ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D-186 of 2009

Date Order with signature of Judge

Present:

Mr. Justice Gulzar Ahmed &

Mr. Justice Shahid Anwar Bajwa.

Date of hearing on 29.4.2010.

Mr. Abdul Salam Memon, Advocate for petitioner.

Mr. Mian Khan Malik, D.A.G.

Mr. Shaikh Jawaid Mir, Advocate for respondent Nos. 2 & 3.

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GULZAR AHMED,J.:- Through this petition, petitioner has made the following prayer:

a. To declare that the Prime Minister’s Task Force on Employment and Human resources and/or the respondent No. 3 have no lawful authority or jurisdiction to required NOC from it before recruitment of its employees by the respondent No.2.

b. To declare that the Orders, O.M.S, Circulars, Directives issued by the Prime Minister’s Task Force on Employment and Human Resources and/or respondent No. 3 including letter dated 13.12.2008 whereby the respondent No. 2 was required to obtain NOC prior to recruitment, appointment of employed including the petitioner is arbitrary, illegal, malafide, unwarranted and without any lawful authority or jurisdiction and set-aside the same.

C. To Setasdie the letters/circulars dated 31.12.2008 and other directives issued by the respondent No. 2 purporting to cancel/withdraw letter of medical certificate of appointment of the petitioner.

d. To direct the respondents to give effect to the letter of medical examination dated 18.12.2008 issued by the respondents No. 2 for appointing the petitioner as Deputy Manager (horticulture) in BS-17 in the service.

e. To prohibit the respondents or any person(s) acting under their authority form appointing any other person in any manner/mode or giving charge as Deputy Manager (Horticulture) in BS-17 in the service of respondent No. 2 till the decision of the petition.

f. To grant any other relief which is deemed just and appropriate by this Honourable court.

g. Cost of the petition may be awarded to the petitioner.

Mr. Abdul Salam Memon, learned counsel for the petitioner has contended that as the petitioner was issued by the respondent No. 2 letter of medical examination, the petitioner has acquired vested right to be appointed by the respondent No.2 as Deputy Manager (Horticulture) BS-17 and it being decisive step no power remained to recede from it. In support of his submissions he has relied upon the case of SECRETARY FINANCE & OTHERS V/S GHULAM SAFDAR (2005 SCMR 534), MANTHAR ALI M. JATOI V/S THE GOVERNMENT OF SINDH THROUGH CHIEF SECRETARY, SINDH SECRETARIAT, KARACHI (1988 PLC (CS) 344), SOHAIL JABBAR MALIK V/S PROVINCE OF SINDH & OTHERS (SBLR 2009 Sindh 550) and MUHAMMAD RASHEED V/S GOVERNMENT OF PUNJAB & OTHERS (2006 SCMR 1082).

Mr. Shaikh Javed Mir, learned counsel for respondent No.2 contended that task force had no legal mandate to make appointment for respondent No.2 and mere letter of medical examination confers no right of being appointed and there being no offer of appointment to the petitioner, no vested right has accrued to the petitioner for being appointed by respondent No. 2. In support of his submission he has relied upon the case of SECRETARY FINANCE & OTHERS V/S GHULAM SAFDAR (2005 SCMR 534) and also an order dated 14.5.2009 passed in C.P.No. D-401 of 2009 by Division Bench of this Court.

Mr. Mian Khan Malik, learned D.A.G. has contended that para-wise comments filed by respondent No.2 clearly shows that petitioner has not applied for being appointed and that the respondent No. 2 has even denied interviewing or selecting the petitioner and that no right has accrued to the petitioner for being appointed by respondent No.2. He has also referred to para 10 of comments filed by respondent No.2.

We have considered the submission made by the learned counsel and have gone through the record.

Petitioner claims that on the advertisement published by respondent No. 2 in DAWN dated 4.11.2008 where it sought applications for appointment on contract basis for a period of two years, the petitioner applied for being appointed as Deputy Manager (Horticulture) BS-17 and that his application was considered along with other candidates. He was duly interviewed by the Departmental Selection Committee (the Committee) comprising of Director General (Technical/Finance) as Chairman, three Director Generals, two Directors and one Deputy Director as members upon which the Committee recommended his name for appointment to the post of Deputy Manager (Horticulture) BS-17. Through order dated 18.12.2008 petitioner was advised to appear before Naval Central Surgery for medical examination. Petitioner was medically examined and found fit. It is alleged that respondent No.3 through letter dated 30.12.2008 informed the respondent No.2 that all medical letters for the post of BPS-5 to BPS-15 and above have been issued to applicants without obtaining NOC from Prime Minister’s Task Force on Employment and be cancelled and the respondent No. 2 through circular dated 31.12.2008 cancelled such medical letters. Petitioner has alleged that through said circular he has been deprived of lawful appointment and that respondent No.2 has reconstituted a committee and is filling the post arbitrarily and has filed this petition with prayer noted above. The respondent No.2 has filed para-wise comments in which it has denied the claim of the petitioner. No rejoinder has been filed by the petitioner.

Petitioner has claimed that he has applied for being appointed to the post of Deputy Manager (Horticulture) BS-17 in terms of advertisement published in DAWN dated 4.11.2008 by the respondent No.2 but with the petition he has filed as annexure ‘B’ an undated copy of application addressed to Director (HRM) Port Qasim Authority, Karachi requesting for the post of Horticulture BS-17 and seem to have attached his CV with it. Copy of CV is not attached with the application. The petitioner in para 2 of his petition has claimed that he is Graduate and having the educational qualification of M.A. Part-I. In the very advertisement the prescribed qualification required for Deputy Manager (Horticulture) BS-17 was at least 2^nd Class Bachelor’s Degree in Forestry/Agriculture and computer literate and three years experience in relevant field with the age of 30 years. There is nothing on the record to show that the petitioner was holding 2^nd Class Bachelor’s Degree in Forestry/Agriculture and is a computer literate and has three years experience in relevant field and he was 30 years of age and was qualified and eligible for appointment to the post of Deputy Manager (Horticulture) BS-17. In the absence of any material to show that petitioner was qualified and eligible for being appointed as Deputy Manager (Horticulture) BS-17, the mere letter of medical examination will not confer any right on the petitioner for being appointed by the respondent No.2 as the issuance of medical examination letter does not amount to a representation by respondent No.2 of offering of employment to the petitioner. As it appears the petitioner has managed to obtain by some means the letter of medical examination and by making false averments in the petition has tried to put up a case of appointment as Deputy Manager (Horticulture) BS-17 without at all showing that he was qualified and eligible for being appointed to said post. In any case, in case of Secretary Finance & others (supra) at page 541 the Hon’ble Supreme Court has observed as follows :

10. Be that as it may, it is difficult to sustain the prayer of the respondents since mere selection in written examination and interview test would not, by itself, vest candidates with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Admittedly, the appellants had not issued any offer of appointment to the respondents and their appointment was subject to clearance by the Establishment Division under the Centralised System of Recruitment till it was discontinued in November, 1996, which again coincided with the imposition of ban on fresh recruitments, which could not be safely ignored by the appellants. Thus, the High Court was not right in overlooking this aspect of the case and issuing a writ of mandamus of the nature prayed for.

The principle enunciated in the above judgment cited by counsel for the petitioner goes contrary to the case of the petitioner. Petitioner counsel has relied upon other judgments also which in our view are distinguishable from the facts and circumstances of the present case.

After hearing the counsel for the parties, through short order dated 29.4.2010 we have dismissed this petition. Above are the reasons for the said short order.

J U D G E