2019 PLP 124 (SCMR)

IJAZ UL AHSAN, J.

The petitioner seeks leave to appeal against a judgment of the Lahore High Court, Lahore dated 15.02.2018. Through the impugned judgment, while allowing a Constitutional Petition filed by the Respondent, the High Court directed the petitioner to "adjust" the Respondent and issue him an appointment letter for the post of Sub-Inspector (BS-14) on the basis of list dated 29.04.2016.

2. Briefly stated the facts necessary for decision of this lis are that an advertisement for recruitment of 97 Sub-Inspectors was published by the petitioner on 01.11.2015. These posts were distributed District/Region wise. For Faisalabad Region, the quota was 35 seats. Some seats were reserved for women and minorities. It was alleged that the Respondent has applied for appointment against a post of Sub-Inspector in Faisalabad Region. After the requisite test and interview, he was placed at serial No. 32 of the merit list. The last person who was appointed was at Sr.No.31 of the merit list. Since the said person did not join, the respondent expected that he would be appointed against the available position. When he was not appointed, he filed a representation and thereafter preferred a constitutional petition before the High Court. The High Court held that since the merit list was valid for one year, the Respondent should be appointed on the basis of the existing merit list and there was no need for the department to re-advertise the said post. It was brought to the notice of the High Court that the concerned department could request the Respondent for a substitute candidate and on such request being received a substitute could be recommended by the petitioner. However, in the instant case since no request was received, the posts were re-advertised.

3. Learned counsel for the petitioners submits that there was a reason for not seeking a substitute. A large number of posts remained vacant and the department was of the view that the same needed to be re-advertised in order to encourage better qualified and more suitable candidates to apply for the available posts. This was done so that the department could get better candidates out of those who submitted their applications. He has further pointed out that after re-advertisement, all available posts were filled on merit. Even thereafter when posts subsequently occurred the same were filled through a transparent and competitive process in 2016, 2017 and 2018. As such there is no post available against which the Respondent could be accommodated in compliance of the orders of the High Court.

4. The learned counsel for the Respondent, on the other hand, has defended the impugned judgment. He submits that the Respondent had a legitimate expectation that since he had qualified the written test and interview and his name appeared in the merit list, the department should have exercised its discretion in his favour to ask for an alternate candidate. Having failed to do so, the department had been instrumental in denying a right that has accrued to the Respondent. Therefore, the learned High Court had valid reason and lawful justification to pass the impugned order.

5. We have heard the learned counsel for the parties and gone through the record with their assistance. The department had advertised 97 posts in different Regions. Out of the 35 posts available for Faisalabad Region, 3 remained unfilled. We have been informed that overall about 17 posts remained vacant which were included in the next advertisement for recruitment against the posts of Sub-Inspectors. The process was undertaken in a transparent and fair manner by the petitioner, through an open competitive process, a written examination and interview. Persons qualifying in the process and appearing high on the merit list have since been appointed and this process has been repeated for three years. For reasons best known to the Respondent he did not bother to participate in the process initiated in 2016, 2017 and 2018. Therefore, all posts available during 2016, 2017 and 2018 were filled. We have been informed that there are no vacancies available against which the Respondent could have been accommodated.

6. As far as the request by the department for an alternate candidate is concerned, a perusal of the relevant rules shows that such discretion lies with the department. In the first place, admittedly such discretion was not exercised. The department did not request the petitioner to provide an alternate candidate. We also find that the said exercise of such discretion was not withheld unreasonably because a large number of posts had become available and the department wished to re-advertise the posts in order to attract better candidates. There was neither mala fides nor ulterior motive involved. Therefore, we are not persuaded by the argument of the learned counsel for the Respondent as incorporated in the judgment of the High Court that exercise of discretion had unreasonably been withheld and that the Respondent has a right to be dealt with in accordance with law under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 which has been violated. We are of the view that the department had valid grounds and lawful justification to opt to re-advertise the posts. Therefore, in the facts and circumstances of this case, interference by the High Court in a valid and lawful decision of the department was totally uncalled for and amounts to transgressing its jurisdiction without lawful cause or justification.

7. We also notice that the High Court lost sight of the fact that it is settled law that Courts cannot interfere in lawful exercise of discretion by the concerned departments and substitute lawful decisions of the departments, by their own. The jurisdiction of the High Court under Article 199 of the Constitution is limited to the extent of ensuring that state functionaries do what they are required by law to do and refrain from doing what they are prohibited by law to do. Unless an act or omission of a state functionary falls within the above parameters it is not liable to be interfered with. Such interference would constitute overstepping its jurisdiction by the High Court and entering the domain of the executive which is contrary to the concept of trichotomy of powers as per the scheme of the Constitution. The impugned judgment is silent on the question what was it that the Respondents were required to do and did not, or what was it that the Respondents were prohibited by law to do, but did. We also find that the High Court exceeded its jurisdiction by issuing a direction to the petitioner that an appointment letter be issued to the Respondent against a post of Sub-Inspector (BS-14) on the basis of list dated 29.4.2016. By doing so, the High Court arrogated itself to the position of an appointing authority which is obviously and clearly beyond the scope of its jurisdiction while exercising powers under Article 199 of the Constitution. Further, we also note that reliance of the learned High Court on "Province of Sindh and others v. Ghulam Hassan Bughio" (2014 SCMR 643) is obviously misplaced and the ratio of the said judgment has clearly been misconstrued. While it may be correct that under Regulation 59 of the Punjab Public Service Commission Regulations, 2016, a substitute can be provided from the merit list during its validity period, if so requested by the department (underlying is for emphasis), the fact remains that no such request was made and no finding has been recorded by the High Court that the decision of the department not to send such request and re-advertise the posts instead was either mala fide or an unlawful refusal to exercise discretionary powers. There was neither any basis nor justifiable reason for the High Court to interfere in such decision in exercise of its constitutional jurisdiction. On account of aforesaid reason also, the order of the High Court is unsustainable.

8. For reasons recorded above, this petition is converted into an appeal and allowed. The order of the learned High Court is set aside and the constitutional petition filed by the Respondent is dismissed. MWA/S-42/SC Petition allowed.