ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

                                     

                                      C.P No.D-6600 of 2015

 

                                                   Present

           Mr. Justice Muhammad Ali Mazhar

   Mr. Justice Muhammad Iqbal Meher

 

 

 

Dr.Masroor Ahmed Zai             ………..                   Petitioner

 

                                                  Versus             

 

Province of Sindh & others     ….......                   Respondents

 

 

Order on Review Application (M.A NO. 6374/2016).

 

 

Date of hearing 21.04.2016

 

 

 

Mr. Malik Naeem Iqbal for the petitioner.

 

Mr. Mukesh Kumar  Karara, Addl.A.G.

 

Mr. Jam Habibullah, State Counsel.

                                               

                                                 

 

Muhammad Ali Mazhar--J.  This petition was disposed of along with seven other petitions vide judgment dated 04.3.2016 in the following terms.

 

 

“23. As a result of above discussion the petitions are dismissed, however, the respondents are directed to ensure transparency in the appointment process without any favoritism or consideration other than merits. All the petitioners having qualification commensurate to the positions advertised in the newspapers may also apply and the respondents are directed to consider their applications strictly on merits. The Controlling Authority will also make sure not only the appointment of Chairman of Boards, the Secretary and Controller of Examination will also be made through Search Committee’s recommendation to maintain transparency.”

 

 

 

2.     Three petitioners had challenged the judgment of this court in the honorable Supreme Court but vide order dated 17.3.2016 passed in Civil Petitions No.190-K, 191-K and 195-K/2016, the apex court refused to grant leave so for all intent and purpose, the   judgment passed by this court has attained finality.

 

3. The present petitioner in his petition had challenged the advertisement published by the Secretary to Chief Minister of Sindh for Universities and Boards, Government of Sindh for inviting applications for the position of Secretary and Controller of Examination in the different Boards of Education. The fundamental challenge rather the claim of the petitioner was that by virtue of his seniority, educational qualification and in accordance with the Rules of the Board he is entitled to be promoted permanently as Controller of Examination, Board of Intermediate and Secondary Education Hyderabad. The petitioner was performing his duties as Deputy Controller Board of Intermediate and Secondary Education Hyderabad vide notification dated 13.10.2014 but he was also assigned additional charge of vacant post of the Controller of Examination (BISE) Hyderabad as an interim arrangement with effect from 14th October, 2014 till further orders. The petitioner had challenged the advertisement for regular appointment of Controller of Examination on the premise that being Deputy Controller of Examination he has a vested right to be promoted as Controller of Examination without any competitive process as according to his believe and assertion, this post was to be filled by promotion and not through direct recruitment or induction.

 

4. After hearing all the parties including the petitioner’s counsel, petitions were dismissed with certain directions as mentioned in Paragraph-23 of the judgment. (the judgment was authored by one of us Muhammad Ali Mazhar-J) However on 10.3.2016, the petitioner changed his counsel and filed this Review Application under Order-47 Rule-1 C.P.C read with Section 144 of C.P.C. He has prayed to this court to review the judgment dated 04.3.2016 to the extent of observation that controlling authority will make appointment of Secretary Controller of Examination of various Boards through search committee.

 

5. The learned counsel for the petitioner in support of review application argued that the post of Secretary Board of Controller of Examination do not fall within the purview of Search Committee as these appointments are to be made by Appointment Committees duly constituted by the Controlling Authority under the Sindh Boards of Intermediate & Secondary Education Ordinance, 1972. The Regulation-V, of the First Regulation relating to the terms of members of Appointment Committee holds statutory force under Section 28 of the 1972 Ordinance. The Appointment Committee consists of eminent persons nominated by the Controlling Authority. He further argued that the respondent No.2 has constituted appointment committee and interview letters were issued but after the judgment of this court, the interviews for the post of Secretary and Controller of Examination have been postponed. Learned counsel concluded that the judgment to the extent of observation impugned through this review application suffers from legal infirmity and error apparent on the face of  record, therefore the judgment may be reviewed or modified to the aforesaid extent.

 

6. The Section Officer (Boards), Universities and Board Department, Government of Sindh has filed counter affidavit to this review application who states that while constituting Search Committee, the post of Secretary and or Controller of Examination were not included in the Notification. He also invited our attention towards appointment committee exists in the Board in view of First Regulation, however through this counter affidavit nothing has been expressly stated or pointed out regarding any legal infirmity or alleged error apparent on the face of the record.

 

7. On the contrary, the learned A.A.G argued that in view of the judgment passed by this court and to comply with the directions in order to bring in the appointment process more transparent and competitive, the Government is bound to act accordingly. He further argued that petitioner has no right to file review application who may be a candidate for the post but he cannot choose the process or manner of appointment by his own. It is not in his domain to decide what would be the correct process of selection or appointment either by the search committee or through appointment committee. He further argued that the judgment passed by this court has already been upheld by the apex court and at present the judgment passed by this court has been merged in the judgment of apex court so at this stage this court has no jurisdiction to pass any order for review of earlier findings.

 

8. Heard the learned counsel. In the judgment we have dilated upon almost all issues raised before us and after detailed examination and appreciation of law and facts, the judgment was passed. However we would like to recapitulate that under Section 14 of the Sindh Boards of Intermediate and Secondary Education Ordinance 1972, it is clearly provided under Sub-Section-2, that the Chairman, Secretary, Controller of Examinations and Audit officer shall be whole time officers and shall be appointed by the Controlling Authority on such terms and conditions as may be determined by it. Initially when the petitioners had challenged the advertisements for inviting applications and the constitution and or formation of Search Committee, the learned A.A.G had vehemently argued that in order to make the process more transparent and competitive, the Search Committee has been formatted/constituted for the fair selection of deserving candidates which was not being done in past. At that juncture, one of the learned counsel for the petitioners had argued that why the domain of the such committee is confined to the appointment of Chairman alone and why the competitive process and transparency is not being maintained in the appointment of Secretary and Controller of examination which are also key post and it is evident that this appointment is also to be made under Section 14 by the Controlling Authority. Since under the law it is the dominion of Controlling Authority to appoint the Chairman, Secretary, Secretary, Controller of Examination and the Audit Officer which four posts are specifically mentioned under Sub-Section-2 of Section 14, therefore, the court reached to the conclusion that the Secretary and Controlling Examination may also be appointed on the recommendation of search committee through transparent manner. The case of the petitioner before us was not that in which mode or manner he may be appointed but he came forward to challenge the advertisement on the ground that being Deputy Controller of the Board he had a vested right to be promoted to the post of Controller of Examination. Once his petition dismissed, the petitioner did not prefer to challenge the judgment in the apex court but now he has come up with this review application with altogether different points that the appointment of Controller should be allowed to be made through appointment committee. In our view the petitioner cannot claim any vested right to the mode and manner of appointment simply for the reason that he is only a candidate at this stage who may apply for this post on merits but he has no right to claim that his credential or merits should be examined by the appointment committee and not by Search Committee. We failed to understand as to why the petitioner is showing much willingness and contentment to appear before the Appointment Committee but frightened to appear before the Search Committee. If he is a person of merits and fulfill all required qualifications then he should not have been worried as to the hierarchy for the appointment of Controller of Examination BISE, Hyderabad. No review application has been filed by the Government of Sindh and according to the learned A.A.G they have no reservation on the directions to make the appointment through Search Committee. This is also a fact that some of the petitioners challenged the judgment in the Supreme Court where various grounds were taken but the honorable Supreme Court declined to grant leave and after refusal of leave, the judgment passed by this court has been merged into the order of the apex Court.

 

9. In the judgment, this court has also discussed the First Regulations framed by the Board under Section 17 of the Ordinance, in which Regulation-V germane to the terms of the members of the appointment committee and under sub Regulation-2, it is provided that the appointment committee shall recommend the appointment, confirmation and scale of pay of officers or employees of the Board whose scales of pay carry an initial salary of four hundred rupees or more per mensum.

 

10.   Learned counsel referred to General Rules of Board of Intermediate Education Karachi Volume-II that the appointing authority for the post at serial No.1 to 3 is the Controlling Authority on the recommendation of Appointment Committee of the Board. It is a fact that petitioner was fighting for the promotion as Controller of Examination in the Board of Secondary Education Hyderabad, who was allowed to hold this post as an interim arrangement but in support of the review application, his learned counsel relied upon the Rules of Board of Intermediate Education Karachi which in our view has no relevancy before us and Rules of Karachi Board cannot pave the way or provide any venue for review of this judgment for a prospective candidate of Controller of Examination applied for the post in the Board of Secondary Education Hyderabad.  Learned counsel in the main judgment also cited Sindh Boards of Education Employees Service Rules, 2013, but the court reached to the conclusion that 2013 Service Rules are non-statutory. Likewise, in the review application the calendar/Board of Intermediate Education Karachi, has been cited which cannot override the Provisions of Ordinance even otherwise, this only relates to the employees of Board of Intermediate Education Karachi. No  statutory rules or regulations in relation to the Board of Secondary Education Hyderabad have been pointed out in support of review application. Along with the review application, the petitioner has filed few documents. What we have found out in the chronological order that Annexure-A is the nomination of members of appointment committee in the Board of secondary education, Mirpurkhas, while Annexure-A/1 is for Karachi. Remaining Annexure are only the interview call letters issued to some other candidates. Even the petitioner failed to attach any letter to show that after examining his credentials, he was also issued any letter for interview or test by the appointment committee for the post of Controller of Examination BISE. Hyderabad. The learned Counsel for the applicant in support of his arguments referred to AIR 1960 Andra Pardesh-81, which though relates to the power of review of the Court under Order-47 C.P.C but in our view the facts and circumstances are distinguishable and not attracting to the facts and circumstances of this case. Similarly, the case of Ghulam Rasool, reported in PLD 2015 SC.6 is also inapplicable here as the controversy before the apex court was within the purview and parameters of Article 90 of the Constitution of Pakistan and the apex court clarified in paragraph 10 of the judgment as under:

 

“10. In view of the afore-referred circumstances, we clarify that it is the exclusive preserve of the Federal Government to appoint heads of statutory bodies, autonomous bodies, semi-autonomous bodies, regulatory bodies etc. as also to make appointments on merits under the Acts/Ordinances wherein certain criteria has been laid down for such purpose. C.M.As. Nos. 1079 and 4821 of 2014 are allowed in terms noted above.”

 

 

11. It is well settled that where a court had applied its mind to a particular fact or law and then had come to a conclusion after conscious reasoning, it could never be contended that error was one apparent on the face of the record and could be corrected by it. While dismissing the petitions this court considered and appreciated all relevant facts and law and arrived at the resolute conclusion. Case cannot be reopened on merits on review. Scope of review is very limited and application for review is not maintainable on those points which have been decided one way or the other. Any matter or dispute which has already been resolved cannot be reviewed. Review by its very nature is not an appeal or rehearing merely on the ground that one party or the other conceived himself to be dissatisfied with the decision of the court. Reference can be made to 2008 SCMR 554 and 2009 SCMR 394.   

 

 

12.   As a result of our discussion, we have reached to a firm conclusion that neither any mistake or error is apparent on the face of the record nor any other sufficient reason or justification is made out by the petitioner to review the earlier judgment even to the extent applied for. Consequently, the review application is dismissed.

 

 

Karachi:-

Dated. 21.6.2016

                                                                                        Judge

                                                                Judge