Order Sheet

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

C. P. No. D – 2434 of 2017

Before:

Mr. Justice Muhammad Junaid Ghaffar

Mr. Justice Zulfiqar Ali Sangi

Date of hearing: 11-08-2021

Date of decision: 11-08-2021

Mr. Sohail Ahmed Khoso, Advocate for the petitioners.

Mr. Shahryar Imdad Awan, Assistant Advocate General Sindh along with SIP Ameer Ali Shah on behalf of DIGP Sukkur and Inspector Ghulam Shabbir on behalf of SSP Ghotki.

O R D E R

Muhammad Junaid Ghaffar, J. – Through this petition, the petitioners have sought the following relief(s):

a) To declare the act of respondents by not appointing the petitioners for the post of police constable BS-05 though the petitioners were qualified all the test and by appointing those persons even though they not applied nor they appeared in any test, as illegal, unlawful, against the law and based on malafides so also on discrimination favoritism and nepotism and also in violating of fundamental rights of petitioners guaranteed under the constitution of Islamic Republic of Pakistan, 1973.

b) To direct the respondents to produce entire record of the process of appointments and also produced the appointments orders of all the persons who were appointed, before this Honourable Court.

c) To direct the respondents to appoint the petitioners as constables BS-05 in police department District Ghotki as the petitioner qualified all the test and their names are mentioned in the list of successful candidates by the respondents.

d) To restrain the respondents for sending the persons on training who were appointed in violation of law till final decision of this petition.

e) To award the cost of petition.

f) Any further relief which this Honourable Court deems fit and proper under the circumstances of the case.

2. Learned Counsel for the petitioners submits that pursuant to an advertisement for appointment of Constables in Sindh Police, the petitioners appeared in physical test, and thereafter, in written test and were declared successful. However, surprisingly, they were failed in the viva voce examination, whereas, in similar circumstances in C. P. No. D-2708 of 2014 and others vide order dated 28-11-2017, similarly placed petitioners were directed to be appointed, hence, the present petitioners are also entitled for the same relief. He further submits that other unqualified persons and the persons who had even failed in written and viva voce examination have been appointed at the behest of influential persons, which is a case of discrimination.

3. On the other hand, learned AAG has opposed this petition and has relied upon comments filed by the respondents.

4. We have heard the learned counsel for the petitioners as well as learned AAG and perused the record.

5. After issuance of notice, comments have been filed by the concerned respondents and it has been stated that insofar as petitioners No.1 and 2 are concerned, they had failed in the final interview-viva voce examination, whereas, petitioner No.3 had even failed in the written test. It appears that after filing of comments to the extent of petitioner No.3, this petition has not been pressed and stands dismissed vide order dated 20‑11-2019. Insofar as petitioners No.1 and 2 are concerned, reliance being placed on the aforesaid order passed in C. P. No. D-2708 of 2014 and others on 28-11-2017 is also misconceived inasmuch as the said petitioners had approached this Court immediately in the year 2014, in which period the recruitment process had been initiated. The present petitioners have come to this Court in the year 2017 after passing of the above order in that petition. Their case is hit by laches, whereas, in matter of fitness, be it physical or mental and especially in appointments as Constables, this Court at this belated stage, cannot exercise any discretion as considerable time has lapsed. Notwithstanding this, the said order is also a consent order, hence, the petitioners cannot be benefited. It is also a matter of record that both the petitioners No.1 and 2 have failed in the viva voce examination, whereas, as to reliance on some other appointments, it may be observed that such list filed by the petitioners has been seriously disputed, denied and termed as fake, therefore, this Court in it constitutional jurisdiction, cannot adjudicate such disputed facts.

Lastly, we have not been able to pursued ourselves as to how the relief being sought can be granted in respect of Viva-voce/Interview Examination of the petitioners, in which, according to them, they ought to have been declared successful, whereas, the respondents have failed them, as apparently the verbal response of the petitioners in a Viva-voce Examination and Interview cannot be looked into by us in our Constitutional jurisdiction, as it is entirely dependent on the factual determination and the contention of the parties. Even otherwise, what answer is given by a candidate in an Interview/Viva-voce Examination, the same is a matter of verbal response and no record is apparently required to be maintained by the concerned appointing authority. In these circumstances, we are of the considered view that the petition is not maintainable. Reliance in this regard may be placed on the case reported as Muhammad Ashraf Sangri v. Federation of Pakistan (2014 SCMR 157), wherein the Hon’ble Supreme Court has been pleased to observe as under:-

“Essentially an interview is a subjective test and it is not possible for a Court of law to substitute its own opinion for that of the Interview Board in order to give the petitioner relief. What transpired at the interview and what persuaded one member of the Board to award him only 50 marks in something which a Court of law is certainly not equipped to probe and to that extent we cannot substitute our own opinion with that of the Interview Board. Obviously if any mala fides or bias or for that matter error of judgment were floating on the surface of the record we would have certainly intervened as Courts of law are more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post which as observed above is subjective matter and can best be assessed by the functionaries who are entrusted with this responsibility, in the present case, the Public Service Commission. For this proposition the case of Federation of Pakistan through Secretary Establishment Division v. Ghulam Shabbir Jiskani (2012 SCMR 1198) can be referred to.”

Accordingly, the petition being misconceived is hereby dismissed along with pending application(s).

J U D G E

Abdul Basit