2018 PLP (C (PLC(CS)N)

JAWAD HASSAN, J.

Through the instant Constitutional petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has impugned order dated 15.11.2016 (the "Impugned Order") passed by the Respondent No.1 whereby his representation has been dismissed and also sought a direction to the Respondents for issuance of his appointment letter.

2. The facts, tersely revealed from the petition, are that in the year 1995 the Petitioner obtained diploma of Medical Health Technician from the Punjab Health Department. The Respondents Department advertised 14 posts of Medical Health Technicians along with other vacancies for which the required qualification was F.Sc. Pre-Medical with diploma in Medical Health Technician and in pursuance of which the Petitioner and others applied for the said post but their applications were not entertained by the Respondent No.3 whereupon the Petitioner filed W.P. No.5843/2008 (the "First Writ Petition") and some other candidates also filed W.P. No.6629/2008 in which it was ordered for the entertainment of Petitioner's Application provisionally. On passing the judgment in W.P. No.1962/2006 by this Court, the Department re-advertised the posts of Medical Health Technician with the requisite qualification of Matric with Science along with diploma of Medical Health Technician. Feeling aggrieved by the age limit in the said re-advertisement the Petitioner and others filed C.M. No.2642/2011 in W.P. No.5843/2008 on the ground that due to constant ban on the recruitments and enhancement of qualification for the post of Medical Health Technician, was entertained provisionally as per order dated 01.06.2011. Thereafter, both the abovementioned writ petitions i.e. W.Ps. Nos.5843/2008 and 6629/2008 were disposed of with the direction to the Respondents to decide the applications of the Petitioner and others whereupon the Respondent No.3 issued appointment letter to the Respondent No.4 instead of issuing appointment letter to the Petitioner and the Petitioner's case was referred for further guidelines. Being dissatisfied from that, the Petitioner filed W.P. No.8027/2016 (the "Second Writ Petition") which was disposed of with the direction to the Respondent No.1 to decide the representation of the Petitioner but the same was decided on filing the Crl. Orgl. No.917-W/2016 by the Petitioner vide the impugned order dated 15.11.2016. Hence, this petition.

3. In pursuance of order of this Court dated 10.01.2017, the Respondents filed report and parawise comments denying all the allegations levelled in the petition and prayed for dismissal of the petition.

4. Learned counsel for the Petitioner submitted that the impugned order has been passed in contravention of the order passed by this Court in W.P. No.827/2016 dated 03.05.2016; that the Petitioner has been treated with discrimination as the Respondent No.4 has been issued appointment letter but the case of the Petitioner, which is at par with the case of Respondent No.4, has been forwarded for further guidelines; that while deciding the Application of the Petitioner, the Respondent Authority has ignored the issue of age limits as at the time of obtaining diploma he was eligible for the post but due to ban on recruitments, the Petitioner has become overage; that the Respondents have relaxed the upper age limit of other candidate but the Petitioner has been denied of the same; that the Petitioner has become overage due to the circumstances beyond his control, as such relaxation in upper age limited should have been granted to the Petitioner; that some posts of Medical Health Technician are vacant but the Department with ulterior motive is not appointing the Petitioner. In support of his contentions learned counsel has placed reliance on the case tilted Mst. Basharat Jehan v. Director-General Federal Government Education, FGEI (C/Q) Rawalpindi and others (2015 SCMR 1418) and Muhammad Shahab v. Government of Khyber Pakhtunkhwa through Secretary, Health, Peshawar and 2 others (2013 PLC (C.S.) 712).

5. On the other hand, learned counsel for the Respondents controverted the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the petition on the grounds that the Petitioner was over age, therefore, has been ousted from the recruitment process; that no discriminatory attitude has been adopted towards the Petitioner as the Respondent No.4, who has been issued appointment letter, was not overage rather under the age limit of 35 years.

6. I have heard the arguments of both the sides and perused the record minutely.

7. Basically, the Petitioner is aggrieved by the impugned order of the Respondent No.1 dated 15.11.2016 passed on the direction of this Court in W.P. No.8027/2016 vide order dated 30.05.2016. The said writ petition was disposed of with the direction to the Respondent No.1 to decide the representation of the Petitioner after affording him opportunity of hearing in accordance with law. The perusal of the impugned order reveals that the same has been passed in detail, containing all the contentions of the Petitioner and after providing full opportunity of hearing to the Petitioner. The Respondent No.1 while passing the impugned order has dismissed the representation of the Petitioner on the grounds that he challenged the amendment in Service Rules after five (5) years and mainly that he has become overage, reaching at the age of about 46 years, therefore, not eligible for the appointment of Medical Health Technician under the Law, Rules and Policies. The impugned order also mentioned that the case of the Petitioner is distinguishable from the case of one Khurshid Ahmed as after uplifting of ban EDO (H) Layyah advertised the post of Health Technician number of times, as such direction of the Ombudsman does not apply to the case of the Petitioner.

8. The perusal of report and parawise comments, filed on behalf of the Respondents, depicts that as per the Notification of Services and General Administration Department Lahore dated 06.10.2003, copy of which is attached with the comments, age of candidate should be 21 to 30 years and five (5) years relaxation so for 30 to 35 years but the Petitioner has crossed the limit by that time. Meaning thereby, the Petitioner was denied appointment on the basis of being overage in accordance with law. The Respondents Authority cannot be compelled to give undue favour in shape of relaxation of upper age limit of the Petitioner against their Rules and Regulations. In this regard reliance can be placed on the case titled Muhammad Nazir Khan v. Government of the Punjab (1997 CLC 354) wherein this Court held as under: "Punjab Public Service Commission being statutory body owed its constitution to Punjab Public Service Commission Ordinance, 1978 and was required to perform its functions and regulate its procedure within ambit of law and rules framed thereunder. The Regulations and decisions meant for internal working must also conform to authority prescribed by law. All statutory bodies and functionaries were under obligation to act in accordance with law and relevant rules; any deviation from such law or rules would render their acts without lawful authority so as to attract power of judicial review." Moreover, the perusal of order dated 30.05.2016 passed by this Court in W.P. No.8027/2016 explicitly shows that a direction to the Respondents was issued to decide the representation of the Petitioner strictly in accordance with law, so, when the Petitioner has been rejected in pursuance of above referred Notification on the basis of overage, it cannot be said that the representation has been decided in contravention of the directions of this Court. The grounds taken by the Petitioner for relaxation of upper age limit cannot be considered to be a valid ground. Moreover, it is noticed that while deciding the Representation of the Petitioner, he has been afforded proper opportunity of personal hearing.

9. Furthermore, the contention of discrimination of the Petitioner also does not support him as the Petitioner was overage whereas Respondent No.4 was under the limit of age, as such the case of the Petitioner cannot be said to be at par with that of the Respondent No.4. The Petitioner has failed to establish from the record appended with the petition, any element of ulterior motive, as alleged by the Petitioner, on the part of the Respondents/Department while refusing the Petitioner's appointment, hence the impugned order cannot be held to be illegal to the extent of the Petitioner.

10. So far as the contention of the learned counsel for the Petitioner that some posts of Medical Health Technician are vacant and the Petitioner can be appointed/accommodated on one of the same is not instructive. It is a settled law that without adopting proper procedure under the law, not even a single post can be filled just to accommodate a person who is otherwise not eligible for the said post. In the case cited by the learned counsel for the Petitioner the appointment orders had been issued to the individual but in the present case the Petitioner has been denied appointment due to being overage, as such the case laws relied upon by the learned counsel for the Petitioner are distinguishable from the case in hand as each and every case has its own facts and circumstances, therefore, do not support him.

11. In view of above facts, circumstances and case law, there is no illegality in the impugned order to the extent of the Petitioner. When the Petitioner has become overage, therefore, the Department cannot be compelled to go beyond their Rules, Regulations and Policies and that too this Court cannot rescue any person for the enforcement of any right of which he is not entitled.

12. For what has been discussed above, the instant petition, being devoid of any force, is hereby dismissed. MH/M-162/L Petition dismissed.