2010 P L C (C.S.) 1449
[Quetta High Court]
Before Qazi Faez Isa C. J. and Muhammad Noor Meskanzai, J
AIJAZ ALI
Versus
SECRETARY, GOVERNMENT OF BALOCHISTAN, LABOUR AND MANPOWER
DEPARTMENT, QUETTA and another
Constitutional Petition No.414 of 2008, decided on 24th May, 2010.
Balochistan Civil Servants Act (IX of 1974) ---
----S. 5---Constitution of Pakistan (1973), Art.199 ---General Clauses Act (X of 1897), S.21 ---
Constitutional petition ---Appointment ---Principle of locus poenitentiae ---Applicability ---Scope --
-Department advertised for the post of an office Assistant and petitioner who was serving in the
department as Junior Clerk, considering himself eligible for the post of office Assistant,
appeared as a candidate for said post ---Committe e, conducted the tests and interview,
recommended two candidates for the posts ---Petitioner was recommended to be kept in waiting
list, subject to availability of the post of office Assistant in near future ---Petitioner had
contended that as he had qualifi ed the interview, recommendation made by the Committee were
binding and as post was lying vacant, he was entitled for appointment on said post ---Counsel for
the petitioner laid much stress on the principle of locus poenitentiae, contending that
recommendat ion so made carried legal effect and in view of law of estoppel, authorities were
bound to honour their recommendations ---Validity ---Petitioner did not qualify the standard for a
variety of reason; firstly Committee was constituted for the limited purpose of conducting tests
and interview for the post already created, available and published; Committee could not be
deemed empowered to make recommendation for a post, not in existence; secondly, the
recommendations so made were beyond the mandate and authorit y of the Committee; thirdly, the
petitioner himself had declared the recommendations partly to be based on mala fide ---
Recommendations sought ' to be enforced by the petitioner, in circumstances, had no legal
sanctity nor for that matter the Committee was empowered to interview a candidate in advance
for the post not in existence nor published ---Principle of locus poenitentiae was not available to
the petitioner to maintain the petition ---For attracting the principle of locus poenitentiae, the
subject must be equipped with a valid right i.e. a legal order in favour of subject by a competent
authority; and that should be communicated to an agency or office bound to carry it out ---Said
essential being lacking and missing, principle of locus poenitentiae, was n either applicable nor
attracted to the case of the petitioner ---Petitioner having failed to make out any case requiring
High Court to exercise its constitutional jurisdiction, petition was dismissed.
PLD 1963 Dacca 442; PLD 1973 Quetta 14; 1997 SCMR 15 ; 1999 SCMR 1004; 2003 SCMR
819 and PLJ 2003 SC 145 (sic) ref.
Manzoor Ahmed Rehmani for Petitioner.
Rauf Atta Standing Counsel for Respondents.
Date of hearing: 10th May, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Through this judgment, w e propose to decide
Constitutional Petition No.414 of 2008 filed by petitioner wherein following relief was sought: ---
"It is therefore in view of above submission to respectfully pray that this honourable
court may kindly be pleased to direct the defend ant to make implementation of their own
order.
Further this Hon'ble court may kindly be pleased to direct the defendants to appoint the
petitioner as Office Assistant in compliance with orders/recommendation i.e. order dated
5-11-2007 and PUC dated 12 -7-2008.
Further any other relief which this Hon'ble court may deem fit and proper may kindly be
granted in the interest of justice equity and fairplay."
2. Facts as collected from the petition, succinctly stated are that petitioner is Junior Clerk B -7 in
BESSI since 1999. In the year, 2007, the Department advertised for the post of an Office
Assistant and Accountant Assistant, petitioner considering himself eligible for the post sought to
be filled by the Department through interviews/tests, appeared as a candidate for Office
Assistant. The Committee conducted the tests and interviews, recommended two persons for the
posts already published, while preparing the result of interviews, the petitioner was
recommended to be kept in waiting list subject to avail ability of the post of Office Assistant in
near future. It is claimed that on 28th February, 2008, the governing body of BESSI held a
meeting, wherein the post of Office Assistant and certain other staff were created in BESSI at
Hub, so some of the posts w ere advertised in daily newspaper "Intekhab" dated 9th March, 2008
and the said vacancies were filled by the Department. On 12th March, 2008, Messrs BESSI made
a written request for creation of post of Office Assistant. On the basis of above said alleged
request, petitioner approached the Department and the Department suggested respondent No.2 to
appoint petitioner against the existing vacancy, which is claimed to be lying vacant in BESSI
Fifty Bedded Hospital, Hub.
3. Learned counsel for petitioner submi tted that petitioner is entitled for appointment as Office
Assistant. It was contended with vehemence that the tests and interviews held on 5th November,
2007 and petitioner qualified the said interviews. Consequent upon such interviews, the
recommendation s made by the Committee are binding and now the post is lying vacant, so
petitioner is entitled for his appointment as Office Assistant. The counsel for petitioner while
filing written arguments reiterated his stand taken in petition and stuck to his gun b y claiming to
be entitled for appointment against the vacancy allegedly created by the Department and kept
vacant to honour the recommendations made by the Committee. The learned counsel for
petitioner laid much stress on the principle of locus poenitentia e by contending that the
recommendations so made carry legal effect and in view of law of estoppel, respondents are
bound to honour their recommendations. Reliance was placed on PLD 1963 Dacca page 442,
PLD 973 Quetta page 14, SCMR 1997 page 15, SCMR 1999 page 1004, SCMR 2003 page 819
and PLJ 2003 SC page 145(sic).
4. On the other hand, the learned Standing Counsel controverted the stand and refuted the
contention so forwarded by submitting that the alleged recommendations made in the year 2007
have got n o valid foundation nor any legal sanctity is attached to such recommendation. The
learned Standing counsel was of the view that the petition itself is not competent, as there is no
right vested in petitioner to file such a petition, nor for that matter, th e Selection Committee was
empowered and authorized to make recommendations beyond its powers and jurisdiction.
5. We have heard the learned counsel for the parties and perused the petition accompanied by
certain annexures. A careful perusal of the docume nts reflect that an interview was held by
Selection Committee comprising of the following four persons: ---
(1) Dr. Hameed Baloch, SMO
(2) Mr. M. Rafiq Beezanjo, Deputy Director
(3) Mr. Amjad Ali, Assistant Director, (Audit & Accounts)
(4) Dr. Abdul Razaque, IMO" The Committee recommended as under: ---
"The Committee interviewed all the candidates that appeared in the test for the post of Office
Assistant and Audit Assistant. After interview, the Committee discussed the matter in detail
and recommen ded following candidates based on the merit of written test. Mr. Shahzad
Ahmed son of Muhammad Dawood for the post of Office Assistant, Mr. Nazim Waseem son
of Waseem Asfar for the post of Audit Assistant. Mr. Aijaz Ali Soomaro son of Hazoor
Bakhsh (late), will be on waiting list for the post of Office Assistant. In case near future any
post of Office Assistant fell vacant in the BESSI he will be adjusted against that .
However, during the course of checking of the documents of Mr. Nazim Waseem, it reveale d
that he is D. Corn, and B.A. But the actual qualification as per provision of the BESSI's
Service Regulation Appendix 'A' for the post of Audit Assistant is B.Com. The Committee
also recommended for relaxation of the qualification of B.Com. and he will i mprove his
qualification within a period of 2 years."
The case of petitioner revolves around the minutes of meeting reproduced hereinabove,
therefore; the paramount consideration that requires attention is firstly, as to whether the
alleged committee was competent to make such recommendations and secondly, whether
recommendations so made can create a right and thereby enables and entitles petitioner to
enforce the same through a Constitutional Petition by attracting the principle of locus
poenitentiae.
Analyzing the case of petitioner at the touchstone of above stated questions, admittedly the
petition does not qualify the standard for a variety of reasons. Firstly, committee was constituted
for the limited purpose of conducting tests and interviews for the post already created, available
and published, so by no stretch of the imagination, the Committee could be deemed empowered
to make recommendation for a post, not in existence. Secondly, the recommendations so made
were beyond the mandate and authority of the Committee. Thirdly, the petitioner himself has
declared the recommendations partly to be based on mala fides. Para No.2 of the petition is of
much importance in this respect, which is reproduced as under: ---
"2. That it is worthwhile to mention h ere that Committee headed by respondent 2
recommended the name of Mr. Nazim Waseem as Audit 4ssistant with mala fide
intention who failed to fulfil the requirement according to the rules and regulation of
Department whose recommendation was not approved by the respondent No.1 which was
subsequently advertised."
After declaring the part of recommendations to be based on mala fides, which were turned down
by the competent authority; the petitioner cannot claim the rest of the minutes to be based on
bona fid es and effective, therefore, this version of petitioner itself is sufficient enough to
dislodge the alleged and so -called sanctity claimed to be attached to said recommendations.
Learned counsel for petitioner also utterly failed to satisfy us, as to what legal sanctity is attached
to the said recommendations.
Now attending to the second query regarding attracting the principle of locus poenitentiae, the
subject must be equipped with a valid right i.e. a legal order in favour of subject by a competent
authority must exist and that should be communicated to an agency or officer bound to carry it
out. Considering the case of the petitioner in the light of above yardstick, these essentials are
lacking and missing, therefore, the principle of locus poenitentia e is neither applicable nor
attracted to the case of the petitioner.
As far as the citations referred to by the learned counsel for the petitioner are concerned, we have
gone through the said authorities, which do not render any help and assistance to th e contention
of petitioner, as all the citations have considered the effect of principle of locus poenitentiae,
which is inapplicable in view of distinguishing facts and circumstances of the case of petitioner.
As observed hereinabove, the recommendation s sought to be enforced have no legal sanctity nor
for that matter the Committee was empowered to interview a candidate in advance for a post not
in existence nor published. The principle of locus poenitentiae is not available to petitioner to
maintain a p etition on the basis of said principle.
In the light of above discussion, we are of the firm opinion that petitioner has failed to make out
any case requiring this Court to exercise jurisdiction within the ambit of Article 199 of the
Constitution of Isla mic Republic of Pakistan, thus, petition is dismissed in limine with no order
as to cost.
H.B.T./99/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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