IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
C.P. No.D-1948 of
2014
(Khursheed Begum v. Province of Sindh and 2 others)
C.P. No.D-1949 of
2014
(Abdul
Karim v. Province of Sindh and 5 others)
C.P. No.D-3166 of
2014
(Saima Memon v. Province of Sindh
and 4 others)
C.P No.D-3381 of
2014
(Mst. Fozia v. Province of Sindh
and 3 others)
C.P. No.D-65 of
2015
(Mst. Razia Khatoon
v. Province of Sindh and 3 others)
C.P. No.D-157 of
2015
(Uroosa Kalwar v. Province of
Sindh & 4 others)
C.P. No.D-179 of
2015
(Abdul
Malik v. Province of Sindh and 3 others)
C.P. No. D-893 of 2015
(Ghulam Murtaza & 26 others v. Province of Sindh
& 8 others)
C.P No.D-1019 of
2015
(Muhammad
Roshan v. Province of Sindh & 3 others)
Present:
Mr. Nadeem Akhtar, J.
Mr. Muhammad
Faisal Kamal Alam, J.
Petitioners : Through M/s. Sohail Ahmed Khoso, T. David
Lawrence,
Achar Khan Gabole, Ali Gul Abbasi, Abdul Latif Mirbahar, Zakir Ali Rajper and Altaf Hussain Ansari associate of Mr. Muhammad Sadiq Ansari, Advocates.
Respondents : Through
M/s. Zulfiqar Ali Naich, Noor
Hassan Malik and Ahmed Ali Shahani,
Assistant Advocates General Sindh.
Date of hearing : 02.05.2018
Date of Order : 11.07.2018
Muhammad Faisal Kamal
Alam, J: Common question is involved in all
subject Constitutional Petitions, therefore, they are disposed of by this
single order.
2. Grievance of all Petitioners is that
they applied for the posts of School Teachers in response to an advertisement issued
by Respondents, but despite passing the written test conducted by National
Testing Service (NTS) they have not been given appointment
orders on the ground that the Petitioners submitted their respective Permanent
Resident Certificates (PRC) on Form “D” after the
cut-off date. It has been further contended by learned counsel appearing for
different Petitioners that the above PRC though was
submitted after the cut-off date of 20.06.2012, but the same should have been condoned
by the Respondents and must not have formed the basis for not considering the
Petitioners against the vacant posts. It is argued that non-submissions of PRC within due date was not a mandatory requirement and the
Official Respondents instead should have considered the score / marks obtained
by each Petitioner so that their cases for appointment as School Teachers
should have been considered on merits, rather than, ousting them (Petitioners)
from the competition on technical grounds.
3. Official Respondents have filed their parawise comments along with the Teachers’ Recruitment
Policy-2012, relating to appointment of PST-Primary
School Teacher, JST-Junior
School Teacher and HST-High
School Teacher. Learned AAG while controverting the
arguments of Petitioners have drawn our attention to the General
Instructions for Appointment Process as contained in the said
Policy, where under, the District Recruitment Committee (DRC) is required to
examine and verify the original documents of the candidates, list whereof is
mentioned in the said Policy, which includes the above referred “D” Form / PRC, at serial No.vii under
the heading of ‘verification of documents’; the closing date is mentioned as
20.06.2012. It is further argued that Official Respondents have adopted a uniform
yardstick in recruiting teachers, as the requirement of submitting PRC on Form “D” is even mentioned in the above referred
public advertisement under Serial-17.
4. Arguments heard and record perused.
5. The basic facts are not disputed that
the advertisement in response to which all the Petitioners have applied and
cleared their written tests is of 19.04.2012. Similarly, in the advertisement
itself it is clearly mentioned under Serial No.17 that
PRC on Form “D” should be submitted along with other
listed documents on or before May 20, 2012, which date was further
extended upto June 20, 2012 (as mentioned in the
afore mentioned Teachers’ Recruitment Policy 2012). This Form “D” Certificate (PRC), certifies the permanent
residence of a candidate and is issued to an applicant/candidate, in the
present case, the present Petitioners for the specific purpose of recruitment
to the public service in the Province of Sindh; thus, its significance cannot be
ignored.
6. The Petitioners have placed on record
their respective Permanent Resident Certificates on Form “D” and the same are
considered. Except in C.P. No.D-65
of 2015 in which the Form “D” (PRC) is of 22.06.2012,
that is, issued two days after the closing date, all other Certificates were
issued by the concerned Deputy Commissioners in the years 2013 and 2014, that
is, much after the aforementioned cut-off date. This inordinate delay of several
months and more than one year (in some of the cases) in submitting the requisite
PRC on Form “D” by the Petitioners to the Official
Respondents could not be justified by the legal team of Petitioners, nor, they
have pleaded in their respective Constitution Petitions the reasons for the
above delay. Only ground which the learned counsel for the Petitioners has
argued is that requirement of submitting PRC was not
mandatory and is condonable. In this regard, reliance is also placed on a
reported decision of Hon’ble Supreme Court in Jehanzaib
Malik v. Balochistan Public Procurement Regulatory Authority-2018 SCMR Page-414. In this reported decision, the petitioner’s
appointment as Director in Respondents’ authority (of the reported decision) was
challenged on the ground that he did not possess the requisite qualification nor experience at the relevant time. The learned Balochistan
High Court accepted the Petition and the order was assailed by the petitioner
before the Hon’ble Supreme Court, which came to the conclusion that the
Petitioner (of the reported case) did
possess the qualification of Masters in Business Administration in January,
2014 and also obtained the requisite marks. However, the Institute of
Business Administration Karachi (IBA, Karachi) issued
the degree formally on 7th March, 2015, that is, after the cut-off
date of 28.08.2014 when he was appointed as Director. With this undisputed
factual background, the Hon’ble Apex Court came to the conclusion that issuance
of degree after seven months by the Institute was the factor beyond the control
of the petitioner, but the degree itself mentioned that the latter completed his
MBA in January, 2014, that is, well within the cut-off date of 28.08.2014.
We are afraid that the above cited case law is clearly
distinguishable as far as the facts of the subject Petitions are concerned. The
cited decision could have been applicable, if the present Petitioners of
subject Constitutional Petitions have shown that admitted delay in submitting
the prescribed PRC on Form “D” was due to the factors
beyond their (Petitioners) reasonable control. Admittedly, the present
Petitioners did not submit their respective PRCs in the
prescribed form on or before the cut-off date. None of the Petitioners have
brought on record the documents or other material that they have / had applied
to the concerned authorities (the Deputy Commissioners) for issuance of PRC on Form “D” before the closing date and it is due to
fault and inaction of the concerned Deputy
Commissioner office, that the requisite PRC were not issued
to the Petitioners within the prescribed time. Consequently, this
non-compliance by the Petitioners, of one of the conditions of the
Advertisement and the Policy 2012, cannot be condoned. The learned Larkana Bench of this Court in CP
No.D-889/14 also passed a similar order while
dismissing the said Petition, that submission of documents after cut-off date
of 20.06.2012 is not permissible. This order has been placed on record by the
Respondents’ side.
7. Through
the present proceeding, all the Petitioners are seeking judicial review of the administrative
acts of Official Respondents (Education Department of Sindh Government) that they
(Respondents) did not appoint the Petitioners as School Teachers on account of non-submission of one of the
requisite documents (PRC on Form “D”) as mentioned in
the advertisement as well as the afore referred Policy of 2012. It is a well
settled principle that for seeking a writ
of mandamus of the nature, the Petitioners are required to show their locus standi.
The requirement of locus standi can be successfully addressed when it is shown that
the Official Respondents or functionaries have acted in violation of law, well
recognized departmental practice or meted out a discriminatory treatment to the
Petitioners; these are some of the grounds, amongst others, for maintaining a
Constitutional Petition of the nature. The writ jurisdiction of the High Court
under Article 199 of the Constitution of the Islamic Republic of Pakistan, in
our considered view, cannot be invoked for embarking upon a roving inquiry on
the basis of mere allegations, or to
give a decision on purely academic issues, as it would tantamount to
interfering in the functions of the government, which
ultimately would damage the public interest rather than protecting it.
8. In
the present Petitions, there is no complaint that Petitioners have been
discriminated against and other persons, who also submitted their PRC after the closing date, were given the appointment letters.
Similarly, the selection process as well as the above
mentioned Recruitment Policy of 2012 are also not challenged, being non-transparent
or violative of any statue. Conversely, the Recruitment
Policy as well as the Advertisement have clearly laid own the procedure and the
requirements including that of submitting the PRC on Form
“D” within the closing date and its violation / non-compliance in the manner
stated in the forgoing paragraphs, if was/has not been condoned by the
Respondents, then their this impugned action since neither violates any
statutory provision(s), rules, prevailing policy, nor the same is
discriminatory or arbitrary, therefore, the impugned action cannot be set-aside
in the present proceeding.
9. The upshot of the above discussion is
that all these subject Constitutional Petitions are
devoid of merits and are dismissed accordingly. However, it is clarified that
this decision will not debar the Petitioners from applying afresh for any other
or future employment opportunity and in such an event their respective cases
would be considered by the Respondents in accordance with the law/relevant
rules and the policy holding the field at that time.
JUDGE
JUDGE
Sukkur
Dated:_____________
M.Javaid PA