2019 PLP (C (PLC(CS)N)

ADNAN-UL-KARIM MEMON, J.

In this Constitution Petition, the Petitioners have prayed for relief(s) reproduced below:-- a) To issue ad-interim order restraining the Respondents not to issue offer letters without conducting written test as per the prescribed law of SPSC, which is also against the spirit of Judgment passed in C.P. No.4814/2017. b) To declare that the viva voce conducted by the Respondents for the selection of APG, without taking written test in view of order 31.07.2017, passed in C.P. No.D-4814/2017 by this Hon'ble Court is null and avoid. c) To direct the Respondent to No.3 to conduct written test to all successful candidates in MCQ's test including the Petitioners and thereafter conduct Viva-Voce, as per the dictum laid down in Judgment in C.P. No.D-4814 of 2017, in the larger interest of Justice and fairy play.

2. Brief facts of the case are that a consolidated Advertisement bearing No. 01/2017 was got published by Respondent No. 3 in daily "Dawn" dated 16.04.2017 inviting online applications for filling up vacant posts in different departments of Government of Sindh including the post of Additional Prosecutor General, Deputy Prosecutor General and Assistant Prosecutor General in Criminal Prosecutor Service, Law Department, Government of Sindh, Petitioners averred that through said advertisement 77 posts of Assistant Prosecutor General (BPS-17) (43 Rural, 30 Urban, 3 minorities and 01 disable) were offered with following qualification and experience: "Law Graduate from a recognized University having at least five (05) years standing at the Bar." Petitioners added that the Respondent No. 3 proceeded/scrutinized and entertained online applications of Petitioners and issued Letters dated 18.07.2017 whereby intimated the Petitioners about pre-interview written test for the post of Assistant Prosecutor General (BPS-17). The Petitioners asserted that instead of pre-interview written test, Petitioners were asked to pass MCQs test in violation of Order dated 31.07.2017 passed in C.P. No.D-4814/2017 by this Court. Petitioners further added that Respondent-Commission was required to conduct written tests first then take interview of successful candidates as per practice of the Commission. But, on the contrary, Petitioners were asked to appear in the viva voce and declared failed by Respondent No. 3 with mala fide intention and ulterior motive. Petitioners being aggrieved by and dissatisfied with said conduct of the Respondent-Commission approached this Court on 11.12.2017 by filing instant petition.

3. This Court vide Order dated 04.12.2017, issued notices to the Respondents but, no comments were filed on their behalf. Learned counsel for the respective parties consented the hearing of the instant Petition at Katcha Peshi stage.

4. Mr. Shahab Sarki, learned counsel for Petitioners has contended that Petitioners applied for the post of Assistant Prosecutor General and letters were issued to them for pre-interview written test. Per learned counsel, the Petitioners cleared written test comprising of MCQs only and were declared successful vide Press Release dated 08.08.2017. He added that the candidates, who applied for the posts of Additional Prosecutor General and Deputy Prosecutor General filed C.P.No.D-4814/2017 and through Order dated 31.07.2017 this Court while relying upon Rules 2(g) and 3 of the Sindh Public Service Commission (Functions) Rules, 1990, held as under:- "With this background we hold that it is required on part of the Respondent No.1 to first hold the written competitive test (not being MCQs) being the least transparent) for the posts advertised and thereafter call the candidates for interview and viva voce if required and considered required by giving the priority as given in the relevant rules". He next contended that as per rules 2(g) and 3 of the Rules, 1990, 'test' includes written examination then Interview and not otherwise. Learned counsel further added that written examination is required to be conducted in all cases and only those students, who pass the written test, are eligible for viva-voce. Per learned counsel the Respondent No.3 called candidates for interview in September and October 2017 respectively as evident from press release dated 08.11.2017 (available as annexure "E" at page-57) with memo of Petition. And, result of interview has not yet been announced by the Respondent No.3 in any newspaper or at their website. He next contended that written test of the Petitioners and other successful candidates was never conducted, however, written test of candidates, who applied for the post of Additional Prosecutor General and Deputy Prosecutor General were conducted because they approached this Court by filling C.P. No. D-4814/2017 and obtained Order of this Court. The Respondent-Commission allowed candidates including Petitioners to participate in the written test for the post of Assistant Prosecutor General. He further asserted that the consolidated Advertisement referred to above for the posts of Additional Prosecutor General and Deputy Prosecutor General as well as Assistant Prosecutor General was published in one and same newspaper and criteria for all the posts was almost same therefore, Petitioners have also been treated unfairly by the Respondent No.3; that this Court may also take the judicial notice against the Respondents and may recall the result of SPSC, which without conducting written examination/written test announced result of APG making the entire exercise unlawful and null and void. He next added that Petitioners are candidates for the post of Assistant Prosecutor General (BPS-17) and the conduct of Respondents is against the fundamental rights of the Petitioners as envisaged in the Constitution.

5. Mr. Abid S. Zuberi, learned counsel for the Respondents Nos.4, 8, 9, 10, 12, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 28, 29, 31, 33, 36, 38, 39, 40, 49, 50, 53, 54, 58, 60, 62, 67, 69, 70, 71, 72, 74, 75, 76, 77, 78 and 79 has argued that the instant petition is not maintainable under Article 199 of the Constitution of Islamic Republic of Pakistan. He next contended that the Petitioners have filed the instant petition just after the announcement of result, wherein they appeared and failed. Learned counsel further added that the Petitioners have availed the opportunity by appearing in the test without objection at the relevant time, thus not entitled to call into question the candidature of the Respondents, who have succeeded in the competitive process for the appointment of Assistant Prosecutor General, Sindh. He next contended that the Petitioners have failed to establish any malice on part of the interview committee thus, no illegality has been established to warrant interference by this Court in its Constitutional Jurisdiction; that the Petitioners having participated in the test and declared fail in interview are not entitled for appointment; that Petitioners have not approached this Court with clean hands therefore, not entitled to any discretionary relief. It is further contended that by participating in selection process without protest of any kind the Petitioners have waived their right to raise objection therefore, the writ petition is not maintainable. Learned counsel in support of his contentions has relied upon the case of Abdul Saboor v. Vice-Chancellor Karachi University and another (PLD 2011 Karachi 357), Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCMR 960), Asif Mehmood Chughtai Advocate and 17 others v. Government of Punjab and others (2000 SCMR 966), Muhammad Waqas v. Azad Government of the State of Jammu and Kashmir and 3 others (2013 PLC (C.S.) 1165), Mst. Basharat Jehan v. Director General Federal Government Education and others (2015 SCMR 1418) and Loretta Iqbal and 33 others v. Province of Sindh and 2 others (2017 PLC (C.S.) 1033).

6. Mr. Aziz Ahmed, Advocate for Respondents Nos. 59, 66 and 64, Mr. Pervez Ahmed Memon, learned counsel for Respondents Nos. 5, 35, 37 and 44, Mr. S.M. Imran Alvi, learned counsel for Respondent No.41, Mr. Qurban Ali Malano, learned counsel for Respondents Nos.11, 13, 25, 30, 46, 47 and 68 and Mr. Muhammad Habib Jalib, learned counsel for Respondent No.45 have adopted the arguments advanced by Mr. Abid S. Zuberi, Advocate.

7. Mr. Abdul Jalil Zubedi, learned Assistant Advocate General, Sindh, representing the Respondent No.1 as well as Muhammad Yousuf Alvi, Law Officer of SPSC, while adopting arguments of Mr. Abid. S. Zuberi, Advocate contended that the entire competitive process conducted by the Sindh Public Service Commission is in accordance with law and no illegality and irregularity has been pointed out by the Petitioners to seek indulgence of this Court. They lastly prayed for dismissal of the instant petition.

8. We have heard learned counsel for the parties and have perused the material available on record as well as case law cited at the bar.

9. We first decide objection of maintainability of Petition raised by the Respondents as to whether Petitioners are aggrieved party under Article 199 of the Constitution? And, whether petitioners, in such circumstances can invoke Constitutional jurisdiction of this Court?

10. For ready reference Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced below: "A High Court may if it is satisfied that no other adequate remedy is provided by law:- (a) On the application of any aggrieved party make an order- (i) Directing ... (ii) Declaring ..."

11. The above referred Article lays emphasis on the absence of adequate remedy under the law to the person, who is aggrieved. In line with the said proposition of law, the learned counsel for the Petitioners could not advance any convincing reasons to establish that the Petitioners are aggrieved to approach this Court under Article 199 of the Constitution. Entire claim of the Petitioners as asserted by them is that the SPSC has violated Order dated 31.07.2017 passed by this Court in C.P. No. D-4814 of 2017 under which the Respondent-Commission was required to hold written competitive test and not MCQs test. This assertion of the Petitioners is misconceived in view of Rules 2(g) and 3 of Sindh Public Service Commission (Functions) Rules, 1990 reproduced below: "Rule 2(g) "Test" includes either one or more from amongst the following as determined by the Commission. (a) Written examination. (b) Interview (c) Viva voce Rule 3 "Provided that written competitive examination shall be conducted in all cases in which such examination has been prescribed as the method of recruitment and the viva-voce shall be held only of those candidates who qualify in the written examination."

12. Bare perusal of Rules 2(g) and 3 of Rules, 1990 (supra) explicitly show that SPSC has to hold examination in three forms/ methods that is, (i) Written Examination, (ii) Interview (iii) Viva voce which shall be determined by SPSC. 13 We have noted that all candidates including Petitioners participated without protest in MCQs which is a part of test determined by the Commission. Record reflects that Petitioners failed to qualify the test/ MCQs for the position of Assistant Prosecutor General BPS-17.

14. As per Press Release dated 08.12.2017 issued by the Commission, private Respondents were declared successful candidates and Petitioners have no locus standi to call into question the result announced by SPSC.

15. The plea taken by the Petitioners that this Court has observed that written test is more transparent and not MCQs is also against Rules 2(g) and 3 of SPSC (Functions) Rules, 1990.

16. We do not find any illegality in the process initiated by the SPSC for the post of Assistant Prosecutor General BPS-17 secondly, the Petitioners are not aggrieved and have no locu standi to agitate the matter before this Court in Constitution jurisdiction.

17. In result of foregoing discussion, we do not find any merit in the instant Petition, which is hereby dismissed along with list, application.

18. These are the reasons of our short Order dated 14.12.2017 whereby we dismissed the instant petition along with listed application. MH/F-7/Sindh Petition dismissed.