2014 P L C (C.S.) 579
[Balochistan High Court]
Before Qazi Faez Isa, C.J. and Muhammad Kamran Mulakhail, J
SAIMA
Versus
GOVERNMENT OF BALOCHISTAN throug h Secretary Education Department,
Quetta and another
Constitutional Petition No.738 of 2012, decided on 3rd October, 2013.
Constitution of Pakistan---
----Art. 199---Constitutional pe tition---Maintainability---Civil service---Fundamental Right,
infringement of---Aggrieved person---Scope---Advertis ement for the post of Laboratory Assistant in
the newspapers---Minimum qualificat ion being Secondary School Cert ificate Matric in Science---
Petitioner had certificate of Secondary School/Matric in Arts---Cont ention of petitioner was that there
was no other contestant in the fi eld from the concerned union counc il and she was entitled to be
appointed against the said vacancy---Validity- --Exercise of jurisdiction under Art.199 of the
Constitution would depend on the existence of a fundament al or legal right of a person or a party and
the infringement thereof---Such right might be a st atutory right or a right recognized by law---Person
or a party could be said to be aggrieved only when he was denied a legal right---Government, in the
present case, was competent to prescribe qualificat ion for a particular post ---Scientific development
and increasing know-how could not be ignored in pr escribing stipulated qualif ication for such post---
Eligibility of a candidate had to be determined in accordance with the advertisement for the post,
service Rules governing the appo intment and any instruction backed by law and rules framed
thereunder---Unqualified person coul d not be appointed to a particul ar post and appointment could not
be made in violation of requisite qualification--- No one could be appointed on the ground that no other
contestant was available from the concerned union c ouncil---Neither any appointee was arrayed in the
present petition nor impugned appoint ment order was appended with the memo. of the same, therefore
such defects could not be attended to as petitio ner could not qualify the preliminary test of
maintainability of the petition co upled with qualification of an aggrieved person---Constitutional
petition was dismissed in limine.
Dr. Muhammad Hussain v Principle, Ayub Medical College PLD 2003 SC 143 and
Government of Punjab through Secretary (S&G AD) Lahore v. Zafar Maqbool Khan and another 2012
SCMR 686 rel.
Shams-ur-Rehman for Petitioner.
Nemo for Respondent.
Date of hearing: 10th September, 2013.
JUDGMENT
MUHAMMAD KAMRAN MULAKHAIL, J.--- The petitioner has impugned the
appointment against the post of Lab Assistant' made pursuant to advertisement dated 18th May, 2012
published in Daily 'Jung', Quetta, for Government Girls High School Parkan iabad. The following
prayer has been made in this petition:---
"It is therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to declare the
impugned appointment order as illegal, unlawful, without lawful authority a nd of no legal effect.
Further, this Hon'ble Court may be pleased to direct the responden t No.1 to appoint the
petitioner on the post of Lab Assistant".
2. The learned counsel stated that the post of "Lab Assistant" was to be filled by a candidate of
the Union Council in which th e said school was situated and as the petitioner was the sole candidate of
the said Union Council, she deserved to be appo inted against the propose d vacancy. The other ground
urged for appointing the petitioner to the said post is on account of the fact that her uncle donated the
land where the said school stands.
3. That before dilating upon the contention put forth on behalf of the petitioner, it may be
mentioned that when the petition came up for "Katcha Peshi" on 12-12-2012 a query was posed in
respect of maintainability of the petition to the learned counsel for the pe titioner that, since the
petitioner sought her appointment as "Lab Assistant" in Government Girls High School Parkaniabad at
Quetta, for which the stipulated qualification was (Secondary School Ce rtificate) Matric in Science,
however, the certificate appended with the memo of the petition revealed that the petitioner possessed
(Secondary School Certificate) Ma tric in Arts (Humanities Group).
The learned counsel when confronted with th e referred to advertisem ent in which requisite
qualification of Matric (Science Group) is stipulated and as the petitioner did not possess the required
qualification, he could not controvert the same.
4. The provision of Article 199 of the Constituti on of Islamic Republic of Pakistan ("The
Constitution") depends on the existence of a fundamental or legal right of a person or a party and the
infringement of such a right. Such right may be a statutory right or a right recognized by the law.
Person or a party can be said to be aggrie ved only when he is denied a legal right.
5. The government is competent to prescribe the qualifications for a part icular post and in
prescribing stipulated qualification a scientif ic development and increasing technical know-how
cannot be ignored. The eligibility of a candidate has to be determined in accordance with the
advertisement for the post, servi ce rules governing the appointment a nd any instruction backed by law
and rules framed thereunder. A non-qualified person cannot be appointed to a particular post and it
would not be in the interest of students and institution. Appointment cannot be made in violation of
requisite qualification. We are fortified in view of dictum rendered by the Hon'ble apex Court in
following cases:---
Dr. Muhammad Hussain v. Principal, Ayub Medical College (PLD 2003 SC 143).
Government of Punjab through Secretar y (S&GAD) Lahore v. Zafar Maqbool Khan and
another (2012 SCMR 686).
6. We can not endorse the unique c oncept put forth on behalf of the petitioner that since, no other
contestant is available from the c oncerned union council, thus she is entitled to be appointed against
the said vacancy even though if sh e does not possess the requisite qua lification. Nor can we accept the
contention that she is entitled to the job because her uncle donated the land where the school stands.
7. Although, neither said appointee is arrayed nor impugned appointment order is appended with
the memo. of petition, these inhere nt defects are not attended because petitioner could not qualify the
preliminary test of maintainability of petition co upled with qualification of an aggrieved person.
Therefore, for the above mentioned reasons this petition is dismissed in limine.
AG/4/Bal. 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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