2004 PLP 801 (YLR)

Art. 199

Constitutional petition-- Maintainability

Failure of petitioner to point out impugned action to be violative of rules and regulations of Authority would render Constitutional petition non- maintainable. Ali Mir's case 1984 SCMR 433 rel. (e) Mala fide

Allegations of mala fide, if general in nature, would not be sustainable in eyes of law. Saeed Ahmed Khan's case PLD 1974 SC 151 and Aman Ullah's case PLD 1990 SC 1992 rel. Mian Saeed-ud-Din for Petitioner. Muhammad Hanif Khatana, Addl. A.-G. for Respondents Nos. 1 and

2. The petitioner has filed this petition with the following prayer:-- "Under the circumstances, it is most respectfully prayed that by accepting the present Constitutional petition, the impugned order (Annexure-A) may very kindly be set aside and respondents Nos. 1 and 2 may very kindly be directed to fill the vacancy of Elementary School Educator, on contract basis, by making fresh recruitment, while acting strictly in accordance with law. It is further prayed that the impugned order (Annexure-A) may very kindly be suspended, till the final adjudication of the present petition."

2. The learned counsel of the petitioner submits that respondents did not hold the interview and arbitrarily prepared the merit list. He further submits that petitioner secured high marks in the academic side whereas respondent No.3 has secured less marks in the academic side. He further submits that the respondents granted more marks to respondent No.3 in the interview, therefore, action of the respondents is the result of mala fide.

3. The learned Law Officer submits that respondents conducted the interview and other proceedings in good faith and this Court has no jurisdiction to re-evaluate the marks secured by the candidates while exercising power under Article 199 of the Constitution. He further submits that action of the respondents is in accordance with law. He further submits that disputed question of fact cannot be decided by this Court in Constitutional jurisdiction.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. In case the contents of the writ petition and parawise comments are put in juxtaposition then it brings the case of the petitioner in the area of the disputed question of fact and this Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction as the law laid down by the Honourable Supreme Court in Muhammad Younas Khan's case (1993 SCMR 618). It is also settles principle of law that this Court has no jurisdiction to substitute its own findings in place of the findings of the Tribunal below as the law laid down by the Division Bench of this Court in M. Mussaddaq's case (PLD 1973 Lahore 600). It is also settler principle of law that this Court has no jurisdiction to re-evaluate the marks secured by the candidates in the interview held by the respondents as the law laic down by the Honourable Supreme Court in Salma Afroze's case (PLD 1992 SC 263). It is also settled principle of law that qua the maintainability of the Constitutional petition, it is the duty and obligation of the petitioner to point out that the action of the respondents is in violation of the rules and regulations of the respondents but the learned counsel of the petitioner fails to point out any rule and regulation which was violated by the respondents, therefore Constitutional petition is not maintainable in view of the law laid down by the Hon'ble Supreme Court in Ali Mir's case (1984 SCMR 433). It is pertinent to mention her that respondents have only fixed five marks for interview, therefore, contention of the learned counsel of the petitioner that respondents have awarded more marks to respondent No.3 is not sustainable in the eyes of law. The allegations levelled by the petitioner against respondents qua mala fide is not sustainable in the eyes of law being general in nature as the law laid down by the Honourable Supreme Court in the following judgments:-- Saeed Ahmed Khan's case (PLD 1974 SC 151) and Aman Ullah's case (PLD 1990 SC 1092).

6. In view of what has been discussed above, this writ petition has no merit. The petitioner is well within his right to avail proper remedy for resolution of disputed question of fact before the competent Court. With these observations, the writ petition is disposed of. S.A.K./N-381/L Petition dismissed.