ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No. D-723 of 2011

Date	Order with signature of Judge

Present: Mr.Justice Muhammad Ali Mazhar

Mr.Justice Abdul Rasool Memon

Asghar Khan & others _______________ Petitioners

Versus

Province of Sindh & others___________________Respondents

For Katcha Peshi.

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14.02.2014.

Mr.Abdul Salam Memon, Advocate for the petitioners.

Mr.Sibtain Mehmood, AAG

Malik Tariq, D.S.P. (T & R) and Inspector Abdul Rehman.

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Muhammad Ali Mazhar J. The petitioners have brought this constitutional petition for declaration that non-issuance of appointment orders and posting orders of the petitioners as Police Constables in BS-05 by the respondents after complying with all codal formalities is unwarranted in law and they have also prayed that the respondents may be directed to issue their appointment orders.

2. Brief facts of the case are that in the year 2008 advertisement was published in the daily newspaper for the vacant posts of Police Constables. All the petitioners applied for within stipulated period of time and submitted all requisite documents with their educational testimonials. They were issued call letters with the directions to appear for physical test and they were declared successful candidates, thereafter, the petitioners were called and appeared in the written examination in which also they were declared successful. After qualifying the written test the petitioners were called upon to appear before Medical Superintendent for medical examination, which was conducted on 14.5.2009 for few petitioners and for other petitioners the medical examination was conducted on 10.9.2009 for which they submitted requisite medical fee.

3. Learned counsel for the petitioners argued that despite fulfilling all codal formalities the formal appointment letters were not issued. Learned counsel further argued that vested right has accrued in favour of the petitioners who were declared qualified through proper channel, so they have legitimate expectation to be appointed. It was further argued that some of the candidates who were part of the same batch of the petitioners were given appointment letters and they also completed their training course, but the discrimination has been committed with the present petitioners. Learned counsel has referred to the order passed in C.P.No.D-2016/2009 in which 42 petitioners were ordered to be appointed hence, learned counsel argued that present petitioners deserve the same treatment and refusal to appoint them is against the tenet of law and good governance.

4. Learned counsel for the petitioner also referred to Rule 12.16, Chapter XII of (Appointments and Enrolments) Police Rules, 1934, which reads as under:-

“Every recruit shall, before enrolment, be medically examined and certified physically fit for service by the Civil Surgeon. A certificate, in the prescribed form (10-64), signed by the Civil Surgeon, personally, is an essential qualification for enrolment (vide Fundamental Rule 10). The examination by the Civil Surgeon will be conducted in accordance with the instructions issued by the medical department and will test the eyesight, speech and hearing of the candidate, his freedom from physical defects, organic or contagious disease, or any other defect or tendency likely to render him unfit, and his age. The candidate must strip for examination, a loin covering being allowed except when the examination is being completed, and candidate who refuses to do so must be rejected. The conditions of police service make it necessary that the medical examination of candidates should be strict. Candidates shall be rejected for any disease or defect which is likely to render them unfit for the full duties of a police officer.

(a) Superintendents are themselves responsible for rejecting candidates whose general standard of physique and intelligence is unsatisfactory only those candidates should be sent for medical examination whom the Superintendent has accepted as being up to the required standards in these respect.

The purpose of referring to the above rule as argued by the learned counsel is to show that codal formalities were fulfilled by the petitioners and their credentials were found satisfactory so that they were sent for medical examination otherwise there was no question to refer to them for medical examination. Learned counsel further argued that earlier this aspect was not considered by the other learned benches of this court who disposed of other petitions based on similar controversy and the numbers of which petitions are mentioned in the counter affidavit filed by the respondent No.4, hence the judgments of earlier benches of this court are per incuriam in which the implication of aforesaid rule was not considered while disposing of the petitions.

5. To a question raised by the this court that the petitioners applied for the said post in the month of June, 2008 and the medical examination was conducted on 14.5.2009 but they have filed this petition in the month of March, 2011, why the case is not hit by laches. Learned counsel responded that the petitioners are continuously approaching the competent authority, however, he mainly focused on the premise that on 31.12.2009 against the similar cause of action 42 other petitioners in C.P.No.D-2016/2009 were ordered to be appointed therefore, the present petitioners are claiming the same treatment. In support of his argument, he relied upon the following case law:

(1) 1988 P.L.C. (C.S) 344 (Manthar Ali M. Jatoi v. Government of Sindh). Although appointment to civil service has to be made by competent authority but such appointment was required to be made on the recommendation of Public Service Commission, in order to refuse to accept recommendation of Public Service Commission, competent authority, has to act under some rule or at least for some cogent reason which factors were absent in the case of petitioner. Every person is entitled to be treated in accordance with law. Petitioner could not have been dealt with arbitrarily in the matter of his appointment.

(2) 1995 C.L.C. 1453 (Abdul Razzak v. The Collector of Customs & another). As per incuriam decision, even if of the highest court, does not bind any other Court and it matters little that such court itself be at the lowest rung in the hierarchy of courts.

(3) 2012 P.L.C. (C.S) 218 (State Bank of Pakistan v. Imtiaz Ali Khan & others). Laches is a doctrine where under a party which may have a right, which was otherwise enforceable, losses such right to the extent of its enforcement, if it is found by the court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party, but he cannot enforce it. The limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance though remains, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.

6. The respondent No.4 has filed his comments in which clear plea was taken that all the petitioners failed to achieve the threshold of 125 marks in the process of recruiting hence they were not considered for appointment as police constables. In the comments the respondent No.4 has mentioned various petition numbers which were earlier decided by this court relating to the same controversy though the petitioners were different. It was further stated that C.P.No.D-255 of 2010 was disposed of by this court in which the review application was filed but the same was dismissed by this court. Against the said order, the petitioners filed leave to appeal CPLA No.386-K of 2010 in the hon’ble Supreme Court of Pakistan, which was also dismissed. It is further stated in the comments that the same learned counsel appearing for the petitioners appeared in many similar cases which were filed in the year 2010 and the same were disposed of by this court. In support of his argument learned AAG has relied upon the following case law:-

(1) PLD 2007 S.C. 472 (Jawad Mir Muhammadi & others v. Haroon Mirza & others). Article 199. Constitution petition. Laches. Principles. Laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case. Question of delay/laches in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case.

(2) 1995 SCMR 698 (Chairman, PCSIR v. Dr.Mrs.Khalida Razi). Article 185. Constitution of Pakistan 1973, Employee’s Constitutional petition before High Court suffered from gross laches. Such fact by itself was sufficient to deny her relief sought in the constitutional petition. Anyone seeking restoration to the office from which he/she had been removed in an illegal manner was required to show some measure of diligence which had been entirely wanting in the case.

(3) 2005 SCMR 534 (Secretary Finance v. Ghulam Safdar). Articles 185, 199 and Part II, Chapter I. Constitutional petition. Fundamental Rights. Civil service. Mere selection in written examination and interview test would not, by itself, vest the candidate with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Authorities admittedly had not issued any offer of appointment to the candidates and their appointment was subject to clearance by the establishment division under the Centralized System of Recruitment. High Court, in circumstances was not right in overlooking such aspects of the case while issuing writ of mandamus. It is hard to accept whether the candidates had a vested legal right for enforcement under Article 199 of the Constitution on the date when they file the writ or that the authorities were under a legal duty to issue order of appointment without completing and observing all legal requirements.

7. The learned AAG opposed the maintainability of the petition on the ground of laches as the petitioners applied against the posts of police constables in response to the advertisement published in daily Jang on 12.6.2008 and according to them their medical examination of the few petitioners was conducted on 10.9.2009 and few petitioners were examined on 18.11.2009, while petition was filed in this court after about 15 months. He further argued that no plausible reason has been given in the memo of petition to say that what prevented the petitioners not to approach this court immediately and why they were waiting for such a long time.

8. What we have observed from paragraph 16 of memo of petition that the petitioners have claimed the same relief granted in favour of 42 petitioners in C.P.No.D-2016 of 2009 on 31.12.2009. We have seen the order passed by the learned division bench of this court whereby consent order was passed that the petitioners who were before the court shall be entertained by the police department for employment as police constable after they clear their medical test subject to other necessary formalities viz checking of antecedents etc. and finally after considering the cases of some other interveners, the petition was disposed of vide order dated 19.1.2010. It is also a fact that the present petitioners are seeking the benefit of the order dated 31.12.2009 but they have approached this court on 10.3.2011.

9. Learned AAG along with the comments attached a copy of various orders passed by this court in other petitions in which it was clarified that in response to the advertisement published in the year 2009 125 marks were required to be obtained by every applicant. So in the present case the learned AAG has filed the comments and come up with the plea that none of the present petitioners secured 125 marks, hence, they are not entitled for the relief claimed. While learned counsel for the petitioners argued that once the letter for medical examination is issued it means that the petitioners had cleared the written test otherwise there was no need to issue letter for medical examination. The same learned counsel filed a review application in C.P.No.255/2010 against the order dated 12.3.2010 on the ground that after issuing medical letters there was no question of reviewing their threshold marks in the written test. The review application which was disposed of with the direction that all those candidates who were not entertained by the police department and who appeared in the 2008 and 2009 batches shall again apply for another prospective vacancies in the police department for the police constables. They shall be subject to written test and interview but their threshold marks shall be 90 for those who applied in the 2008 batch and 125 for those who applied in 2009. If they clear the written test and interview and also medical test and their antecedents are verified as per the rules then they shall be given appointment letters and they shall be given priority over the fresh candidates. Being dissatisfied the petitioners filed C.P.L.A No.386-K of 2010 in the hon’ble Supreme Court but leave to appeal was refused and the petition was dismissed.

10. We would like to point out that counsel for the petitioner in C.P.No.255/2010 was also Mr.Abdul Salam Memon, who is counsel for the petitioners in the instant petition. No plausible or logical justification has been offered in the memo of petition to show as to why the petitioners were waiting such a long time to approach this court. Question of laches in the case of employment has much significance and due to inordinate delay the things and circumstances are enormously changed. The petitioners applied in 2008 batch but instead of approaching vigilantly they maintained complete silence and were in deep slumber. Due to recklessness and lethargic attitude in approaching the court of law in the service matters the entire complexion and scenario become changed and the concerned department cannot force to provide job to an indolent petitioner to treat him at par with other candidates of 2008 batch which matter has become a past and closed transaction. Likewise the benefit of order passed in earlier C.P. cannot be given to the present petitioner after such a long delay in which the matter of recruitment pertaining to 2008 batch is over. The Rule 12.16 of Police Rules has no germane to the present controversy even we do not find out any judgment per incuriam decided. The earlier C.P. was disposed of by consent to settle some modalities to examine and treat the candidates of 2008 and 2009 batches separately with a different threshold. If it was a case of any discrimination as alleged the petitioners should have approached to this court immediately rather than to waste substantial time. The honorable Supreme Court in the case of Ghulam Safdar (supra) held that mere selection in written examination and interview test would not, by itself, vest the candidate with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Authorities admittedly had not issued any offer of appointment to the candidates. In the present case also it is hard to accept whether the candidates had a vested legal right for enforcement under Article 199 of the Constitution on the date when they file this petition. We feel no hesitation in our mind to hold that the petition is hit by laches. The consideration upon which the court refuses to exercise its discretion where the petition is delayed is not limitation but matters relating to the conduct of parties and change in the situation. Laches in simplest form mean failure of a person to do something which should have been done by him within a reasonable time if remedy of constitutional petition is not availed within reasonable time the interference can be refused on the ground of laches. Even otherwise, grant of relief in writ jurisdiction is discretionary, which is required to be exercised judiciously. No hard and fast rule can be laid down for the exercise of discretion by the Court for grant or refusal of the relief in the exercise of extraordinary jurisdiction.

11. As a result of above discussion, this petition is dismissed.

Judge

Karachi,

Dated: 12.05.2014