Judgment Sheet

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Constitution Petition No. D-863 of 2018

(Imran Magsi and Ors Vs. Province of Sindh and Ors.)

DATE

ORDER WITH SIGNATURE OF JUDGE

Before:

Mr. Justice Muhammad Saleem Jessar,

Mr. Justice Nisar Ahmed Bhanbhro,

Petitioners: Imran Magsi and others

Through Mr. Ghulam Dastagir A. Shahani, Advocate.

Respondents Through Mr. Liaquat Ali Shar, Additional Advocate General,

Sindh.

Date of Hearing: 24-04-2025

Date of Order: 24-04-2025

J U D G M E N T

NISAR AHMED BHANBHRO J.- Through instant petition the petitioners have claimed following relief:-

(a) Declare that the petitioners are eligible, having preferential right to be appointed as a Primary School Teachers, as they have secured more than 60% marks, and the act of respondents withholding/avoiding to issue offer and appointment orders in favor of petitioners, is illegal, unlawful, malafide, without lawful authority and justification, discriminatory and against the particular Recruitment Policy and law of natural justice.

(b) The Honorable Court may be pleased to direct the respondent No.5 to submit a relevant merit list on scrutinizing the usual certificate of the candidates from concerned Board and University, so eligible candidates able to get job on U.C wise basis, as advertised.

2. The facts of the case are that School Education Department, Government of Sindh invited applications for recruitment against the post of Primary School Teachers in the Province of Sindh. Pursuant to the advertisement petitioners applied for the post of Primary School Teacher, they appeared in the test conducted by the University of Sindh, Jamshoro Testing Service and secured more than 60 marks. The petitioners approached respondents for issuance of appointment orders but they refused. Hence, this petition.

3. On notices the respondents filed their reply to the petition, denied the claim of petitioners that no candidate securing less marks than that of petitioners has been taken into service. The appointment process initiated in year 2012 was concluded and thereafter fresh advertisement for recruitment was issued and now the last recruitment process initiated in the year 2021 is under progress. Petition is not maintainable and merits dismissal.

4. Mr. Ghulam Dastagir A. Shahani Learned Counsel for the petitioners contended that the petitioners remained successful in recruitment test, appeared for interview before the Selection Committee but were deprived of appointment orders under extraneous consideration and candidates securing less marks then petitioners were accommodated. He contended that petitioners qualified for the job and right accrued in their favor, they were meritorious candidates, denial of appointment to the Petitioners offended their fundamental right. He placed his reliance upon the case of Shabir Hussain and others V. Executive District Officer Education and others reported in 2012 CLC 16. He prayed for allowing the petition.

5. Conversely, Mr. Liaqat Ali Shar learned Additional Advocate General, Sindh contended that the petition is not maintainable. The recruitment process initiated in the year 2012 was sponsored by World Bank under Sindh Education Reforms Program and a certain number of posts of Primary School Teachers were filled under the project. Since the recruitment was for the vacant positions only, the process was completed by preparation of merit list and only those candidates who secured highest marks in the merit were accommodated. Petitioners though qualified written test but fell short of the merit, therefore, they were not considered for appointment. He prayed for dismissal of Petition.

6. Heard arguments and perused material available on the record.

7. Petitioners though qualified the written test by securing more than 60 marks but the same by no means created vested rights in their favor for appointment. Petitioners failed to demonstrate by placing on record reliable material that any candidate securing less marks to those of Petitioners was accommodated in service. The Petitioners have not arrayed any appointee party in the present proceedings who per their claim was below in merit and sought appointment. The claim of the petitions is based upon hypotheses that they qualified the recruitment test and in all circumstances they should be accommodated which presumption cannot create any right in their favor, the petitioners have failed to place on record any documents to demonstrate that they were entitled for job and denied such right in arbitrary manner.

8. Learned counsel for the petitioners placed reliance upon the judgment of Shabir Hussain and others Supra wherein the Learned Division Bench of this Court in para No.8 has held as under:-

“8. Hence, we are of the view that those candidates, whose aggregate is not sufficient so as to list them under the recruitment policy as successful candidates against any available vacant seat, then such candidates cannot claim the right to be appointed though he or she may have obtained 60% qualifying marks or more in the written test. In case any unsuccessful candidate is still interested to have a career in teaching, then he or she has to wait till vacancies are again advertised by the Education Department, he shall be free to apply again and compete with those who would be applying against future vacancies.”

9. Moreover, the appointment process was concluded in the year 2012 whereas the petitioners have approached this court in year 2018, after a delay of about 6 years for which they failed to account for. Petitioners remained silent for a period of 06 years as such slept over their rights. They are guilty of contumacious laxity, gross negligence and the delay prosecution for enforcement of their rights. Though as a general principle law of limitation is not applicable to the proceedings under article 199 of the Constitution but question of laches would be involved when the petitioners failed to initiate proceedings with promptitude and within a reasonable time, which they were required to do. The petitioners were required to agitate their grievance to the department within reasonable time once they realized that their rights were prejudiced by the appointment of other candidates but they chose to remain silent. The petition suffers from latches, the Petitioners slept over their rights and an indolent litigant cannot claim relief under equitable writ jurisdiction of this Court.

10. The principle of laches has been dealt by Honorable Supreme Court of Pakistan in the case of NATIONAL BANK OF PAKISTAN through President, Karachi Versus SAJJAD ALI KAKAKHEL and another reported in 2024 S C M R 12, in the following manner:

“3. Having heard the learned counsel for the parties and going through the record, it is clear and obvious that the respondent had been superseded in 2010 which supersession was not challenged within a reasonable time. The constitutional petition filed by the respondent before the High Court suffered from laches. Further, the right that the respondent asserted and continues to assert to be granted proforma promotion for which there is no provision in the relevant service rule. This is coupled with fact that the respondent had already retired from service and received all his benefits due to him under the law. As such, we find that interference by the High Court in the matter at the stage that it interfered was not supported either by the relevant law or by any of the rules which governs the terms and conditions of employees of the petitioner/Bank. We, therefore, find the impugned judgment to be unsustainable. Consequently, we convert this petition into appeal arid allow the same. The judgment of the Peshawar High Court dated 15.12.2020 is accordingly set aside.”

11. Sequel to above discussion no case for indulgence of this court under Article 199 of the Constitution in its writ jurisdiction is made out. The petition suffers from latches so also devoid of merits is hereby dismissed with no order as to costs along with listed applications.

JUDGE