' FAROOQ ALI CHANNA , J.--- The petitioner through this Constitutional Petition seeks the following relief(s):
(a) To declare that the procedure adopted by the respondents in conducting the interview and by- passing the written test for the post of TOS/Chief Officers is in contravention of the law and Rules and does not create any right in favour of the candidates who have been declared successful.
(b) Restrain the respondents from issuing offer letters/order of appointment and further postings on the basis of above interview.
(c) To award costs of the petition.
(d) To grant any other relief as deemed fit and proper in the circumstances of the case.
1. It is the case of the petitioner that he being Citizen of Pakistan; in pursuant to the publication made by the respondent No,1 in National Sindhi, Urdu, English Newspapers including DAWN dated 24-11-2011, inviting the applications for appointment against the posts of Chief Municipal Officer BPS-17., Taluka Officer/Chief Officer BPS-16, Accounts Officer BPS-17, Assistant Accounts Officer BPS- 16, Assistant Executive Engineer (Civil) BPS-17, Assistant Executive Engineer (Mechanical) BPS-17 and Medical Officer(Male and Female) BPS-17, applied for the post of Taluka Officer/Chief Officer BPS-16.
In pursuant to another advertisement dated 16-12-2011 calling the candidates for interview, the petitioner appeared but his name was not announced, therefore, he came back extremely disappointed. The respondents called again the candidates for fresh interview scheduled from 22- 12-2011 to 3-1-2012. The petitioner attempted to appear but he and many other candidates were not called for appearance before interview committee. It is further case of the petitioner that before the completion of process for appointments some of the candidates filed Constitutional Petitions challenging the entire process of recruitment with the prayer that the advertised posts may he filled in through Sindh Public Service Commission but the petitioner was shocked to learn that a political personality of Sukkur City was to deliver offer letters to the favourites although no proper test and interviews were held.
2. The respondent No,1 has filed parawise comments denying assertions of the petitioner and stated that this Court vide its judgment passed in C.P.No,D-721 of 2009 has already adjudicated the issue by declaring that S.C.U.G. Officers are not civil servants, therefore, the recruitment for appointment in Sindh Local Government Board was transparent, fair and strictly in accordance with the provisions of S.C.U.G. Services Rules, 1982, for which the respondents were competent.
3. We have heard Mr. Bakhshan Khan Mahar learned counsel for the petitioner and Mr. Liaqat All Shar A.A.-G. assisted by Mr. Noor Hassan Malik State Counsel and Mr. Barrister Zamir Ghumro assisted by Mr. Qurban Ali Malan advocate for respondents Nos.1 and 2. The latter at outset have stated that the controversy involved in this Constitutional Petition has already been resolved by this Court in Constitutional Petitions Nos.0-3406 of 2011 and D-117 of 2012 filed by some other candidates with similar facts and prayers, as that of instant Constitutional petition. The former while confronted has not controverted the above submissions, however, his contention was that petitioner's case was distinguishable to some extent from the above referred constitutional petitions. Learned counsel has contended that the petitioner has been deprived of his fundamental right protected under the Constitution of Islamic Republic of Pakistan, 1973, of being appointed against the post applied for, after proper opportunity of his appearance in written test and interview. His next contention was that the process adopted by the respondents violates the Rules 10(a), 10(b) of Sindh. Civil Servants (Appointment and Conditions of Service) Rules, 1974 and the recruitment done by the respondents in violation of above referred two provisions of Sindh Civil Servants Rules is the violation of Articles 2-A, 4, 9, 14,18 and 25 of Constitution of Islamic Republic of Pakistan, 1973.
4. We have perused the record so also the common judgment passed in Constitutional Petitions Nos.3406 of 2011 and D-117 of 2012 which reflects that the questions agitated by learned counsel for the petitioner along with certain other questions of law including the maintainability of Constitutional Petitions were considered/discussed conscientiously and decided by this Court in the above referred Constitutional Petitions containing the same facts and prayers as that of, instant Constitutional Petitions, which for the sake of convenience are re produced as under:--- "An advertisement was placed in Daily Dawn on 24-11-2011 by the Secretary, Sindh Local Government Board for various posts in Sindh Council Unified Grade Service including post of Chief Municipal Officer. Petitioners applied for the posts of Chief Municipal Officer (BPS-17) as well as for one other post in each case. Another advertisement was placed by the Secretary, Sindh Local Government Board on or about 14-12-2011 whereby candidates who had applied for various posts were advised to bring documents/testimonials/photocopies thereof duly attested and appear for interview. Petitioner in C.P.-3406 of 2011 filed the petition on 20-12-2011 i.e, before the interviews took place while the petitioner in C.P.D-117 of 2012 appeared for interview. In both these petitions almost identical prayers have been made which reads as under:
(i) Direct the respondent No,1 to follow the rules and regulations in appointment to the posts, ensure transparent recruitment process and merit policy.
(ii) Declare that the recruitment procedure adopted by the respondent No,1 ignoring the written test is mala fide, illegal, void, discriminatory and without lawful authority.
(iii) Restrain the respondent No,1 from conducting the interviews as scheduled from 22-12-2011 to 3- 1-2012 (Annexure-C) till the final disposal of this petition.
(iv) Any other relief be granted which this honourable Court may deem fit and proper under the facts and circumstances of the case.
(v) Cost of the petition may also be awarded.
2. The petitioner in C.P.D-3406 of 2011 made the following submissions:---
(1) The venue of interview was changed without notice and when he reached the place for interview there were thousands of candidates. No interviews took place and all that happened was that candidates were asked the question whether they had brought their original testimonials and their photocopies and if they stated "yes" the photocopies were taken. He submitted that such an exercise amounts to playing joke on the rules and fraud with the candidates.
(2) No written test was conducted though it was requirement of rule 4(2)(ii) of the Sindh Council Unified Grade Service Rules, 1982 that written test be conducted.
(3) Petitioner again relied upon the above rules and submitted that the rules were amended on 2- 1-2012 and it was provided that appointment shall be made on the recommendation of Sindh Local Government Board, whereas prior to such amendment it had been provided that appointment shall be made on the recommendation of the Sindh Pubic Service Commission.
(4) Petitioner submitted that the Notification by which the amendment was made is prospective in nature and therefore very initiation of the process of recruitment was in violation of law. He relied upon Dr. Naveeda Tufail v. Government of Punjab (2003 SCMR 291), Shoukat Ali v. Federal Public Service Commission (2010 PLC (C.S.) 455), Shaikh Zayed Hospital and Post Graduate Medical Institutes v. Dr. Muhammad Saeed (2010 PLC (C.S.) 976), Dr. Pirzada Jamaluddin Siddique v.
Federation of Pakistan (2012 PLC (C.S.) 996), Inman Hussain v. Water and Power Development Authority (PLD 2010 SC 546), (2011 PLC (C.S.) 548) Ehsan Ullafi v. Inspector-General of Police, Punjab, Lahore (2006 PLC (C.S.) 964) and Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar (AIR 1995 SC 77).
5. The above said petitions after detailed discussion and examination of each aspect of the case were allowed vide the judgment dated 22-2-2012. The operative part of the judgment reads as under: "Result of the above discussion is that these Constitutional Petitions are all allowed by holding that when the process was initiated and when the interview were held and selection process completed Sindh Local Government Board was not competent to initiate or complete the process. It is also held that the Sindh Local Government Board must comply with the strict criteria laid down in rule 4(2) (ii) in respect of making recommendations "after such examination or test and interview as may be conducted by it". Listed applications are disposed of."
6. We may mention here that Mr. Zulfiqar Ali Domki, the petitioner in C.P.No,D-3406 of 2011 assailed the above referred judgment dated 22-2-2012 passed by this Court, before the Honourable Supreme Court of Pakistan in Civil Petition for Leave Appeal No,69-K of 2012. The province of Sindh and others also assailed the said judgment dated 22-2-2012 in Civil Petitions Nos.85-K and 86-K of 2012. All the three petitioners subsequently were withdrawn by the petitioners hence dismissed vide order dated 4-9-2012.
7. Learned counsel for the respondents have contended that the respondent No,1 in compliance of above mentioned verdict of this Court passed in the judgment dated 22-2-2012 winded the entire process of recruitment, carried out in pursuance of advertisement published in newspapers dated 24-11-2011, and in order to comply with the strict criteria laid down in Rule 4(2) (ii) of the Sindh Council Unified Grade Service has invited fresh applications and carried out the process of recruitment by publishing advertisements in different Newspapers of wide publications dated 24- 2-2012. In support of their contentions they have placed on record the copy advertisement published in different newspapers dated 24-2-2011. Learned counsel for the petitioner to a query of this Court has admitted that the petitioner has not applied for any post in pursuance of advertisement published on 24-2-2012, thus he cannot claim that he has been deprived of his legitimate right of appearance in written test or interview for any post in Government of Sindh, Local Government Department.
8. Learned counsel for the respondents during arguments also referred to para No 15 of the judgment dated 22-2-2012 and contended that the Court has held that the petitioners were not Civil Servants, therefore, their petitions were not maintainable. We have also perused the para No,15 of judgment dated 22-2-2012 which reflects that this A Court while relying upon Division Bench decision of this Court in case of Fazal Ahmed Samtio v. Province of Sindh (2010 PLC (C.S.) 215) has decided the issue of maintainability of Constitutional Petition. In the same para it is also held that the contentions of petitioners that inspite of the Notification dated 2-1-2012 the appointment can only be made upon the recommendations of Sindh Public Service Commission is without substance.
9. In view of above, since controversy involved in this Constitutional Petition has already been resolved by this Court vide judgment dated 22-2-2012 passed in Constitutional Petitions Nos.D- 3406 of 2011 and D-117 of 2012 and the respondent No,1 has winded the entire process of recruitment, carried out in pursuance of advertisement dated 24-11-2011, as such this Constitution petition has become infructuous hence, dismissed along with listed applications.