' MUHAMMAD HASHIM KHAN KAKAR, J.-- The instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 ("the Constitution") carries the following prayer:--- "It is accordingly respectfully prayed that impugned notification 25-6-2007 by way of which appointment of private respondents have been made depriving the petitioners from their legal and lawful entitlement may kindly be ordered to be declared as illegal, void, ab-initio and further ordered to be cancelled and official respondents may kindly be directed to issue notification for appointment of petitioners in accordance with merit list prepared for the posts. It is further prayed that action of private respondents is not abiding the merit list may kindly be declared as illegal and unlawful. Any other relief which this honourable Division Bench may deems fit and appropriate in the circumstances of the case may also be passed in favour of petitioners, in the interest of justice and equity."
2. It is the case of petitioners that, pursuant to advertisement appeared in daily newspaper Mashriq', Quetta dated 17th September 2004 regarding appointment of Assistant Investigating Officer (B-14) in the Home and Tribal Affairs Department, Government of Balochistan, they, being eligible in all respects, applied for the same from their respective districts along with other candidates including the private respondents. According to them, the tests and interviews were conducted by the Departmental Selection Committee and according to the merit list prepared by the department, they were on top, but to their utter surprise, notification dated 25th June, 2007 ("the impugned notification") was issued by appointing the private respondents on the posts in question and it appears that such appointments were made by the directives of this Court.
3. The official as well as private respondents filed their parawise comments by denying the allegations made in the petition on numerous grounds and the claim of the petitioners was strongly repudiated and contested on merits.
4. The record reflects that the instant petition was instituted in the year 2007 and the same was dismissed on 5th November, 2013 for non-prosecution and, subsequently, the. Same was restored vide order dated 27th March, 2014 with the condition that the learned counsel for the petitioners will proceed with. The matter on next date of hearing, as the matter pertains to the year 2007, however, on subsequent date of hearing i,e, 14th October, 2014, again an adjournment was sought by the learned counsel for the petitioners. On 1st April, 2015 the case was taken up for hearing, but as usual neither the petitioners, nor their counsel was in attendance, as such, we are left with no other option, but to proceed with the matter with the help of learned Assistant Advocate. General as well as learned counsel for the respondents.
5.The record reveals that Constitutional Petition No,746 of 2006 was instituted by respondents Nos.9, 22 and others and the controversy regarding appointments in question was dealt with and finally adjudicated upon by a Division Bench of this court vide judgment dated 30th April, 2007. The appointments of the respondents are not the outcome of any administrative order, rather the same were made in pursuance of the aforesaid judgment passed by this Court, relevant portion whereof reads as under:--- "In view of what has been stated above, we are inclined to allow this petition and declare withholding of appointment of the petitioners by the competent authority to be illegal and in excess of jurisdiction. Consequently; respondents are directed to issue appointment letters to the petitioners, who were selected by the selection committee after due process of law."
6. In such view of the matter, we are of the view that the findings of a Division Bench of this Court deserves due weight and cannot be reversed, upset or disturbed at this belated stage. It may be noted that all the grounds taken in the instant petition were well attended by this Court, while deciding the fate of Constitutional Petition No.746 of 2006 and now the matter, being one of past and closed transaction, cannot be re-agitated by using different phraseology and words.
Constitutional jurisdiction under Article 199 of the Constitution cannot be invoked to re-hear a case, which had already been decided. Even otherwise, in view of the findings of this Court in the aforesaid constitutional petition, any interference in the impugned notification, at this stage, would amount to sit as a Court of appeal over a judgment of another bench of the High Court. It would also amount to issuance of a writ by one Bench of the High Court against another Bench, so as to annul an order or the effect of an order passed by it, under Article 199 of the Constitution. Such course is not permissible under the Constitutional Scheme and it would also seriously undermine and prejudice the smooth affairs and working of the superior Courts. In this respect, reference can be made to the case of "Muhammad Ikram Chaudhry v. Federation of Pakistan" (PLD 1998 Supreme Court 103), wherein it was observed as under:- "There seems to be unanimity of view among the superior Courts on the question that a High Court or the Supreme Court cannot in exercise of its Constitutional jurisdiction under Article 199 of the Constitution interfere with an order passed by another Judge or another Bench of the same Court."
7. Similarly, the instant constitutional petition also hits and is not maintainable on the principle of 'constructive res judicata'. A division bench of this Court regarding appointment of the respondents has already recorded the findings on the issue raised in the instant proceedings by the petitioners.
The present petition on such issue would be barred on the principle of 'constructive res judicata'.
Reference can be made to the I case of "Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari" (2012 SCM R 366) wherein it was held:--- "We do not concur with the finding of the learned High Court, in regard to the invalidity of the degree on the basis of report of the Assistant Controller. However, the other observations that the degree was not forged, was itself sufficient ground to dismiss the petition of the appellant. The next contention of the appellant that bona fides in a writ of quo warranto cannot be allowed to be gone into, was also without force. Once the learned High Court has already recorded the finding on the issue of degree raised in the present proceedings by the appellant in an earlier writ petition which findings have not been upset in appeal by this Court, the present petition on such issue would be bar on the principle of 'constructive res judicata' besides the fact that the appellant, otherwise, had political connections with the very group which has previously filed the Election Petition. In such like circumstances, bona fides of a petitioner in a writ of quo warranto can be examined to save a party from vexing twice."
8. It is pertinent to mention here that the written test and interview were conducted by the Departmental Selection Committee, consisting of Director General, Balochistan Levies Force, Additional Secretary and Deputy Secretary, Home and Tribal Affairs Department as well as Director Levies. The authority of the selection committee cannot be challenged or questioned because of the fact that selection committee is the best judge at the given time to form an opinion, take decision after judging the abilities and capabilities of the candidates and the Court shall not interfere and thrust their opinions subsequently, changing the verdict of the selection committee, except when it has been made other than the capabilities of the candidates or it smacks mala fides, which are lacking in the instant case. Needless to observe that the private respondents were appointed in the year 2007 and according to the official respondents, they are performing their duties and no complaint of any nature has been received by the authorities from any corner.
9. It may be observed that the private respondents had put in more than eight years of their service and had lost all their chances to get fresh appointments elsewhere, as they stood disqualified being overage. It is well-settled principle of law that superior Courts always act in aid of justice and may at times refuse to interfere with an illegal order, if it results in grave injustice. The Hon'ble Supreme Court has held in a number of cases that High Court may not interfere with an order notwithstanding its void or illegal dimension if it leads to greater injustice. In the case of "Secretary to the Government of the Punjab v. Ghulam Nabi", (PLD 2001 SC 415), it was observed as under: Therefore, High Court is not bound to grant relief to a petitioner simply because he was legally entitled to it, if the grant of such relief is immoral, unfair or against the dictates of good conscience and fair play". 1990 MLD 2192 (DB)). It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality or void action or order is impugned. The Court is to see, whether the grant of relief prayed for will foster the cause of justice or will it perpetuate injustice. If the Court finds that in a given case though the action taken by the authority is illegal but setting aside of such an illegal action would result in miscarriage of justice instead of advancing the cause of justice, the Court may decline to press into service its Constitutional jurisdiction."
10. That appointments to Balochistan service or to a civil service of the Province of Balochistan or to a civil post in connection with the affairs of the Province of Balochistan are regulated by section 5 read with S.2 (1)(f) and S.2 (1) (h) of the Balochistan Civil Servants Act, 1974 and Rules made in exercise of powers conferred by section 25 thereof, namely, Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules 1979 (R.2(e), R.5, R.11 & R.12). Nothing has been brought on record by the petitioners as to which of any statutory provision was violated in issuance of the impugned notification. It is by now settled that initial presumption of correctness attaches to the official/public acts. There is nothing on record to tentatively displace this initial presumption of correctness. Constitutional jurisdiction in terms of Article 199 of the Constitution is intended to strike down orders, which are found to be in excess of or without lawful authority or patently in contravention of any express provision of law. In the absence of any violation of any provision of law, instant constitutional petition is not maintainable.
For all that has been stated above, this petition is dismissed, leaving the parties to bear their own costs.