Shahab-Ud-Din and 9 others V. Government of Balochistan through Chief Secretary and 2 others,

2015 P L C (C.S.) 22

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J

SHAHAB -UD-DIN and 9 others

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and 2 others

Constitutional Petition No.255 of 2014, decided on 24th July, 2014.

Constitution of Pakistan ---

----Art. 199---Constitutional petition ---Maintainability ---Civil service ---Advertisement for the posts of Pharmacists/Drug Analysts and Drug Inspectors in the newspaper ---Failure of petitioners to apply for the said posts due to late announcement of their result ---Policy matters --- Scope ---Petitioners could not apply for the posts of Pharmacists/Drug Analysts and Drug Inspectors as their result was not declared till the date fixed for receipt of app lications --- Contention of petitioners was that fixing a date for submission of applications had no statutory backing and date for receipt of applications for the said posts should be extended---Validity --- Advertisement in question was published on 9- 3-2014 and closing date for receipt of applications was 7 -4-2014---Application forms were to be obtained by depositing fee through challan in the bank---Petitioners did not deposit the fee nor submitted applications to substantiate their bona fide claim for exte nsion of date ---Petitioners had not submitted applications applying for the said posts ---Inaction of petitioners due to late announcement of their result was of no avail in the present case---Petitioners could have appended their qualification subsequently before the test/interview took place but they had not applied for the said posts within prescribed period--- Respondents -department had prerogative to fix the date for submission of application forms which was policy matters having statutory backing---Cons titutional petition was not maintainable ---Petitioners had failed to point out any violation of rule or regulation or malice against the respondents -department ---Constitutional petition was dismissed in limine.

Habibur Rehman v. Government of Pakistan 1979 SCMR 121 and Dr. Haq Nawaz v. Balochistan Public Service Commission through Chairman 1996 CLC 58 rel.

Tariq Mehmood Butt for Petitioners.

Nemo for Respondents.

Date of hearing: 28th May, 2014.

ORDER

MUHAMMAD EJAZ SWATI, J. --- The Balochistan Public Service Commission vide advertisement dated 4th March 2014 had advertised certain posts in Health Department, to be filled in, including that of seventy five posts of Pharmacists/Drug Analyst (B -17) and 10 posts of Drug Inspector (B -17) in daily "Jang", Quetta hereinafter the said "posts"). The closing date for receipt of applications was 7th April, 2014.

2. The grievance of the petitioners is that their results of Pharm- D final profession was announced on 12th April, 2014, therefo re, they could not apply by submitting their applications by 7th April, 2014 which was the last date for submitting applications for the said posts. After announcement of their result, they approached Vice -Chancellor University of Balochistan, Quetta who vide letter dated 9th April, 2014, addressed to Chairman Balochistan Public Service Commission explained the reasons therein that the petitioners could not apply for the said posts and requested that reasonable extension may be granted enabling them to subm it their respective applications after the date mentioned in the advertisement, but to no avail, hence this petition.

3. The learned counsel for the petitioners contended that the respondent No.2 was under a legal obligation to extend the date for submis sion of applications so that the petitioners could be accommodated and that fixing a date for submission of application has no statutory backing, therefore, the date should be extended till the petitioners results' are announced. He further cited an exampl e that in 2010 when last date for receipt of applications was extended by the respondent No.2.

4. Heard the learned counsel for the petitioners and perused the record appended along with the petition and the relevant law. The advertisement -in-question wa s published on 9th March, 2014, and the closing date for receipt of applications was 7th April, 2014. The advertisement in question provides that the application form was to be obtained by depositing fee of one thousand rupees for BPS -19, rupees five hundr ed for BPS -18 and rupees 300 for BPS -17 and BPS -16 through the prescribed challan in the scheduled Bank. The petitioners, however, did not deposit the prescribed fee through challan nor submitted applications to substantiate their bona fide claim for the e xtension of the date. The petitioners also did not place on record the referred to instance of 2010 whereby last date for receipt of applications was extended by the respondents. Admittedly, the petitioners did not submit applications applying for the said posts. The inaction of the petitioners due to purported late announcement of their result is of no avail in the present circumstances of the case. The date of submission of applications was 7th April, 2014, the petitioners could have appending their quali fication subsequently, but before the test/interview took place but this was not done either. Reference may be made to the case of Habibur Rehman v. Government of Pakistan, 1979 SCMR 121, wherein the apex Court held as under: ---

"It is true that the Ora kzai Agency had been created by the date when this respondent had filed his application form, therefore, he should have obtained a fresh certificate of domicile from the Political Agent, Orakzai Agency, and he did so by February, 1978. But merely because t his certificate was produced after the prescribed date for interviewing candidates from this Agency would not mean that the fourth respondent was debarred from applying for admission if he was otherwise so entitled to do, provided the certificate was produced before the authorities announced the list of candidates granted admission. And, as the fourth respondent admittedly obtained the correct certificate a month before the Government announced the list of successful candidates, nothing turns on the fact that he produced a correct certificate at least in the absence of some mandatory provisions to the contrary, and no such provision has been produced before us."

5. The contention of the learned counsel for the petitioners that the fixation of date by the respondent No.2 for submission of application form was neither absolute nor having any legal implication is not tenable. It is the prerogative of the respondents to fix the date and this fact brings the case in the area of policy having statutory backing, t herefore, the constitutional petition is not maintainable. In arriving to this conclusion, we are fortified by the dictum laid down in the case of Dr. Haq Nawaz v. Balochistan Public Service Commission through Chairman, 1996 CLC 58, wherein it was held as under: ---

"We are afraid the contention so raised by learned counsel, has no force, because the Commission has been assigned function under Act, 1978 to manage the examination through tests or interviews, in respect of posts which are required to be fil led up by the Provincial Government through Public Service Commission, therefore, in fixing the schedule of written examination or interview or calling applications up to a particular date, the Commission performs a statutory function under the relevant pr ovisions of the Act and Rules. Thus, we have to examine whether submitting applications by private persons (candidates) on or before a particular date, creates a statutory obligation upon them to do so or otherwise. It is a settled principle of interpretat ion that where time is essence to do a particular thing and on the basis whereof a right has been claimed, the provisions would be of mandatory in its nature and if no right is claimed the provisions would be non- mandatory. In this behalf it would be appropriate to refer the Interpretation of Statutes by Bindra (7th Edition, 1984) page 678 wherein while discussing the effect of direction to do a particular thing within a specified time, reference was made to Corpus Juris Secundum, Vol. 59 at pages 1078 and 1079. Relevant portion concerning the disposal of instant case from Corpus Juris, for convenience is reproduced herein below: ----

"As a general proposition, the rule with respect to statutory directions to individuals is the opposite of that which obtai ns with respect of public officers. When a statute directs things to be done by a private person within a specified time and makes his rights depend on proper performance thereof, unless the failure to perform in time may injure the public or individuals, the statute is mandatory. When an individual is the person not complying, failure to complete required steps within the time specified is fatal to the case."

The learned counsel for the petitioners has failed to point out the violation of any rule or regulation or alleged any malice against the respondents, which would be a condition precedent with regard to the maintainability of this constitutional petition under Article 199 of the Constitution.

In view of the above, this petition is dismissed in li mine.

AG/73/Bal. Petition dismissed.