NISAR AHMED MEHAR Versus PROVINCE OF SINDH thorough Chief Secretary Sindh

AZIZ-UR-REHMAN J.--- Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 30.10.2014, the Petitioner herein has approached this Court with the prayers as follows: - "a]. To declare that the act of the respondents from avoiding to issue specific proforma for medical examination of the petitioner is illegal, unlawful and without any lawful authority. b]. To declare that the petitioner is legally entitled to appear for medical examination after receiving the specific proforma form Respondent No.5 and further delay is illegal, bad in law, contrary to law and law of natural justice and mala fide intention without any lawful authority. c]. To order the respondent particularly the Respondent No.5 to issue the specific proforma for medical examination to the petitioner to appear, in the medication examination with immediate effect. d]. Costs of the petition. e]. Any their better relief and/or relief which this Hon'ble Court may deems fit and proper under the circumstances of the case."

2. Precisely, the facts giving arise to the filing of the instant Constitutional Petition are that on calling applications from eligible candidates through Publication made in Daily Newspaper [Sindhi], by the Respondent No.4, the Petitioner well before 25.10.2013, as asserted, applied for the post of Police Constable [In short P.C.], by way of an application coupled with all the requisite documents, in terms of publication made in the Newspaper.

3. Per assertions, the Petitioner besides, qualified all the 'terms' and 'conditions', had also passed in all the tests as per rules and, thereafter, was declared as a 'successful candidate'. The respondent No.6, had subsequently also issued Form No.12-18(i) vide No.11889/2014, dated 07.07.2014, for the purpose of 'verification' of character, which according to the petitioner's version was done properly in favour of the petitioner and the same was also submitted before the concerned Authority.

4. Per petitioner's version, upon declaration of being a 'successful candidate' the last and final requirement, as stated by the Petitioner, was only of a Medical Certificate for the appointment purposes. The petitioner, thus requested for issuance to him a 'specific proforma', so that the petitioner after medical examination, may, thereafter, become able to receive the appointment order. The Petitioner, however, was shocked, when the respondents, as alleged, avoided to issue the said 'specific proforma' apparently, on the basis of false excuse and/or without any lawful/jurisdiction. In doing so, the purpose seemingly was nothing, but, as alleged, was to deprive the petitioner from his lawful and legal rights. Hence, the instant petition.

5. On 31.03.2016, notices were issued to the respondents and Advocate General Sindh. On 9th June, 2016, when the above petition again came-up before the Court then, the following order was passed: -

"1. Urgency granted.

2&3. Comments have been filed by A.I.G.P./Legal on behalf of Inspector General of Police, Sindh, which are taken on record. Mr. Mazhar Hussain Alvi, P.D.S.P, states that entire process for appointments / recruitment for the post in question has been abandoned by the Police Department and the same shall be started afresh by the respondents. He undertakes to file a statement in this behalf. For this purpose, matter is adjourned to 10.06.2016 at 10.00 a.m, when he shall be present in person."

6. Pursuant to and in compliance with aforesaid order, a statement dated 9th June, 2016, was filed on behalf of DSP/AIGP [Legal] for Inspector General of Police Karachi. Being relevant, the said statement dated 9th June, 2016, is reproduced herein below: -

STATEMENT

ON BEHALF OF THE RESPONDENTS NOS. 03 AND 05

It is humbly stated that the physical test of all Districts was to be held on 22-11-2013 in Police Headquarters Garden, Karachi but the same was postponed, therefore, the physical test of all districts scheduled to be held at Police Headquarters Garden, Karachi, was not conducted as already postponed. The case of the petitioner falls under the same category as his physical test was never conducted, therefore, the question of his successfulness does not arise at all. [Emphasis supplied]

However, it is submitted that as and when the fresh recruitment process is initiated, the petitioner shall be considered for recruitment as a fresh candidate in accordance with law.

Karachi,

Dated:08.06.2016

MAZHAR HUSSAIN ALVI

PDSP/AIGP(Legal)

FOR INSPECTOR GENERAL OF POLICE SINDH KARACHI"

7. Upon service, learned Advocate-General Sindh, filed a statement dated 08.06.2016 along with 'comments' on behalf of AIGP [Legal], for Inspector General of Police Sindh Karachi, wherein, the allegations levelled in the Memo, of Petition [In short MoP], were specifically denied. Per comments, the physical test of the petitioner along with others could not be conducted, as it was postponed. In view of this position, the question of any violation of law etc., as alleged, by the petitioner does not arise. Further, in the comments, it was also pleaded that the Petitioner herein besides, being not an aggrieved person, has no locus standi to file instant petition on the basis of false pleas/assertions. Per respondent No.3's stand, in Petitioner's favour, no any cause of action has arisen against the Respondents with regard to filing of the present petition. In the comments, it was prayed that the names of Respondents Nos.3 and 4 be struck off from the array of Respondents, as they have been joined in the instant petition without any cause of action and/or reason.

8. Respondents Nos.5 and 6 have also filed their separate comments wherein not only, the stand taken by the Petitioner, but also the contents of the MoP have been denied specifically, as being false and incorrect. Per comments of Respondents Nos.5 and 6, the instant petition, as framed and filed besides, mis-conceived and mis-leading has been filed without any cause of action. In response to Respondents' comments, the Petitioner, however, has failed and/or avoided to file any reply/affidavit-in-rejoinder in rebuttal. This being the position, the assertions/denials made in the 'comments' have gone un-rebutted/un-challenged.

9. Per comments of Respondent No.6 i.e. Senior Superintendent of Police, Shikarpur, the Petitioner in compliance of earlier advertisement, published in Newspaper dated 08.12.2012, by the Deputy Inspector General of Police, [Establishment], on behalf of the Inspector General of Police Sindh, Karachi, indeed, applications for the post of Police Constable in Sindh Police in District Shikarpur, were called, however, from the suitable candidates. In response, 3,263 applications were received. The number assigned/allotted to the Petitioner's Application was 687. On the basis of such application of the petitioner, no doubt, character verification letter was issued to the concerned SHO for verification the character of the Petitioner. Per comments, pursuant to publication of advertisement in Newspaper dated 08.12.2012, the physical test was held, but in such physical test, the petitioner did not qualify the running test [physical test] and, as such, remained un-successful / not eligible for the post of Police Constable in the recruitment process of Police Constables.

10. Lastly, on 31.01.2018, when the above petition came-up before us, then we heard Mr. Nazir Hussain Sajan Allana, learned counsel for the Petitioner and Ms. Nasreen Sahito, learned State Counsel and also gone through the materials available on record minutely.

11. Mr. Nazir Hussain Sajan Allana, learned counsel for the Petitioner contended that delay caused regarding non-issuance of 'specific proforma' for medical examination of the Petitioner, is on the part of official Respondents. Per learned counsel, the delay so caused is not only illegal, but also tainted with mala fide intention. According to Mr. Nazir Hussain, under law the Respondents have no authority to refuse and/or avoid the issuance of so-called specific proforma to the Petitioner, stated to be required for medical examination. The Respondent No.3, Mr. Nazir Hussain Sajan Allana, next urged, has not only committed grave illegality, but also violated the fundamental principal of law and rules. Per Petitioner's stand, the Petitioner, nevertheless, was entitled to receive the 'specific proforma' for medical examination and of course, without any delay.

12. Per Petitioner's version, since, the Petitioner has no any other efficacious and adequate alternate remedy in law, hence the Petitioner was constrained to invoke the extra ordinary constitutional jurisdiction of this Hon'ble Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for seeking justice. The Petitioner, as asserted, has no any other alternate, efficacious and adequate remedy for redressal of his grievance save and except by invoking the extra-ordinary Constitutional jurisdiction of this Hon'ble Court. According to Mr. Nazir Hussain Sajan Allana, except the instant petition, the Petitioner has not filed any other petition in any of the Benches of this Hon'ble Court. Lastly, Mr. Nazir Hussain Sajan Allana, learned counsel for the petitioner, prayed for allowing the instant petition, otherwise, the Petitioner shall be seriously prejudiced.

13. Against the above, Ms. Nasreen Sahito, learned State Counsel, vehemently argued that as per program published in daily Jang dated 14.11.2013, daily Dawn, dated 13.11.2013 and daily Express dated 13.11.2013, the physical tests of the candidates scheduled to be held on 20.11.2013 from 9:00 am to 5:00 pm, in all Districts of Karachi. The physical test of the candidates of Districts Hyderabad and Mirpurkhas was to be held on 21.11.2013 from 9:00 a.m. to 5:00 p.m. and physical test of the candidates of Districts Sukkur, Khairpur and Larkana was scheduled to be held on 22.11.2013, in Police Headquarter Garden East, Karachi, were, however, postponed vide letter No.9053/T&T/Estt/2013, dated 22.11.2013, addressed to the Director Information. Being relevant, letter No.9053/T&T/Estt/2013, dated 22.11.2013 is reproduced herein below: -

"OFFICE OF THE

DEPUTY INSPECTOR GENERAL OF POLICE

TECHNICAL AND TRANSPORT SINDH

KARACHI

No.9053/T&T/Estt:/2013/Karachi

Dated 22.11.2013

To

The Director Information

Block 96, Sindh Secretariat

Karachi

SUBJECT PUBLICATION OF NOTICE REGARIDNG APPOINTMENT OF HC WIRELESS OPERATOR/PC DRIVER

Enclosed please find herewith 07 copies of Information Notice, postponing the recruitment of HC Wireless Operators / PC Drivers in Sindh Police (Technical and Transport), for publication in the following leading Newspapers:

Daily "Jang"

Daily "Dawn" English

Daily "Express" Urdu

Daily "Kawish" Sindhi

SD/

(AZHAR RASHID KHAN) PSP,

DEPUTY INSPECTOR GENERAL OF POLICE

TECHNICAL AND TRANSPORT SINDH

KARACHI

SD/-

Deputy Inspector General of Police

Technical and Transport Sindh Karachi"

14. Per Ms. Nasreen Sahito, learned State Counsel, the case of petitioner herein, manifestly falls under the same category, as the physical test of the Petitioner was also not conducted. Per State Counsel, in view of this position the question of the so-called successfulness in physical test does not arise. Ms. Nasreen Sahito, learned State Counsel, in view of Letter No.8053/T&T/Estt/2013 Karachi dated 22.11.2013, forcefully contended that the physical test [s] of the petitioner along with other candidates since, has / have not been conducted, therefore, the question of violation of any law etc., as alleged, does not arise. Moreover, the petition, as framed and filed, is in-competent in law. Per Ms. Nasreen Sahito, the Petitioner neither has any 'cause of action' or otherwise, he has any locus standi to file the instant petition against the official Respondents. According to State Counsel, the Petitioner has badly failed to establish any legal and/or vested right, as such, the instant besides mis-conceived, not maintainable under the law is liable to be dismissed with costs.

15. Hard, perused the record.

16. The Petitioner, though, has claimed his success in the necessary tests for the appointment of Police Constable [P.C.] but has failed to place on record any proof wherefrom, the claim of the Petitioner regarding his success in tests/physical test is ascertained/established. In view of this position the Petitioner is not an aggrieved person as ex-facie, no any legal right has been denied to him by the official Respondents. Moreover, for giving jurisdiction to High Court regarding enforcement of a right, the same must be justifiable right in existence, otherwise, no direction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 can be issued. As far as, the case in hand is concerned the Petitioner has failed to establish any enforceable right on the face of record.

17. Further, jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is not only discretionary but also equitable. The exercise of discretionary jurisdiction and grant of an equitable relief is/are governed' by the maxim; 'he who seeks equity must come to the Court with clean hands'. The Petitioner, in the case in hand, however, has failed and/or avoided to narrate the true facts. Besides, no proofs regarding his so-called claim of success in the tests have been placed on record. None disclosure and/or non-placing on record worth believable materials, in our view, disentitled the Petitioner to seek discretionary and equitable relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Further, under the exercise of Constitutional jurisdiction, disputed questions of facts, cannot be looked into or otherwise, dilated upon under the jurisdiction of Article 199 of Constitution of Islamic Republic of Pakistan, 1973.

18. Essentially, under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, a clear legal right, can only be enforced. Further, a Constitutional jurisdiction in no event, can be used for establishing a right. A doubtful and disputed question of fact, under Constitutional jurisdiction of Article 199 of Constitution of Islamic Republic of Pakistan, 1973, cannot be looked into or otherwise, dealt with by stretching jurisdiction beyond the constitutional mandate vested under Article 199. In this regard, reliance can be placed on the case of Asdullah Mangi and others v. Pakistan International Airlines Corporation and others [2005 SCMR 445], wherein, it was observed as follows:-

"10. ....We may mention here that a Court of Law cannot exercise unfettered or unrestricted powers to administer supposed equity not based on justiciable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the appellants. In this regard reference can be made to the cases of "Manjula v. D.P.I. AIR 1952 Orissa 344, Siddiq Ahmad v. Estate Officer, Government of Pakistan PLD 1957 (W. P.) Kar. 887; Jeshingbhai Ishwarlal v. Emperor AIR 37 1950 Bom 363: Bagaram Tuloule v. The State of Bihar AIR 1950 Patna 387; Harnam Singh v. The State of Punjab AIR 1952 Punj. 76 and Badri Prasad v. President, District Board, Mirzapur AIR 1952 All. 681". It is also well established by now that invocation of Constitutional jurisdiction as has been done by the appellants, it must be shown that they got a clear legal right as not to admit of a reasonable doubt or controversy. The question as to whether the training was completed or not, uniforms were provided or not, passing out parade was held or not, applications were moved through back door or not, are the questions of fact which cannot be determined in Constitutional jurisdiction. "Khairuddin v. Settlement Commissioner 1988 SCMR 988". The object of the proceeding initiated under Article 199 of the Constitution of Islamic Republic of Pakistan, is the enforcement of a right and not the establishment of legal right and therefore the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simplicitor. There must be an actual infringement of the right. If any authority is required, reference can be made "Kandaswamy and others v. The Deputy Registrar of Cooperative Societies; Coimbatore and another AIR 1954 Madras 348". We may mention here that "a vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised, but are the peculiar characteristics of those rights. "Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312". The appellants have failed to establish their legal right for-appointment as Flight Steward and therefore, the question of its infringement does hot arise.".

19. This is a well-settled proposition of law that High Courts while, exercising Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, do not find it convenient to involve itself in the investigation of disputed and controverted questions, save and except those questions which beside, being clear and legal, are doubtless. In this regard, reliance can be placed on the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCMR 1813], wherein it was observed as follows:-

"10. ...It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M. H. Abidi v. State Life Insurance Corporation 1990 MLD 563 and Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344)

11. It is well settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only be courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280).

13. ... There is no cavil to the proposition that "it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be In the interests of justice...."

20. In the case in hand, the dispute involved is regarding the so-called success of the Petitioner in tests for recruitment of Police Constable. The Petitioner though claims that he was declared as a successful candidate in all tests as per rules, but regarding such claim not a single document whatsoever, has been placed on record, wherefrom, the aforesaid claim of the Petitioner is established, Respondents, on the other hand, have seriously denied/disputed the claim of Petitioner. According to Respondent No. 5's stand, the physical tests of the petitioner amongst others candidates has been postponed, as such, the question of Petitioner's so-called success does not arise.

21. In Service matters, the suitability of a candidate for appointment, exclusively falls within the domain of appointing authority. Such authority, in our view, cannot be compelled to make appointment without fulfilling the requisite formalities by a candidate. In the case in hand, the petitioner, on the face of record, has failed to establish any legal right which can be enforced under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

22. Manifestly, the controversy involved in the instant petition is a factual dispute, which cannot be established/settled in absence of an intricate inquiry/recording of evidence. For this reason as well, the controversy vis- -vis the Petitioner's claim of success in all tests for the post of Police Constable [P.C.] without any proofs, on record, is not cognizable under the exercise of Constitutional jurisdiction of Article 199 of Constitution of Islamic Republic of Pakistan, 1973. Needless to say, the extraordinary Constitutional jurisdiction, is basically meant for providing a swift and efficacious remedy, in those cases were, the legality or illegality of the executive authority[ies], can be established/ascertained and that too, without an intricate inquiry/recording of evidence. The jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is limited to the extent of the examination the questions of law and the same cannot be expended for to examine the disputed question of facts, requiring the recording evidence. Regarding this aspect of the matter reliance can be placed on the case of Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others [2006 SCMR 219] wherein, it was held as under :-

"We are mindful of the fact that under constitutional jurisdiction the High Court is fully empowered for enforcement of the fundamental rights but it must be satisfied with such allegations which are well-founded, without any bias and based on concrete evidence. It may be kept in view that the main object of the provisions as contained in Article 199 of the Constitution is the enforcement of the rights and not the establishment of the legal rights and in such view of the matter the petitioners who seeks to enforce such legal rights must be specific, precise, clear and unambiguous and besides that there must be an actual infringement of the rights so asserted. State of Bombay v. United Motors Ltd. AIR 1953 SC 252, State of Orissa v. Ram Chandra AIR 1964 SC 685."

23. It is significant to note, that the Petitioner herein, has failed and/or avoided to file reply[ies] / affidavit-in-rejoinder[s] in response to the 'comments' filed by the official Respondents wherein, not only the stand taken by the Petitioner regarding his claim of so-called success in tests for recruitment of Police Constable was controverted, but also the contents / assertions made in Memo. of Petition [In short MoP], were denied specifically. In view of non-filing of any. reply[ies] / affidavit-in-rejoinder's] by the Petitioner, the contents of the 'comments' of the official Respondents thus have gone un-rebutted/un-challenged.

24. Moreover, the Petitioner has also failed to place on record any cogent proof[s] regarding his claim of success in the tests held for the purpose of recruitment of Police Constables. In view of this position as well, the High Court under the exercise of the Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot resume/be expected to perform the functions of the concerned/competent authority in service matters by substitution it's own opinion for that of a competent authority. Likewise, on the face of record, the Petitioner has no legal/vested rights which can be enforced under the discretionary jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

25. For and in view of the aforesaid detailed discussions/reasons, on 31.01.2018 while, reaching the conclusion that instant petition besides being not maintainable in law is devoid of any merits, was dismissed by our short order dated 31.01.2018.

26. These are the reasons for our short order dated 31.01.2018. Petition stands dismissed along with all pending applications, however, with no order as to costs.

ZC/N-29/Sindh Petition dismissed.