Judicial Review

Allocation/enhancement of quota for private wheat grinding in pursuance of executive summary and its approval in violation of Food Policy, 2022 (Policy) was assailed by the appellants through separate writ petitions

Suspension of Policy by High Court during pendency of related writ petitions in another writ petition filed by private respondent

Failure of appellants to challenge such suspension of Policy

Effect

Principles of acquiescence and estoppel

Applicability

Unnotified summary and its approval

Legality

Contention of appellants was that High Court was not justified in suspending the Policy

Validity

Appellants did not assail the said suspension order either by seeking its recall before same forum or by filing appeal or PLA before Supreme Court

In view of such acquiescence and failure to seek reversal through due process, appellants were estopped from raising objections at belated stage, and contention that High Court was not justified in suspending the Policy was devoid of legal merit

Until an executive summary or decision is formally notified and acted upon, it does not acquire binding legal effect or create enforceable rights or liabilities

Mere approval by competent authority without proper notification or implementation does not confer legal sanctity, and internal executive communications or summaries lacking formal notification cannot be basis for judicial interference unless they culminate in concrete executive action

Formulation, modification, or rescission of a policy is exclusive prerogative of executive authority, to be exercised in light of prevailing circumstances and administrative exigencies, and judiciary does not ordinarily interfere in policy matters unless they are patently illegal, arbitrary, or in violation of fundamental rights

Government, in exercise of its lawful executive authority, constituted a committee to review the Policy and High Court, in absence of any demonstrated illegality, rightly refrained from interfering in policy domain

Appellants failed to point out any jurisdictional error, legal infirmity, or misapplication of law in judgments of High Court to justify interference by Supreme Court in its appellate jurisdiction

Civil Appeals were dismissed, in circumstances.

It is not the constitutional mandate of the courts to run and manage the public or private institutions at micro level or to interfere in their internal policy and administrative affairs

Courts should generally refrain from interfering in the policy decisions taken by the statutory bodies and authorities tasked with running the matters of educational institutions, which otherwise require technical and professional expertise that may only be attained as a result of specialization and experience of working with the educational institutions, but the courts can interfere in a case, where grave injustice has done, which we believe is not available in the instant case.

In English law, even if provisions of relevant law provides that the decision maker "shall not be required to assign any reason" yet such provisions does not prevent the Court to exercise its power of judicial review on the usual traditional grounds; the fact that the decision is not subject to appeal or review does not affect the obligation of the decision maker to be fair

Thus, under English Law, though there is no general duty to give reasons, however, it can be seen that the position has been evolving to cast a more expansive duty on decision makers to accord reasons for their decisions

Yet it cannot be said that there is a duty in all cases to do so

Of course, the position under English law is distinguishable from our law because in Pakistan as by virtue of S.24A of General Clauses Act, 1897 , this duty has been accorded statutory recognition and thus would necessarily make it of a wider import than under English law.

The requirement to give reasons for a decision has been expanded by increasing the scope of judicial review of administrative decisions

What started as a mere exception (that of providing reasons for a decision) has now replaced the established proposition which stated that reasons need notbe afforded for administrative decisions

Said development has been brought about through various judicial pronouncements in India and other foreign jurisdictions

A right to reasoned decision has become, over time, to be an indispensable part of a system based on judicial review and is considered to be an integral part of fairness and justice now

Notably, the requirement to give reasons has advantages and the necessary disadvantages associated with it

However, the advantages clearly outweigh the disadvantages of such a requirement, and as such the requirement is deemed to be an essential part of any system of law

In India, there is no specific statute governing such administrative decisions, the general rule is that a purely administrative authority has no requirement to state reasons for its actions or the determination it has reached

However, to establish the balance between claims of individual justice and administrative flexibility, the courts in India have grafted exceptions to this rule, observing that an administrative authority shall record and furnish reasons for its decisions; one, where the body is quasi-judicial; two, where the decision would affect the civil rights of the individual; three, by bringing such decisions within the purview of judicial review and lastly, four, by incorporating the requirement of reasons to be an integral part of principles of natural justice

Thus, in India, an administrative body is required to give reasons for its decision based on the broad heads of grounds namely, statutory and constitutional perspective and vision of reasoned decision as a facet of natural justice.

It is hard to see how the High Courts can fulfill their judicial review responsibility under Art. 199 of the Constitution, which is a responsibility to see that public authorities keep within the limits of their authority and act lawfully, unless the decisions impugned before the High Court(s) contain the reasons for them

Thus, the impugned order being devoid of any reasons, having been issued without an opportunity of hearing, which could not withstand any test of due process and administration of justice

High Court set-aside the impugned order with the result that the Show-Cause Notices issued on the basis of the impugned order were declared bad in law and of no legal effect

Constitutional petition, filed by Company / Registered Person, was allowed accordingly.

Every order passed by an authority has to be reasonable and High Court can interfere and set aside an order on the ground of unreasonableness if it is flawed.

Considerations approved by Supreme Court highlighted and relied upon by the High Court.

A foreign accused who was in custody of Pakistani authorities on the charges of espionage and terrorism, for his release of whom, International Court of Justice was approached, could invoke the jurisdiction of High Court under Art.199, against death sentence handed down against him by the Field General Court martial, appeal against which was rejected by the appellate court.

Courts adopt liberal and pragmatic approach, sustaining legislation where its substance lies within competence.

In fiscal and regulatory matters, especially, Courts accord the Legislature a wide margin of appreciation, recognizing that economic policy involves complex assessments not suited to judicial substitution

Court intervenes only where the infringement is manifest, irreconcilable, and substantial.

Petitioner assailed vires of amendment introduced through Finance Act, 2023, whereby S.156 of Customs Act, 1969 was amended and minimum quantum of penalty for release of certain goods was enhanced

Validity

Question of legislative competence in fiscal matters must be examined within Constitutional framework that governs distribution and exercise of taxing powers in Pakistan

Constitution does not treat taxation as an incidental authority; rather, recognizes it as an essential attribute of sovereignty, subject only to Constitutional limitations

Fiscal and economic regulation lies within policy domain of the Legislature

Determination of rate, structure, and deterrent effect of penalties involves complex considerations of public interest, revenue protection, and regulatory discipline

Judicial review does not extend to reassessing wisdom or severity of such measures, so long as they are enacted within Constitutional competence and do not infringe specific Constitutional prohibition

Comprehensive appellate framework has been provided in Customs Act, 1969 against adjudication orders, including those relating to penalty

Petitioners had the opportunity to contest imposition and application of amended provision before competent authority and, if aggrieved, to pursue appeals provided by law

Statutory forum was fully competent to interpret amended provision, examine its applicability to the cases of petitioners and determine the extent of liability

By directly invoking Art. 199 of the Constitution, petitioner had sought to bypass such structured mechanism

In the absence of circumstances demonstrating that statutory remedy was inadequate, inefficacious, or illusory or that action in question was patently without jurisdiction, High Court would be slow to exercise its extraordinary jurisdiction

Principle that Constitutional relief was not available where an adequate alternate remedy existed was not merely procedural, it was a doctrine rooted in Constitutional balance, institutional propriety and orderly administration of justice

High Court in exercise of Constitutional jurisdiction declined to interfere in the amendment as the same did not suffer from any constitutional defect

Constitutional petition was dismissed, in circumstances.

High Court cannot and should not in the exercise of judicial review close its eyes if there is institutionalized manipulation apparent on the face of the record.

Appellant/Pakistan Electronic Media Regulatory Authority (PEMRA) assailed order passed by Judge in Chambers of High Court declaring R. 9(5) of Pakistan Electronic Media Regulatory Authority Rules, 2009 ultra vires, to the extent that it required PEMRA to seek security clearance for an applicant prior to grant of license

Validity

Security clearance prior to issuance of license, is not inconsistent with Pakistan Electronic Media Regulatory Authority Ordinance, 2002 rather it facilitates the Authority to conclude suitability of any applicant in respect of national security and falls within the scope of General Delegation of power under S. 39 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002

It was within the dominion of High Court to exercise its power of judicial review to evaluate and weigh upon legislative and executive actions in order to maintain and sustain rule of law, to check and balance and render null and void an unlawful action or decision, and with the same spirit and frame of mind, the Court may also invalidate and strike down laws, acts, and governmental actions if found unlawful and beyond the scope of power and jurisdiction

Judicial review can be sought if decision maker was misdirected in terms of law, exercised a power wrongly, or improperly purported to exercise a power that it did not have, which is known as acting ultra vires

Provision of R. 9(5) of Pakistan Electronic Media Regulatory Authority Rules, 2009 was intra vires Pakistan Electronic Media Regulatory Authority Ordinance, 2002

High Court directed that Authority and other instrumentalities of the State would ensure fairness and equality while dealing with matters avoiding any discrimination

Division Bench of High Court set aside order passed by Judge in Chambers of High Court

Intra-Court Appeal was allowed accordingly.

As guardians and protectors of the Constitution, High Courts possess, under Article 8 read along with Article 199(1)(c) of the Constitution, the authority to scrutinize legislation on the touchstone of fundamental rights

Even in situations where no specific fundamental right is directly involved, this does not divest High Courts of the power to invalidate legislation that is ultra vires; they continue to hold, under the Constitutional scheme, the inherent authority to declare law ultra vires, if it is in conflict with any provision of the Constitution, directly or indirectly.

Under common law, remedy of judicial review through writ jurisdiction is also not available in presence of adequate alternate remedy and this principle has been settled by the English Courts

It is settled there that remedy by way of judicial review should be treated only as a remedy of last resort and should only be used in exceptional circumstances when other remedies, which could provide efficacious redressal, have been properly exhausted by a litigant.

Implementing and enforcing laws in right dimensions represents unfeigned strategy through which government authorities put laws into action for effective and meaningful compliance under their beneficiaries

Effectual and proficient implementation of law is not only essential for maintaining order but it also guarantees justice, evenhandedness and equality in society with impartiality

Tool of judicial review is also a significant modus operandi that authorizes Courts to dwell on legislative competence, the Constitutionality of law and executive actions, to analyze whether the law aligns with Constitutional mandates and whether its implementation is fair and just, without any arbitrariness or discrimination

This is necessary for safeguarding and upholding rights of people as a key element in strengthening rule of law.

High Court, while exercising its powers of judicial review with respect to orders passed by Courts or Tribunals, should not substitute its own findings for those of such Courts or Tribunals.

Family Court decreed the suit in favour of respondent/ex-wife to recover gold jewellery and fixed maintenance allowance at Rs.3000/- per month

Lower Appellate Court modified judgment and decree and did not find respondent/ex-wife entitled to recover gold jewellery

High Court in exercise of Constitutional jurisdiction enhanced quantum of maintenance allowance to Rs. 10,000/- per month and also found her entitled to recover gold jewellery

Validity

High Court referred to testimony of 14 witnesses in holding that respondent/ex-wife was kept in her parents' house without maintenance, and that this would entitle her to a higher quantum of maintenance than that granted to her by the Courts below

High Court was well within its rights to have partially set-aside judgment and decree of Lower Appellate Court but should have remanded the matter to Lower Appellate Court for a decision in the light of observations of High Court

Supreme Court set aside finding of High Court whereby it substituted its findings with those of Lower Appellate Court

Supreme Court maintained decision of High Court to issue a writ of certiorari with respect to judgment and decree passed by Lower Appellate Court and remanded the matter to Lower Appellate Court to decide the appeal (on the question whether respondent/ex-wife was entitled to recovery of 04 tolas of gold ornaments and a higher quantum of maintenance) in the light of observations made by High Court

Appeal was allowed.

Court under power of judicial review of governmental policy can neither act or represent itself as an appellate authority with the aim of scrutinizing rightness or aptness of a policy nor may it act as an advisor to the executives on matters of policy which they are entitled to formulate

However, judicial review can be sought when a decision-maker fails to observe statutory procedures; misdirects itself in law; exercises a power wrongly; improperly purports to exercise a power that it does not have; or the policy decision was so unreasonable that no reasonable authority could ever have come to it.

Implementing and enforcing laws in right dimensions represents unfeigned strategy through which government authorities put laws into action for effective and meaningful compliance under their beneficiaries

Effectual and proficient implementation of law is not only essential for maintaining order but it also guarantees justice, evenhandedness and equality in society with impartiality

Tool of judicial review is also a significant modus operandi that authorizes Courts to dwell on legislative competence, the Constitutionality of law and executive actions, to analyze whether the law aligns with Constitutional mandates and whether its implementation is fair and just, without any arbitrariness or discrimination

This is necessary for safeguarding and upholding rights of people as a key element in strengthening rule of law.

Court under power of judicial review of governmental policy can neither act or represent itself as an appellate authority with the aim of scrutinizing rightness or aptness of a policy nor may it act as an advisor to the executives on matters of policy which they are entitled to formulate

However, judicial review can be sought when a decision-maker fails to observe statutory procedures; misdirects itself in law; exercises a power wrongly; improperly purports to exercise a power that it does not have; or the policy decision was so unreasonable that no reasonable authority could ever have come to it.

Gateway to invoke judicial review of the High Court is only when there is an application or appeal by the aggrieved or affected party

In the absence of any such application, the High Court may enter into the domain of judicial overreach, which is the exercise of power without any legal basis and the same falls within the ambit of interference and encroachment on the legislative and executive domain

Consequently, such absolute judicial expansionism offends the principle of separation of powers.

Constitution does not envision that the courts are bestowed with unfettered powers that can be exercised within the disguise of judicial review

Judicial review of legislative and executive actions is not an unlimited or unbridled authority of the courts but one that is circumscribed or confided by the Constitution and the law.

Petitioners, being residents of Killa Abdullah city, assailed notification declaring the District Headquarter Killa Abdullah to be Pir Alizai instead of Killa Abdullah and sought the declaration of Killa Abdullah city to be District Headquarter of District Killa Abdullah

Validity

Though the impugned Notification is a policy decision of Government of Balochistan but the same is not immune from being called in question before the High Court as powers of judicial review under Art. 199 of the Constitution are available in case of infraction of law or unfairness, unreasonableness, arbitrariness or mala fide on the part of the Government

However, in the present case, decision of the Provincial Cabinet did not suffer from any unfairness, unreasonableness or arbitrariness on the part of the Government of Balochistan warranting interference by the High Court in its constitutional jurisdiction

Constitution petition was dismissed, in circumstances.

Invoking of constitutional jurisdiction of High Court instead of availing remedy provided under the relevant law would only be justified when the order/action was palpably without jurisdiction

To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper

In the present case detention order was not only palpable but also bereft of any legal reasoning, thus, issuance of direction to the petitioner for availing the alternate remedy would be an exercise in futility and would not serve the ends of justice

Constitutional petition was held to be maintainable.

Every executive action must be justified by disclosure of the powers so vested in the Executive under the law and can always be subject to judicial scrutiny

All such actions must not only necessarily be intra vires the law i.e. the statute or regulations, whereunder they are purportedly taken, but at the same time such actions must be free from mala fide of fact and law

If any law is promulgated in derogation of fundamental rights, it would be declared void because at the cost of fundamental rights guaranteed by the Constitution, the executive Government is not empowered to frame a policy.

Scope of the judicial review of the High Court under Art. 199 of the Constitution in election matters is confined to the extent of an order passed by election authority unlawfully or when it is coram non judice or mala fide, and such scope cannot be enlarged to the cases relating to factual inquiry or in the cases in which another view of the matter is also possible and if such view would have been taken it would not be illegal or unconstitutional.

Petitioners claimed compensation of losses suffered by them and sought declaration to the effect that the arbitrary act of impounding, confiscating and detaining their vehicles was unlawful and unconstitutional

Held, that in the last resort in terms of constitutional dispensation, High Court had to answer the aforesaid questions itself in exercise of its powers of judicial review, however, an opportunity was allowed to the Government to determine the validity, constitutionality and legality of the actions complained of by the petitioners in the first instance, particularly when the petitioners had sought immediate compensation from the State regarding their actual losses in terms of burnt/lost goods and vehicles along with appropriate actions against Police and Traffic Officials found involved in unlawful acts which led the petitioners to suffer huge losses and required a thorough impartial and unbiased inquiry for prompt redressal of grievances of the petitioners

Chief Secretary, Punjab, was directed to constitute a committee to thoroughly investigate allegations of the petitioners and if found true, make recommendations to the Government for due compensation to the petitioners and identify the role of Police and Traffic Officials who led the vehicles to the occasion of incidents, which caused losses to the petitioners

Constitutional petitions were disposed of, in circumstances.

Regulation 4(7)(b) of the Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Policy and Regulations, 2023 ('the Regulations, 2023')

Constitutionality

Petitioner / candidate challenged Regulation 4(7)(b) of the Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Policy and Regulations 2023

Petitioner misconstrued the scope of the impugned Regulation, and he might have been physically present in Pakistan but failed to show that he was resident of a foreign country at the time of making of the application

Petitioner admited his status as a Pakistani citizen, and not being resident of foreign country

Thus , the petitioner, for all intent and purposes, was a Pakistani student, eligible to compete on general seats on merit, but was ineligible for admission on reserved seats

Petitioner sought advantage of his stay in Saudi Arabia, and time spent there in acquiring HSSC (12th grade) without fulfilling the requirement of an "Overseas Pakistani" (a Pakistani citizen permanently resident in a foreign country)

No case of any discrimination or exclusion of any particular foreign country was plausibly made out

High Court observed that in recent years a sinister practice had developed that a person, who did not meet the requirements of any rule, throwed challenge to the constitutionality of the disadvantageous rule; this called for disapproval

In absence of any defect in the constitutionality of impugned Regulation, the High Court found no reason to judicially review the plausibility, rational and foundational basis for criterion for admission against foreign seat quota

No arbitrariness or perversity was found in exercise of discretion

High Court rejected the challenge to the legality / constitutionality of impugned Regulation

Constitutional petition , being merit-less, was dismissed.

Petitioners (landowners) invoked constitutional jurisdiction of the High Court assailing land acquisition process for the development of Peak Capacity Solar PV Project to be acquired by National Transmission and Dispatch Company (NTDC) (the company tasked with the assignment of implementation of the project)

Held, that it was not for the High Court to review or assess as to what was the urgency to take possession, which assessment had to be made by the Commissioner

In fact, the opinion expressed by the Commissioner and assessment of element urgency for the purposes of taking possession of the land called for showing deference

Nothing was alleged that how composite Notification under Ss. 17(4) & 6 of the Act 1894 had prejudiced the petitioners and upon issuance of Notification under reference, Ss. 5 & 5-A of the Act, 1894 had no application

There was no occasion, in the circumstances of the case, to undermine the concept of eminent domain and jurisprudence developed vis-à-vis "the taking clause", which acknowledged the right to fair and just compensation against the acquisition of land for public purpose

Nothing was pleaded with regard to alleged denial of compensation and right to disagree to the quantum of compensation determined or to seek enhancement thereof was neither prejudiced nor denied

Hence, no cause was apparently available to invoke judicial review jurisdiction

Once land was required for public purpose, interference by exercising judicial review jurisdiction tantamount to throwing spanner in the works

Constitutional petition, filed by the landowners was dismissed, in circumstances.

Elimination of climate chaos and enforcement of climate justice by the Water and Environment Commission appointed by High Court to compel implementation of actions taken for water reservation and environmental issues in Punjab particularly in Lahore

High Court exercised its ssupervisory jurisdiction with strong commitment of environmental protection and sustainable development by way of proactive measures and enforcement of strict regulations

Substantial and practical steps had been taken to control air pollution and to preserve groundwater

During the winter season those steps largely contributed to lowering Air Quality Index at different places in Lahore and thereby smog was controlled which had initially assumed dangerous proportions

This was an illustration of judicial review in action, and enforcement of climate justice

These actions were beyond mere judgments which adorn law journals and fail to address in actual terms, the climate chaos, which surrounds the inhabitants

In essence, it was a case of continuing mandamus or supervisory jurisdiction where orders of High Court were enforced by a Commission set up to compel implementation

Departments in turn, came back with reports of compliance and further orders were issued for complete climate justice and to protect fundamental rights of persons

Unique tool was employed by High Court which had yielded substantial results and same would not have been possible without the selfless and untiring efforts of the members of the Commission, who had devoted their energies to the monumental task

Counsel of different Departments and Regulatory Authorities had also come on board as friends of the Court and environment to lend a hand in the enterprise

Constitutional petition was adjourned for further proceedings, accordingly.

High Court may review lawfulness of a decision or action made by a public body or may invalidate laws, acts and governmental actions that are incompatible with a higher authority

In exercise of power of judicial review of governmental policy, Court can neither act or represent itself as an appellate authority with the aim of scrutinizing the rightness or aptness of a policy, nor it acts as an advisor to the Executives on matters of policy, which they are entitled to formulate

Judicial review can be sought when decision maker fails to observe statutory procedures, misdirects itself in law, exercises a power wrongly or the policy decision is so unreasonable that no reasonable authority could ever have come to it

In absence of any violation of Constitutional guarantee or patent illegality, such policy decision cannot be invalidated by High Court in exercise of Constitutional jurisdiction.

Imposition of punishment under the law is primarily the function and prerogative of the competent authority and the role of the court is secondary, which comes into play only when the imposed penalty is found to be unlawful or unreasonable

Reasonableness for the purposes of assessing the quantum or nature of a penalty imposed by the department is to be gauged by applying the test of proportionality

In essence, an administrative decision must not be more drastic than necessary and therefore, it follows that the penalty imposed must be commensurate with the misconduct or inefficiency that has been proved.

Before an aggrieved person triggers judicial review, the Constitutional Court must, at the proverbial doorsteps of judicial review, satisfy itself that "no adequate remedy is provided by law" to the petitioner.

Petitioner challenged the composition of recruitment board, increase in number of board members without calling Annual General Meeting, appointment of independent directors ignoring their inter se relationship being brothers and non-representation of female in the board

Validity

Section 166(2) of the Companies Act, 2017, does not serve to preclude two or more persons who are related inter se but as are otherwise unrelated to the sponsors/shareholders or directors representing otherwise their interests from being appointed as independent directors of a company

No requirement had been imposed by the Commission as to female representation in the board and the petitioner was also unable to point out any notification or directive in that regard

Section 29 of the State-Owned Enterprises (Governance and Operation) Act, 2023, empowers the Federal Government to exercise all the powers and rights of shareholders with the respondent being entirely owned by the Federal Government and its shareholding vesting solely in the President of Pakistan, which factual aspect remained unrefuted, thus, the argument that an Annual General Meeting ought to have been called for approving the increase in the size of its Board was fallacious and misconceived

Petitioner painted National Insurance Company Limited to be rife with malfeasance, with its incumbent CEO being at the epicentre thereof and to have so entrenched himself within the organisation so as to be able to orchestrate his own continuity in that role, which suggested that the Federal Government had conspired so as to expand the size of the Board and induct handpicked persons for the role of independent directors while excluding female representation for the ulterior motive of then tailoring the advertisement to fit the specification met by the incumbent so as to pave the way for his re-appointment, all of which was far-fetched to say the least

Disparate allegations had been conflated so as to cobble together a case against the recruitment process, which on examination, did not suffer from any contravention of law, rule, policy so as to warrant interference in exercise of the constitutional jurisdiction of High Court

Constitutional petition was dismissed, in circumstances.

Tender of petitioner being Government contractor was accepted along with 03 others contractors with the percentage of 90 and 10 respectively, thus, being aggrieved by such percentage he alleged anomalies in recruitment process and filed a complaint before the Complaint Redressal Committee (CRC) and upon its rejection, he preferred an appeal before Review Committee, and without waiting for its final outcome he filed first constitutional petition and during pendency thereof, when the appeal was rejected, he filed second constitutional petition challenging rejection of his appeal

Held:

Petitioner filed appeal under R. 32 of the Sindh Public Procurement Rules, 2010, (Rules) before Review Committee and instead of waiting for the result of appeal he adopted parallel proceedings by filing petition before High Court, which practice on the part of petitioner was not be appreciated at all

Petitioner by virtue of filing petition attempted to circumvent the proceedings pending before statutory authority

Equitable writ jurisdiction is available when remedy provided under statutory provisions is exhausted and no other forum exists to challenge orders passed by the statutory authority

Parallel challenge to an order by way of appeal before a statutory forum under the relevant provisions of law and filing of constitutional petition under Art. 199 of the Constitution against the same cause are strictly impermissible

Non-supply of documents relating to technical proposals would not render the procurement process nullity, which otherwise was carried in accordance with law

Petitioner had not placed on record any application submitted by him to procuring agency for supply of documents relating to technical evaluation of other companies, thus, his objection was found to be an afterthought effort to pressurize procuring agency for obtaining desired results

Access to information is a guaranteed fundamental right of individuals; subject to law, a citizen cannot be denied access to public documents

Contention of the petitioner that grievances agitated by him before CRC and Review Committee were not properly addressed lost force as memo. of complaint and appeal of the petitioner did not contain any allegation of substantial nature calling for interference, rather the same were vague, bald in nature and without any substantial material, thus, were rightly discarded by the CRC and the Review Committee

Petitioner was granted ample opportunity to prove allegations of malpractices, corruption and favortism in the procurement process but he failed to do so

Legislature in order to place check on performance of procuring agency enacted Sindh Public Procurement Act, 2009, and framed Rules of 2010 thereunder

Under the provisions of the said Act forums had been provided to address the issues relating to the procurement process which being technical work could best be dealt with by the said forum having services of experts of related fields

Given the crucial task of overseeing development works, maintaining self-accountability, discipline, integrity and effective check on executing agencies were essential

Courts of law play a balancing and critical role in ensuring that the discretionary powers exercised by the authority are balanced and commensurate with the objectives sought to be achieved

Judicial review places a check against the exercise of powers in an arbitrary way and beyond the bounds of law

Forums had acted within the parameters prescribed by the law; no actions in excess of authority or acts of arbitrariness were unearthed or even pinpointed by the petitioner in the procurement process

High Court refused to interfere in the matter

Constitutional petitions were dismissed, in circumstances.

Grievance of the petitioner was that despite clearing the written and physical assessments, he was declared unsuccessful in the interview on account of political favouritism and nepotism by selecting such candidates, who even had not participated in the recruitment process

Validity

Petitioner had alleged favoritism and nepotism; however, these allegations remained unsubstantiated, which rested solely on conjecture and oral averments, unsupported by documentary evidence

High Court could not place reliance upon such vague allegations to unravel or undo an otherwise lawful recruitment process

If such unverified claims were permitted to prevail, it would open floodgates for indiscriminate litigation and cast aspersions upon the sanctity of institutional recruitment

Assessment/re-evaluation lies within the exclusive domain of the Interview or Recruitment Committee to assess and evaluate candidates during the interview process and to allocate scores according to their own judgment and assessment

High Court, while exercising jurisdiction under the constitutional writ, cannot substitute its own opinion for that of the Recruitment Committee

Authority and wisdom vested in the Committee cannot be interfered with or questioned, unless there is manifest malice or gross illegality on the face of the record warranting judicial intervention

Judicial scrutiny does not extend to re-evaluation of interview scores or assessment unless it is demonstrably arbitrary or discriminatory

Petitioner admitted that he could not qualify in the interview and his allegations required factual inquiry, which was beyond the scope of constitutional jurisdiction of High Court

In absence of any compelling evidence pointing to mala fide or gross illegality, High Court cannot grant the relief sought

Constitutional petition was dismissed, in circumstances.

Selection Committee is best placed to assess the capabilities, academic background, aptitude, demeanor and suitability of candidates

Judicial review of such assessments is not warranted unless it is demonstrated that the process was marred by arbitrariness or mala fide intent

Parameters and criteria for recruitment and appointment are to be set by the competent authority

High Court cannot mandate or formulate alternative criteria

It is incumbent upon the official respondents to adhere to rules and ensure fairness, but the threshold for judicial interference remains high and limited to egregious breaches.

Judicial intervention in policy matters must be exercised with caution, ensuring that governance remains within its constitutional domain without undue interference

The judiciary plays a crucial role in upholding citizens' rights and ensuring checks on executive action

However, excessive judicial overreach may pose risks to governance and democratic stability

A delicate balance must be maintained to ensure that all three branches of the government function effectively within their constitutional limits

Judicial interference should, therefore, be limited to instances requiring legal interpretation and must not unduly encroach upon executive or legislative discretion

No irregularity or illegality is found on the part of respondents/SPSC

Constitutional petition, filed by candidates, being merit-less was dismissed, in circumstances.

High Court refrains from interfering in recruitment decisions unless tainted by mala fides, arbitrariness or violation of law

Constitutional jurisdiction of the High Court does not extend to substituting the authority's assessment with that of Court

Judiciary as the ultimate protector of individual rights and obligations under the Constitution has the authority to mandate the proper formulation of policies to ensure fairness and transparency

However, it is settled law that it is within the domain of the competent authority to prescribe the required qualifications and experience in the recruitment process for any post

The Courts cannot force acceptance or interchange any other qualification equivalent to the specific post with a specific qualification advertised for inviting applications for recruitment or setting the benchmark for promotion of employees to any particular post or grade on attaining any particular length of service

It is crucial to understand that unless explicitly stated in the job advertisement or the recruitment policy, the High Court cannot assume that a higher/minimum/equivalent qualification automatically implies the acquisition of a lower one, or that a candidate with a higher qualification is inherently more suitable than someone meeting the specific requirements advertised or equivalent degree as the High Court's role in recruitment matters is limited

However, it can assess the legality of the recruitment process but cannot substitute its judgment for the employer's regarding design, needs, or selection criteria

The Court should not attempt to compare different degrees, determining the equivalence or suitability of academic qualifications for a particular position

This is a specialized area best handled by the employing institution itself, based on its specific needs and requirements

Courts are not equipped to make such determinations under Art. 199 of the Constitution.

Petitioner sought relaxation in upper age limit on the pretext that in other province relaxation in upper age limit was granted, however, the petitioner was left in lurch

Validity

Government of Sindh could relax the age of the petitioner, which had been categorically denied to the candidates appearing through combined competitive examination, thus, High Court could not substitute its view as the law on the subject was very clear, as such relaxation could be made applicable in the upper age limit to the applicants applying for the vacancies in all the departments in Government of Sindh except Police Service and the posts to be filled through combined competitive examination by the Sindh Public Service Commission

No design or ill-will was found behind belated advertisement of vacancies and holding of examination, thus, High Court declined to interference with the action of the Sindh Public Service Commission, as the issue of age relaxation laid with the Government of Sindh and for that purpose they had already issued the notification, which was a policy decision supported by the R.12(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974

High Court while exercising the powers of judicial review cannot substitute its own view for that of the policy makers unless of course it is shown to be arbitrary or an unreasonable policy decision.

(i) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; (ii) Where more than one interpretations is possible, one which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; (iii) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt

A reasonable doubt must be resolved in favour of the statute being valid; (iv) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; (v) The Court will not decide a larger constitutional question than is necessary for the determination of the case; (vi) The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; (vii) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; (viii) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution ; (ix) Mala fides will not be attributed to the Legislature.

Constitution of Pakistan has clearly set out limits for each organ of the State based on seminal principle of trichotomy of powers

Legislature makes the laws, the executives execute it while the judicial branch is entrusted with the duty to interpret it

The judicial branch has no jurisdiction to promulgate laws and, therefore, stringent rules and principles have been laid down in the context of the exercise of the power of judicial review

Burden to prove that promulgated law is invalid is on the person who challenges its vires

The court must lean in favour of upholding the legislation and law should be saved rather than destroyed

The wisdom of the legislature to promulgate a law and to achieve a particular object and purpose cannot be questioned.

Respondent-university instead of complying with the order of Ombudsman preferred appeal before the President, which was dismissed

Petitioner filed a writ of mandamus for implementation of orders of Ombudsman and President, whereas, respondent filed a writ of certiorari against such orders

Validity

Petitioner had been meted out with mala-fide treatment and bias, prior to passing any order qua dropping her from 1st semester as no notice was issued to her, thus, she well within time filed an application for freezing the semester to her extent, which was not further processed by the university authorities

Depriving a gold medalist student from further education was an act of mal-administration, thus, the order was not in accordance with law

Decision of the AJ&K Ombudsman was completely in line with the scheme of law and norms of justice requiring no indulgence at all

Where bad faith, ulterior motive or colourable exercise of power is oozing from the record, judicial audit is inherent in High Court in order to have a judicial review

Writ of mandamus filed by the petitioner was accepted by the High Court with a direction to implement the order of Ombudsman, which had attained finality, whereas the writ filed by the respondent/university in form of certiorari was dismissed being not maintainable and being hit by doctrine of laches.

Writ petition under Art. 44 of the Interim Constitution, 1974, cannot be entertained quo judicial review of the matter relating to policy discipline and other academic affairs of educational institutions unless: (i) Any gross violation of law/regulations is pointed out and is oozing from the record; (ii) Proceedings ex-facie militate against the constitutionally fundamental guaranteed rights.

Any law, policy or rule which is manifestly inconsistent with the Constitutional commands, retrogressive in nature and discriminatory inter se the citizens is subject to judicial review.

Crossing such limits amounts to encroaching upon domain of the other and consequently breaching provisions of supreme law

Making law falls exclusively within the domain of the Legislature

Judicial branch has no jurisdiction to promulgate laws

Stringent rules and principles have been laid down in such context of exercise of power of judicial review, relating to examining vires of law promulgated by Legislature

Foundational rule of interpretation is a presumption in favour of constitutionality

Burden to prove that promulgated law is invalid is on the person who challenges its vires

Law should be saved rather than destroyed and the Courts must lean in favour of upholding constitutionality of legislation

Function of Legislation is exclusive prerogative of the Legislature

Wisdom of the Legislature to promulgate a law and to achieve a particular object and purpose cannot be questioned

It is presumed that laws have been legally, validly and Constitutionally promulgated on the basis of its competence

Courts have no jurisdiction or power to rewrite laws and the Constitution

Promulgated laws or its provisions cannot be struck down lightly and it is duty of Courts to make every possible effort to reconcile statute to the Constitution and to strike it down when it becomes impossible to do so

Courts are not empowered to strike down a law or its provision on higher ethical notions or on the basis of philosophical concepts and no mala fide can be attributed to the Legislature

It is duty of Courts to give effect to the scheme of representative governance of the State which is the foundation and edifice of the Constitution is built on it

Supreme Court has laid down stringent and narrow grounds in the context of striking down a law or a provision while exercising power of judicial review.

Courts have formulated the doctrine of judicial restraint which urges Judges considering constitutional questions to give deference to the views of the elected branches and invalidate their actions only when constitutional limits have clearly been violated

As the legislative acts of a legislature are the manifestation of the will of the people exercised through their chosen representatives, the courts tread carefully to judicially review them and strike them down only when their constitutional invalidity is clearly established beyond any reasonable doubt

Reasonable doubt is resolved in favour of the constitutional validity of the law enacted by a competent legislature by giving a constitution-compliant interpretation to the words that create such doubt.

Courts can judicially review the acts of the legislators if they offend the Constitution, in particular the fundamental rights guaranteed by the Constitution

While examining this conflict of rights and the legislation, the courts must consider that they are dealing with a legislative document that represents multiple voices, myriad policy issues and reflective of public ethos and interests, voiced through the chosen representatives of the people; and remembering that undermining the legislature undermines democracy

With this background, only if such a legislation is in conflict and in violation of the fundamental rights or the express provisions of the Constitution, can the courts interfere and overturn such a legislation.

Courts cannot force the legislature to act upon their recommendations nor can they strike down any law competently enacted by the legislature which does not commensurate with their recommendations.