' This single judgment shall decide the instant petition as well as Writ Petition No. 11666 of 2015, as in both these petitions similar questions of facts and law are involved.
2. Precisely the facts necessary for adjudication of instant petition are that the respondents have issued a publication in Daily "Nawa-i-Waqt" with the heading " "JOB OPPORTUNITY" for different categories mentioned therein including ALM. The petitioners considering themselves to be qualified for the respective post applied in terms of the publication, however they could not qualified for the said post whereas some other 737 candidates were appointed by way of order dated 5th of July, 2013 as ALM on contract basis. The petitioners now have assailed the said appointment process on the ground that it was tainted with malafide and nepotism.
3. The respondents in order to resist the petition filed report and parawise comments, whereby certain preliminary objections were raised with regard to the maintainability of the petition.
4. Mr. Muhammad Ghias-ul-Haq Sheikh, Advocate representing the petitioners in Writ Petition No. 10706 of 2015 contended that the respondents while conducting the appointments in terms of the publication adopted the method of pick and chose. He added that in the said process, certain irregular appointments were made. Learned counsel submitted that the recruitments were made beyond the scope of the advertisement and respondents did not adopt the transparent procedure for the said purpose. Learned counsel contended that the petitioners were purposely deprived of the right of appointment and instead certain other persons were appointed, while ignoring the recruitment policy.
5. Mr. Houmayoun Syed Rasool, Advocate for the petitioners in Writ Petition No. 11666 of 2015 adopted the arguments advanced by the learned counsel for the petitioners in Writ Petition No. 10706 of 2015.
6. Conversely, learned Legal Advisor appearing on behalf of respondents defended the process of recruitment. He submitted that the process was completed strictly in terms of the judgment dated 17th of June, 2010 passed by this Court and the petitioners in the first round already challenged their termination orders upto the Honourable Supreme Court of Pakistan but without any success.
7. I have heard the learned counsel for both the sides at quite some length and also perused the record with their assistance.
8. It is an admitted position that the petitioners were initially recruited for the post in question, however in the meanwhile some affectees filed Writ Petition Nos. 701, 703, 705 of 2010 challenging the process of appointment and ultimately the petitions were allowed by way of judgment dated 17th of June, 2010 on the following terms:- "32. For what has been discussed above, I allow these writ petitions in the following terms:--
(I) All appointments made amongst the candidates from outside the MEPCO territorial jurisdiction, pursuant to the advertisement of the respondents, subject Matter of these writ petitions, are declared to be malafide and ultra vires of the Constitution of Islamic Republic of Pakistan void ab- initio, and are set-aside accordingly.,
(II) The persons appointed against respective posts having domicile of within the MEPCO territorial jurisdiction shall provisionally continue as such. The appointments are being provisionally protected on two grounds, as:-
(a) These appointees otherwise, prima facie fulfill the basic criteria of being the residents of the same MEPCO territorial jurisdiction, as advertised; and
(b) By their immediate expulsion from service, there may occurr unnecessary vacuum in MEPCO which may even result in adding to the miseries of general public in these days of scorching heat, searching for electricity.
(III) The respondents authorities are directed to short list the applications received from the candidates from within the MEPCO territory by making a transparent and fair criteria and then arrange for written test where after, at least five candidates shall be called for interview for each post. In case of less number candidates apply/qualify/ pass for any post, this condition shall not apply;
(IV) The interview marks, as discussed above, shall not be more than 25%; and
(V) For women quota as notified by the Federal Government shall strictly be observed considering the suitability of such posts keeping in view the dignity of the women, but this classification should not be based on arbitrariness."
' Though the department assailed the said judgment by filing Infra Court Appeal No. 168 of 2010, however the same was dismissed as withdrawn and ultimately judgment dated 17' of June, 2010 attained finality. The respondents thereafter re-started the process of recruitment in the light of observations made by this Court in the said judgment, as a result thereof, the services of the petitioners were terminated vide office order dated 5th of July, 2013 whereas by the office Order No. 76/IC/3830-46/CEAMEPCO/IC of the same date, new incumbents were recruited. The petitioners in the first instance challenged the order of their termination by way of various writ petitions. The said petitions were allowed vide judgment dated 20th of December, 2013. The respondents, feeling aggrieved from the said judgments filed Intra Court Appeals. All the appeals of the respondents were consolidated and decided by way of judgment dated 23rd of June, 2014 by the learned Division Bench of this Court in Intra Court Appeal No. 04 of 2014. For the purpose of convenience, the relevant extract from the said judgment is re-produced below:-- "11. We are of the considered view that impugned judgment dated 04.12.2013 announced on 20.12.2013 is based upon earlier judgment passed by learned single judge-in-Chamber dated 17.06.2010 and direction passed by learned Division Bench, at Lahore in ICA No. 168/2010. So far as portion of the said judgment which has been prayed to be set-aside to the extent that office order dated 05.07.2013 pertaining to general termination of employees of MEPCO has been set-aside and authorities are directed to proceed further in accordance with Section 3(e) of the Removal from Service (Special Powers) Ordinance, 2000 after issuing show cause notice to petitioners is concerned it is held that since provisions of RSO, 2000 were already repealed so same could not have been pressed into service.
12. The case laws relied upon by the appellant/employees are distinguishable and are not applicable to the case of present appellants/employees.
13. By this way of the matter, we have reached a conclusion that the learned Single Judge in chamber has fallen in error by setting aside impugned order of general termination dated 05.07.2013 passed by the Appellant/MEPCO with a direction to the authorities (MEPCO) to proceed further in accordance with Section 3(c) of the RSO, 2000 after issuing show cause notices to the petitioners.
14. Resultantly, the Intra Court Appeal filed by the Appellant/MEPCO is allowed and the impugned judgment dated 04.12.2013 announced on 20.12.2013 passed by the learned Single Judge is hereby set-aside. It is declared that the general termination order passed by the appellant-MEPCO dated 05.07.2013 stands revived and same hold the field. Further that the Intra Court Appeals filed by the appellants/employees are allowed only to the extent that observations made by learned .Single Judge-in-Chamber in Para Nos. 8; 10 and 11 of the impugned judgment are hereby expunged and shall have no bearing on the appellants/employees."
' The petitioners, feeling aggrieved from the said judgment filed a Civil Petition No. 2415 of 2014 before the Honourable Supreme Court of Pakistan, however the same was dismissed vide judgment dated 25th of May, 2015. For the purpose of appreciating the contentions of both the sides, it is expedient to re-produce the relevant portion of the said judgment which reads as under:- "4. Heard. That the earlier round of litigation culminated in the decision in I.C.A. No. 168/2010 to the extent of the petitioners vide judgment dated 29.05.2014 wherein it was held that the order of the learned Single Judge in Chamber giving them protection was not for an indefinite period, as such the relief granted by the learned Single Judge in Chamber appears to be till the Competent Authority had completed fresh process for appointments. In such circumstances, fresh process for appointments had been completed and the petitioner duly participated in it but they failed to qualify and accordingly they were dropped. In the given facts and circumstances, challenging their termination order through subsequently filed writ petitions was an afterthought, morcso when they did not challenge judgment dated 29.05.2014 to their extent passed in I.C.A. No. 168/2010 by the Division Bench of the High Court, the same having attained finality to their extent. In view of the same, the High Court has rightly reached its conclusion in the shape of allowing the I.C.A. Filed by MEPCO while upholding the general termination order dated 05.07.2013 issued by the MEPCO, and judgment dated 20.12.2013 was rightly set aside by holding that the learned Single Judge in Chamber fell in error by setting aside the general termination order dated 05.07.2013 and by giving a direction to the authorities to proceed further in accordance with Section 3(c) of the Removal from Service (Special Powers) Ordinance, 2000, after issuance of show cause notices to the petitioners.
5. In the above perspective, no explain can be taken to the well-reasoned judgment of the High Court. The same does not suffer from any illegality or infirmity, which could convince us to exercise our jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, leave to appeal is refused. Petition is dismissed being without merits."
' It is evident from the above referred portion of judgment that at the time of pronouncement, the fresh process for appointments which is now under challenge in the instant petition also got attention of the Honourable Apex Court. Record clearly reflects that the process of appointment as well as the termination letters of the petitioners were issued on the same date i.e. 5th of July, 2013 and at the time of filing the petitions, challenging the termination letters, the petitioners were well conversant with the fact of new appointments. The petitioners however did not challenge the said process of appointments and now after dismissal of their civil petition by way of judgment dated 25th of May, 2015 they have thrown a fresh challenge to the recruitment process in order to achieve their goal which they failed in their first attempt.
9. There is no cavil that the provisions of The Code of Civil Procedure (V of 1908) are applicable to the Constitutional proceedings and in this way, the principles enshrined in the said Code are fully attracted. The Civil Procedure Code (V of 1908) regulates civil proceedings. The nature of the proceedings does not necessarily depend on the nature of the jurisdiction_of the Court invoked.
Admittedly the Constitution petition has been filed under Article 199 of The Constitution of The Islamic Republic of Pakistan, 1973 wherein some assertions for enforcement of civil rights have been made therefore same would be civil proceedings. Since the petitioners while challenging their termination orders relinquished the claim to the extent of second limb i.e. Recruitment process so they are now precluded to agitate their claim to that extent in terms of Order II Rule 2 of The Code of Civil Procedure (V of 1908). In this regard guidance can be sought from the judgment in the case of "Ardeshir Cowasjee and others versus Karachi Building Control Authority and others" (PLD 2004 Supreme Court 70). The relevant extract from the judgment supra is reproduced below: "5. We do not find merit in the contention that provisions of Civil Procedure Code would regulate proceedings and would not necessarily depend on the nature of jurisdiction of the Court.
Admittedly the Constitution petition has been filed under Article 199 wherein some assertions for enforcement of civil rights have been made therefore same would be civil proceedings hence provision of C.P.C. Would be applicable other than specifically barred as such the said provision would apply in the exercise of High Court's jurisdiction in civil matter whatever may be nature of that jurisdiction. Reference may be made to leading judgment of this Court in (I) Hussain Bakhsh v.
Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) wherein their lordships observed: "The Civil Procedure Code regulates civil proceedings. The nature of the proceedings does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceedings or not, it is necessary to see what are the questions raised and decided in the proceedings involves the assertion or enforcement of a civil right, it is a civil proeeedings. As regards application of the provisions of the Code in proceedings before a High Court, their lordship of the Privy Council in Sabitri Thakurari v. Savi .(AIR 1921 PC 80) observed: "The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply."
2. Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 723) wherein this Court held as under: "A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure. By virtue of Section 117 of the Code a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specifically excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and Section 114 of the Code conferring power to review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under said Section 114 if that section is otherwise applicable."
(3) Shabir Ahmad and another v. Akhtar Alam and others (PLD 1994 SC 598), (4) Ch. Pervez Ellahi v.
Province of Punjab (PLD 1993 Lahore 595), (5) Malik Khanan v. Malik Baz Muhammad Khan and others (PLD 1983 Quetta 30) and (6) Muhammad Nawaz and another v. Abdul Ghafoor and others (PLD 1981. Kar. 469). It is regrettable that High Court did not take notice of above three cases decided by this Court keeping in view also the provision of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973."
' The same view was reiterated by the Honorable Apex Court in "Muhammad Riaz Bhatti versus Federation of Pakistan and another" (2004 SCMR 1120) and "Javaid Iqbal Abbasi & Company versus Province of Punjab and 6 others" (1996 SCMR 1433). The same principle was adopted by this Court in case of "Nisar-ul-Haq versus Tehsil Municipal Administrator City through Nazim and 2 others"
10. There is yet another important aspect that the petitioners have invoked the Constitutional jurisdiction of this Court which is always discretionary and based on principles of equity. It is manifest from the available material that the petitioners, after being unsuccessful in their first attempt are now trying to dislodge the whole process of recruitment on the plea that it is tainted with malafide and favoritism. The recruitment was made by way of office order dated 5th of July, 2013 and the petitioners did not challenge the same in the first phase and now after the lapse of about two years, they have filed the instant petitions which are clearly hit by the principles of aches. Though principles of laches cannot be treated as absolute hurdle in each and every case in exercise of Constitutional jurisdiction but when the delay in approaching the Court is contemptuous and is coupled with other circumstances and there is no plausible reasoning for the petitioners to wait for a considerable time in approaching the Court, the question of laches attains importance. Guidance in this respect can be sought from "Pakistan International Airline Corporation and others versus Tanweer-ur-Rehman and others" (PLD 2010 Supreme Court 676) and Muhammad Din versus Abdul Ghani and another" (2012 SCMR 1004).
11. For the foregoing reasons, I am not inclined to exercise writ jurisdiction in favor of the petitioners who are indolent and even did not approach the Court with clean hands, consequently the instant petitions, being without any merits are dismissed with no order as to costs.