2017 PLP (C (PLC(CS))

Through the instant Intra Court Appeal filed under Section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance"), the Appellant has called in question the legality of impugned order dated 16.11.2016 passed in W.P. No.2004/2016 by the learned Single Judge whereby he dismissed the petition filed by the Appellant.

2. The facts, succinctly revealed from this Appeal, are that the Appellant applied for the post of Midwife in the Respondents Department and after fulfilling all the formalities she was called for interview and ultimately she was declared successful candidate but later on she was refused to issue appointment letter. Feeling aggrieved thereby the Appellant filed W.P. No.2004/2016 which was dismissed by the learned Single Judge. Hence, the instant appeal.

3. Learned counsel for the Appellant argued that the impugned order is misconceived and misinterpreted by law; that learned Single Judge while passing the impugned order has altered his earlier order dated 21.04.2016 whereby direction was issued to the Respondents for issuance of her appointment letter; that the impugned order has been passed without keeping in view the earlier order, facts and circumstances; that the appointments of the Respondents Nos.8 and 9 have been made on the basis of political influence and collusion between each others, as such the impugned order is liable to be set aside.

4. On the other hand learned Law Officer vehemently opposed the arguments advanced by the learned counsel for the Appellant and prayed for its dismissal on the grounds that there is no illegality or legal infirmity in the impugned order which has been passed after taking into consideration all the facts, circumstances as well as relevant law, therefore, liable to be upheld.

5. We have heard the arguments of both the sides and examined the record available with this Appeal.

6. The main grievance of the Appellant through the instant appeal is that the impugned order is misconceived and misinterpretation of law as the learned Single Judge firstly disposed of the writ petition vide order dated 21.04.2016 in which a direction was issued to the Respondents to issue appointment letter in favour of the Appellant to the post of Aaya, BPS-5 but later on the case was adjourned to 25.04.2016 but when the case was fixed on 16.11.2016 the learned Single Judge dismissed the petition being devoid of any merits, as such the impugned order is liable to be set aside and the order dated 21.04.2016 should be implemented.

7. From the perusal of the record it reveals that the Appellant applied against 23 posts of Midwife/Community Midwife (BPS-05) but she stood at serial No.76 in the merit list, therefore, the District Recruitment Committee did not appoint the Appellant. The prayer of the Appellant in the writ petition was that she is more qualified and experienced from the Respondents Nos.8 and 9, therefore, instead of them she should have been issued appointment letter but she did not challenge the incorrectness of the merit list or otherwise. The learned Single Judge has rightly observed in the impugned order that the Petitioner never challenged the merit list before any forum till todate.

8. Furthermore, in the matters relating to the appointment of an employee, the apex Court has held that the appointment is not a vested right of an employee rather the Competent Authority is the best judge of necessary features of recruitment procedure and qualification. It is the sole prerogative of the Recruitment Committee to appoint any employee and the Courts usually refrains from substituting their opinion qua the selection of the said Committee particularly where there is no element of mala fide. The Appellant has failed to establish from the record appended with the appeal, any element of mala fide on the part of the Respondents/Department or any political influence while refusing the Appellant for appointment instead of the Respondents Nos.8 and 9, hence the same cannot be held to be illegal.

9. So far as the issue of political influence is concerned, the Appellant remained unsuccessful to prove that any political influence has been made for rejecting the Appellant to the said post. This Court in Shaukat Ali v. Chairman Punjab Local Government Board (1999 PLC (C.S.) 637) held that admittedly, the petitioner is a civil servant. The order impugned in this petition has been passed by the secretary, Local Government, Punjab who is the competent Authority. There is nothing on record to suggest that the said order has been passed at the instance of an politician or a Minister. He is the competent Departmental Authority who has passed this order. The assertion of the petitioner in Paragraph No.9(ii) that the order has been passed under the dictation of a Provincial Minister, has categorically been denied in the comments, filed by the respondents Nos.1 and

2. It is also stated in the comments that the order has been passed due to the exigencies' of service, in public interest, and on administrative grounds. In this view of the matter, when there is nothing on record to suggest to the contrary the order of transfer is presumed to have been passed in public interest due to the exigency of service. Furthermore, the Division Bench in Ghulam Murtaza v. Province of Sindh (2008 PLC (C.S.) 598) held as follows: "the documents placed on the record of this petition clearly prove that the orders were passed by the Secretary, Sindh Local Government Board, and there is no Indication that any Private Secretary to any Minister of anybody else went on seeking illegal orders or he went on misusing his authority to influence his superior officers. In any case, even if such events actually took place, it is a settled principle of law that disputed question of fact cannot be enquired into by this Court in the proceedings of Constitutional petition, and that the petitioner has necessarily to approach the competent forum for the purpose of seeking of enquiry into the allegations as made by him in this petition."

10. As far as the contention of the Appellant that the order dated 21.04.2016 was to be implemented and the impugned order is liable to be set aside is concerned, in this regard it is observed that the order dated 21.04.2016 was not a final order in the writ petition which was then adjourned to the next date and the impugned order dated 16.11.2016 through which the petition filed by the Appellant was dismissed, is the final order, as such the directions passed in the order dated 21.04.2016 cannot be implemented.

11. We agree with the findings of the learned Single Judge who in the impugned order has held that the contention of the learned counsel for the Appellant that the seats of Midwife are still lying vacant in different rural dispensaries and the Appellant may be accommodated in the said dispensaries, is not tenable because without adopting the prescribed procedure under the rules, nobody can be appointed against any vacant post. This Court cannot rescue the Appellant, under its constitutional jurisdiction against a vacant post for which she has not been held to be eligible through a prescribed procedure and this practice must be depreciated as the same would tantamount to deprive the public at large from their lawful right of contesting the said seat without any discrimination. We find no illegality or perversity in the impugned order which has been passed in consonance with the spirit of law and does not warrant any interference by this Division Bench.

12. In view of above facts and circumstances, the instant appeal, being devoid of any force, is hereby dismissed. ZC/H-8/L Appeal dismissed.