NAZIR A. KHAN SWATI vs MINISTRY OF LAW & JUSTICE and others
This constitutional petition was filed by the petitioner challenging the withdrawal of his nomination for the post of Judicial Member, Income Tax Appellate Tribunal, BPS-21, after he had been initially recommended by the Federal Public Service Commission. The core legal question was whether the recommendation of the Federal Public Service Commission creates a vested right in a candidate to demand appointment, thereby compelling the department to finalize the selection. The Sindh High Court dismissed the petition in limine, holding that the Federal Public Service Commission acts merely in an advisory capacity. Consequently, the appointing authority is not bound to accept the Commission's advice, and a candidate does not acquire a vested right to appointment based solely on a recommendation, especially when that recommendation is conditional or subsequently withdrawn upon review of service records. The court relied on the principle that a recommendation by the Commission does not constitute an enforceable right to employment, as the appointing authority retains the discretion to accept or reject such advice.
- Does the recommendation of the Federal Public Service Commission create a vested right in a candidate for appointment?
- Is the appointing authority legally bound to accept the advice tendered by the Federal Public Service Commission?
- Can a candidate challenge the withdrawal of a nomination for a government post by the Federal Public Service Commission?
ORDER
1. ' MAMOON KAZI, C.J.---The petitioner had applied for a post of Judicial Member, Income Tax Appellate Tribunal, Law and Justice Division in BPS-21 in response to an advertisement published in daily DAWN Karachi, dated 3-11-1989. He was interviewed by the Federal Public Service Commission and respondent No, 4 and the departmental representative of the Ministry of Law and Justice.
2. Although, the petitioner was originally recommended for appointment to the said post, but subsequently, upon verification of his Annual Confidential Reports, his nomination was withdrawn.
3. The petitioner feeling aggrieved by such action, has filed the present Constitutional petition.
4. It may be pointed out at the very outset that mere nomination of the petitioner for the appointment against the advertised post did not create any vested right in the petitioner for which he could maintain the present petition. Learned Deputy Attorney-General has also invited our attention to an identical case of a co-selectee decided by the Supreme Court recently. It will be worthwhile to refer to the following observations made by the Supreme Court in the said case, which has been reported as Muhammad Akbar v. Federation of Pakistan (1996 SCM R 1017)
5. "(9) The last contention advanced by the petitioner was rather misconceived. He himself conceded that the Commission was an Advisory Body. The appointing authority, therefore, may or may not accept the advice tendered by the Commission. In the instant case, however, the question of binding nature of the Commission's advice does not arise because the Commission itself on examining petitioner's service record came to the conclusion that the petitioner was not suitable candidate for the post applied for and withdrew the nomination."
6. ' It was further observed by the Supreme Court:---- "The petitioner, therefore, cannot claim that right had accrued in his favour because the very recommendation made by the Commission was conditional."
7. We would further like to add that the Public Service Commission only acts in an advisory capacity and, therefore, even if the petitioner was nominated for appointment by the same, it did not create a vested right in the petitioner to demand that the department concerned was bound to order his appointment upon such recommendation.
8. ' In the result, we find no force in this petition, which is dismissed in limine.
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