2008 PLP (C (PLC(CS))

HAFIZ TARIQ NASIM, J.

Brief facts leading to this writ petition are that in pursuance of advertisement in the press the petitioner applied for the post of Excise and Taxation Inspector in the Punjab Excise and Taxation Department, Lahore.

2. After the assessment of the petitioner's eligibility he was called for written test by the Punjab Public Service Commission, he appeared and declared successful.

3. The petitioner was called for interview along with others but unfortunately the petitioner was not found up to the mark by the interviewing committee, which has compelled the petitioner to file the present writ petition.

4. The learned counsel for the petitioner submits that during the interview held by the Punjab Public Service Commission comprising two Members they did not ask even a single question regarding the post, however, it was told by the Members to the petitioner that as he was highly qualified and was not likely to stay as Inspector Excise and Taxation, hence the committee cannot recommend him for the said post.

5. Further contends that of course the petitioner is M.A. in English and LL.B. too but his better qualification could not be treated as a disqualification for the post applied for. In support of his contentions the petitioner has submitted an affidavit too. The learned counsel submits that the selection made by the Punjab Public Service Commission is virtually an outcome of non-application of independent mind rather on extraneous consideration, which is sufficient for the interference by this Court.

6. The learned Assistant Advocate-General, Punjab, Lahore assisted by the representative of Punjab Public Service Commission submits that writ against the Punjab Public Service Commission's assessment is not maintainable and even the selection was based on fair assessment by the two Members of the Punjab Public Service Commission which cannot be termed without jurisdiction and mala fide.

7. Arguments heard; available record perused.

8. In normal course the minutes of the Selection Board are not to be interfered in exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 but in exceptional case where the Court feels that injustice was done in case of the aggrieved person, the right of judicial scrutiny cannot be declined.

9. In the present controversy the contentions of the petitioner's learned counsel revolves around the better qualification of the petitioner and non-suiting the petitioner only on this ground supported by affidavit and not controverted through a counter-affidavit can be a good ground for the interference.

10. On the proposition I can take strength from a judgment reported as Muhammad Gul Kakar v. Province of Balochistan 1986 PLC (C.S.) 560, wherein the Division Bench of the Quetta High Court held that, "facts supported by affidavit but not controverted through a counter-affidavit by respondents shall amount to facts stand proved".

11. As noted above that the contention of the petitioner in respect of interview pertaining to only one sentence that as the petitioner is better qualified being M.A. in English and LL.B. if appointed cannot continue was not controverted through a counter-affidavit, is to be accepted in terms of judgment referred (supra).

12. It is well-settled law laid down in Attaullah Mehr v. Punjab Government 1983 CLC 2903 that "every functionary and body whether administrative or judicial or quasi-administrative or quasi-judicial is required to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that such functionaries or body should determine matter in accordance with law governing subject". The judgment of Attaullah Mehr was confirmed by the D.B. reported as PLD 1984 Lah. 27 and then by the Honourable Supreme Court of Pakistan reported as Muhammad Mumtaz-ul-Hassan v. Attaullah Mehr 1984 SCMR 1499.

13. Admittedly in the present controversy the petitioner was not even asked a single question relating to the job applied for and he was non-suited only on extraneous considerations. In another reported case Dr. Habib-ur-Rehman v. West Pakistan Public Service Commission PLD 1973 SC 144, it was held that, "flagrant disregard of law and rules by statutory bodies and functionaries attract power of judicial review vesting in superior Courts". Keeping in view the law (supra), the objection of maintainability of writ is repelled. There is another aspect of the matter is that according to the departmental representative twenty persons were recommended for the post of Excise and Taxation Inspector and. seven posts were kept vacant and even out of twenty if recommendees even did not join meaning thereby that seven posts out of twenty recommendees are still vacant in addition to seven posts, which were not even recommended by the Punjab Public Service Commission hence it shall be appropriate to remand the case to the Punjab Public Service Commission for the redetermination of fitness of the petitioner.

14. Accordingly this writ petition is allowed, rejection of petitioner's candidature by the Punjab Public Service Commission is declared without lawful authority.

15. The Punjab Public Service Commission is directed to conduct fresh interview of the petitioner against the vacant post of Excise and Taxation Inspector, Excise and Taxation Department, Government of the Punjab fairly, justly, without being influenced from the previous outcome of the interview within one month positively particularly keeping in view .the requirements of the job of Excise and Taxation Inspector.

16. The recommendations if are made in favour of the petitioner, be conveyed to respondent No.1 who shall issue the appointment letter in favour of the petitioner accordingly. H.B.T./R-31/L Petition allowe