2015 PLP (C (PLC(CS))

MUHAMMAD EJAZ SWATI, J.

The Balochistan Public Service Commission vide advertisement dated 4th March 2014 had advertised certain posts in Health Department, to be filled in, including that of seventy five posts of Pharmacists/Drug Analyst (B-17) and 10 posts of Drug Inspector (B-17) in daily "Jang", Quetta hereinafter the said "posts"). The closing date for receipt of applications was 7th April, 2014.

2. The grievance of the petitioners is that their results of Pharm-D final profession was announced on 12th April, 2014, therefore, they could not apply by submitting their applications by 7th April, 2014 which was the last date for submitting applications for the said posts. After announcement of their result, they approached Vice-Chancellor University of Balochistan, Quetta who vide letter dated 9th April, 2014, addressed to Chairman Balochistan Public Service Commission explained the reasons therein that the petitioners could not apply for the said posts and requested that reasonable extension may be granted enabling them to submit their respective applications after the date mentioned in the advertisement, but to no avail, hence this petition.

3. The learned counsel for the petitioners contended that the respondent No.2 was under a legal obligation to extend the date for submission of applications so that the petitioners could be accommodated and that fixing a date for submission of application has no statutory backing, therefore, the date should be extended till the petitioners results' are announced. He further cited an example that in 2010 when last date for receipt of applications was extended by the respondent No.2.

4. Heard the learned counsel for the petitioners and perused the record appended along with the petition and the relevant law. The advertisement-in-question was published on 9th March, 2014, and the closing date for receipt of applications was 7th April, 2014. The advertisement in question provides that the application form was to be obtained by depositing fee of one thousand rupees for BPS-19, rupees five hundred for BPS-18 and rupees 300 for BPS-17 and BPS-16 through the prescribed challan in the scheduled Bank. The petitioners, however, did not deposit the prescribed fee through challan nor submitted applications to substantiate their bona fide claim for the extension of the date. The petitioners also did not place on record the referred to instance of 2010 whereby last date for receipt of applications was extended by the respondents. Admittedly, the petitioners did not submit applications applying for the said posts. The inaction of the petitioners due to purported late announcement of their result is of no avail in the present circumstances of the case. The date of submission of applications was 7th April, 2014, the petitioners could have appending their qualification subsequently, but before the test/interview took place but this was not done either. Reference may be made to the case of Habibur Rehman v. Government of Pakistan, 1979 SCMR 121, wherein the apex Court held as under:

"It is true that the Orakzai Agency had been created by the date when this respondent had filed his application form, therefore, he should have obtained a fresh certificate of domicile from the Political Agent, Orakzai Agency, and he did so by February, 1978. But merely because this certificate was produced after the prescribed date for interviewing candidates from this Agency would not mean that the fourth respondent was debarred from applying for admission if he was otherwise so entitled to do, provided the certificate was produced before the authorities announced the list of candidates granted admission. And, as the fourth respondent admittedly obtained the correct certificate a month before the Government announced the list of successful candidates, nothing turns on the fact that he produced a correct certificate at least in the absence of some mandatory provisions to the contrary, and no such provision has been produced before us."

5. The contention of the learned counsel for the petitioners that the fixation of date by the respondent No.2 for submission of application form was neither absolute nor having any legal implication is not tenable. It is the prerogative of the respondents to fix the date and this fact brings the case in the area of policy having statutory backing, therefore, the constitutional petition is not maintainable. In arriving to this conclusion, we are fortified by the dictum laid down in the case of Dr. Haq Nawaz v. Balochistan Public Service Commission through Chairman, 1996 CLC 58, wherein it was held as under:

"We are afraid the contention so raised by learned counsel, has no force, because the Commission has been assigned function under Act, 1978 to manage the examination through tests or interviews, in respect of posts which are required to be filled up by the Provincial Government through Public Service Commission, therefore, in fixing the schedule of written examination or interview or calling applications up to a particular date, the Commission performs a statutory function under the relevant provisions of the Act and Rules. Thus, we have to examine whether submitting applications by private persons (candidates) on or before a particular date, creates a statutory obligation upon them to do so or otherwise. It is a settled principle of interpretation that where time is essence to do a particular thing and on the basis whereof a right has been claimed, the provisions would be of mandatory in its nature and if no right is claimed the provisions would be non-mandatory. In this behalf it would be appropriate to refer the Interpretation of Statutes by Bindra (7th Edition, 1984) page 678 wherein while discussing the effect of direction to do a particular thing within a specified time, reference was made to Corpus Juris Secundum, Vol. 59 at pages 1078 and 1079. Relevant portion concerning the disposal of instant case from Corpus Juris, for convenience is reproduced herein below:

"As a general proposition, the rule with respect to statutory directions to individuals is the opposite of that which obtains with respect of public officers. When a statute directs things to be done by a private person within a specified time and makes his rights depend on proper performance thereof, unless the failure to perform in time may injure the public or individuals, the statute is mandatory. When an individual is the person not complying, failure to complete required steps within the time specified is fatal to the case." The learned counsel for the petitioners has failed to point out the violation of any rule or regulation or alleged any malice against the respondents, which would be a condition precedent with regard to the maintainability of this constitutional petition under Article 199 of the Constitution. In view of the above, this petition is dismissed in limine. AG/73/Bal. Petition dismissed.