2023 P L C (C.S.) 495
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Gul Hassan Tareen, JJ
JAMEEL AHMED
Versus
GOVERNMENT OF BALOCHISTAN through Secretary C&W Department Civil
Secretariat, Quetta and 6 others
C.P. No. 1859 of 2021, decided on 23rd November, 2022.
(a) Constitution of Pakistan ---
----Art. 199 ---Constitutional petition ---Appointment to advertised post ---Appointment
obtained through misrepresentation--- Estoppel ---Scope ---Petitioner assailed the appointment
of priva te respondent on disabled persons' quota and sought a direction for his appointment
instead of private respondent's ---Validity ---Private respondent had earlier applied against
different posts while declaring himself to be medically fit---Law of estoppel di d not allow
the private respondent to alter his position that he suffered from disability ---Estoppel was an
equitable doctrine, a bar that prevented one from asserting a claim or right that contradicted what one had said or done before, or what had been le gally established as true ---Private
respondent could not take advantage of his own inconsistent positions ---So far as locus
standi of the petitioner was concerned, two posts were allocated for the persons with disability and the petitioner was placed at Sr . No. 3 of the Merit List, therefore, he was an
aggrieved person within the meaning of Art. 199 of the Constitution--- Constitutional petition
was allowed.
(b) Civil service---
----Medically fit ---Meaning ---Expression "medically fit" means, a person/candi date who for
the time being, is not suffering from any physical and/or mental inability and disability---An employee is considered medically fit to continue working as long as his health does not affect his job performance.
Nadir Ali Chalgari and Bilal M ohsin for Petitioner.
Adnan Basharat and Ch. Munir Akhtar Khan for Respondent No. 7.
Muhammad Aslam Jamali, Assistant Advocate General for Official Respondents.
Gul Dad Law Officer, BPSC.
Date of hearing: 8th November, 2022.
JUDGMENT
GUL HASSAN TAREEN , J.---The petitioner, through the instant constitution
petition, filed under Article 199, the Constitution of the Islamic Republic of Pakistan, 1973
("the Constitution"), has sought the following prayer:
"It is therefore, respectfully prayed that act of the official respondent may kindly be declared illegal, unlawful, unconstitutional, discriminatory and void ab- initio with
regard to commending able -bodied/fit person for appointment against the quota of
disable person. Further it may kindly be declared that the respondent No. 7 is able -
bodies/fit person and presently doing police training against the post of Assistant Sub-Inspector (ASI), selected through Balochistan Public Service Commission and his recommendation against the post of disable quota is r esult of fraud and forgery,
therefore, same may kindly be declared null and void, consequently direction may kindly be issued to the respondent No. 3 to recommend the petitioner for appointment in the respondent No. 1 department against one of two seats of disable quota, with any
other relief which may deem fit and appropriate to this Hon'ble Court may kindly be awarded, in the interest of justice."
2. Messrs Nadir Ali Chalgari and Bilal Mohsin, Advocate, on behalf of the petitioner,
state that the petition er being a person with disability had applied against the two advertised
posts of Sub- Divisional Officer/Assistant Director (B -17), allocated for the persons with
disabilities, in the Communication and works Department, Government of Balochistan
("responde nt No.1"), however, the Balochistan Public Service Commission ("respondent
No.3") recommended the respondent No.7 for recruitment against the said quota of persons with disabilities. They state that the respondent No.7 is not only, a medically fit person r ather
was, formerly, recruited in the Balochistan Police Department to the post of Assistant Sub -
Inspector ("A.S.I"), on the recommendation of the respondent No. 3. They also referred to the para -wise comments of the respondent No.3 and the annexures appended thereto.
Conversely, Mr. Muhammad Aslam Jamali, learned A.A.G. assisted by Mr. Gul Dad, Law Officer, respondent No.3, supported the impugned recommendation. Mr. Adnan Basharat, Advocate, on behalf of the respondent No. 7, states that the petitioner is not an aggrieved person within the purview of Article 199, the Constitution for, the petitioner has failed to clear the interview held by the respondent No.3 for the advertised post of Assistant Director; that the petition is not maintainable because of no n-joinder of other candidates with
disability; that the petitioner made an application to the respondent No. 3 and challenged the disability certificate of the respondent No. 7 which was verified by the concerned quarters upon the letters of the respondent No.3. Finally, he requests for dismissal of the petition.
3. We have heard arguments of the learned counsel for parties to the petition and have
gone through the record of the case. Let, the preliminary objection raised by the learned counsel for the resp ondent No.7, is decided, first. "Whether the petitioner is an "aggrieved
person", per, Article 199(1)(a)(i), the Constitution?. During pendency of the petition, on 28th
June, 2022, this Court was pleased to issue a direction to the respondent No.3, which i s
relevant to be reproduced hereunder:
"After hearing the learned counsel for the parties at length, office to issue notice to
respondent No.3 (Chairman Balochistan Public Service Commission Quetta) with direction to submit the details of final result inc luding written test and viva voce of
the petitioner and respondent No. 7 (Israrullah Khan son of Abdul Nafay)."
On 02nd August, 2022, the respondent No.3 filed the requisite details in a written
form. The relevant therefrom, is extracted hereunder:
"It is worth mentioning that as per Final Merit List, Mr. Israr Ullah Khan, Noor Ud Din Shah, Mr. Jameel Ahmed and Mr. Shah Hussain secured position in order of Merits as 1, 2, 3 and 4 respectively against the two (02) posts allocated for disabled quota. The pe titioner's name appeared at serial No. 3."
The number of the advertised posts of the Assistant Director for persons with
disabilities, was two and according to the Merit List, the petitioner secured 3rd position in the merit list. If he succeeds to prove that the respondent No.7 is not a person with disability, then he has obviously, a locus standi to file the petition and is an "aggrieved person" and the same depends upon the ultimate fate of this petition on merits. The second preliminary objection of the respondent No.7's counsel relates to non- joinder of the other two candidates
who had applied against the disabled quota. Since the petitioner is at serial No.3 of the merit list, therefore, non- joinder of the candidate falling at serial No. 4 of the meri t list, is not fatal
to the maintainability of the instant constitution petition.
4. According to the petitioner, the respondent No. 7 had applied against the advertised
posts of Assistant Sub -Inspector ("ASI") (B -09) in the Police Department. On 11th Apri l,
2019, the respondent No. 3 had advertised 249 posts of Assistant Sub- Inspectors (B -09)
(Police) in the Home and Tribal Affairs Department (Balochistan Police). The advertisement had prescribed the physical standard criteria of the male candidates, as un der:
"Physical Standard for Male:
(i) ------
(ii) -----
(iii) Medically Fit."
The expression "Medically Fit" means, a person/candidate who for the time being, is
not suffering from any physical and or mental inability and disability. An employee is considered medically fit to continue working as long as his health does not affect his job
performance. The respondent No. 3, as per direction of this Court vide case diary dated 15th September, 2022, placed on record the Application Form of the respondent N o. 7, submitted
for the post of ASI. The serial No. 16 of the form (Annex: F -1) is relevant to be reproduced
hereunder:
"16) Do you claim to be a Disabled person? Yes/No
The application form was signed by the respondent No.7 and he, all over, the
pendenc y of the petition and at the final arguments, has not disputed the authenticity of the
same. In the form, at serial No. 16, the respondent No.7 had not claimed that he is a person
with disability. The application form also contained a column of Declaration , according to
which, the respondent No.7 had certified that the statements made by him in the application
form are true, complete and correct to the best of his knowledge and belief. The application
form of the respondent No.7 was accepted by the responde nt No.3 and he was allowed, being
a Medically Fit Candidate, in the test and interview held for the post of ASI. Vide press
release dated 25th March, 2021, the respondent No.3 had recommended the respondent No.7 for appointment to the post of ASI in Balochistan Police (Home and Tribal Affairs Department). During pendency of this petition, the respondent No.3 advertised twelve posts of Assistant Director (B -17), to be filled through initial recruitment, in the Counter Terrorism
Department, (Balochistan Polic e). In the advertisement, the following Physical Fitness
qualification was prescribed for Male Candidates:
"Male:
(i) ----
(ii) ----
(iii) ----
(iv) ----
(v) Otherwise Medically Fit."
The respondent No.7, applied, on line, against the said post of Assistant Director (B -
17). The application form appears to be filled by the respondent No.7. The on line
application form mentions the word Disability, however, the respondent No.7 had left it blank, which shows, that he had not claimed any disability in t he said on- line application
form. The respondent No.7 appeared for the said post under Roll No. 19913. The respondent No.7 also applied against the advertised 50 posts of Sergeant (B -16), advertised through the
above mentioned advertisement. According to t he required Physical Fitness qualification, a
candidate must be "otherwise medically fit". The respondent No.7 appeared for the said post under Roll No. 19913. Likewise, according to the para -wise comments of respondent No.7,
apart from disabled quota, he had also applied against, the post of Assistant Engineer (B -17)
in Local Government and Rural Development Department and the post of Assistant Engineer (B-17) in Local Council's Services Wing. The advertisement for the posts of Assistant
Engineer in Local Government and Rural Development Department and the posts of
Assistant Engineer in Local Council's Services Wring, had not prescribed any disabled quota, however, the respondent No.7, had not claimed, while applying against such posts, any physical infirmi ty and disability. Since, the respondent No.7 was recommended to be
qualified as a Medically Fit person, against the post of ASI, therefore, now he cannot take a u-turn.
5. The law of estoppel does not allow the respondent No.7 to alter his position that he
suffers from the disability of single -sided deafness ("S.S.D"). Estoppel is an equitable
doctrine, a bar that prevents one from asserting a claim or right that contradicts what one has
said or done before, or what has been legally established as true. The respondent No.7 could
not take advantage of his own inconsistent positions, while applying against the posts of ASI and the post of Assistant Director in the Communication and Works Department. The respondent No.7 secured the employment of ASI on represe nting himself as a medically fit
person. Such representation was believed by the respondent No.3 and allowed him to
participate in the recruitment process of the ASI's posts. The respondent No.7 was finally
found medically fit and sound, therefore, recommended for appointment. The respondent No.
7 was recruited as ASI and called at Police Training College, Sariab, Quetta. The respondent No.7 was sound by his earlier assertion and cannot, now take a different plea of disability to the one which he had indica ted at the time of his appointment as ASI. The doctrine of
estoppel is also based on a fraudulent purpose and a fraudulent result. If the present plea of the respondent No.7 is believed then it would certainly mean that he secured the employment of the ASI , through misrepresentation. And if he had not secured such employment through
misrepresentation, then again it would mean that he has secured recommendation for his recruitment against the position of the Assistant Director through misrepresentation. Henc e,
the respondent No. 7 cannot be allowed to blow hot and cold in the same breath. It is amazing that the respondent No.7, who had already disclosed in the afore referred application form that he is not a person with disability whereas latter, applied agai nst the
posts reserved for the persons with disabilities. The inconsistent positions appear to be an afterthought which are unjust and illegal on the face of it.
6. The above discussion has established that the respondent No. 7 had applied against
the reserved quota of two posts allocated for the persons with disability in the respondent No. 1 and by concealment of his former recruitment as ASI in the Home and Tribal Affairs Department (Balochistan Police) has succeeded to get the recommendation of responde nt No.
3 for his recruitment against the post of Sub- Divisional Officer/Assistant Director (B -17).
The two posts were specifically described in the advertisement dated 05th March, 2020, for the persons with disability. Since the petitioner is at serial No. 3 of the Merit List issued by
the respondent No. 3 for the post of Sub- Divisional Officer/Assistant Director (B -17),
therefore, he is an aggrieved person within the meaning of Article 199, the Constitution to maintain this petition.
For the foregoing rea sons, the constitution petition is allowed, the impugned
recommendation vide press release dated 11th November, 2021, issued by the Deputy Director, Balochistan Public Service Commission, is declared, to be issued without lawful authority and is of no lega l effect, to the extent of respondent No. 7 (Israrullah Khan son of
Abdul Nafay) at serial No. 32. The respondent No. 3 is directed to recommend the name of the petitioner (Jameel Ahmed son of Khalil Ahmed) for his recruitment to the post of Sub-Divisional Officer/Assistant Director (B -17) in the Communication and works Department,
Government of Balochistan.
The petition stands allowed.
SA/4/Bal. Petition allowed.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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