2017 P L C (C.S.) 29
[Balochistan High Court (Sibi Bench)]
Before Nazeer Ahmed Langove and Muhammad Hashim Khan Kakar, JJ
MUHAMMAD AKBER
Versus
The SECRETARY, EDUCATION GOVERNMENT OF BALOCHISTAN and 5 others
Constitution Petition No.(S)223 of 2016, decided on 9th January, 2017.
(a) Civil service ---
----Appointment of Teacher and Mo'alam -ul-Quran ---Candidate having qualification of
Shahadat -ul-Aalia ---Appointment order/letter in favour of candidate was not issued on the
ground that degrees possessed b y him did not qualify the requirements of posts applied for ---
Validity ---No illegality or irregularity had been committed by the department while issuing
appointment orders in favour of qualified persons ---Competent authority found the degrees of
candidate invalid for the subject posts ---No discrimination had taken place ---High Court, while
exercising constitutional jurisdiction, could not reverse the decision with regard to policy matters
applicable to the candidates/participants without any discrimination ---No Fundamental Right of
petitioner guaranteed under the Constitution having been violated or denied, High Court could
not enter into factual controversy which could only be resolved after thorough probe and recording evidence ---Constitutional petition w as dismissed in circumstances.
(b) Constitution of Pakistan ---
----Art. 199---Constitutional petition ---Scope ---High Court could not enter into factual
controversy which could only be resolved after thorough probe and recording evidence.
Nemo for Petitioner.
Abdul Latif Kakar, Asstt. A.G. for State.
Date of hearing: 26th December, 2016.
JUDGMENT
NAZEER AHMED LANGOVE, J. --- Following prayer has been made in the instant
Constitutional petition:-
"It is therefore, prayed that in view of the above submiss ions this Hon'ble Court be
pleased to declare the appointment of respondents Nos.5 and 6 dated 01.01.2016 as null
and void as well as against the merit lists, and the same are liable to be cancelled, and
further this Hon'ble Court be pleased to direct the respondent No.3 to act according to the
final merit lists of NTS with regard of Junior Arabic Teacher and Mowalam- ul-Quran, in
the interest of justice, fair play and equity please.
Any other relief which deemed fit and proper by this Hon'ble Court may also awarded
according the circumstances".
2. Brief facts leading to file this Constitutional petition are that the petitioner filed the
instant petition with the averments that he is an educated person having religious qualification of Shahadat -ul-Aalia (equal to B.A degree) besides completed his course of A.T.T.C. from Aalama
Iqbal Open University, Islamabad with the additional qualification of intermediate from B.I.S.E.
He further contended that the respondent No.2 advertised some posts in Education Departme nt
through NTS. The petitioner also offered his services by applying for two posts of the same i.e.
Junior Arabic Teacher (JAT) and Mo'alam -Ul-Quran. After observing procedural formalities, he
appeared in the test and obtained 73.75 and 69.62 mark respecti vely. Consequent thereof, merit
list was issued wherein name of the petitioner was stood at serial No.1 in both the merit lists. He added that surprisingly the respondent No.3 issued appointment orders of the respondents Nos. 5 and 6 which was a sheer viol ation of merit, which too, with the lame excuse of terming the
degrees of the petitioner invalid. He alleged that such an approach on the part of the respondent No.3 was against the law and lack of knowledge. He ignored issuance of modified advertisement wherein degree having with the petitioner was also included as valid. He approached the
respondents to apprise them about the real position but in vain. Conversely they issued appointment orders of the respondents Nos.5 and 6 who had obtained much less marks than that of the petitioner. The petitioner approached the respondents Nos.2 and 3 but without any response. Finally the petitioner submitted his complaint before the respondent No.4 who also
rejected his appeal, hence the instant petition with the praye r mentioned hereinabove.
3. The learned AAG opposed the petition with the submissions that constitutional petition
filed by the petitioner is without any substance. The official respondents after observing requisite legal formalities and due course conduct ed the test through NTS by providing fair opportunity of
participation to every candidate including the petitioner. Similarly the result was not questioned meaning thereby that no illegality or irregularity was committed by the respondents, however, result could not have been compiled as per wishes and whims of the candidates, rather there
was/is due course which has to be adopted and the same was rightly followed. He further added that no illegality has been committed by the respondents, therefore, constit utional petition filed
by the petitioner is not sustainable under the law and is liable to be dismissed.
4. We have heard the learned AAG and gone through the record. It appears that after
advertisement of posts by the Education Department through NTS, pet itioner also applied for the
posts of Junior Arabic Teacher (JAT) and Mo'alam -ul-Quran, appeared in the test, obtained
73.75 and 69.62% marks respectively and stood at serial No.1 in merit list. However, the
respondents did not issue appointment letter/order in favour of petitioner on the ground that the degrees possessed by petitioner did not qualify the requirements of the posts applied for. Petitioner approached the CRC by filing an appeal but the same was rejected on the same ground mentioned above.
5. Perusal of record shows that no illegality or irregularity has been committed by the
respondents while issuing appointment orders in favour of respondents Nos.5 and 6 as after
thorough probe competent authority found the degrees of the petitioner invalid f or the subject
posts. It seems that it was purely a policy matter, recognized and made applicable to all the candidates without any discrimination. It is to be seen that while exercising constitutional
jurisdiction it would be improper to reverse the decis ions pertaining to policy matters made
applicable to the candidates/participants without any discrimination. Since no fundamental rights
of the petitioner guaranteed under the Constitution have been violated or denied, therefore, we are not inclined to make directions for redressal of petitioner's grievances as prayed for because according to petitioner his degree is recognized one whereas in its decision the CRC has held that the degree possessed by the petitioner is invalid. This Court while exercising jurisdiction under Article 199 on the Constitution cannot enter into factual controversy which can only be resolved after thorough probe and recording evidence.
It would be beneficial to reproduce herein below Article 199:
"199. (1) Subject to the Constitut ion, a High Court may, if it is satisfied that no other
adequate remedy is provided by law, ---
(a) On the application of any aggrieved party, make an order ----
(i). directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding t aken within the territorial jurisdiction
of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order ---
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enfor cement of any of the
Fundamental Rights conferred by Chapter 1 of Part II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of
any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
1[(3)An order shall not be made under clause (1) on application made by or in relation to
a person who is a member of the Armed Forces of Pakistan or who is for the time being
subject to any law relating to any those Forces, in respect of his terms and conditions of
service, in respect of any matter arising out of his service, or in respect of any action
taken in relation to him as a member of the Armed Forces of Pakistan or as a person
subject to such law.]"
7. (sic) In view of above petition filed by the petitioner being devoid of any force and merit is
hereby dismissed.
ZC/108/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,
let us know.