KARAKORAM INTERNATIONAL UNIVERSITY through Vice-Chancellor, Gilgit Versus FIDA HUSSAIN

1. MUHAMMAD YAQOOB KHAN, J.--- This petition for leave to appeal has been preferred against the impugned order dated 19-11-2008, passed by the learned Division Bench of Chief Court Northern Areas, Gilgit, whereby the learned Division Bench has disposed of the writ petition No. 17/2004, with the direction that the petitioners be appointed as Assistant Controller Examination out of four vacant posts.

2. The facts giving rise to the instant petition for leave to appeal are that the petitioners published an advertisement in the Daily Jang Rawalpindi dated 4-9-2003, to the effect that four posts of Assistant Controller Examination were vacant for fresh appointment. The respondents including other candidates appeared before the selection Board on 18-12-2003. Collectively, six candidates were short listed including petitioners/respondents Nos. 1 and 2 against the posts of Assistant Controller Examination. Later on, the short listed candidates called on for interview by Selection Committee. In response to the call the respondents appeared before the said Committee, whereas, the Selection Committee selected the respondents Nos.7 and 8 in violation of the merits and recruitment rules. As such the act of Selection Committee is ineffective, illegal and based on mala fides.

3. Petitioners/respondents furnished para-wise comments on 9th October 2004, where in petitioners have taken preliminary objections and almost denied the claim of the respondents/petitioners with the submission, that the petitioners have duly given an equal opportunity to the respondents for appearing before the Selection Committee for interview etc. All the respondents appeared before the Selection Committee but failed to meet the merits, therefore, the Selection Committee not recommended/considered the respondents as Assistant Controller Examinations.

4. We have heard the counsel for the parties at length. The learned counsel for the petitioners submits that the learned Division Bench of Chief Court has illegally directed the petitioners to appoint the respondents as Assistant Controller Examinations, who otherwise do not fulfil the requisite qualification for the post applied for. He further contended that the respondents have no locus standi to file the instant Writ Petition as the respondents do not enjoy any vested rights, as such impugned order/judgment, of Division Bench, of Chief Court, is not tenable and liable to be set aside. On the other hand, the learned counsel for the respondents hotly contested the points raised by the learned counsel for the petitioners and submits that the petitioners have wilfully violated the recruitment rules and dishonestly prepared the merit list. Hence the appointment of respondents No. 7 & 8 is in toto in violation of the recruitment rules, based on mala fides and without jurisdiction, as such the appointment orders issued by the petitioners are liable to be set aside.

5. Leave to appeal was granted by this court vide order dated 1-9-2009 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:-

6. "Learned Counsel for petitioner contends that the University in its discretion may or may not appoint a person after his selection against a vacant post and a selectee has no vested rights to claim the appointments. The points raised needs consideration. Notice to respondents for a date in office in 1st week of October, 2009."

7. We have carefully examined the respective contentions of the parties in the light of relevant provision of law and the record of the case. We have also minutely perused the impugned judgment after having gone through the entire record of the case. It is felt that the pivotal question which needs determination is whether the respondents were enjoying any vested or legal rights and the same has been infringed due to their non-appointment as Assistant Controller Examination. To examine the relevant provision of law we enlightened the pre-conditions for invoking the constitutional jurisdiction.

8. PRE-CONDITIONS:

9. A person invoking constitutional jurisdiction has to establish firstly, that he is an "aggrieved party" as defined in clause-1(A) of Article 199. Secondly, that relief sought by him is one which he is legally entitled to seek under any provision of law, rule or regulation, and lastly, that there remains no other remedy available to him for redressal. Article 199, of Constitution of Pakistan 1973, clearly provides a remedy for one, whose fundamental or legal rights infringed. There are two basic pre-requisites for invoking the remedy under Article 199 of Constitution, first is the existence of fundamental right and second is the practical infringement of the same. Further more, one can be termed as aggrieved one when he is denied from enjoyment of vested or fundamental right by a person who is legally duty bound to operate in relation to that specific vested right.

10. AGGRIEVED PARTY OR PERSON:

11. Aggrieved party or a person must be a man against whom decision has been pronounced whereby he has been wrongfully deprived of some thing, which he has right to demand or has wrongfully affected his title in some thing. In the light of what has been discussed herein above, the respondents can not be termed as aggrieved party.

12. LOCUS STANDI:

13. The word locus standi has been defined in Article 199 of the Constitution, which speaks as when an order does not create any vested right in favour of any body, the same cannot be challenged in constitutional petition. Although in the instant case it is clear from the record that the petitioners had published advertisement in the daily "Jang Rawalpindi dated 04-09-2003" whereby four posts of Assistant Controller of Examinations were shown vacant for appointment. The Selection Committee selected the respondents No.7 & 8 in two posts out of four vacant posts. In the light of recommendations of the, selection Board, the Registrar KIU has issued appointment letters of Mir Asif Khan and Mr. Khursheed Ahmed respondents No. 7 & 8. The appointment orders issued by the Registrar KIU has neither infringed the legal rights of the respondents, nor has created any vested right in favour of the respondents, hence the respondents do not enjoy locus standi to challenge the appointment order in constitutional petition. The minutes of meeting held on 8-12-2003 to 13-12-2003. The contents of minutes of meeting which is reproduced herein below just to appreciate the factual aspect of the dispute.

14. "Four out of six candidates invited for interviews, appeared before the Selection Board. The Board after interviewing the candidates, considering their bio-data and in consultation with the experts, recommended the following candidates for appointment against the two vacant positions of Assistant Controller Examinations."

15. After having gone through the entire record of the case and submissions of the learned counsel for the parties, we are of the view that no vested or legal right whatsoever was accrued in favour of the respondents, hence the question of its infringement does not arise. Moreover, a person can be said to be aggrieved only when he is denied a legal right by some one, who has a legal duty to perform relating to that right. The Courts can extend their jurisdiction to entertain the constitutional petition when there exists not only a right but justiciable right either personal or otherwise. Furthermore, no order can be passed under Article 199 of the Constitution of Pakistan merely on the basis of recommendations or short listing the respondents because in the instant case no legal or vested right of the respondents have been infringed. Appointment being a subjective assessment, exclusively falls within the jurisdictional domain of appointing authority, who can not be compelled to make any appointment .

16. The plea of mala fide, which though was alleged but could not be substantiated by providing any cogent and concrete evidence.

17. We are not impressed by the contention of Mr. Muhammad Issa, advocate learned counsel for the respondents to the effect that the petitioners have violated the rules and the merits with mala fide intention to benefit the respondents Nos.7 and 8.

18. The upshot of the above discussion is that, the petition for leave to appeal is converted into appeal and set aside the impugned judgment/order dated 19-11-2008 passed by the learned Division Bench Chief Court Northern Areas to meet the ends of justice.

19. Petition disposed of with no order as to costs.

20. M.H./37/Glt. Appeal allowed.