P L D 1989 Lahore 196 (PLP)

This Constitutional petition was heard. together with W.P. No.2786 of 1987. It is directed against the proceedings taken and recommendations made by the Punjab Public Service Commission for the appointment of Medical Officers/ Demonstrators in the Province of the Punjab against the advertised fixed number of posts.

2. All the three petitioners have set up a plea that their names, having once been included in the list of recommendees of Punjab Public Service Commission, could not subsequently be excluded from such list for any reason or on a plea of mistake, error or otherwise.

2. A brief resume of facts would help understand the background of the case and the legal questions arising for determination. Petitioner No.l is Dr. Amanul Haq. It has been established from the record of the Punjab Public Service Commission, produced at the hearing, that in fact petitioned' No.l obtained in the aggregate 55 marks on the basis of his academic qualifications and viva voce. Somehow, when the result was being compiled and tabulated separately, his marks were incorrectly recorded as 58 instead of 55 actually obtained. This is the error or accidental slip which allegedly led to the inclusion of his name in the list published by the Punjab Public Service Commission of its recommendees, for appointment against the aforesaid posts.

3. Next comes petitioner No.2 Dr. Jan Muhammad, who obtained in all 44 marks, that is, 22 marks each for academic qualifications and viva voce. It is being admitted, during the hearing, that the minimum marks required, as per rules in order to pass in the viva voce, test are

30. A candidate getting less than 30 marks in viva voce naturally fails. This means that the petitioner's name was included by the functionaries of the Commission in the list of successful candidates in spite of his factual failure. The Punjab Public Service Commission was not competent to do so and no provision or power has been cited to support the impugned action of the Punjab Public Service Commission.

4. In the case of petitioner No.3, Dr. Muhammad lqbal he factually obtained 47 marks. On the basis of academic qualifications he was allocated 22 marks and in viva voce he secured 25 marks. He, thus, also failed in the viva voce test. He was, however, strangely made into a recommendee of the Punjab Public Service Commission, against facts, by falsely showing that he secured 61 marks instead of actual 47 marks. It has been noticed, on a perusal of the record of the Commission, that 61 marks were actually obtained by another candidate. namely, Dr. Muhammad Usman Yousaf, whose result was tabulated, on the other side of the result sheet containing petitioner's result. The name of Dr. Muhammad lqbal, petitioner No.3, in these unusual circumstances crept into the list of successful recommendees at the cost of Dr. Usman Yousaf, who was omitted from the said list. This palpable error was rectified through a corrigendum subsequently issued by the Punjab Public Service Commission.

5. Whatever be the real causes, which led to these undisputed errors on the part of the Punjab Public Service Commission, they need not involve this Court into an elaborate inquiry. It is for the Punjab Public Service Commission to set its own house in order and to ensure non‑recurrence of such like unfortunate events in future. The fact remains that a scrutiny of the record of the Commission by this Court with the assistance of learned counsel has established beyond doubt that the marks actually awarded to the petitioners on the result sheets are signed by the presiding member of the Punjab Public Service Commission. In some of the cases, it was Mr. Muhammad Iqbal, Member, and in other cases it was Chairman of the Commission, Major‑General (Retired) Muhammad Akram. Their signatures are identified by the Secretary as well as the Deputy Director of the Commission, who are conversant with them in the normal course of their business. There is no dispute between the parties as regards the factual marks obtained or the marks necessary for pass percentage. In this patent background, I do not find any justification to interfere with the proceedings taken or orders passed by the Punjab Public Service Commission in accord with the true factual and legal position by issuing impugned corrigendums.

6. The sole point urged at the hearing by the learned counsel for the petitioners was based on the principle of locus poenitentiae, i.e. , power of receding or rescinding an order before the order had been conveyed and legal rights accrued in favour of a party.

7. I have given considerable thought to the argument advanced by the learned counsel for the petitioners but I am unable to persuade myself to agree with his legal right theory. The term 'legal right' was interpreted by Madras High Court in re: Daniel Hailey Walcot and another v. State (AIR 1968 Mad.349) and the following passage occurring therein may be quoted with advantage:‑ "From the statements of eminent jurists about the concept of 'legal right' the following principles can be deduced broadly to understand what a 'legal right' is: (i) Legal right in its strict sense is one which is an assertable claim, enforceable before Courts and administrative agencies; (ii) In its wider sense, a legal right has to be understood as any advantage or benefit conferred upon a person by a rule of law; (iii) There are legal rights, which are not enforceable; though recognised by the law; (iv) There are rights recognised by the International Court granted by International Law; but not enforceable; and (v) A legal right is a capacity of asserting a secured interest rather than a claim that could be asserted in the Courts." In the same judgment it is later mentioned that the test of enforceability, though it may be a normal one, is not the only test for determining a legal right. Such right may be one recognised by the rule of law, either by Municipal Law or International Law, without the capacity of being enforced. A legal right may even be asserted before administrative agencies. It includes the liberty of freedom from penalty. In short, it can be said that a legal right is one which is either enforceable or recognised.

8. In an earlier case the same Court in re: Anandrao Lakshman Rao v. Board of Revenue (AIR 1965 MP 237) while dealing with the term 'legal right' observed that it includes rights conferred by the statute as well and not only rights which were claimed independently of any statute.

9. In a case from Karachi jurisdiction in re: Government of East Pakistan v. Federation of Pakistan (PLD 1962 (W.P.) Kar.353) the meaning of the term 'legal right' came up for consideration. The Court held that a legal right obviously meant right recognised by law and capable of being enforced by the power of the State but not necessarily in a Court of law. It is a right of a party recognised and protected by rule of law, the violation of which would be a legal wrong done to his interest and respect for which is a legal duty even though no action may actually lie.

10. From the above analysis of the case law it emerges clear that there must reside in the petitioners a right recognised by law and capable of being enforced by the power of the State, through Courts of law and/or administrative agencies. It is not possible to construe the word 'right' as being synonymous with 'wrong'. In case of each petitioner a wrong on the part of statutory functionaries is being pressed into service for claiming the benefit of a legal right in his favour. It cannot be ignored that sustaining of the pleas of the petitioners would have deleterious effect of depriving third parties of their valuable legal right through the process of perpetuating a legal wrong. A person having recourse to the discretionary and equitable Constitutional jurisdiction of this Court cannot reasonably pray to this Court to come to his aid and to grant his desire lo thrive through a strange set of intentional or unintentional errors at the cost of legal right of another individual. In my humble view, the plea of locus poenitentiae is not available to a person in case where the order or the action relied upon may be found to be without jurisdiction or in excess thereof. No rights can be claimed or super structure of rights built upon orders which are void or complete nullities in law. In all the three cases, the petitioners are relying on ill‑gotten wind‑falls as a result of the wrongful acts, errors or accidental or intentional slips on the part of the functionaries of the Punjab Public Service Commission.

11. There is another fatal defect in this writ petition. The petitioners have failed to implead the necessary parties as respondents to the writ petition. These parties are those candidates/doctors who in the process were deprived of their rights and who would be adversly affected as a result of grant of relief to the petitioners. This Court would not condemn those persons behind their back. This is a matter which should have been attended to by the petitioners while instituting the Constitutional petition.

12. After thoroughly examining the facts and circumstances of this case I am of the considered view that this Court ought to exercise judicial restraint and thus refuse to come to the aid of the petitioners to regain an advantage to which they are not entitled either factually, in all fairness, or in law. The result is that this writ petition fails and is hereby dismissed. Since both the parties have been heard at length, it is disposed of as a notice case. There will be, however, no order as to costs. A . A . / A‑509/L Petition dismissed.