2006 PLP 642 (SCMR)

CH. IJAZ AHMAD, J.

The brief facts out of which the present petition arises are that petitioner in obedience of public notice submitted the application for the post of a Patwari. He was selected and appointed vide order dated 18-10-2003. Respondents issued show-cause notice to the petitioner under section 3 of Punjab Removal from Service (Special Powers) Ordinance, 2000 on the charges that he had two domiciles one from Lahore District and the other from Sheikhupura District and applied in both the districts and obtained appointment through misrepresentation. Petitioner submitted reply of the show-cause notice controverted the allegations levelled in the show-cause notice. The competent authority dismissed him from service vide order, dated 18-11-2003. Petitioner being aggrieved filed representation before the Executive District Officer (R) who dismissed the same vide order, dated 21-12-2004. Thereafter, petitioner filed appeal before the learned Service Tribunal which was dismissed vide order dated 16-3-2005 on the ground that petitioner had not yet attained the status of a civil servant and his appeal was not competent. Petitioner being aggrieved filed Constitutional Petition No.4866 of 2005 in the Lahore High Court which was dismissed vide impugned judgment, dated 30-3-2005. Hence, the present petition.

2. Learned counsel of the petitioner submits that petitioner has not concealed material facts in his application filed before the competent ' authority as the petitioner secured domicile from District Sheikhupura in the year 1999 whereas the petitioner secured domicile from Lahore District on 17-5-2002. Petitioner's domicile from Sheikhupura was cancelled by the competent authority on 24-10-2003 on the application of the petitioner. This fact was not considered in its true perspective by the learned High Court. He further urges that petitioner was inducted in service, therefore, learned Service Tribunal was not justified to hold that his appeal was not competent. He further urges that petitioner had not utilized domicile of Sheikhupura and he was selected on merits on the basis of domicile of Lahore by the competent authority. Therefore, impugned order of the respondents as well as impugned judgment are not sustainable in the eyes of law.

3. We have given our anxious consideration to the contention of learned counsel of the petitioner and perused the record. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties: "The established position, however, remains uncontroverted that the petitioner was holding double domicile one from Lahore District and the other from Sheikhupura District, who took the chance by making use of the same. The Settlement Officer/ Collector and Executive District Officer (Revenue), Lahore have proceeded against him on the basis of a prohibition of' holding more than one domicile rendering the candidature ineligible vide Board of Revenue memo. dated 17-12-2002. There is a finding that the misrepresented before the authorities in seeking appointment. Besides the question as to status of the petitioner, he is not entitled to relief under Article 199 of the Constitution 'of Islamic Republic of Pakistan, 1973, due to his conduct and finding recorded against him' by the departmental authority."

4. Mere reading of the aforesaid operative part of the impugned judgment, the petitioner had secured the appointment by concealing material facts while submitting his application on the basis of domicile secured by him from Lahore District on 17-5-2002 in spite of the fact that he had already secured domicile from Sheikhupura District in the year 1999. It is a settled principle of law that constitution jurisdiction is discretionary in character. He who seeks equity must come with clean hands. As observed by the learned High Court that petitioner did not come with clean hands, therefore, learned High Court was justified not to exercise discretion in favour of the petitioner. The impugned judgment is in consonance with the law laid down by this Court in the following judgments: (i) Principal King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196; (ii) Abdur Rashid v. Pakistan and others 1969 SCMR 141 and (iii) Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236.

5. It is pertinent to mention here that dismissal order was upheld by the departmental appellate authority which was subsequently also upheld by the learned High Court in the impugned judgment. It is a settled principle of law that this Court cannot interfere with the concurrent B findings of the Tribunals below as the law laid down by this Court in various pronouncements including Abdul Hameed's case 1973 SCMR

530. It is a matter of common sense to distribute seats in question to each district that job opportunities are provided only to those candidates who are the bona fide resident of the District where they have to work, so that outsider may not usurp the opportunity given to the bona fide residents. It is for this purpose that the domicile certificate was asked for. The word domicile must be construed keeping in view the purpose and object of the policy in question wherein the policy maker while allocating seats in each particular District with the condition that a person who has a domicile of the District be eligible to file an application for the appointment of the post in question i.e. Patwari, meaning thereby, domicile has reference to the system of law by which a person is governed, and when we speak of the domicile of a District, we assume that the same system of law/policy prevails all over that Province. Petitioner has not challenged the viries of the policy of the respondent, therefore, learned High Court was justified to non-suit the petitioner by virtue of his own conduct. As the petitioner failed to point C out that action of the respondent was in violation of their rules, regulation and policy which is conditioned precedent to maintain a constitutional petition before the High Court as law laid down by this Court in Ali Mir's case 1984 SCMR

433. Constitutional jurisdiction have equitable jurisdiction cannot be exercised in favour of a person who come to Court with gross negligence on account of his misconduct i.e. to approach the Court with unclean hands as the law laid down by this Court in the following judgments: (i) Mohsin Khan's case 1969 SCMR 306; (ii) Suleman's case 1970 SCMR 574 and (iii) Rana Muhammad Arshad's case 1998 SCMR 1462.

6. In view of what has been discussed above, we find no merit in this petition and the same is dismissed. Leave refused. M.H./M-14/SC??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.