2024 PLP (C (PLC(CS))

ABDUL HAMEED BALOCH, J.

Through this common judgment we intend to dispose of the Constitutional Petitions Nos. 38 and 118 of 2022, as both the petitions are arising out of the same subject matter, whereby the petitioners prayed as under: In C.P. No.38 of 2022: In view of legal and factual position the following relief is being prayed for:- i. That the respondents may be directed to include the names of petitioners in the merit of successful candidates in their respective categories and their appointment orders may be issued. ii. Any other relief which this Hon'ble Court may deem fit and proper in favour of petitioners may be awarded. In C.P. No.118 of 2022: "It is therefore, respectfully prayed that by accepting this petition Writ in favour of petitioners against respondents may kindly be issued in the following terms: a. After recommendations from DRC petitioners and other are liable to be appointed for the posts against whom their recommendations have been made. b. Nobody can stop/prolong/deny the issuance of the appointment orders of the petitioners and others. c. After observing so necessary directions be issued to respondents to issue appointment orders to petitioners and other according to the recommendation of the DRC. d. Any other relief, which this Hon'ble court deems fit and proper along with costs may also be awarded to the petitioners in the interest of justice."

2. According to petitioners in C.P. No.38 of 2022 that the District Health Officer Ziarat vide Advertisement dated 26th June, 2021 in daily newspaper Mashriq Quetta invited applications for various posts from eligible candidates of district Ziarat, pursuant to which the petitioners applied for the vacant posts, appeared in the test and interview, but due to non-recommendation by the respondent No.3, the instant petition was filed. The petitioners further submitted that after test, the respondent No.3 shortlisted 26 eligible candidates and the interview was conducted on 2nd September 2021, but unfortunately the respondent No.3 recommended ineligible, absent and non-locals candidates. The petitioners shown their concern over the process of recruitment of Dai/Aya and submitted several applications to respondents. Petitioners further submitted that the test and interview have been conducted by the respondent No.3 not by the Recruitment Committee.

3. The respondent No.3 filed para-wise comments and denied the contention of the petitioners.

4. The petitioners in C.P. No.118 of 2022 submitted that in pursuance of the referred advertisement, they applied and appeared in the test and interview conducted by the recruitment committee and were recommended for appointments but despite laps of considerable period the respondents failed to issue their appointment orders.

5. Heard. Record perused. The perusal of record reveals that the petitioners in C.P. No.38 of 2022 have challenged the recruitment process. The record indicates that the respondent No.3 vide advertisement PRQ No.3752/26.06.2021 invited applications for different vacancies from aspirant candidates of Local/Domicile of District Ziarat, whereafter due to increase of posts the respondent No.3 in PRQ No.51/12.07.2021 and PRQ No.279/05.08.2021 readvertised the posts. The respondent No.3 in PRQ No.1670/19.07.2021 cancelled the posts of Lady Health Workers. The recruitment committee comprising of five members, including representative of Deputy Commissioner headed by District Health Officer Ziarat as Chairman of the Committee, who conducted the test and interview, commenced from 2nd September, 2021 to 11th September, 2021, 3rd November, 2021 to 4th November, 2021 and unanimously recommended the names of successful candidates for appointment.

6. The record transpires that the S&GAD Department Government of Balochistan vide notification dated 4th December, 2020 constituted new District Recruitment Committees in District Level. As per the notification the committee be headed by Deputy Commissioner of the District concerned.

7. The record transpires that the respondent No.1 vide notification dated 26th March, 2021 constituted the Departmental Recruitment Committee for recruitment against the vacant post of BPS-01 to BPS-15. As per above notification the District Level Committee comprising of five members headed by District Health Officer including representative of the Deputy Commissioner was constituted.

8. The contention of petitioners in C.P. No.38 of 2022 has no force because the test and interview were conducted by the Recruitment Committee constituted by respondent No.1. As per notification dated 26th March, 2021 the recruitment committee will be headed by the District Health Officer of concerned District. It is settled principle of law that the Court cannot interfere in the policy matter of executive unless the policy matter is contrary to the basic principle of justice and fundamental right of any citizen. The respondent No.1 constituted the Recruitment Committee headed by the District Health Officer. It is prerogative of the executive to constitute a committee for recruitment. The candidates have no choice to raise objection over the committee unless the committee members have grudges or enmity with the petitioners. There is no allegation of bias and malice against any member of the committee nor any allegation that the committee members had favored particular candidates due to relationship or other reasons. Mere bald allegation on the part of petitioners without any proof cannot be ground to declare that the recruitment process was not transparent.

9. It is settled principle of law that the appearance in the test and interview does not create vested right. The foremost question for consideration is that whether the petitioners had any vested right to seek appointments merely by appearing in the interview. Prem's Judicial Dictionary (Vol. IV, 1964) defines "vested right" as follows: "A right is said to be vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest, independent of a contingency. It is a right which cannot be taken away without the consent of the owner. Vested rights can arise from contracts, from statutes and from operation of law."

10. According to Salmond's Jurisprudence (12th Edition), "a right vests when all the facts have accrued which must by law occur in order for the person in question to have the right. A right is contingent when some but not all of the investitive facts, as they are termed, have occurred."

11. In J.S. Yadav v. State of U.P. and another [(2011) 6 SCC 570] the Supreme Court of India ruled that "rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights."

12. The Hon'ble Supreme Court of Pakistan had the occasion to consider the expression "vested right" in Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599). It observed that "vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies but are the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re-cross-examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavourable and often after his examination-in-chief is over. The occasion to cross-examine may not arise or may not be exercised but the right is not to be denied." This view was reaffirmed in Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) and Asadullah Mangi and others v. Pakistan International Airlines Corporation and others (2005 SCMR 445). From the above references, the vested right are rights that have occurred to the possessor with no condition and cannot be taken away arbitrarily. The test and interview does not create vested right in favour of a candidate but it is never the final of recruitment process. Reliance is placed on the case of Secretary Finance v. Ghulam Safdar 2005 SCMR 534, whereby it has been observed as under: "since mere selection in written examination and interview test would not, by itself, vest candidates with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Admittedly, the appellants had not issued any offer of appointment to the respondents and their appointment was subject to clearance by the Establishment Division under the Centralized System of Recruitment till it was discontinued in November, 1996, which again coincided with the imposition of ban on fresh recruitments, which could not be safely ignored by the appellants. Thus, the High Court was not right in overlooking this aspect of the case and issuing a writ of mandamus of the nature prayed for." In view of above, both the petitions are dismissed, however the respondents are directed to expedite the process of recruitment as per law. MH/100/Bal. Petitions allowed.