' MUHAMMAD NOOR MESKANZAI, J.--- Through this judgment, we propose to decide Constitutional Petition No,414 of 2008 filed by petitioner wherein following relief was sought:- "It is therefore in view of above submission to respectfully pray that this honourable court may kindly be pleased to direct the defendant to make implementation of their own order.
' Further this Hon'ble court may kindly be pleased to direct the defendants to appoint the petitioner as Office Assistant in compliance with orders/recommendation i.e, order dated 5-11-2007 and PUC dated 12-7-2008.
' Further any other relief which this Hon'ble court may deem fit and proper may kindly be granted in the interest of justice equity and fairplay."
2. Facts as collected from the petition, succinctly stated are that petitioner is Junior Clerk B-7 in BESSI since 1999. In the year, 2007, the Department advertised for the post of an Office Assistant and Accountant Assistant, petitioner considering himself eligible for the post sought to be filled by the Department through interviews/tests, appeared as a candidate for Office Assistant. The Committee conducted the tests and interviews, recommended two persons for the posts already published, while preparing the result of interviews, the petitioner was recommended to be kept in waiting list subject to availability of the post of Office Assistant in near future. It is claimed that on 28th February, 2008, the governing body of BESSI held a meeting, wherein the post of Office Assistant and certain other staff were created in BESSI at Hub, so some of the posts were advertised in daily newspaper "Intekhab" dated 9th March, 2008 and the said vacancies were filled by the Department. On 12th March, 2008, Messrs BESSI made a written request for creation of post of Office Assistant. On the basis of above said alleged request, petitioner approached the Department and the Department suggested respondent No,2 to appoint petitioner against the existing vacancy, which is claimed to be lying vacant in BESSI Fifty Bedded Hospital, Hub.
3. Learned counsel for petitioner submitted that petitioner is entitled for appointment as Office Assistant. It was contended with vehemence that the tests and interviews held on 5th November, 2007 and petitioner qualified the said interviews. Consequent upon such interviews, the recommendations made by the Committee are binding and now the post is lying vacant, so petitioner is entitled for his appointment as Office Assistant. The counsel for petitioner while filing written arguments reiterated his stand taken in petition and stuck to his gun by claiming to be entitled for appointment against the vacancy allegedly created by the Department and kept vacant to honour the recommendations made by the Committee. The learned counsel for petitioner laid much stress on the principle of locus poenitentiae by contending that the recommendations so made carry legal effect and in view of law of estoppel, respondents are bound to honour their recommendations. Reliance was placed on PLD 1963 Dacca page 442, PLD 973 Quetta page 14, SCMR 1997 page 15, SCMR 1999 page 1004, SCMR 2003 page 819 and PLJ 2003 SC page 145(sic).
4. On the other hand, the learned Standing Counsel controverted the stand and refuted the contention so forwarded by submitting that the alleged recommendations made in the year 2007 have got nq valid foundation nor any legal sanctity is attached to such recommendation. The learned Standing counsel was of the view that the petition itself is not competent, as there is no right vested in petitioner to file such a petition, nor for that matter, the Selection Committee was empowered and authorized to make recommendations beyond its powers and jurisdiction.
5. We have heard the learned counsel for the parties mid perused the petition accompanied by certain annexures. A careful perusal of the documents reflect that an interview was held by Selection Committee comprising of the following four persons:---
(1) Dr. Hameed Baloch, SMO
(2) Mr. M. Rafiq Beezanjo, Deputy Director
(3) Mr. Amjad Ali, Assistant Director, (Audit & Accounts)
(4) Dr. Abdul Razaque, IMO"
' The Committee recommended as under:--- "The Committee interviewed all the candidates that appeared in the test for the post of Office Assistant and Audit Assistant. After interview, the Committee discussed the matter in detail and recommended following candidates based on the merit of written test. Mr. Shahzad Ahmed son of Muhammad Dawood for the post of Office Assistant, Mr. Nazim Waseem son of Waseem Asfar for the post of Audit Assistant. Mr. Aijaz Ali Soomaro son of Hazoor Bakhsh (late), will be on waiting list for the post of Office Assistant. In case near future any post of Office Assistant fell vacant in the BESSI he will be adjusted against that.
' However, during the course of checking of the documents of Mr. Nazim Waseem, it revealed that he is D. Corn, and B.A. But the actual qualification as per provision, of the BESSI's Service Regulation Appendix 'A' for the post of Audit Assistant is B.Com. The Committee also recommended for relaxation of the qualification of B.Com. And he will improve his qualification within a period of 2 years."
' The case of petitioner revolves around the minutes of meeting reproduced hereinabove, therefore; the paramount consideration that requires attention is firstly, as to whether the alleged committee was competent to make such recommendations and secondly, whether recommendations so made can create a right and thereby enables and entitles petitioner to enforce the same through a Constitutional Petition by attracting the principle of locus poenitentiae.
Analyzing the case of petitioner at the touchstone of above stated questions, admittedly the petition does not qualify the standard for a variety of reasons. Firstly, committee was constituted for the limited purpose of conducting tests and interviews for the post already created, available and published, so by no stretch of the imagination, the Committee could be deemed empowered to make recommendation for a post, not in existence. Secondly, the recommendations so made were beyond the mandate and authority of the Committee. Thirdly, the petitioner himself has declared the recommendations partly to be based on mala fides. Para No,2 of the petition is of much importance in this respect, which is reproduced as under:- "2. That it is worthwhile to mention here that Committee headed by respondent 2 recommended the name of Mr. Nazim Waseem as Audit Assistant with mala fide intention who failed to fulfil the requirement according to the rules and regulation of Department whose recommendation was not approved by the respondent No,1 which was subsequently advertised."
' After declaring the part of recommendations to be based on mala fides, which were turned down by the competent authority; the petitioner cannot claim the rest of the minutes to be based on bona fides and effective, therefore, this version of petitioner itself is sufficient enough to dislodge the alleged and so-called sanctity claimed to be attached to said recommendations. Learned counsel for petitioner also utterly failed to satisfy us, as to what legal sanctity is attached to the said recommendations.
' Now attending to the second query regarding attracting the principle of locus poenitentiae, the subject must be equipped with a valid right i.e, a legal order in favour of subject by a competent authority must exist and that should be communicated to an agency or officer bound to carry it out. Considering the case of the petitioner in the light of above yardstick, these essentials are lacking and missing, therefore, the principle of locus poenitentiae is neither applicable nor attracted to the case of the petitioner.
' As far as the citations referred to by the learned counsel for the petitioner are concerned, we have gone through the said authorities, which do not render any help and assistance to the contention of petitioner, as all the citations have considered the effect of principle of locus poenitentiae, which is inapplicable in view of distinguishing facts and circumstances of the case of petitioner.
As observed hereinabove, the recommendations sought to be enforced have no legal sanctity nor for that matter the Committee was empowered to interview a candidate in advance for a post not in existence nor published. The principle of locus poenitentiae is not available to petitioner to maintain a petition on the basis of said principle.
' In the light of above discussion, we are of the firm opinion that petitioner has failed to make out any case requiring this Court to exercise jurisdiction within the ambit of Article 199 of the Constitution of Islamic Republic of Pakistan, thus, petition is dismissed in limine with no order as to cost. r