2015 P L C (C.S.) 1143
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
MUHAMMAD NADEEM and 3 others
versus
GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs
Department and 3 others
C.P. No.364 of 2007, decided on 14th April, 2015.
(a) Constitution of Pakistan ---
----Art. 199--- Balochistan Civil Servants Act (IX of 1974), S. 5---Balochistan Civil Servants
(Appointment, Promotion and Transfer) Rules, 1979, Rr.2(1)(f), 2(1) (h), 2(e), 5, 11 & 12---
Constitutional petition --- Maintainability --- Civil service --- Advertisement for appointment of
Assistant Investigating Officer ---Appointments made in pursuance of order of the High Court ---
Scope ---Constructive res judicata principl es of ---Applicability ---Grounds taken in the present
constitutional petition were attended to by the High Court while deciding the fate of previous
constitutional petition ---Matter being one of past and closed transaction could not be re -agitated
by using different phraseology and words ---Order passed by the High Court under Art.199 of the
Constitution could not be annulled by another constitutional petition---Present constitutional
petition was hit by the principles of 'constructive res judicata' and was n ot maintainable ---Written
test and interview were conducted by the Departmental Selection Committee---Authority of the
selection committee could not be challenged or questioned as same was the best judge at the
given time to form an opinion, take decision after judging the abilities and capabilities of the
candidates ---Courts should not interfere and thrust their opinions changing the verdict of the
selection committee except it had been made other than the capabilities of the candidates or
smacked mala fid e---No mala fide was on record in the present case---Private respondents were
appointed in the year 2007 and they had been performing their duties and no complaints had
been received by the authorities from any corner, they had put in more than eight years of service
and had lost all their chances to get fresh appointments elsewhere as they stood disqualified
being overaged ---Superior courts had to act in aid of justice and might refuse to interfere with an
illegal order if it would result in grave injustic e---High Court should not interfere with an order
notwithstanding its void or illegal dimension if it would lead to greater injustice ---Nothing was
on record with regard to violation of any statutory provisions in issuance of impugned
notification ---Initia l presumption of correctness would attach to the official/public acts ---
Constitutional petition was not maintainable in absence of any violation of any provision of law --
-Constitutional petition was dismissed in circumstances.
Muhammad Ikram Chaudhry v. Federation of Pakistan PLD 1998 SC 103; Ghulam
Akbar Lang v. Dewan Ashiq Hussain Bukhari" 2012 SCMR 366 and Secretary to the
Government of the Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.
(b) Constitution of Pakistan ---
----Art. 199---Constitutional jur isdiction of High Court ---Scope ---Constitutional jurisdiction
could not be invoked to re -hear a case which had already been decided ---Constitutional
jurisdiction could be exercised to strike down orders which were found to be in excess of or
without lawful authority or patently in contravention of any express provision of law.
Nemo for Petitioners.
Mazhar Ilyas Nagi for Respondents Nos.6, 9, 10, 11 and 22.
Shai Haq Baloch, Asstt. A.- G. for Official Respondents.
Date of hearing: 1st April, 2015.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- The instant constitutional petition
filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the
Constitution") carries the following prayer: ---
"It is accordingly respectfully p rayed that impugned notification 25- 6-2007 by way of
which appointment of private respondents have been made depriving the petitioners from their
legal and lawful entitlement may kindly be ordered to be declared as illegal, void, ab- initio and
further orde red to be cancelled and official respondents may kindly be directed to issue
notification for appointment of petitioners in accordance with merit list prepared for the posts. It
is further prayed that action of private respondents is not abiding the merit list may kindly be
declared as illegal and unlawful. Any other relief which this honourable Division Bench may
deems fit and appropriate in the circumstances of the case may also be passed in favour of
petitioners, in the interest of justice and equity."
2. It is the case of petitioners that, pursuant to advertisement appeared in daily newspaper
Mashriq', Quetta dated 17th September 2004 regarding appointment of Assistant Investigating
Officer (B -14) in the Home and Tribal Affairs Department, Government of Balochistan, they,
being eligible in all respects, applied for the same from their respective districts along with other
candidates including the private respondents. According to them, the tests and interviews were
conducted by the Departmental Selectio n Committee and according to the merit list prepared by
the department, they were on top, but to their utter surprise, notification dated 25th June, 2007
("the impugned notification") was issued by appointing the private respondents on the posts in
question and it appears that such appointments were made by the directives of this Court.
3. The official as well as private respondents filed their parawise comments by denying the
allegations made in the petition on numerous grounds and the claim of the petit ioners was
strongly repudiated and contested on merits.
4. The record reflects that the instant petition was instituted in the year 2007 and the same
was dismissed on 5th November, 2013 for non- prosecution and, subsequently, the same was
restored vide or der dated 27th March, 2014 with the condition that the learned counsel for the
petitioners will proceed with the matter on next date of hearing, as the matter pertains to the year
2007, however, on subsequent date of hearing i.e. 14th October, 2014, again an adjournment was
sought by the learned counsel for the petitioners. On 1st April, 2015 the case was taken up for
hearing, but as usual neither the petitioners, nor their counsel was in attendance, as such, we are
left with no other option, but to proceed with the matter with the help of learned Assistant
Advocate General as well as learned counsel for the respondents.
5. The record reveals that Constitutional Petition No.746 of 2006 was instituted by
respondents Nos.9, 22 and others and the controversy regarding appointments in question was
dealt with and finally adjudicated upon by a Division Bench of this court vide judgment dated
30th April, 2007. The appointments of the respondents are not the outcome of any administrative
order, rather the same were made in pursuance of the aforesaid judgment passed by this Court,
relevant portion whereof reads as under: ---
"In view of what has been stated above, we are inclined to allow this petition and declare
withholding of appointment of the petitioners by the competent authority to be illegal and in
excess of jurisdiction. Consequently; respondents are directed to issue appointment letters to the
petitioners, who were selected by the selection committee after due process of law."
6. In such view of the matt er, we are of the view that the findings of a Division Bench of
this Court deserves due weight and cannot be reversed, upset or disturbed at this belated stage. It
may be noted that all the grounds taken in the instant petition were well attended by this C ourt,
while deciding the fate of Constitutional Petition No.746 of 2006 and now the matter, being one
of past and closed transaction, cannot be re -agitated by using different phraseology and words.
Constitutional jurisdiction under Article 199 of the Const itution cannot be invoked to re -hear a
case, which had already been decided. Even otherwise, in view of the findings of this Court in
the aforesaid constitutional petition, any interference in the impugned notification, at this stage,
would amount to sit a s a Court of appeal over a judgment of another bench of the High Court. It
would also amount to issuance of a writ by one Bench of the High Court against another Bench,
so as to annul an order or the effect of an order passed by it under Article 199 of the
Constitution. Such course is not permissible under the Constitutional Scheme and it would also
seriously undermine and prejudice the smooth affairs and working of the superior Courts. In this
respect, reference can be made to the case of "Muhammad Ikram C haudhry v. Federation of
Pakistan" (PLD 1998 Supreme Court 103), wherein it was observed as under: ---
"There seems to be unanimity of view among the superior Courts on the question that a
High Court or the Supreme Court cannot in exercise of its Constit utional jurisdiction under
Article 199 of the Constitution interfere with an order passed by another Judge or another Bench
of the same Court."
7. Similarly, the instant constitutional petition also hits and is not maintainable on the
principle of 'constructive res judicata'. A division bench of this Court regarding appointment of
the respondents has already recorded the findings on the issue raised in the instant proceedings
by the petitioners. The present petition on such issue would be barred on the principle of
'constructive res judicata'. Reference can be made to the case of "Ghulam Akbar Lang v. Dewan
Ashiq Hussain Bukhari" (2012 SCMR 366) where in it was held:---
"We do not concur with the finding of the learned High Court, in regard to the invalidity
of the degree on the basis of report of the Assistant Controller. However, the other observations
that the degree was not forged, was itself suf ficient ground to dismiss the petition of the
appellant. The next contention of the appellant that bona fides in a writ of quo warranto cannot
be allowed to be gone into, was also without force. Once the learned High Court has already
recorded the finding on the issue of degree raised in the present proceedings by the appellant in
an earlier writ petition which findings have not been upset in appeal by this Court, the present
petition on such issue would be bar on the principle of 'constructive res judicata ' besides the fact
that the appellant, otherwise, had political connections with the very group which has previously
filed the Election Petition. In such like circumstances, bona fides of a petitioner in a writ of quo
warranto can be examined to save a par ty from vexing twice."
8. It is pertinent to mention here that the written test and interview were conducted by the
Departmental Selection Committee, consisting of Director General, Balochistan Levies Force,
Additional Secretary and Deputy Secretary, Hom e and Tribal Affairs Department as well as
Director Levies. The authority of the selection committee cannot be challenged or questioned
because of the fact that selection committee is the best judge 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 opinions subsequently, changing the verdict of the selection
committee, except when it has been made other than the capabilities of the candidates or it
smacks mala fides, which are lacking in the instant case. Needless to observe that the private
respondents were appointed in the year 2007 and according to the official respondents, they are
performing their duties and no complaint of any nature has been received by the authorities from
any corner.
9. It may be observed that the private respondents had put in more than eight years of their
service and had lost all their chances to get fresh appointments elsewhere, as they stood
disqualified being overage. It is well -settled principle of law that superior Courts always act in
aid of justice and may at times refuse to interfere with an illegal order, if it results in grave
injustice. The Hon'ble Supreme Court has held in a number of cases that High Court may not
interfere with an order notwithstanding its void or illegal dimension if it leads to greater
injustice. In the case of "Secretary to the Government of the Punjab v. Ghulam Nabi", (PLD
2001 SC 415), it was observed as under: ---
Therefore, High Court is not bound to grant relief to a petitioner simply because he was
legally entitled to it, if the grant of such relief is immoral, unfair or against the dictates of good
conscience and fairplay". 1990 MLD 2192 (DB)). It hardly needs any elaboration that High
Court is not obliged to press into service its Constitutional jurisdiction in every case in which
illegality or void action or order is impugned. The Court is to see, whether the grant of relief
prayed for will foster the cause of justice or will it perpetuate injustice. If the Court finds that in a
given case though the action taken by the authority is illegal but setting aside of such an illegal
action would result in miscarriage of justice instead of advancing the cause of justice, the Court
may decline to press into service its Constitutional jurisdiction."
10. That appointments to Balochistan service or to a civil service of the Province of
Balochistan or to a civil post in connection with the affairs of the Province of Balochistan are
regul ated by section 5 read with S.2 (1)(f) and S.2 (1) (h) of the Balochistan Civil Servants Act,
1974 and Rules made in exercise of powers conferred by section 25 thereof, namely, Balochistan
Civil Servants (Appointment, Promotion and Transfer) Rules 1979 (R.2(e), R.5, R.11 & R.12).
Nothing has been brought on record by the petitioners as to which of any statutory provision was
violated in issuance of the impugned notification. It is by now settled that initial presumption of
correctness attaches to the offici al/public acts. There is nothing on record to tentatively displace
this initial presumption of correctness. Constitutional jurisdiction in terms of Article 199 of the
Constitution is intended to strike down orders, which are found to be in excess of or wit hout
lawful authority or patently in contravention of any express provision of law. In the absence of
any violation of any provision of law, instant constitutional petition is not maintainable.
For all that has been stated above, this petition is dismis sed, leaving the parties to bear
their own costs.
ZC/56/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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