C.P.No.D- 618 of 2006.

Mr. ARSHAD NOOR KHAN &

Mr.MUHAMMAD ISMAIL BHUTTO, JJ.

Date of hearing 05.05.2009.

Petitioners Mehmoodul Hassan and another through M/s Noor Hassan Malik and Gul Bahar Korai, advocates.

Respondents Federation of Pakistan and others.

Respondnent Nos.1 through Mr.Sher Muhammad Shaikh, Deputy Attorney General.

Respondent Nos.2 to 5 through Mr.A.M.Mubeen Khan, advocate.

Nemo for private respondents.

JUDGEMENT.

ARSHAD NOOR KHAN, J.- By this constitutional petition under article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek declaration to the effect that the appointment of respondent Nos.6 to 15 for the post of assistant driver pakistan railway, is illegal malafide and without lawful authority.

The facts as stated in the petition in

brief are that the respondents invited applications for the post of assistant driver in BPS-6 in railway department with the minimum educational qualification as metric science or three years diploma in mechanical/electrical or electrical technology with the age limit in between 18 to 30 years for filling the fifteen vacant posts. According to the petitioners, 20 percent quota was fixed for the sons of serving or retired employees of railway. The petitioners applied for the said post and participated in the written test held on 26.2.2006 and both the petitioners obtained highest marks in the written test and were declared successful amongst thirty six other candidates and thereafter the interview/viva voice was conducted on 26.4.2006 and at the time of the appearance of the petitioners in the viva voice, the selection committee congratulated them. It is further stated in the petition that after interview, two candidates were selected from the quota of 20 percent of the railway employees and ten seats were filled and the petitioners did not qualify in the interview/viva voice. They therefore filed the present petition alleging therein a discrimination with them by the respondents in ignoring them from selection inspite of highest marks obtained by them in the written test.

The respondent Nos.1 to 6 have also filed their comments, inter alia, admitting therein the participation of the petitioners in the written test and their obtaining highest marks in the written test as well as 20 percent quota of the sons of railway employees, out of which two of them were selected on the quota of 20 percent. It is further stated in the petition that the petitioners did not qualify in the interview/viva voice and secured zero marks and that only sixty marks were allocated for the written test and twenty marks were allocated for viva voice/oral interview and after aggregate marks of both the test, incumbent obtained highest marks in both the test were selected on merits and the petitioners were declared fail in viva voice therefore, they could not be appointed.

We have heard Mr. Gul Bahar Korai, learned counsel for the petitioners, Mr. A.M. Mubeen Khan, learned counsel for the respondent Nos.2 to 5 and Mr. Sher Muhammad Shaikh, learned DAG.

Mr. Gul Bahar Korai, learned counsel or the petitioners contended that there is violation of rule 129(c) of the Personal Manual of Pakistan Railway as such the whole exercise conducted by the respondents was contrary to their own rules. He further contended that the petitioners having obtained highest marks in written test could not obtained zero marks in interview ,therefore, they have been discriminated by the selection committee to deprive them from their legitimate right. He further contended that the act of the respondents, is illegal and malafide in non-selection of the petitioners, as such the appointment of the respondent Nos.6 to 15 may be declared as null and void.

Mr. A.M. Mubeen Khan, learned counsel for respondent Nos.2 to 5 vehemently controverted the arguments advanced by the learned counsel for the petitioners and has contended that the whole process of the selection of the new incumbent was fair and transparent and no malafide has been alleged against the respondents or selection committee and that the petitioners were declared fail in viva voice therefore they themselves could not qualify the interview and failed candidates have no vested right to claim their appointment as a matter of right in comparison to those who have cleared both the tests and have been appointed on merits, as such no illegality or irregularity has been pointed out by the petitioner in the selection made by selection committee.

Mr. Sher Muhammad Shaikh, learned DAG for respondent No.1 also supported the arguments advanced by the learned counsel for respondents No.2 to 5 and has contended that no illegality or irregularity is apparent on the face of whole process of selection nor rule 129(c) of Pakistan Railway Personal Manual, has been violated, as such this petition is not maintainable and is liable to be dismissed.

We have considered the arguments advanced on behalf of the parties and have gone through the material available before us.

It is an admitted position that it was condition precedent for the candidates to qualify written test and interview for the purpose of their selection on merit and for the purpose of written test sixty marks were allocated and for oral interview/viva voice twenty marks were allocated. Thus it was obligatory on the part of the candidates to qualify both the test so as to place their name in the merit list for selection of the candidates. Admittedly the petitioners qualified in written test and unfortunately they failed to qualify the interview/viva voice and obtained zero marks. The petitioners have not alleged any malafide on the part of the selection committee before whom they appeared for oral interview/viva voice nor the formation of selection committee has been disputed by the petitioners nor there could be any record of the oral interview/viva voice, as such the performance of the petitioner in oral interview/viva voice could not be adjudged in the present petition nor it could be observed about their fitness in viva voice. The learned counsel for the petitioners heavily relied upon rule 129(c) of Pakistan Railway Personal Manual Volume-I but a perusal of rule 129(c) ibid shows that no violation of the rules has been made by respondents as rule 129(c) speaks about allocation of marks in written test, games physique, personality etc, which speaks about selection of the candidate by obtaining the marks set-forth in view of rule 129(c) ibid. There appears no violation of any rule in selection of the appointment of the respondent Nos.6 to 15.

The petitioners have completely failed

to point out any alleged discrimination or malafide on the part of the respondent Nos.2 to 5 in the process of selection of the assistant driver. The petition seems to be devoid of any force. The petition was dismissed by us on 05.05.2009 by a short order for the reasons to be recorded lateron alongwith listed applications and same are the reasons for our short order.

JUDGE

JUDGE

AKBER.

Approved for reporting.