2003 PLP 82 (MLD)

The brief facts out of which the present writ petition arises are that the petitioner is a qualified person having bachelor degree in Civil and Agricultural Engineering. The petitioner was inducted under the Management Training Scheme of the respondent No.2. Petitioner completed the training within the specified period and was awarded a satisfactory completion certificate. After competing the training the services of the petitioner was not regularized by respondent No.2 although there existed vacancies in the executive cadre. The service of the petitioner was terminated by the respondents without issuing any notice to the petitioner on 2‑1‑1998. The petitioner being aggrieved alongwith his co‑trainees by the aforesaid termination orders filed Writ Petition No.3007 of 1998 which was dismissed by this Court vide order, sated 20‑2‑1998. The petitioner being aggrieved alongwith his co -trainees filed Civil Petition No.245 of 1998 before the Honourable Supreme Court and leave was refused to the petitioner by the Honourable Supreme Court vide judgment dated 1‑4‑1998 with the following observations:‑‑ "Leave is refused with the observation that in case the respondent‑Company decides to induct new trainees, the petitioners will be at liberty to apply for the post and the respondent‑company will give due consideration to the fact that the petitioners have already successfully completed the training. " The respondents issued consolidated advertisement on 3‑4‑2000 for various posts including for the forty‑seven posts of Assistant Engineers. Thereafter, the respondents issued a corrigendum to the‑ aforementioned advertisement whereby it has been stipulated that only such persons should apply for the posts who held first division throughout their academic carrier. The petitioner filed application in view of the aforesaid advertisement for the post for which he had already undergone successful and satisfactory training. The petitioner was succeeded in the written test and was called for the interview. The respondent did not intimate the result to the petitioner. The petitioner being aggrieved filed various representations before the Managing Director of respondent No.

1. He did not take any action on his applications. The petitioner being aggrieved by the aforesaid circumstances, filed appeal before the Managing Director on 15‑3‑2001. The representation of the petitioner was heard by the three members of the committee who had ensured the petitioner that respondent No. 1 would advertise the new posts in the near future and he would be duly accommodated. The respondents thereafter, advertised some posts in May, 2001, petitioner submitted an application for the said posts. The respondents did not call the petitioner. The petitioner approached the respondent No.2 through a reminder who verbally promised that since the posts were on project basis, the petitioner shall be called as and when the regular post will be advertised in the near future. The respondents thereafter, advertised 41 posts of Assistant Engineers. The petitioner again submitted an application but the respondents did not take any action and the petitioner sent a reminder to the respondents on 2‑10‑2001 to fulfil their promises as held out to the petitioner as he has a legitimate expectancy to the same: The petitioner being aggrieved filed this writ petition.

2. The learned counsel of the petitioner submits that petitioner has completed the training and incurred huge amount on that training. The petitioner has a legitimate expectancy for the posts in question but the respondents failed to accommodate the petitioner mala fidely. He further submits that respondents are being public functionaries are duty bound to obey direction of the Honourable Supreme Court but the action of the respondents is not in accordance with the dictum laid down by the Honourable Supreme Court in the case of the petitioner in the aforesaid Civil Petition No.245 of 1998. He further submits that petitioner is throughout first division holder and passed the written test but the respondents mala fidely failed the petitioner in interview.

3. The learned counsel of the respondents submits that petitioner .approached this Court with unclean hands as the petitioner concealed the material facts from this Court. The petitioner's case was considered by he respondents but the petitioner did not qualify and did not secure the narks as compared to the other candidates. The petitioner was on merit list at Serial No.20 as is evident from Annexure‑R/4 attached with the report and parawise comments. He further submits that respondents did not violate the direction of the Honourable Supreme Court. The case of the petitioner was considered but the petitioner did not qualify the same as is evident from the Annexure‑R/4 attached with the report and parawise comments. He further submits that four ex‑trainees were accommodated who secured position in merit list at Serial Nos.2, 3, 4 and

13. He further submits that cause pertaining to fitness for a job is not justifiable as it a matter of subjective evaluation on the basis of objective criteria which cannot be substituted by a Tribunal or a Court. It is the prerogative of the Competent Authority. In support of his contention, he relied upon the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129). He further submits that petitioner wants enforcement of a contractual right through this Constitution petition, therefore, writ petition is not maintainable. In support of his contention, he relied upon the case of Agha Saleem Khurshid and another v. Federation of Pakistan and others (1998 SCMR 130). He further submit that Ex‑Management Trainees filed a Writ Petition No. 27701 of 1997 which was dismissed by this Court with the observation inter alia, that "The agreement itself does not provide that after completion of training the petitioners will be entitled to any job :‑n the company". Reliance is placed on the case of Shamsul Arifin and others v. Government of Pakistan and others (1999 MLD 3446). He further submits that Writ Petition No.3299 of 2001 which was finally dismissed alongwith order connected writ petitions vide judgment, dated 29-3‑2002 by this Court.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

5. It is admitted fact that petitioner alongwith his co‑trainees filed a Writ Petition No.3007 of 1998 which was dismissed by this Court vide order dated 20‑2‑1998. The petitioner alongwith his co‑trainees filed Civil Petition No.245 of 1998 before the Honourable. Supreme Court which was dismissed vide judgment, dated 1‑4‑1998 in the following terms:‑‑ "Leave is refused with the observation that in case the respondent‑Company decides to induct new trainees, the petitioners will be at liberty to apply for the post and the respondent‑company will give due consideration to the fact that the petitioners have already successfully completed the training. " The Honourable Supreme Court has only given direction to the respondents to consider the case of the petitioner at the time of appointments. The respondents considered the case of the petitioner as is evident from Annexure‑R/4 attached with the report and parawise comments. The petitioner secured 47.67% marks and retained the position in the merit list at Serial No.20. The aforesaid chart also reveals that four ex‑trainees were appointed by the respondents who attained the position in the merits list at Serial Nos.2, 3, 4 and

13. In view of the aforesaid circumstances, the respondents did not violate the direction of the Honourable Supreme Court. It is also admitted fact that petitioner concealed the material facts from this Court as the contents of the writ petition did not reveal at all that the petitioner appeared in the written test and interview and did not succeed and attained position in the merits list at Serial No.20. It is settled principle of law that Constitution jurisdiction is discretionary in character. He who seeks equity must come with clean hands. The petitioner does not approach this. Court with clean hands. Keeping in view the aforesaid circumstances, I am not inclined toy exercise my discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in the following judgments:‑‑ (1) Abdur Rashid v. Pakistan and others (1969 SCMR 141). (2) Nawab Raunaq Ali v. Chief Settlement Commissioner and others (PLD 1973 SC 236). (3) Rana Muhammad Arshad v. Additional Commissioner, Revenue, Multan and others (1998 SCMR 1462). In view of what has been discussed above, this writ petition has no merits and the same is dismissed. S.A.K./S‑436/L Petition dismissed.