Saeed Ahmed and another V. Members Judicial Selection Board and others,

2018 P L C (C.S.) 263 [Balochistan High Court] Before Zaheer- ud-Din Kakar and Muhammad Hashim Khan Kakar, JJ SAEED AHMED and another Versus MEMBERS JUDICIAL SELECTION BOARD and others C.Ps. Nos.743 and 813 of 2015, decided on 16th October, 2017. Civil service --- ----Advertisement for appointment of Civil Judges ---Appointment against reserved seats --- Recruitment policy ---Scope ---Contention of petitioner -candidate was that appointments in question were not made while observing zonal allocation but w as made on merits ---Validity -- -Constitution prohibits discrimination of citizens in the matter of appointment to the service of Pakistan inter alia on the basis of race, religious, caste, sex, residence or place of birth --- Authorities could reserve posts f or persons belonging to different classes or areas to secure their adequate representation in the service of Pakistan ---Authorities were not bound to reserve seats for persons belonging to different areas ---Government/Authority was allowed to follow quota system if it so desired ---Government/Authority was not under any compulsion to reserve seats for persons belonging to certain areas ---No right vested in any citizen to seek a direction from High Court against government/Authority to provide for special exc lusive seats for such persons belonging to different districts or areas of the Province such discretion had been left with the employer ---Petitioner stood at serial number 35 in written examination but could not succeed in viva voce---Candidates were inter viewed by 'Judicial Selection Board' comprising of three Judges of High Court ---Petitioner -candidate could not secure enough marks to be selected ---Authority of Selection Board could not be challenged and questioned as members of Selection Board were the b est judge at the given time to form an opinion and take decision after judging the abilities and capabilities of the candidates ---High Court could not interfere and thrust its opinion subsequently changing the verdict of Selection Board except when it had been made other than the capability of petitioner or it smacked mala fide ---Constitutional petition was dismissed in circumstances. Petitioner in person (in C.P. No.743 of 2015). Mehmood Sadiq Khokhar for Respondents Nos.3 to 16 (in C.P. No.743 of 2015). Mazhar Ilyas Nagi for Respondents Nos.3, 4, 8 to 20, 22 to 27 29 to 35 (in C.P. No.813 of 2015). Khalil- uz-Zaman Alizai, Additional Advocate General for Official respondents. Date of hearing: 11th October, 2017. JUDGMENT ZAHEER -UD-DIN KAKAR, J. --- Thro ugh this common judgment, we propose to decide the fate of Constitutional Petitions Nos.743 and 813 of 2015, as common questions of law and facts are involved.

2. The precise grievance of the petitioners is that pursuant to an advertisement appeared in dai ly newspaper in the month of November, 2014, the petitioners belonging to District Nasirabad and District Quetta, applied for the posts of Civil Judge/Judicial Magistrate and Qazi (BPS -18). Their names were shortlisted and included in the list of eligible candidates. It is common grievance of the petitioners that, as per advertisement, the posts in question were to be filled in accordance with the provisions of the Government of Balochistan Recruitment Policy of 1991, while observing zonal allocation, which was not observed and the appointments in question were made on merit basis, while bypassing the policy of 1991.

3. We have heard petitioner Saeed Ahmed, learned counsel for the respondents and have also gone through the documents appended with the petitions. It is worth mentioning that a Court, prior to taking cognizance of a matter, is supposed to determine the question of its jurisdiction and any order passed without jurisdiction cannot be allowed to hold the field for a moment. Keeping in mind the said legal position, we posed repeated questions to the petitioner to satisfy us about maintainability of the petitions, but he could not come with any solid arguments.

4. Without dilating upon the question of maintainability, while reverting to the main griev ance of the petitioners regarding applicability of the policy of 1991, we are of the opinion that the Constitution commands through Article 27(1) that no citizen, otherwise qualified for the appointment in the service of Pakistan, shall be discriminated against in respect of any such appointment on the ground of race, religion, caste, sex, residence or place of birth. Through the first proviso to the said sub- Article, an exception was, however, created and the respective governments and authorities were per mitted to reserve posts for persons belonging to any class or area in order to secure their adequate representation in the service of Pakistan. Similarly, the object of creating reserved scats for different districts in professional colleges and employment , appears to give legal protection to the students/genuine residents of the area in order to bring them at par with the developed areas of the country/province. This exception was to rest for twenty years from the commencing day i.e. August 14th 1973, howe ver, subsequently, through 16th Amendment, the word "twenty" appearing in the said proviso to Article 27 of the Constitution, was substituted by the word "forty".

5. It would be relevant to mention here that a careful perusal of Article 27 of the Constitut ion would suggest and clearly demonstrate that the Constitution prohibits discrimination of citizen in the matter of appointment to the service of Pakistan, inter alia on the basis of race, religion, caste, sex, residence or place of birth. The effect of t he first proviso to the said Article is only to enable different authorities to reserve posts for persons belonging to different classes or areas to secure their adequate representation in the service of Pakistan. This proviso is only enabling and permissi ve in nature. It cannot be read to mean that all governments and authorities are directed by the Constitution to mandatorily reserve seats for persons belonging to different areas. Only a provision has been made alloying any government or authority to foll ow quota system if it so desires. No government or authority is, however, under any compulsion to reserve seats for persons belonging to certain areas. Therefore, no right vests in any citizen to seek a direction from this Court against any Government or authority to provide for special exclusive seats for such persons belonging to different districts or areas of the province. The discretion is left with the employer to keep or not to keep such special seats.

6. It has been mentioned in the memo of petition i.e. in Constitutional Petition No.813 of 2015 that the petitioner stood at serial No.35 of the merit list, however, in violation of the merit list, candidates coming at serial Nos.37, 39, 47 and 52 i.e. respondents Nos.34 to 37 of the merit list were app ointed. The said contention is also devoid of force for the reason that though the petitioner stood at serial No.35 in the written examination, yet could not succeed in viva voce. As per merit list, submitted by respondent No.1, the petitioner is at serial No.43 of the overall merit list as he secured less marks in viva voce comparing to other candidates/respondents.

7. It is an admitted feature of the case that all the candidates were interviewed by the 'Judicial Selection Board, comprising of three Hon'bl e Judges of the High Court. The petitioner in Constitutional Petition No. 813 of 2015, namely Shahid Khan could not secure enough marks to be selected. The authority of the selection board cannot be challenged and questioned because of the fact that the Members of the Selection Board are the best judges at the given time to form an opinion, take decision after judging the abilities and capabilities of the candidates and the Court shall not interfere and thrust their opinion subsequently, changing the verdic t of the Selection Board except when it has been made other than the capability of the petitioner or it smacks mala fide. In view of the above, the Constitutional Petitions Nos.743 and 813 of 2015, being without merits, are hereby dismissed with no order as to costs. ZC/141/Bal. Petitions dismissed.