IN THE HIGH COURT OF SINDH, KARACHI

C.P.No.D-1168 of 2012

Riaz Gul and others

V/s.

Federation of Pakistan,

Through Secretary, Ministry of Water and Power,

Government of Pakistan,

Islamabad and others.

Before: Mr. Justice Munib Akhtar

Mrs. Justice Ashraf Jahan.

Date of Hearing : 28.04.2015.

Petitioners : Through Mr. Rafiq Ahmed Kalwar, Advocate.

Respondent No.2 : Through Mr. Usman Tufail Shaikh, Advocate.

Respondents No. 3 to 37: Through M/s. M.M.Aqil Awan and Abida

Parveen Channar, Advocates

Federation : Through Mr. Asim Mansoor Khan, D.A.G a/w

Mr. Mohammad Gulzar Shaikh, D.G (H.R), NTDC.

J U D G M E N T

MRS. ASHRAF JAHAN, J. This constitutional petition is brought to claim the following relief(s):-

“A. Declare that the appointments to the post of Junior Engineer (BPS-17) made by the Respondent No.2 are in violation of law and procedure;

B. Direct the Respondent No.2 to recommence the process of interview in a fair and transparent manner in accordance with law;

C. Direct the Respondent No.2 to submit before this Hon’ble Court written test papers of all the appointed candidates and further direct that the written test papers be checked through independent sources;

D. Restrain the Respondents from regularizing the appointment of the selected candidates to the post of Junior Engineer (BPS-17) till final disposal of this petition:

E. Grant costs;

F. Grant any further or better relief that this Hon’ble Court may deem just and proper in the facts and circumstances of the case.”

2. The facts as stated in the petition are that the Respondent No.2 published advertisement in the newspaper daily “Dawn” Karachi, dated 06.07.2011 for the post of Junior Engineer (BPS-17) on one year contract basis subject to regularization after one year of satisfactory service. The Petitioners having Bachelors Degree in Engineering from the renowned institutions of Pakistan applied for the above posts. They appeared in the written test as well as in the interview/viva-voce test and were quite optimistic about their appointment for the post of Junior Engineer in BPS-17. They were informed that the final result will be uploaded on internet as per past practice of NTDC and WAPDA, but the Respondent No.2 did not post or upload the interview result on internet and issued appointment letters secretly to the candidates of their choice. The Petitioners came to know about all these illegalities vide an Article published in daily “Dawn” dated 12.03.2012 under the heading “NTDC hires 60 Engineers in violation of rules”. It is further the case of the Petitioners that interviews were conducted by a three-member committee comprising the General Manager (GSC), Chief Engineer (Design) and Chief Engineer (GSO). It is the contention of the Petitioners that all these officers were working on “current charge basis” and therefore, may be vulnerable to all kinds of pressure and inducement. The Respondent No.2 in utter disregard of merit, transparency and violation of rules have made illegal appointments, therefore, the Petitioners have approached this Court for redressal of their grievances.

3. The Respondent No.2 in the present petition filed parawise comments and raised preliminary objection regarding maintainability of this petition on the ground that the Respondent No.2 does not have any statutory rules. It was further alleged that the Petitioners have raised factual controversies, which cannot be resolved in constitutional jurisdiction; therefore, on this ground also petition is not maintainable. It is further stated that the Respondent No.2 is a public limited company and commenced commercial operations in December, 1998. In order to construct and operate the system, it advertised the posts of Junior Engineers on 06.07.2011, resultantly 8879 candidates applied online against the said posts, 8621 candidates were shortlisted (as per advertised criteria) for written test to be held on 09.08.2011. In all 5733 candidates appeared in Lahore, Multan, Islamabad and Hyderabad Centres and only 1455 candidates passed the written test. Subsequently the candidates who had passed the written test were called for interview and the successful candidates were issued offer letters. It is further clarified that the Petitioners despite having prescribed qualification and passing of written test could not compete on merit against the available vacancies as per provincial quota; therefore, the petition being devoid of merit is liable to be dismissed.

4. During the pendency of this petition, interveners were impleaded as Respondents No.3 to 37; they also filed their counter affidavits denying the case of the Petitioners and have taken the plea that they have been selected purely on merit basis after completing the whole process of written test and interview in a transparent manner as per the recruitment policy. The final merit list was prepared and successful candidates were notified through appointment letters through courier service. It is the case of the Respondents that the petition has no substance and it is based on mere bald allegations based on factual controversy, which falls outside the scope of constitutional jurisdiction, hence the petition, is liable to be dismissed.

5. We have heard learned counsel appearing for the parties and have perused the case record. It is contended by the learned counsel for the Petitioners that they all are highly qualified engineers and had successfully cleared written test, but due to nepotism and favoritism, the committee did not clear them in interviews, therefore, the present petition has been filed. It has been prayed that the Respondent No.2 may be directed to recommence the process of interview in a fair and transparent manner in accordance with law and the written test papers of all the appointed candidates be checked through independent sources.

6. Mr. Usman Tufail Shaikh, advocate appearing for the Respondent No.2 submitted that in the whole province of Sindh, 1445 candidates passed the written test, out of them 162 qualified for interview, but only top 35 candidates of the relevant merit list (Sindh, Rural, Urban and Women) were appointed as per the prescribed quota. The interview committee of three-member bench conducted the interview purely on merit. He has also referred the answer sheets of the Petitioners, which were produced as per directions of this Court and submitted that the entire record was produced in the Court and shown to the Petitioners, only nine objections were raised by the Petitioners in respect of General Knowledge and no objection was raised in respect of Professional Knowledge of the Petitioners. It is also added that this is 4^th time that the Petitioners have applied, but failed in the test and interview, some of the Petitioners had earlier also filed C.P.No.D-183/2010, which was dismissed. They also approached the Wafaqi Mohtasib, but could not succeed, not only this, but five Petitioners appeared for the same post in the test held in 2014 through NTS and met with the same fate, therefore, the present petition is liable to be dismissed.

7. Mr. M.M.Aqil Awan, advocate appearing for the Respondents No.4, 5, 7 to 18, 20 to 24, 27 to 30 and 32 to 37 argued that the very petition is not maintainable as the Respondent No.2 does not have any statutory rules; the Petitioners have raised factual controversy, which cannot be resolved in constitutional jurisdiction. According to him the whole process has been conducted in a very transparent manner, therefore, it cannot be challenged in this way, the Petitioners have raised disputed questions of facts and nothing specifically has been pin pointed, therefore, the petition is devoid of any merit and is liable to be dismissed. Per learned counsel, the tests were conducted in Lahore, Multan, Islamabad and Hyderabad and only this petition has been filed against the whole process. Even otherwise the petition has become infructuous as the post was advertised only for one year contract. Per learned counsel the Petitioners after unsuccessful participation in the process of appointment cannot challenge the same, reliance in this regard is placed upon the case of Ehsan-ur-Rehman and 10 others v/s. Arshad Ali Khan and 5 others (2012 PLC (C.S) 795). In support of his contentions he has further relied upon the case law reported as Asif Mehmood Chugtai Advocate v/s. Government of Punjab (2000 SCMR 966), Sonu v/s. Province of Sindh (2012 PLC (C.S) 249), Dr. Mir Alam Jan v/s. Dr. Muhammad Shehzad (2008 SCMR 960) and Secretary Finance v/s. Ghulam Safdar (2005 SCMR 534). The learned counsel appearing for the remaining Respondents adopted the arguments submitted on behalf of other Respondents.

8. In rebuttal, the learned counsel appearing for the Petitioners conceded to the position that no objection in respect of professional knowledge of the Petitioners has been raised by them after seeing the record.

9. We have considered the arguments and have perused the case record. Admittedly the Respondent No.2 is a public limited company, having no statutory rules. There is a plethora of judgments of Honourable Apex Court to the effect that no petition lies in the matters where the terms and conditions are not governed by statutory rules. Further the Petitioners have filed this petition seeking declaration that the appointments of Respondents No.3 to 37 may be declared in violation of law. It will be relevant to note that the above appointments were made in the year 2012 on one year contract basis subject to regularization after one year of the satisfactory service. It is a matter of record that all relevant record was produced by the Respondent No.2, and the Petitioners after seeing the same raised only nine petty objections, that too, not in respect of professional knowledge. It will be relevant to mention that mere selection in written examination and interview test would not, by itself, vest candidates with any fundamental right for enforcement as such. Even otherwise it is established legal position that factual controversies, which are very much involved in the present petition as per allegations and counter allegations between the parties, cannot be decided by invoking the jurisdiction of this Court under Article 199 of the Constitution.

10. In view of above discussion, we are of the considered view that this petition merits no consideration and is therefore dismissed accordingly.

Judge

Manzoor/P.A