THE PROVINCE OF PUNJAB through, Secretary Education Department, Lahore and others vs Mst. SARWARI BEGUM
This petition for leave to appeal was filed by the Province of Punjab against the judgment of the Lahore High Court, which upheld a Single Judge's order directing the petitioners to issue an appointment letter to the respondent. The respondent had sought a writ of mandamus to compel the authorities to make appointments based on merit rather than extraneous considerations, pointing out that her appointment summary had already been approved by the competent authority but was delayed by bureaucratic bottlenecks. The petitioners contended that the High Court lacked jurisdiction under Article 212 of the Constitution of Pakistan 1973 as the matter related to the terms and conditions of a civil servant. The Supreme Court held that the High Court's constitutional jurisdiction was not ousted because the matter did not involve the terms and conditions of service of an active civil servant, but rather the implementation of an approved appointment. The Court affirmed that public authorities cannot approbate and reprobate by withholding an appointment they themselves approved, and dismissed the petition.
- Does the ouster of jurisdiction under Article 212 of the Constitution of Pakistan 1973 apply to a candidate seeking the implementation of an already approved appointment summary?
- Can a government department refuse to issue an appointment letter after the candidate's appointment summary has been formally approved by the competent authority?
- Whether the principle of 'approbate and reprobate' prevents a government department from withholding an appointment it has officially recommended and approved?
- Article 212, Constitution of Pakistan 1973
ORDER
' JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment dated 30-1- 2001 passed by learned Division Bench of the Lahore High Court, Lahore whereby the appeal preferred on behalf of Province of the Punjab (petitioner) has been dismissed and order dated 15- 4-1999 passed by learned Single Judge in chambers was upheld.
2. Mr. Muhammad Sharif Butt, learned Advocate Supreme Court appeared on behalf of petitioners and contended that the learned High Court has no jurisdiction relating to the terms and conditions of civil servants in the light of provisions as contained, in Article 212 of the Constitution of Republic of Pakistan and judgment impugned is liable to be set aside on this score alone. It is next contended that learned High Court has transgressed its Constitutional jurisdiction as controversial disputes could not be resolved without recording evidence.
3. We have carefully examined the judgment dated 15-4-1999 by the learned Single Judge in chambers and judgment impugned. The main contention of the respondents in Writ Petition (No.1450 of 1997) was that the appointment should be made in accordance with law and merits and the authorities concerned be constrained from making appointments on extraneous considerations. The writ of mandamus has rightly been issued by the learned Single Judge in chambers directing that no appointment should be made for extraneous considerations by ignoring the merit as determined by the department whereby the summary for appointment of the respondent was approved by the competent authority on 10-5-1997 which could not have been kept pending on the basis of bureaucratic bottle-necks created by the Deputy District Officer, Gujranwala. The learned Advocate Supreme Court when confronted with this position with specific reference to the summary prepared by the department itself and duly approved by the Competent Authority on 10-5-1997, no plausible justification could be furnished for its nonimplementation/non- compliance by the Deputy District Education Officer, Gujranwala. It is not the case of Government that no such summary was ever prepared and approval whereof was also not challenged. All the contentions raised before the learned High Court have been dilated upon and decided vide judgment impugned, relevant portion whereof is reproduced herein below for ready reference:-- "3. We have considered the contentions bf the learned Additional Advocate-General and perused the record ourselves.
' It is an admitted fact that, during the pendency of the writ petition, appellants recommended the respondent for the post in question. It is a settled principle of law that nobody is allowed to approbate and reprobate. The appointment cannot wriggle out from the situation. Therefore, the impugned order is valid in the eye of law. As per law laid own by the Honourable Supreme Court in case reported Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376, the contention of the learned counsel of the appellants have no force. The learned Single Judge directed the appellants to act in accordance with their own recommendations and issue appoiniment letter to the respondent w.e.f. 10-5-1997 i.e. The date when her summary for appointment was duly approved by the authority concerned."
4. The conclusion as arrived at by the learned High Court being well-based does not warrant any interference. It is worth mentioning that no question of terms and conditions of service ousting the Constitutional jurisdiction of the learned High Court was involved in the matter as pressed time and again by the learned Advocate Supreme Court for the petitioners. No question of law of public importance is involved in the, matter on the basis whereof leave could be granted. The petition being meritless is dismissed and .