for

various grades will be strictly adhered to. (f) All appointments are to be made strictly

on Merit basis on experienced / academic /technical qualification. (g) No weightage

will be given to interview, unless essential for the post. (h) No ad hoc appointments

will be made. (i) Age relaxation will not be allowed when candidates of correct age

are available. However, candidate who may become over age as a result of ban

imposed by the Government since November, 1990 the age limit may be relaxed by 1-

1/2 years till 31-12-1992. 2. Procedure for Recruitment Objective/Trade test will be

organized for all advertised post by the respective formations, where considered

necessary. 3. Selection Board Posts of BPS 1---4 . Members not below the rank of

BPS 17 officer. For all advertised posts.--Selection Board will be as per WAPDA

Service Rules. 4. Appointing Authority As per existing delegation of administrative

powers laid down in 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. 6. Quota The quota reserved for

various categories is given below:--- Employees Children 33.1/3% Disabled

1% Ex-Servicemen 10% Destitute/Orphan 5%

(x) Office Memorandum dated 19-11-2003 issued by PEPCO states---

PAKISTAN WATER AND POWER. DEVELOPMENT AUTHORITY

SERVICES & GENERAL ADMINISTRATION DIRECTOR GENERAL 332-

Wapda House, (S&GA) Shahrah-e-Quaid-i-Azam Lahore No.

DG(S&GA)/D(Rules)/07453/30/II1/55906-27206 Dated 19-11-2003. OFFICE

MEMORANDUM Subject: QUALIFICATION PARAMETERS FOR

RECRUITMENT OF STAFF Authority in its meeting held on 4-11-2003 has

decided as under:--- 1. The prescribed qualification to appointments in BPS 1 to BPS

4 and Sanitary Workers will be as under: (a) BPS 3 and BPS 4 Matric (b) BPS 1

and BPS 2 Middle except Sanitary Worker (c) Sanitary Worker Literate (who can

read newspaper and write a simple letter in any language) (2) All Service Rules

instructions of such categories will stand amended to the above extent. (3) Merit list

for appointments upto BPS-15 will be prepared as under:--- (a) Weightage to written

Test 65 Marks (b) Weightage in Interview 25 Marks (c) One step higher

qualification 10 Marks and above than the prescribed qualification in the relevant

Service Rules (No weightage to above One step higher qualification) (emphasis

supplied) Recruitment policy will stand amended to the above extent. (Sd.)

(Muhammad Akhtar Choudhary Director-General

(xi) However, quite abruptly, vide letter dated 15-10-2009, M.D, PEPCO issued the

following letter:

PEPCO PAKISTAN ELECTRIC POWER COMPANY (PVT.) LTD. Ref.

Managing Director/D/A 4200-4218 Dated October 15, 2009 Chief Executive Officer

DISCOs, GENCOs & NTDC Subject: PRIORITY CONSIDERATION FOR

CRUCIAL VACANCIES/CLEARANCE OF OPERATIONAL ISSUES. Further

to communications on subject, priority redressal of Technical/Operational and

Revenue problems has become more pronounced now and thus cannot be left to

procedural handling. Of course, these can be resolved to a great extent through

improving on governance and supplementing the deficient HR base of the Companies

on immediate basis, presently touching critical levels for skilled/semi-skilled

categories like ALMs, ASSAs, LSs, Meter Inspectors, Meter Readers, Bill Distributors

and other ministerial staff. Whereas Companies have advertised the vacant posts

procedural requirements still mars the sincere efforts for early inductions. It has been

brought to the notice of Ministry of Water and 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 on 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 providing

any chance to terrorists by avoiding holding of gathering of candidates for written

tests on certain placed and venues. . The position has been discussed and brought in

the notice of Minister of Water and 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. Accordingly, Entities are required to immediately, start the selection

process against 50% of the vacancies for BPS 1--16 from amongst the candidates who

have applied against the advertised vacancies and also meet minimum prescribed

criteria in the relevant Service Rules, by curtailing the selection process given in

Recruitment Policy to the extent that all other steps will be strictly complied, but for

the entrance test exception. The candidates will be called for walk in interviews and

marks reserved for written test shall be added in the interview marks. The successful

candidates shall then be issued offer of appointments. It is further clarified that CEOs

may consider relaxation in age as already authorized to them and change the short

listing criteria, where warranted, but otherwise not in conflict with the Service Rules

to provide equal chances to all in view of persistent ban on recruitment. The above-

mentioned measures are interim arrangements to cater for the special circumstances,

called for by immediate staffing requirements, overwhelming response of candidates

and security concerns for holding written tests in large congregation of candidates

running in thousands, applicable to only 50% of the vacancies of BPS 1--16. The full

process will stand restored automatically on completion of instant recruitment against

allowed 50% vacancies as prevalent heretofore without any notice thereby, including

the provision of written test. The Recruitment Policy, however, will remain

applicable as such for induction in Officers category where arrangements are possible

for comparatively lesser number of candidates. The date, time and venue for

examination against the Officers Cadre (both Technical and Non- Technical), if not

already taken up, should be initiated for 50% of such vacancies on immediate basis in

observance of prescribed criteria in Recruitment Policy and Service Rules. All

concerned may note to ensure induction of staff against the vacancies to the level

allowed on Fast Track basis so as to supplement the deficient HR Base for alleviating

the operational problems of the Companies. (Sd.) Engr. Tahir Basharat Cheema,

Managing Director

(xii) Thereafter 11 Selection Boards were constituted and "WALK-IN" interviews were held

in five Centre located at Joharabad, Jhang, Toba Tek Singh, Faisalabad and Sargodha and as

a result the 1.347 vacant posts were filled. Details are as follows:---

Total No. of

Candidates applied

Total number of

Candidates who

appeared in the

Walk in Interview

Total No. of

Successful

candidates

Total No. of

Candidates who

joined the posts

89;579 47,120 1,619 1,347

21. On the basis of the above facts, I take up the first question i.e., the absence of a pre-fixed

uniform and shared Objective Criteria for awarding marks to candidates who appeared for

the WALK IN Interview., out of a total of 90 marks. Mr. Shahid Karim, Advocate appearing

on behalf of PEPCO, submitted at the bar, that no Objective Criteria was framed by P.EPCO

or FESCO for assessing the candidates in the interview. CEO, FESCO in his statement

tendered in writing before this Court dated 12-7-2010 (placed as Mark "A") admitted that the

record of the proceedings of the Selection Boards is not available as it was not retained by

the Selection Boards. When asked if an objective test or criteria was prepared and handed

over to the Selection Boards so that a uniform interviewing process could be carried out, he

submitted that no such criteria existed. No such objective criteria has been placed on the

record or finds mention in the parawise comments filed by FESCO.

22. Statement of Muhammad Ashraf Chaudhry, HR and Admin. Director, FESCO recorded

on 9-7-2010 by the Local Commissioner states that: "....Assessment of the candidates in

interview was not segregated in terms of different traits of character, personality, etc. but

overall assessment was evaluated by the Selection Board as no such written instructions

exist...."

23. It is therefore an admitted position that no Objective Criteria for evaluation of candidates

during the WALK IN Interviews was chalked out by PEPCO, FESCO or the Selection

Boards. The Office Order through which 11 Selection Boards for various areas were

constituted having a convenor and two members were given the following instructions.

Office Order dated 28-10-2009 constituting Selection Board for the Sargodha Centre, which

is similar to the others, is reproduced hereunder:

Faisalabad Electric Supply Company Limited (WATER AND POWER

DEVELOPMENT AUTHORITY) Tel # 041-9220370 OFFICE OF THE Fax # 041-

9220445 CHIEF EXECUTIVE OFFICER FESCO (WAPDA) FAISALABAD

No.8235/DDA/E-II/ DATED 28.10.2009 OFFICE ORDER 1. A Board of

following Officers will conduct walk in interviews of candidates for appointment on

contract basis in FESCO, for the categories mentioned below on the dates mentioned

against each at 0900 hrs in Sargodha Centre:--- (1) Mr. Abdul Razzaq, Manager

(L&L) FESCO Convenor (2) Mr. Aamil Hussain Siddiqi, Deputy Manager

(Operation) Member 1st Division, Sargodha. (3) Mr. Javed Hussain, Convenor

Deputy Manager (Operation) 2nd Division, FESCO, Sargodha (4) Mr. Riaz Hussain

Balock, Member Deputy Manager (Commercial) (5) Malik Ashfaq Ahmed,

Deputy Manager), Member (Technical) FESCO, Sargodha. (6) Mr. Saeed Ahmed

Qureshi, Deputy Manager, Member (MIS) FESCO, Sargodha. (7) Mr. Shahbaz

Mehmood Member Assistant Manager (CTC) FESCO Sargodha (8) Mr. Javed

Anwar Sandhu Member Assistant Manager (Operation) Tariqabad Sub-Division

FESCO Sargodha (9) Mr. Maroof Ahmed Member Assistant Manager

(Operation) City Sub-Division FESCO, Sargodha (10) Mr. Imran Ali, Member

Assistant Manager (Operation) Civil Lines Sub-Division FESCO Sargodha (11) Mr.

Muhammad Tariq Member Assistant Manager (Operation) Rural Sub Division

FESCO Sargodha (12) Mr. Ghulam Murtaza Member Assistant Manager

(Operation) Kot Farid Sub Division FESCO (13) Mr. Raza Ali Nawaz Member

Assistant Manager (Construction) FESCO Sargodha (14) Mr. Muhammad Rashed

Member Assistant Manager (SS&T) FESCO Sargodha (15) Mr. Yasir Farooq

Member Assistant Manager (P&I) SS&T FESCO Sargodha

Category Date

UDC 29-10-2009

LDC/TCC 30-10-2009

Chowkidar 30-10-2009

Naib Qasir 31-10-2009

Commercial Assistant 1-11-2009

ASSA 2-11-2009

Bill Distributor 3-11-2009

ALM 4-11-2009

Meter Reader 5-11-2009

Lorry Driver 6-11-2009

Assistant Head Clerk 7-11-2009

Note: (a) Arrangements will be made at Sargodah Centre by Manager (Operation)

Sargodha Circle FESCO Sargodah. (b) Convenor will farther constitute Sub

Committees of the above Board. (c) The officials already earmarked will be deputed

for document checking and getting attendance of candidates. The Convenor in

consultation with the Officers of the board will specify their assignment. (d) The

Convenor of the Board himself will be present at the Venue well before the start of

the interview and till completion. (e) No unauthorized/irrelevant Officer/official will

be allowed to enter at the place of Venue in any case except the Officers specifically

detailed for the purpose. (f) No candidate without original Call letter and National

Identity Card will be allowed. (g) No photocopy of the Board proceedings will be

retained in . any case by any member/official. (h) Board Proceedings and attendance

sheets will be provided by this Headquarters. (i) The Board members will report to

Convenor well before 30 minutes of the prescribed time on the date of interview. 2.

This is issued with the approval of Chief Executive Officer, FESCO. (Sd.)

Muhammad Gulzar Sheikh Manager (Admn.)

The most fundamental component i.e. the basis of assessment and evaluation during

the interview is starkly missing in the instructions at the fag end of the Office Order

under the heading "Note" (reproduced above).

24. Assuming for the sake of argument, that PEPCO lawfully modified the well-settled

Recruitment Policy, 1992 framed by WAPDA by morphing written test into a WALK-IN

Interview with total marks of 90 (as per Recruitment Policy: 65 marks were allocated for

written test and 25 marks for interview; the marks for written test were added into the total

marks for the interview), what needs to be seen 'is whether the Selection Boards constituted

for the purpose of holding WALK IN Interviews could have exercised lawful discretion in

the absence of an objective criteria.

25. It is settled law that administrative discretion has to be structured, reasoned, rational,

logical and objective. One of the ways to arrive at such a structured exercise of discretion is

to fashion it on a well-thought out, carefully deliberated objective standard. This helps test

various faculties of the interviewee especially those, which the institution concerned

requires. The standard can, therefore, cover experience, alertness, initiative, general,

aptitude, behaviour knowledge, dependability, etc. which form a uniform yardstick; gauge,

scale or criteria for the exercise of discretion. Discretion without a uniform yardstick or a

formula is a loose jumble of haphazard human subjectivity, which is inescapably susceptible

to error and indubitably arbitrary, ex facie discriminatory, highly irrational and painfully

illogical. The administrative compulsion and wisdom to structure discretion (in this case by

providing a well thought out objective criteria/test: or a score card) is to remove human

subjectivity from exercise of discretion. In the present case, this was not done.

26. Good governance and institutional building requires that the requirements, demands and

needs of the institution are tailored into the objective criteria/test so that the best suited

human resource is selected for the post. The proposed criteria can sub-divide total marks into

areas like; experience, skill aptitude, educational background, intellect, extra-curricular,

personality, ethics, etc. so the interviewers have a prefixed format to apply their mind on and

disallow unchecked subjectivity from clogging them the minds.

7. The downside of not having a clear formula or criteria is supported by the following facts:

Local Commission was directed to collect, at random, application forms/files of selected and

rejected candidates. This was duly done. A bare perusal of the files placed on the record and

attached to the Report of the Local Commission reveal as follows:

Post applied for Name of the

Rejected

candidate

Academic

qualifications

Name of an

appointed

candidate

Academic

Qualification

Meter Reader Atteeq-ur-

Rehman CNIC

38301- 188522-

3

Matric 51%

F.A. 61% B.A.

65%

Ghulam

Mukstafa

33104-

8953930-7

F.A.50.72%

Matric 40%

The appointed candidates has less qualification than the rejected one. The above

comparative chart is self-explanatory.

28. On an institutional level, structuring the discretion is to protect the institution and the.

public from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and

volatility attached to human behaviour, translated into human dissection. These vices are a

breeding ground for corruption, nepotism and favourtism. These vices are like termites and if

permitted to exist, weaken the foundations of democratic public institutions. Reference at

this stage is made to the case of Aman Ullah Khan and others v. The Federal Government of

Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092

at page 1147), relevant part of Para 62 reads as under:---

"Wherever wide-worded powers conferring discretion exist, there remains always the

need to structure the discretion/and it has been pointed out in the Administrative Law

Text by Kenneth Culp Davis that the structuring of discretion only means regularizing

it, organizing it, producing order in it so that decision will achieve the high quality of

justice. The seven instruments that are most useful in the structuring of discretionary

power are open plans, open policy statements, open rules, open findings, open

reasons, open precedents and fair informal procedure. Somehow, in our context, the

wide worded conferment of discretionary powers or reservation of discretion, without

framing rules to regulate its exercise, has been taken to be an enhancement of the

power and it gives that impression in the first instance but where the authorities fail

to, rationalize it and regulate it by Rules, or Policy statements or precedents, the

Courts have to intervene more often than is necessary, apart from the exercise of such

power appearing arbitrary and capricious at times". (Emphasis supplied)

29. The above principles have been consistently reiterated in the cases of Chairman,

Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited,

Rawalpindi PLD 1991 SC 14), Director Food, N.-W.F.P. and another v. Messrs Madina

Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1, Chief Secretary Punjab

and others v. Abdul Raoof Dasti 2006 SCMR 1876, Abdul Wahab and another v. Secretary,

Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation

V. D.T.C. Mazdoor Congress and others AIR 1991 SC 101.

30. Interview as the sole or major component of any recruitment or appointment process is

open to error, arbitrariness, favour and corruption. It is for this reason that Recruitment

Policy framed by WAPDA on the guidelines of the Federal Government allocated 25%

marks out 100 for interview, while 65 marks were allocated for written test and 10 marks for

higher qualifications. The midstream sudden and shift to WALK IN Interview is therefore

irrational and opposed to public policy. In case of large number of candidates interviews

become even less effective. Interviewing for two to three minutes per candidate cannot help

judge the candidate and is no more than an eye wash, not to mention how such rushed and

cursory interview can be abused to achieve oblique ends. In the present case, according to the

record, 44,656 candidates were interviewed in 11 days by 11 Selection Boards. This means

that on an average 377 candidates were interviewed per day by each Selection Board, which

is humanly impossible and turns the interview and recruitment process into a cruel joke. I

rely with advantage on the under-mentioned cases for demerits of an appointment process

solely based on interview.

31. In Ramakichenin alias Balagandhi v. Union of India and others 2008(I)SCC 362 it was

held:---

"It is well-settled that the method of short-listing can be validly adopted by the

Selection Body.... Even if there is no rule providing for short-listing nor any mention

of it in the advertisement calling for applications for the post, the Selection Body can

resort to a short-listing procedure if there are a lame number of eligible candidates

who apply and it is not possible for the authority to interview all of them. For

example, if for one or two posts there are more than 1000 applications received from

eligible candidates, it may not be possible to interview all of them. In this situation,

the procedure of short- listing can be resorted to by the Selection Body, even though

there is no mention of short-listing in the rules or in the advertisement. As observed

by this Court in Raman Dayaram Shetty v. The International Airport Authority of

India and others AIR 1979 SC 1628: "It is a well-settled rule of administrative law

that an executive authority must be rigorously held to the standards by which it

professes its actions to be judged and it must scrupulously observe those standards on

pain of invalidation of an act in violation of them. This rule was enunciated by Mr.

Justice Frankfurter in "William Vincent Vitarelli v. Fred A. Seaton" 359 US 535; 3 L

Ed 2nd 1012 (1959) where the learned Judge said: "An executive agency must be

rigorously held to the standards by which it professes its actions to be judged.

Accordingly, if dismissal from employment is based on a defined procedure, even

though generous beyond the requirements that binds such agency, that procedure must

be scrupulously observed. This judicially evolved rule of administrative law is now

firmly established and, if I may add, rightly so. He that takes the procedural sword

shall perish with the sword":

32. In Madhya Paradesh Public Service Commission v. Navnit Kumar Potdar and another

AIR 1995 SC 77 it was held:---

"But where the selection is to be made only on basis of interview, the Commission or the

Selection Board can adopt any rational procedure to fix the number of candidates who should

be called for interview. It has been impressed by the courts from time to time that where

selections are to be made only on the basis of interview, then such interviews/viva voce tests

must be carried out in a thorough and scientific manner in order to arrive at a fair and

satisfactory evaluation of the personality of the candidate... If large number of applicants are

called for interview in respect of four posts, the interview is then bound to be casual and

superficial because of the time constraint. The members of the Commission shall not be in a

position to assess properly the candidates who appear before them for interview". (Emphasis

supplied)

33. In Ajaz Hasia and others v. Khalid Mujib Sehravardi and others AIR 1981 SC 487 where

in it was held that interview of each of the candidates lasting only two or three minutes

asking formal questions relating to the candidates parentage and residence and without any

relevance to the subject for which marks were allocated.... "The oral interview test is

undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre

of candidates". Having regard to the drawbacks and deficiencies in the oral interview test and

the conditions prevailing in the country, particularly when there is deterioration in moral

values and corruption and nepotism are very much on the increase, allocation of' a high

percentage of marks for the oral interview as compared to the marks allocated for the written

test, is not free from the vice of arbitrariness.

34. In Ashok Kumar Yadav and others v. State of Haryana and others AIR 1987 SC 454 at

page 473:---

"….. candidate's initiative, alertness, resourcefulness; dependableness, cooperativeness,

capacity for clear and logical presentation, effectiveness in discussion, effectiveness in

meeting and dealing with others, adaptability, judgment, ability to make decision, ability to

lead, intellectual and moral integrity. Some of these qualities can he evaluated, perhaps with

some degree of error, by a viva voce test, much depending on the constitution of the

interview Board.... Glenn Stahl has pointed out in his book on Public Personal

Administration that the viva voce test does suffer from certain disadvantages such as the

difficulty of developing a valid and reliable oral test, the difficulty of securing a reviewable

record of an oral test and public suspicion of the oral test as a channel for the exertion of

political influence and as pointed out by this Court in Ajay Hasia's case AIR 1981 SC 487

(supra), also of other corrupt, nepotistic or extraneous considerations....:"

35. Constitutionally, unlimited and unchecked exercise of discretion is inherently

discriminatory. It has no internal check to ensure uniformity and objective application of

mind across the board. It, therefore, extends unequal treatment to equals. Absence of an

objective criteria in exercise of discretion especially in the present case where thousands of

candidates had applied is therefore discriminatory and hence violative of Article 25 of the

Constitution.

36. Petitioners, hailing from different districts of Punjab; with modest means and humble

background, desperately seeking appointment to public service (86,000 candidates applying

for 1347 posts highlights the noticeable elasticity of demand). To subject their career and

future prospects of employment and perhaps their only hope of livelihood to an unstructured,

unchecked, unguided and unfettered exercise of discretion, puts the fragile career of the

petitioner hostage to corruption, political opportunism and nepotism resulting in

constitutional breach of Articles 4 and 18 of the Constitution.

37. Article 4 of the Constitution provides for due process and mandates that everyone is to

be treated: in accordance with law. Administrative discretion which is 'structurally unfettered

.and unchecked cannot be said to have been exercised in accordance with law and therefore

fails to pass the test of due process under Article 4 of the Constitution.

38. The WALK IN Interviews in this case are devoid of an objective criteria and therefore

violative of the due process and the fundamental rights of the petitioners. The WALK IN

Interviews are therefore declared to be ab initio unconstitutional and unlawful creating no

right whatsoever in the successful candidates.

39. Coming to the Letter issued by MD, PEPCO and its ex post facto ratification. It is

important to note that the public advertisement for the vacancy of the posts in question were

allowed by PEPCO and it was directed that recruitment be made as per Recruitment Policy

framed by WAPDA vide Letters dated 12-2-2009 and 26-3-2009 (above). Still, M.D.,

PEPCO without the approval of its Board of Directors, under the political diktat of the

Minister, Water and Power issued Letter dated 15-10-2009. The relevant extracts of the letter

are reproduced hereunder for ready reference:---

It has been brought to the notice of Ministry of Water and 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 on 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 providing any chance to terrorists by avoiding holding of

gathering of candidates for written tests on certain placed and venues.

The position has been discussed and brought in the notice of Minister of Water and 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.

Accordingly, Entities are required to immediately start the selection process against 50% of

the vacancies for BPS 1---16 from amongst the candidates who have applied against the

advertised vacancies and also meet minimum prescribed criteria in the relevant Service

Rules, by curtailing the selection process given in. Recruitment Policy to the extent that all

other steps will be strictly complied, but for the entrance test exception candidates will be

called for walk in interviews and marks reserved for written test shall be added in the

interview marks. The successful candidates shall then be issued offer of appointments. It is

further clarified that CEOs may consider relaxation in age as already authorized to them and

change the short listing criteria, where warranted, but otherwise not in conflict with the

Service Rules to provide equal chances to all in view of persistent ban on recruitment.

40. The said letter dispensing with the written test and adding the marks for the same into

the total score for the WALK IN Interview has poorly masked the political caprice visible

between the lines. It has been reasoned, with little logic, that if written tests are held the

process will not be concluded within 4 to 5 months due to large number of applications.

Secondly, the rise of insurgency and terrorism require that mass gathering ought to be

avoided, hence the WALK IN Interviews. It may be noted, that in such an eventuality, where

candidates hugely out-number the limited number of vacant posts, recourse to short-listing is

the made.(sic.) By setting a standard based on academic qualifications, candidates can be

short-listed and the small number of shortlisted candidates be subjected to the recruitment

process comprising a written test and an interview.

41. Clause 1(g) of the Guideline for Recruitment of Staff BPS 1-15 states: "No weightage

will be given to the interview unless essential for the post." It is now settled on good

authority, as discussed earlier in the judgment, that interview must always be a small

component of the recruitment process and primacy be given to the written tests as it involves

less subjectivity and is a better test of abilities. It is, therefore, surprising that M.D. PEPCO

on the behest of the Minister, Water and Power, without placing it before its own Board of

Directors, hurriedly issued letter dated 15-10-2009 deleting the requirement of a written test

and hinging the recruitment process on to the weakest modes of assessment i.e., interview.

42. The urgency and the compelling reasons that coaxed MD PEPCO to modify an

established Recruitment Policy and that too after the process of recruitment had begun is not

forthcoming from Letter dated 15-10-2009. The said arrangement is also temporary and for

the remaining 50% seats the original recruitment policy will be adopted.

43. Further, the ex post facto ratification by the Board of Directors fails to give reasons of

urgency,' failing to explicate why ratification was allowed. The Board of Directors of

PEPCO also failed to inquire why the established Recruitment Policy had to be modified and

whether short listing was an option that was not placed on the table. The decision of Board of

Directors dated 25-4-2010 blandly states:---

Item 15. RATIFICATION OF PRIORITY CONSIDERATION FOR CRITICAL

VACANCIES/CLEARANCE OF OPERATIONAL ISSUES Through an Item

Note on the subject and in the ensuing discussion piloted by the General Manager

(HR),PEPCO, the Board meeting, ex post facto Ratification No. MD/GM(HR)

/HRD/A-551(09)4200-4218 dated 15-10-2009. Concerning the need for

supplementing the deficient HR base on a fast track basis alleviating the operational

problems of the Companies. The Board of Directors ratified the aforesaid

instructions, as requested.

44. The Board item note (above) fails to mention why the decision had to be taken by M.D.,

PEPCO without the approval of the Board and the Board also miserably failed to review the

reasons why such a decision was taken and failed to deliberate whether the decision was

correct. It is important to note that decision dated 15-10-2009 is ratified by the Board of

Directors on 25-4-2010, while the decision of the MD, PEPCO stood implemented and

impugned appointments were made on 6-1-2010.

45. Even though ex post facto ratification is permissible under the Companies Ordinance,

1984 for companies, however, in the case of autonomous bodies/sector, the use of ex post

facto ratification needs a revisit. A public sector company is not only to look after the

interest of its shareholders alone but has a wider responsibility as it acts as a trustee for the

people of Pakistan. Higher standard of governance, stricter fiduciary duty and an institutional

collegiality in decision making process is an expected operational benchmark of a public

sector company. The trusteeship of the members of the Board of Directors of PEPCO create a

sacred obligation to ensure that PEPCO is run and managed through the Board, which is an

independent and an autonomous body constituted to safeguard the interest of the public and

of PEPCO land at all times to firewall against political or bureaucratic opportunism. A

Minister under the Rules of Business is to provide the macro policy and fashion the vision of

the Department according to the political agenda of the Government in power. It is not the

role or the business of the Minister, (in this case Minister for Water and Power) to interfere

with the operational working of autonomous body like PEPCO. In this case the Minister

could have stressed the urgency to employ manpower in various power companies but could

not have gone further to suggest and direct the temporary modification of the Recruitment

Policy unless PEPCO after due deliberation at the Board level and after giving reasons felt

that such a modification is required in the larger interest of PEPCO and in pubic interest.

Government and its autonomous institutions are spread out in layers, every tier having its

own independent role and scope of operations and there is no room for dictation or pressure.

Unless the structure of governance laid out in the Rules of Business read with the

constitutional principles, is protected, the system of public administration will come crashing

down, replacing public interest with personal avarice and greed. This cannot be permitted.

46. I, therefore, hold that public sector companies e.g. PEPCO, FESCO) shall take collective

decision in their Board Meetings, giving reasons as required under section 24-A of the

General Clauses Act, 1897, a Board Resolution through circulation, if there is urgency. Only

in grave emergency, which has no room for delay, the CEO may act singly in the welfare of

the company and in public interest, supported by written reasons for its urgency and the same

must be ratified by the Board of Directors within the shortest possible time. Board of

Directors must also give reasons for allowing the CEO to take such a decision and must give

reasons for its ratification.

47. The Letter issued by Managing Director PEPCO changing the Recruitment Policy at the

behest of Minister besides offending fundamental right (as discussed above) reflects of poor

and reckless governance.

48. As per the website of WAPDA i.e., www.WAPDA.gov.pk.

"Since October, 2007, WAPDA has been bifurcated into two distinct entities i.e. WAPDA

and Pakistan Electric Power Company (PEPCO). WAPDA is responsible for water and

hydropower development whereas PEPCQ is vested with the responsibility of thermal power

generation, transmission, distribution and billing. WAPDA is now fully responsible for the

development of Hydel Power and Water Sector Projects. PEPCO has been fully empowered

and is responsible for the management of all the affairs of corporatized nine Distribution

Companies (DISCOs), four Generation Companies (GENCOs) and a National Transmission

Dispatch Company (NTDC). These companies are working under independent Board of

Directors (Chairman and some Directors are from Private Sectors). The Companies are

administratively autonomous and leading to financial autonomy by restructuring their

balance sheets by bringing their equity position to at least 20 per cent, required to meet the

prudential regulations and to facilitate financing from commercial sector (approved by

ECC)."

49. FESCO is an independent public company with its autonomous Board of Directors.

Decision of M.D. PEPCO or Board of Directors of PEPCO are required to be placed before

the Board of Directors of FESCO in orders to take a decision regarding the recruitment

process employed at FESCO. No such Board meeting took place. The autonomy of FESCO

and the independence of the Board of Directors of FESCO is merely fictional if directions

issued by individuals namely: M.D. PEPCO (without seeking the approval of the Board of

PEPCO) are carried through by the management of FESCO without having received the

blessing of its Board of Directors.

50. Public Institutions can only contribute to national interest and welfare of the people if

they are run as an institution and in the public interest without any fear or favour. If the

Board Members are bypassed and are simply used to ratify orders passed single handedly

behind closed doors and without any plausible reason, the future of public institutions is

bleak. In order to ensure independence, autonomy, national interest and interest of the

institution, the members of the governing bodies will have to vigilantly and actively play

their roles. To be on the Board of a public sector company is to perform a public duty in the

public interest of the people of Pakistan. This role has to be performed with full

responsibility, vigilance, courage, wisdom and for no other reason. Sadly, this is not the case

here.

51. The arguments raised by the counsel for the appointees have no force. Reliance placed

on Muhammad Zahid and others v. D.E.O. Mandan and others 2006 SCMR 285 is

misconceived. In the present case prospective candidates have brought the process of

recruitment under challenge and it is not a case where the departmental authority has

cancelled appointment due to some irregularity in the process with no third party interest.

The facts of the present case are very different. The judgment cited has no application to the

present case.

52. Before parting with the judgment I wish to re-emphasize that public institutions can

prosper and progress and materially serve the people of Pakistan only if the public

functionaries incharge of running these institutions fearlessly guard their powers and remain

undeterred by extraneous pressure and influence. The words of the founder of our nation

Muhammad Ali Jinnah are a timely reminder.---

"The first thing that I want to tell you is this, that you should not be influenced by any

political pressure, by any political party or individual politician. If you want to raise the

prestige and greatness of Pakistan, you must not fall a victim to any pressure, but do your

duty as servants to the people and the State, fearlessly and honestly. Service is the backbone

of the State. Governments are formed, Governments are defeated, Prime Ministers come and

go. Ministers come and go, but you stay on, and, therefore, there is a very great

responsibility placed on your shoulders. You should have no hand in supporting this political

party or that political party, this political leader or that political leader---this is not your

business ...While impressing this upon you on your side, I wish also to take the opportunity

of impressing upon our leaders and politicians in the same way that if they ever try to

interfere with you and bring political pressure to bear upon you, which leads to nothing but

corruption, bribery and nepotism---which is a horrible disease and for which not only your

Province but others too, are suffering---if they try and interfere with you in this way, I say,

they are doing nothing but disservice to Pakistan1.

1. [Informal talk to Civil Officers at Government House, Peshawar 14-4-1948 from Jinnah - Speeches and

Statements 1947-1948-Oxford]

53. For the above reasons, the impugned recruitment and appointment of candidates to the

posts of ALM, Meter Readers, Commercial Assistants and Naib Qasids by FESCO is

declared to be unconstitutional, illegal, without lawful authority and therefore set aside. All

the said posts shall be deemed to be vacant and filled again in terms of this judgment and the

Recruitment Policy of WAPDA unless the same is lawfully amended or modified by PEPCO

or FESCO.

54. From the above facts and the record placed before this court it is clear that the PEPCO

and FESCO have played fraud with the legitimate expectations of hundreds of people who

innocently applied desiring a decent lawful employment. However, instead of carrying out

transparent recruitment process and giving meaningful employment to the youth of this

country, these institutions failed to perform their public duty and have abused the public trust

reposed in them by the people of Pakistan. This calls for strict accountability of the public

functionaries involved in the process including the Board Members of PEPCO and FESCO

who seem to have taken no note of this large-scale breach of trust. I, therefore, direct

Chairman WAPDA to inquire into these unlawful appointments and to identify the real

beneficiaries of this unlawful recruitment process. Chairman WAPDA shall also hear and

incorporate the views of the candidates who were rejected as well as the ones whose

appointment has been set aside through this judgment. This report shall be placed before this

Court within five months from today.

55. Office is directed to place the report before this Court on the judicial side as a Report

Case.

56. For the above reasons, these petitions are allowed with costs of Rs.10,000 per

petitioner, which shall be paid equally by the PEPCO and FESCO within a month from

today.

SCHEDULE - A

Sr.

No.

Writ Petition No. Title

1. W.P. No.14921 of 2010 Syed Muhammad Waris Shah v. WAPDA and others

2. W.P. No.6212 of 2010 Muhammad Mushtaq v. WAPDA and others

3. W.P. No.6214 of 2010 Abdul Waheed Khan v. WAPDA and others

4. W.P. No.6215 of 2010 Sikandar Hayat v. WAPDA and others

5. W.P. No.6216 of 2010 Muhammad Nazir v. WAPDA and others

6. W.P. No.6217 of 2010 Shujat Ali Shah v. WAPDA and others

7. W.P. No.2693 of 2010 Aman Ullah v. WAPDA and others

8. W.P. No.4985 of 2010 Hafiz Junaid Latif v. WAPDA and others

9. W.P. No.4987 of 2010 Aamir Hayat Khan v. WAPDA and others

10. W.P. No.4989 of 2010 Ghulam Abbas v. WAPDA and others

11. W.P. No.4990 of 2010 Muhammad Rehan Faisal v. WAPDA and others

12. W.P. No.4991 of 2010 Adnan Raza v. WAPDA and Others

13. W.P. No.4992 of 2010 Natiq Ali v. WAPDA and others

14. W.P. No.4993 of 2010 Nazir Mukhtar v. WAPDA and others

15. W.P. No.4994 of 2010 Muhammad Saqib v. WAPDA and others

16. W.P. No.4995 of 2010 Muhammad Kamran Shehzad v. WAPDA and others

17. W.P. No.4996 of 2010. Sajid Khan v. WAPDA and others

18. W.P. No.4997 of 2010 Muhammad Amjad v. WAPDA and others

19. W.P. No.6794 of 2010 Muhammad Afzal v. WAPDA and others

20. W.P. No.6795 of 2010 Basit Saeed v. WAPDA and others

21. W.P. No.6796 of 2010 Muhammad Asif Khan v. WAPDA and others

22. W.P. No.6798 of 2010. Saqib Javid and others v. WAPDA and others

23. W.P. No.6799 of 2010 Zulqarnain v. WAPDA and others

24. W.P. No.6800 of 2010 Muhammad Mumtaz v. WAPDA and others

25. W.P. No.6801 of 2010 Shahid Amin v. WAPDA and others

26. W.P. No.8455 of 2010 Muhammad Saleem v. WAPDA and others

27. W.P. No.8456 of 2010 Zafar Iqbal v. WAPDA and others

28. W.P. No.8457 of 2010 Zafar Hayat v. WAPDA and others

29. W.P. No.8459 of 2010 Ghulam Jaffar v. WAPDA and others

30. W.P. No.8460 of 2010 Mujahid Hussain v. WAPDA and others

31. W.P. No.8461 of 2010 Muhammad Imran v. WAPDA and others

32. W.P. No.8463 of 2010 Muhammad Waris v. WAPDA and others

33. W.P. No.8559 of 2010 Hafiz Muhammad Azam v. WAPDA and others

34. W.P. No.5831 of 2010 Shahid Waheed v. Government of Pakistan and others

35. W.P. No.6717 of 2010 Rehan Ali v. Government of Pakistan and others

36. W.P. No.11901 of 2010 Muhammad Farooq v. WAPDA and others

37. W.P. No.11902 of 2010 Hadayat Ullah Khan v. WAPDA and others

38. W.P. No.11903 of 2010 Muhammad Farooq v. WAPDA and others

39. W.P. No.11905 of 2010 Muhammad Hayat Khan v. WAPDA and others

40. W.P. No.11907 of 2010 Sikandar Hayat v. WAPDA and Others

41. W.P. No.11908 of 2010 Sikandar Hayat v. WAPDA and others

42. W.P. No.11910 of 2010 Zulfiqar v. WAPDA and others

43. W.P. No.11911 of 2010 Sana Ullah v. WAPDA and others

44. W.P. No.11912 of 2010 Muhammad Saleem v. WAPDA and others

45. W.P. No.11913 of 2010 Azam Hussain v. WAPDA and others

46. W.P. No.11916 of 2010 Hadayat Ullah Khan v. WAPDA and others

47. W.'P. No.11917 of 2010 Muhammad Nazir v. WAPDA and others

48. W.P. No.11942 of 2010 Kamran v. WAPDA and others

49. W.P. No.14922 of 2010 Rizwan Qamar v. WAPDA and others

M. A. K. /I-46/L Petitions allowed.