2023 PLP (C (PLC(CS)N)

ABDUL HAMEED BALOCH, J.

Through this common judgment we intend to dispose of the Constitutional Petitions Nos. 91 and 188 of 2018, as both the petitions are arising out of the same subject matter, wherein the petitioners in both the petitions prayed as under: " It is, therefore, respectfully prayed that the Hon 'Me Court may graciously be pleased to: a) Declare that withholding the appointment orders of the petitioners, despite of qualifying/successfully passing the recruitment process, is illegal and unlawful. b) Declare that withholding the appointment orders of the petitioners is against the decision passed in Provincial Cabinet Meeting held on 24th January, 2018. c) Direct the respondents to place on record the merit list, prepared by the respondents, and subsequently be directed to issue appointment orders in favour of the successful candidates i.e. the petitioners against their applied posts. d) Any other relief which this Hon'ble Court deems fit and proper may also be awarded, in the interest of justice, equity and fair play."

2. Brief facts of the case are that the Livestock and Dairy Development Department Balochistan through Advertisement dated 05.12.2014 in newspaper invited applications for various posts from eligible candidates of different districts of the province; that pursuant to the said advertisement the petitioners applied for the post of Stock Assistant, meanwhile the recruitment process was canceled and the respondents again advertised the vacant posts while inviting applications from the eligible candidates vide advertisement dated 03.08.2015, thereafter for the third time the publication was made in daily newspaper dated 04.02.2017. The petitioners applied and appeared in the test and qualified the same, whereafter the respondents through newspaper called the petitioners for interview, but despite lapse of considerable period, no merit list or appointment order were issued; that a provincial cabinet meeting was nets on 24th January, 2018 wherein the cabinet passed the following decision: i. The appointment made in different department during period from 2nd to 12th January, 2008 by the previous government and report be submitted to the Provincial Cabinet in the next meeting. ii. It was also decided that the process of recruitment in all department shall be expedited and completed without further delay. iii. The provincial cabinet would monitor the recruitment process in the department. All secretaries would submit progress report regarding the recruitment in the respective department to the cabinet during its weekly meetings. That the petitioners time and again approached the respondents for redressal of their grievances, but in vain, as such the petitioners have left with no other option but to invoke the jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by filing the instant petitions with the prayer as mentioned above.

3. On court notice the respondents Nos. 2 and 3 filed pars-wise comments along with merit list of the candidates, stating therein that the appointment of the successful candidates has already been made.

4. We have heard the learned counsel for the petitioners and learned AAG at reasonable length and perused the documents appended with memo of petition. The perusal of record reveals that the respondents through advertisement in newspaper dated 05.12.2014 invited applications for various posts from eligible candidates of different districts of the province, whereupon the petitioners applied for the vacant posts as mentioned above, however later on the same was canceled and again advertised, but then met with the same fat and finally third time applications were invited against the posts of Stock Assistant (BPS-06), The petitioners were called for appearance in the written test. The petitioners appeared in the test and qualified the same as per the merit list displayed by the respondents at notice board of the department. Vide advertisement dated 15.11.2017 the successful candidates were called for interview. The petitioners appeared in the interview on the schedule date as mentioned in the publication dated 15.11.2017.

5. On court notice the respondents No.2 and 3 filed para-wise comments. On 25-6-2020 learned A.A.G. along with Dr. Jaffar Durani, representative of livestock department submitted minutes of the meeting along with list of the candidates who were appointment. The learned AAG and the representative made a statement that as per the minutes of the meetings the appointment of the successful candidates has already been made. On 16,07.2020 learned AAG along with representative stated that the grievance of the petitioners has accordingly been redressed and four of them have been appointed on the subject posts, while the rest are failed. The perusal of list provided by the respondents reveals that the petitioners in CP No.91 of 2018 namely Muhammad Ismail, Najibullah, Naseebullah and Samar Khan have been appointed while rest of the petitioners have failed to qualify, whereas the petitioners in CP No.188 of 2018 have also failed to qualify.

6. The petitioners' grievance is that the respondents have not displayed the merit list of successful candidate who appeared in the test and interview, whereas the respondents submitted the list and made categorical statement that the successful candidates have been appointed. In constitutional jurisdiction the court cannot go into the factual controversy, and factual controversy cannot be resolved without obtaining evidence.

7. On the basis of available record including the pare-wise comments of the department, we are of the view that mere appearing in the interview does not bestow the right to the candidate to be appointed rather judging the qualification of the candidate rest with the appointing authority. Reliance can be made to the case of 2005 SCMR 445 Asdullah Mangi v. Pakistan International Airlines Corporation, whereby the Hon'ble Supreme Court held as under: "It hardly needs any elaboration that assessment I of suitability for appointment being subjective assessment exclusively falls within the jurisdictional domain of appointing authority which cannot be compelled to make any appointment. The exercise of discretion, if it is fair and transparent cannot be justiciable in the absence of any mala fide which though was alleged but could not be substantiated by producing any cogent and concrete evidence. We are conscious of the fact, as it is a well-entrenched legal proposition that an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no I ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner. The State v. Zia-ur-Rehman PLD 1973 SC 49 and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14". As mentioned hereinabove, the action taken by the P.LA.C. neither can be considered as mala fide nor discriminatory as cogent reasons have been given by the P.LA.C. for non-induction of the appellants which have been discussed in preceding paragraphs. There is no violation of the provisions as contained in Article 25 of the Constitution of Islamic Republic of Pakistan as "equality of citizens" does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical, treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by, reason of birth, creed -or the like and also equal subjection of all individuals and classes to the ordinary law of the land" " Gul Khan v. Government of Balochistan PLD 1989 Quetta

8. In fact the provisions contained in Article 25 would not be applicable as P.I.A.C. being autonomous corporation cannot be forced to make employment which K otherwise is not in the interest of corporation or has adverse effects on its commercial position." In view of above discussion since the merit list has already been issued therefore both the petitions having become borne fruit are disposed of. SA/232/Bal. Order accordingly.