1998 PLP (C (PLC(CS))

WAJIHUDDIN AHMED, C.J.

The petitioner pursuant to an advertisement dated 5-8-1994 applied for appointment to the post of Assistant Professor BPS-18 in the Civil Engineering Department of the N.E.D. University of Engineering and Technology. The Selection Board interviewed and selected him on 21-5-1995 recommending his appointment to the post of Assistant Professor alongwith four others, his name in the order of merit occurring at serial No.

5. In course of time per Resolution No.SYN-97/12 (Item 12), the University Syndicate "resolved to approve the recommendations of the Selection Board". However, in September, 1995, the first four of the selectees were issued letters of appointment, two out of which number failing to respond show-cause notices were issued and cancellation letters dated 20-3-1996 followed. To this extent the facts are not disputed. The petitioner however, maintains that, having been recommended for appointment by the Selection Board and duly approved in terms by the Syndicate, the N.E.D. University acted illegally and without lawful authority in not issuing the requisite appointment letter to him. What is more, even when two of the selectees did not respond, the University discriminated against the petitioner by not resorting to him in the posts thus left vacant. Be that as it may, the University called for fresh appointments for the same post per advertisement dated 12-4-1996, relative to which the petitioner served a legal notice dated 6-6-1996, which bearing no fruit, the present petition was filed on '7-8-1996. It is, however, the case of the respondent university that the petitioner also applied following upon the public notice dated 12-4-1996 and appeared for interview on 13-8-1996, this time altogether failing at the level of the Selection Board itself. On such basis the respondent contends that the petitioner is stopped from seeking relief in this petition and, besides, appointment being discretionary with an employer no one can be forced upon an unwilling master. The petitioner, on his part, says that he had re-applied only subject to and without prejudice to his rights. During the course of hearing it was also pleaded on behalf of the respondent University that there were no more posts to be filled in which the petitioner could be accommodated and besides the verdict of the second Selection Board, for which the petitioner himself opted, is, conclusive and this Court cannot go behind such a determination. We have heard this case from time to time upon putting the parties on notice that the petition can be heard, admitted and disposed of at the same time. Orders were reserved on 14-10-1997. It is undoubtedly true that a servant cannot be forced upon an unwilling master. It is also undeniable that an appointment dies a discretionary power and many a times a subjective exercise thereof. There is, however, a clear distinction between eligibility to be appointed or promoted to a particular post and fitness or suitability of a person to be so appointed or promoted. Questions of eligibility are open to judicial review, whereas issues touching fitness or suitability, generally, enjoy a degree of immunity. In the instant case the petitioner, clearly, had crossed the hurdle of fitness or suitability: He was recommended by the Selection Board for appointment and the appointing authority, viz. the Syndicate of the University had approved the appointment. Issuance of the necessary petitioner was, therefore, a ministerial act and could appointment letter to the petition not be withheld. While something has been said on the question of availability of posts for which reason, according to the version of the respondent, the petitioner was lot appointed, such a plea upon closer examination does not hold water. At the time when the four aforesaid appointment letters were issued. admittedly, there were no posts of Assistant Professors to be filled. As customary in the Universities of Pakistan in such matters appointments of the kind are adjusted against higher posts which is what was done in relation to the said four appointees. We may add here that, according to the record, there were no less than five posts of Associate Professors available on 7-8-1994, out of which, for reasons better known to the University, it purported to fill only four, whereas its Syndicate had approved appointments of five. Yet another aspect, as pointed out by the petitioner, is that two of such four appointees failed to take up their assignments and that being a development in continuation the petitioner, who already stood selected and even approved for appointment, ought to have been resorted to but then in, spite of alleged non-availability of vacancies the University resorted to a fresh invitation to offer rather than accommodate the petitioner, already found not only eligible but also fit. This was a clear case of discrimination and uneven treatment for which no plausible reason can be found except on the plane of mal administration. In the matter of appointments to public offices, which an office in a University decidedly is, Courts are never slow in reliving a victim of administrative inaptness bordering upon administrative tyranny. The learned counsel for the petitioner drew our attention to Imtiaz v. Health Department PLD 1978 Quetta 131, a Quetta decision, which though a matter of admission in an educational institution could have some relevance. A more direct precedent on the point is the case of Muhammad Afzal v. Secretary, Education 1992 PLC (C.S.).117. Here may conveniently be dealt with the respondent's defence of the rule of master and servant. Suffice it to say that such rule has no absolute application in relation to public bodies amenable to the Constitutional jurisdiction of a superior Court. Exercise of power by such bodies or functionaries, as entail void or mala fide acts, is often open to judicial scrutiny. In the instant case, which speaking broadly, is a service dispute, even the bar of Article 212 of the Constitution does not apply because the petitioner, never having been appointed, could not be termed to be a servant of a 'corporation' as defined by the amended provision in the Service Tribunals Act, 1973. While concluding note may be taken of an unreported decision of this Court, viz. Abdul Khalique v. The University of Karachi (Constitutional Petition No. 383 of 1996) where relief in comparable circumstances was denied to the petitioner because, inter alia, the petitioner had not cited the possible affectees as respondents in his petition. The rule is inapplicable here because of the simple reason that the petitioner claims his entitlement with reference to the invitation to offer publicised in 1994, claiming a lien to the vacancies then available to him, subsequent entrance having always been subject to prior and subsisting rights. What is more, none has come forward either himself to be joined nor has the respondent University informed us of any specific intervening interests which could be impleaded. For all, the above reasons this petition must succeed. Allowed accordingly. H.B.T./M-327/K Petition allowed.