1. ' GHULAM MUSTAFA MUGHAL, J.--- The above captioned petitions raise common questions of facts and law, hence, were heard together and decided as such.
2. Precise facts of both the cases are that petitioners in the above petitions, competed for appointment as Assistant Conservator Forest (B-17) and Range Officer (B-16) against the quota of their respective units. After qualifying the written test, they were required to qualify 6 km, mandatory race and the same was scheduled for 16-2-2008. Admittedly petitioners, in Petition No,221 of 2009, could not complete the said race within required time i.e, 40 minutes rather they completed the same in 45.07, 47.45 and 44.55 minutes, respectively. The Public Service Commission (hereinafter to be referred as the P.S.C.) refused to call them for the interview, however, they were allowed to participate by this Court, subject to final fate of their petitions. The petitioners also obtained orders of the Prime Minister for relaxation in the syllabus to the extent of race and permission to appear in the interview but the P.S.C. Refused to implement the order.
3. Petitioners, herein, now seek a declaration that they have qualified the race, test and interview and be declared as such. They also seek a direction for implementation of the order of the Prime Minister and appointment.
4. ' Respondents have contested the petition by filing separate written statements. It is stated by the Forest Department that syllabus is prepared by the P.S.C. And the department has nothing to do with it. The grounds listed in the petition have not been specifically denied. However, in the written statement filed on behalf of respondents Nos.5 to 7 it is alleged that the petitioners have no locus standi .To file the instant petition because they have not qualified the mandatory part of selection i.e, race. The respondents have also denied the other facts pleaded in the petition on the ground that it was necessary to qualify 6 Km. Race within 40 minutes for which 50 marks have been reserved. The petitioners have not qualified the same, therefore, they cannot be given any allowance for their failure and nothing has been done illegal.
5. ' Petition No,253 of 2009 has been filed on behalf of Bilal Ahmed and others. It is claimed that they have qualified the test and interview for the post of Assistant Conservator Forest and in case the petitioners in Petition No,221 of 2009 remain unsuccessful, (as has been held by the P.S.C.), then they are eligible for appointment against the vacant posts, in view of the policy of the Government.
6. They also claimed that the petitioners of Petition No,221 of 2009, have sought direction of the Prime Minister on political consideration as father of petitioner No,1 is serving in the Forest Department on an elevated position. The P.S.C. May be prohibited from implementing the order of the Prime Minister.
7. ' Respondents Nos.3 and 5 have also refuted the facts stated in the petition and stated that the petitioners, Bilal Ahmed and others, are neither aggrieved nor qualified, to be appointed against the quota of other unit, even if petitioners of Petition No,221 of 2009 remain unsuccessful.
8. ' Messrs M. Tabassum Aftab Alvi and Kh. Attaullah Chak, the learned Advocates for the petitioners in Petition No,221 of 2009, submitted that requirement of the syllabus is only to qualify the race of about 6 km in 40 minutes which implies that it is not necessary that the race completed within 40 minutes should be exactly, 6 km. From their point of view, the word "about" implies that it can be 5 km or more and 3 to 5% deviation, as per settled law is permissible. They further submitted that the intention of the appointing authority is just to check the physical fitness and stamina of the candidates aspiring for appointments in the Forest Department and the purpose can be served if a person qualify 5 km or more within 40 minutes. They also argued that due to the prohibitory order of the apex Court the race could not be started at the proper time either at 9'O Clock rather it was started at 1'O Clock and by that time it was natural for the candidates to become nervous. They further added that the authority has also not managed the traffic and it was difficult to achieve the target within 40 minutes. It was also contended that one of the petitioners, in Petition No,221 of 2009 got injured due to an accident which fact also contributed in his failure to complete the race within 40 minutes. They further argued that it was enjoined upon the respondents to implement the order of the Prime Minister in letter and spirit and their refusal is illegal and unjustified. They submitted that condition of race is unreasonable, violative of principle of parity because it is not provided in the Provinces of Punjab, Balochistan and N.-W.F.P for the appointment on these posts. They argued that the respondents have not specifically denied the facts pleaded in the petition, hence, their written statement may be construed as admission and the petition may be granted. The learned Advocate argued that the counter petition has become infructuous because the same was filed against the order of the Prime Minister. The order of the Prime Minister has not been acted upon, therefore, merits of that case need not to be attended. In support of their submissions the learned Advocates placed reliance on Al-Nawazash Commercial Corporation, Karachi v. Messrs Commerce Bank Ltd., Karachi PLD 1977 Kar.
9. 369.
10. ' Messrs Ch. Muhammad Ibrahim Zia, the learned Advocates, while controverting the arguments advanced on behalf of the petitioners, submitted that it is not necessary that in order to invoke the jurisdiction of this Court an applicant should be in possession of a right in strict juristic sense. They maintained that it is sufficient that he has a tenable interest and entitled to enforce the legal obligation of the respondents to , perform a particular act in the prescribed manner. The learned Advocate contended that in order to participate in interview, it was mandatory to qualify the 6 Kilometer race within 40 minutes. As petitioners, in view of their own stand have not qualified the same within the required time, hence, the P.S.0 has not committed any violation of rules or law by disassociating the petitioners from further process. The learned Advocates submitted that the race is a part of the syllabus and is not, in any manner, in conflict with the departmental rules. They added that in view of the technical nature of the service, 6 Kilometer race has to be qualified by a candidate for judging his physical fitness. The learned Advocates also submitted that petitioners, Jehanzeb Khizar and others are not qualified because they have not qualified the race within the stipulated period. They also submitted that order of the Prime Minister is without statutory backing and the Prime Minister cannot amend the rules after starting the selection process and refusal by the P.S.0 to implement such order was justified. They also submitted that the petitioners have travelled beyond their pleadings and have taken totally different stand in arguments, which has neither been pleaded in the petition nor the respondents have been provided any right of rebuttal.
11. ' I have heard the learned Advocates for the parties, gone through the relevant record and perused the file of the Public Service Commission.
12. It may be stated that for the recruitment to the post of Assistant Chief Conservator, (B-17) and Forests Ranger, (B-16) separate syllabus has been issued vide Notification dated 20-9-1984, with the common condition of qualifying a race of about 6 Km in 40 minutes. Petitioners' case is that they have qualified the said race within 45.07, 47.45 and 44.55 minutes, respectively, hence, the time consumed by them, beyond 40 minutes was liable to be condoned in view of the spirit of the syllabus and the circumstances of this case because the word 'about' has been used before the word '6 Km', therefore, it cannot be said that the candidates were bound to complete, exact 6 Km within 40 minutes. They have also argued that the deviation from 3 to 5% was to be allowed while calculating the said distance.
13. ' The fate of the controversy in hand depends upon the interpretation of word 'about' which occurs as under, in para. No,6 of the syllabus:--- "(6) Race (Compulsory). Candidate will be required to qualify a race of about 6 Km in 40 minutes."
14. ' In Black's Law Dictionary, the word 'about' has been explained as under:---
(1) Less Definitely.--- on any side; near, in the neighbourhood, without defining the exact direction.
(2) Nearly; approximately.--- not many more or less; used with numbers or quantities.
(3) Hence, in familiar language, of degrees of quality; nearly, almost, all but, much about; very nearly.
(4) Of a point of time.--- Near, nigh; close to, not far from; in giving an approximative date or hour.
(5) Of a point in a scale of quantity.--- Near, close to, not much above or below; in giving an approximate weight, measure, or point on any scale.
15. ' In Corpus Juris Secundum, (Volume I, published by West Publishing Co.) at page 344, the word 'about' has been paraphrased as below:--- "---Of Distance.--- The use of the word in estimating distance is in accordance with the definitions above given. In courses and distances, however, the word may be entirely disregarded, where there are no other words necessitating its retention, and the distance mentioned taken as positive; likewise, the word has no effect upon the question of boundaries, nor will it control monuments, courses, and distances where the language is clear and obvious. - --Of Locality or Place.--- Used as a word of locality, or in the description of place or locality the word is a comprehensive term, construed to include reasonably nearby parts, places, or things; and it is said to have the meaning of: close at hand; convenient of access; nearby within reach; near or in close proximity to; and sometimes, 'of', 'on' and 'upon'. - --Of Quantity.--- In dealing with quantities of merchandise or other personal property, where it is impossible to ascertain with precise accuracy the quantity thereof, and in referring to real property the exact extent of which has not been previously determined with exact accuracy, it is sometimes necessary and often usual to insert the word 'about', or other words of like import, to cover any variations which are likely to arise from differences in weight, errors in counting, measuring or surveying, diminution by shrinkage, or other similar causes, or generally some slight or unimportant inaccuracy.
16. ' While the use of the word 'about' gives a margin for a moderate excess in, or diminution 9f, the quantity mentioned, it cannot reasonably indicate that such margin may include a very large fraction or preventage of the whole, touching which it is used. Under such circumstances the word is used in the sense of approximately, more or less; near; not far from; and is not intended to be an exact estimate, or to amount to a warranty of quantity; nor does it have the effect of destroying the definiteness of the thing itself; but it is more liberally construed than in other cases where the amount or quantity is more material to the question; and in this latter class of cases, it may be construed as constituting an absolute contract for a specific quantity within a reasonable limit. ---Of Time.--- When used in regard to time, the word has no definite trade meaning, although it has also been said to have a well understood meaning; and the latitude or strictness of its construction is in a great measure dependant upon the connection in which it is used. The word as used in this connection is an elastic, indefinite and a very comprehensive term and may, in certain instances, cover a considerable extent of time; or may refer to the immediate time mentioned; but it is said to signify no certain date, being used to indicate a reasonable deviation in the period of time, although not that time is immaterial; and it has been defined as 'approximately; in close proximity; more or less; near or not far from; near the time. But in these cases where the time is material, or where precision is intended or necessary, the use of the word is not approved; and when used in such a sense as to become a part of the contract it denotes approximation to exactness."
17. ' In Words and Phrases, Volume-I A, published by 'West Publishing Co., the word 'about' has been defined at page 211, as follows:--- "About" means nearby, close at hand, convenient of access and within such distance of the party so having an article as that such party could without materially changing his position get his hands on it. Commonwealth v. Ianzetti, 97 Pa, Super. 126, 128."
18. ' The Scope of the word 'about' has also been considered in the case referred to and relied upon by Mr. M. Tabassum Aftab Alvi, the learned Advocate, for the petitioners, i.e, "Al-Nawazash Commercial Corporation, Karachi v. Messrs Commerce Bank Ltd., Karachi PLD 1977 Kar.
369. Besides, the others, in that case the reliance was placed on a case titled "Messrs Abdullah Agency, Karachi v. Government of Pakistan and another PLD 1971 Kar.
479. The scope of the word 'about' has been elaborated with reference to the quantity, mentioned in the contract under challenge. The precise facts of the case were that the Government through a contract agreed to deliver to the plaintiff, therein, about 1,00,000 tons of rice. Against which, only 37,000 tons rice were delivered. The plaintiff, therein, filed a suit for damages on the ground that the Government was bound to deliver the full quantity of 1,00,000 tons rice. As the contract has not been performed, hence, the plaintiff is entitled to the damages. It was pleaded that the word 'about' is used in relation to the figure 1,00,000 tons, therefore, it was not necessary ,that the exact quantity was liable to be delivered.
19. ' Mr. Justice Noorul Arifeen, Judge, (as his Lordship then was) concluded as follows:--- "Thus, when the word 'about' is used in connection with quantity, the consensus of judicial opinions is that the deviation from the contracted quantity should not be too large. In some cases this deviation has been restricted to three per cent, and in other cases to five per cent. But in the case before me, the deviation from the contracted quantity of 100000 tons is, to say the least, very large, that is, only 37,000 tons were actually delivered by the defendants to the plaintiffs. The use of expression 'about' in the contract did not empower the defendants to reduce the contracted quantity of goods to such a low figure."
20. ' The subsequent case was also in respect of breach of a contract and the scope of the word `approximate' about' and 'thereabout' were considered. Facts of the case were that defendants, therein, agreed to sell to the plaintiff approximately 1200 tons Maganese ore at the rate of Rs,22 per loag ton. According to the terms of the contract, the plaintiffs were to take delivery of 250 tons, immediately against cash payment and the balance in three lots within 2 months from the date of the contract subject, however, to the minimum quantity of lot being 250 tons. The total delivery against the agreed quantity of 1200 tons, was made to the tone of 823 tons. The plaintiff filed a suit for breach of contract. The Court, considered the scope of the word `about' approximate' 'thereabout' in relation to number or quantity, according to various cases and came to the following conclusion:--- "Therefore, it will be seen that when word 'about' or `thereabout' or 'approximate' is used in connection with quantity, the consensus of judicial opinion is that the deviation from the contracted quantity should not be more than three to five per cent. In the present case, against the contracted quantity of 1200 tons, only a quantity of 823 tons was delivered and the short fall of 376 tons, 16 cwt. 2 qrt. And 2 lbs. In my opinion, would not be covered by the word 'approximate'. It could cover a short fall of 36 to 60 tons. Since however, the defendants accepted price of entire quantity of 1200 tons and issued delivery orders for the said quantity and also offered an additional quantity of 192 tons vide Exh.13 the word `approximate' lost its significance and therefore, the defendants were bound to deliver the entire contracted quantity of 1200 tons.
21. ' I therefore, hold that the defendants sold approximately 1200 tons of the ore and after having accepted payment of 1200 tons of the ore and having issued delivery orders of the same, were bound to deliver the full quantity of 1200 tons."
22. ' After giving my anxious thought to the literal as well as contextual meanings of the word 'about' and the case-law cited above. I am of the view that the word 'about' cannot be interpreted so rigidly, as to conclude that it was compulsory to complete the race of 6 km within 40 minutes, exactly, rather the candidates, who have completed the race to the extent of 5950 meters or more within 40 minutes, can be said to have qualified the same. The time spent by the petitioners, is more than 40 minutes, hence, cannot be condoned because it has an effect of amending the syllabus.
23. ' Petitioner No,1, Jehanzeb Khizar, has completed 5320 meters in 40 minutes. Petitioner No,2 Imran Sadiq, completed 5508 meters and petitioner No,3 also completed 5320 meters in 40 minutes, therefore, even, by taking a liberal view, the short fall is not condonable, hence, they cannot be declared successful. The question as to whether, the order of the Prime Minister was liable to be implemented, needs not to be attended in detail because the controversy has already been set at rest by the apex Court in Civil Appeal No,73 of 1995 titled "Farkhandda Ikram v. Dr. Ejaz Ahmed and others" decided on 3-12-1995. Even otherwise, the deletion of the race from the syllabus will not serve any purpose because if a favourable order is passed by the Prime Minister, that will operate from a future date and petitioners, herein, cannot be benefited, retrospectively. The contention of the learned Advocate for the petitioners that the race is not provided in the departmental rules and the syllabus is inconsistent with the mandatory rules is also devoid of any force. Syllabus cannot be provided in the departmental rules and the same is to be provided separately under the appointment and conditions of Service Rules, 1977, by the competent authority and this Court has no jurisdiction to amend the syllabus for recruitment. The syllabus provided for recruitment in Sindh, Punjab, and Balochistan have not been placed on the record, in order to prove the discrimination and inconsistency. The contention of the learned Advocate for the petitioners that the petitioners in Petition No,253 of 2009 are not aggrieved, is also devoid of any force. The law is well settled that to become an aggrieved, it is not necessary that one must have a right in stricto sensu. It is sufficient if a petitioner has a tangible interest. The contention of the learned Advocate for the petitioners that the petitioners have not been provided fair atmosphere and suitable time for race, is also devoid of any force because this objection has not been raised by the petitioners before the authority, who was responsible to manage the race in the alleged awkward time. The petitioners are not entitled to any benefit because the similarly placed other candidates have qualified the said race in the same like circumstances, therefore, the question of discrimination does not arise and this objection of the petitioners is an afterthought.
24. ' The upshot of the above discussion is that the petition filed on behalf of Jehanzeb Khizar and others is dismissed for having no substance, whereas, Petition No,253 of 2009 filed on behalf of Bilal Ahmed and others is dismissed to the extent of petitioners Nos.1 and 2. Petitioner No,3 Iriaza Qureshi, is at the top of the general merit, therefore, to his extent, Petition No,253 of 2009 is accepted. At present, 2 posts of Assistant Chief Conservators are vacant. The other candidate appearing at the general merit will also be appointed. Similarly, against the posts of Forest Rangers, the candidate who is at the top of the general merit list may be recommended for appointment.
25. ' The petitions stand decided in the manner indicated above.