1994MLD244 (PLP)

HAZIQUL KHAIRI, J.

This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan is directed against the order, dated 13-12-1992 passed by the Wafaqi Mohtasib, respondent No.1, making recommendations for appointment of Mr. Sajjad Gul, respondent No.2, as Cadet Pilot of the Pakistan International Airlines Corporation (hereinafter called the petitioner). It is contended by the petitioner that the learned Wafaqi Mohtasib could not assume jurisdiction and pass the impugned order as to the personal grievance of respondent No.2 relating- to a service matter and is hit by Article 9(2) of the Establishment of the Wafaqi Mohtasib (Ombudsman) Order, 1983 being the President's Order No.1 of 1983 (hereinafter referred as P.O. No.1 of 1983). 'The further contention of the petitioner is that such finding/order is in contravention of the statutory provisions of sections 4(1) and 10 of the Pakistan International Airlines -Corporation Act, 1956 (hereinafter called the PIAC Act, 1956). It is also urged by the petitioner that Article 37 of the P.O. No.1 of 1983 is ultra vires and in contravention of the provisions of the Constitution of the Islamic Republic of Pakistan, 1973. It may be briefly stated here that the respondent No.2 is a commercial pilot holding Licence No.1503 issued by the Civil Aviation Authority of Pakistan and in response to an advertisement released by the petitioner in May, 1989, he applied for the post of Cadet Pilot in the establishment of the petitioner. The' academic qualifications required for the appointment was second class F.Sc. pre-Engineering with minimum 50% marks. The age limit was 30 years as on 31-3-1989. The respondent No.2 who had applied for the post failed to qualify the Psychiatric test held in July, 1990 during the induction of medical examination and was found unsuitable separately by, P.IA. and PAY. and, therefore, he was found unsuitable for appointment and training with the petitioner, as Cadet Pilot. He was accordingly informed of the result on the 4th November, 1990 whereafter he and his father had started submitting applications, petitions to the Chairman/Managing Director of the petitioner, Advisor for Defence Government of Pakistan and Prime Minister of Pakistan. These applications were- duly considered and replies were made by the petitioner as well as concerned Government officials. However on 15-7-1990 he lodged a complaint against the petitioner with the learned Wafaqi Mohtasib who called for necessary comments which were furnished by the petitioner on 9-9-1992. The petitioner in reply submitted rejoinder and on 22-10-1990 a joint hearing of the case was held before the Director-General of respondent No.1 at which the petitioner raised objection as to the maintainability of the complaint. Finally on the 13th December, 1992, the learned respondent No.1 gave the impugned finding/order - recommending to the petitioner that respondent No.2 should be appointed as Cadet Pilot. . Respondent No.2 Sajjad Gul in his counter-affidavit took up a preliminary objection that in view of Article 29 of the President's Order No.1 of 1983 neither this Court nor any other Court has any jurisdiction to question the validity of any action or order passed by the learned Wafaqi Mohtasib, respondent No.1. However, if the petitioner was aggrieved by a decision or order of the learned Wafaqi Mohtasib he could have made a representation before the President of Pakistan under Article 32 of the P.O. No.1 of 1983 within thirty days thereof. It was further urged by him that Article 9(2) of the President's Order No.1 of 1983 could not be attracted in his case as the respondent No.2 is not a public servant working with the Agency, namely, the petitioner. The case of the respondent No.2 relates to maladministration as two other incumbent for the post of Cadet Pilot were being taken on the recommendation of the Prime Minister although like him they had also failed in the Psychiatric test. In Muhammad Aslam Khan v. Government of Pakistan, PLD 1983 Karachi 41, the Acting Wafaqi Mohtasib took the view that the appointment of the petitioner to the post of Associate Professor was highly irregular, which post may be re-advertised and filled in according to law. In pursuance of this direction, the Secretary, Ministry of Health, Government of Pakistan issued a show-cause notice to the petitioner, who aggrieved by the ex parte action of the learned Action Wafaqi Mohtasib riled the Constitutional petition. It was held by a learned Division Bench of this Court that there is nothing in Article 11 of P.O. No.1 of 1983 to entitle Wafaqi Mohtasib to recommend termination of service of a public servant and direct appointment of a person does not come within terms and conditions of service. In a recent unreported judgment in C.P. No. D-1380%92, P.IA. Corporation v. Wafaqi Mohtasib and 2 others we were of the view that Article 9(2) of P.O. No.1 of 1983 debars the powers of the functionaries and the learned Wafaqi Mohtasib to take cognizance of a service matter of a public servant and at the Same time debars a public servant to file a complaint in respect thereof if in either ease it involves investigation. In the present case the respondent No.2 admittedly is not a public servant although he wants to be appointed as a public servant with the petitioner, hence, the provisions of Article 9(2) of P.O. No.1 of 1983 are not attracted. The petitioner has also not availed the remedy provided under Article 32 of P.O. No.1 of 1983 which states that "Any person aggrieved by a decision or Order bf the Mohtasib may, within thirty days of the decision or A Order make a representation to the President, who may pass such order thereon as he may deem fit". Here the expression "any person" includes the "agency" or anyone who is aggrieved by a decision or order of the learned Wafaqi Mohtasib. No plausible ground has been shown by the petitioner for not making representation to -the President of Pakistan except that the impugned order was without jurisdiction. In the case of International Cargo Handling Company (Pvt.) Ltd. v. Port Bin Qasim Authority, PLD 1992 Karachi 65, in which despite the bar contained under section 29 of P.O. No.1 of 1983 it was held that "no doubt the jurisdiction of Courts is barred, inter alia, in respect of any decision or order made including order of injunction or stay, by the Mohtasib but where the order from the face of it is repugnant to law under which it was made or suffers from want of jurisdiction, a Court may invoke its inherent jurisdiction vested in it under law so as to prevent injustice done to an aggrieved person", Learned counsel for the petitioner has not been able to persuade us to his point of view as to want of jurisdiction of the learned Wafaqi Mohtasib for which we have already given reasons. While parting with the case it may be stated that the learned counsel for the petitioner did not press the vines of P.O. No.1 of 1983 being repugnant to the provisions of the Constitution of the Islamic Republic of Pakistan, 1973. In the result, the petition is dismissed but with no order as to costs. AA./P-292/K Petition dismissed.