IJAZ UL AHSAN, J.---Leave to appeal is sought against a judgment of the High Court of Sindh at Karachi dated 24.04.2019. Through the impugned judgment, a constitutional petition (C.P. No. D-5009 of 2014) filed by the petitioners was dismissed and their prayer for issuance of a direction to the Respondents to appoint them against the posts which had been left vacant or had been rendered vacant on account of failure on the part of the recommended/successful candidates, was declined.
2. Briefly stated the facts necessary for disposal of this /is are that the Respondents announced various posts to be filled through Sindh' Public Service Commission ("SPSC") through an advertisement appeared in different newspapers on 25.10.2008. A large numb er of candidates including the petitioners filed applications and underwent the process of written test and interview . The $PSC prepared a merit list and recommended the successful candidates in the order of merit for appo intment against the said posts. It is signif icant to note that no waiting list was maintained by the SPSC. The petitioners, who were neither recommended nor their names appeared in the merit list, were not appointed. They claim that they had passed the written test and interview but had secured lesser marks than those recommended for appointment against the available posts by the SPSC. They subsequently found out that one of the candidates namely Ghulam Hussain Bughio had approached the High Court by way of a constitutional petition (C. P. No.D-3506 of 2011) and vide order dated 15.05.2013 a direction was issued to appoint him against the post of Deputy District Officer which had apparen tly fallen vacant. On getting this information, the petitioners approached the High Court in its constitutional jurisdicti on seeking the same relief. After hearing the parties the High Court declined to grant such relief and dismissed their constitutional petition, vide impugned judgment dated 24.04.2019. Hence, this petition.
3. The learned ASC for the petitioners submits that the petitioners had appeared in the examination and according to his instructions they had passed the written test as well as the interview . Howev er, having secured lesser marks than others who were placed higher on merit they were not recommended for appointment against the posts in question. It was subsequently learnt that some of the candidates who had been recommended by the SPSC had either not joined or after joining quit the posts in question with the result that a few posts fell vacant and were available to be filled. He maintains that such vacant and available posts should have been filled by going down the merit list and the petitioners should have been appointed against the said posts. In support of his contentions, the learned ASC, in addition to certain judgments of the different High Courts, has relied upon four judgments of this Court reported as In Re: Abdul Jabbar Memon (1996 SCMR 1349 ), Mushtaq Ahmed Mohal v. Honourable Lahore High Court (1997 SCMR 1043 ), Suo Motu Action regarding eligibility of Chairman and others (2017 SCMR 637 ) and Government of NWFP v. Qasim Shah (2009 SCMR 382).
4. The learned Additional Advocate General, Sindh has defended the impugned judgment and controverted the submissions made by learned ASC for the petitioners.
5. We have heard learned ASC for the petitioners as well as the learned Law Officer at length and have examined the case record with their assistance. The main question that falls for determination by this Court is whether the SPSC under its Rules and Regulations was required or obliged to maintain a waiting list and if not can the candidates who were not recommended on account of their failure to meet the merit claim a right to be appointed against the posts which may have remained or fallen vacant on account of failure on the part of the recommended candidates to join the posts or which may become vacant subsequently on account of the recommended candidates' decision to quit their posts.
6. The record reflects that vide advertisement No.11 of 2008 dated 19.09.2008, 43 posts of Deputy District Officers and 60 posts of Section Officers were advertised. Apparently , the petitioners were candidates for the said posts.
There is no denial of the fact that all 43 posts of DDOs were filled by the succes sful candidates on the basis of merit. Such successful candidates had obtained higher marks than the petitioners, were on the merit list and were recommended by the SPSC for appointment. The seats of the Section Officers were also filled by successful candidates, who had obtained higher marks than the petitioners and were recommended by the SPSC. It appears that subsequently a few posts fell vacant for one of the two reasons narrated above against which the petitioners raised a claim. The focus of the claim of the petitioners is that since some seats had fallen vacant, they should have been appointed against the said posts and there was neither reason nor justification for the SPSC to suggest re-advertisement of the said posts.
7. We have gone through the record and also asked the learned counsel for the parties to show us that names of the petitioners appeared in the merit list and if they had qualified but obtained lesser marks than the candidates who had been recommended for appointment. We have been informed that other than the merit list on the basis of which the SPSC had recommended the successful candidates for appointment no other list either showing merit of each candidate who had passed the test and interview or a waiting list was either prepared or maintained by the SPSC. We have been informed that no such list was either maintained or required under the law or the regulations to be maintained. We have also carefully gone through the Regulations of SPSC which clearly reflect that there is no obligation on it to prepare a list of the candidates who had failed to meet the merit or a waiting list to cater for a situation where a candidate otherwise qualified but having scored less marks than the other candidates may be appointed in case a seat becomes available in the future. In the absence of any provision in the law or the Regulations requiring SPSC to maintain a complete list of successful candidates whether or not they were recommended for appointment or obligating SPSC to maintain a waiting list, no legal or constitutional right accrued in favour of the petitioners to claim appointment and use the mode of approaching the High Court seeking to invoke its constitutional jurisdiction to grant relief. It is settled law that the constitutional jurisdiction of the High Court can be invoked only, if a right vest by law or the Constitution which is denied to him by a person performing functions in connection with the affairs of the Federation, Province or a local authority . The High Court lacks jurisdiction or power to create rights which are not provided by the Constitution or a validly enacted law .
8. The learned ASC for the petitioners has laid great stress on the judgment of the High Court of Sindh passed in C.P. No. D-3506 of 2011 in which according to him, vide an order , dated 15.05.2013, a similarly placed candidate was appointed against a post of DDO. A perusal of the facts of the said case reveals that it is clearly distinguishable from the case of the petitioners insofar as the petitioner in the said case was a successful candidate who had been recommended/allocated the post of Section Officer and while he was serving as SO, a post of DDO fell vacant. He was duly qualified for the same and had requested that he may be appointed against the post of DDO. However , in the instant case, the petitioners were never qualified or recommended for, any post and their claim is only focused on seeking appointment against posts which had fallen vacant on account of failure of the recommended candidates to join the same. We are there fore of the view that the order of the High Court in which leave to appeal was refused by this Court is of no help to the case of the petitioners being distinguishable on facts as well as the principles of law involved in the matter .
9. We have carefully gone through the judgments of this Court cited by learned ASC for the petitioners and find that the same are neither relevant to the controversy before us nor address the question being determined in the case in hand. Even otherwise, the said judgments are distinguishable on facts as well as law and do not purport to lay down the entire law on the subject. They are therefore of no help to the case of the petitioners. The judgments of the High Courts have also been rendered in different sets of facts and circumstances and are not in any case do not constitute binding precedents for this Court.
10. As far as the judgment of this Court reported as Government of NWFP (ibid) is concerned, it is a leave refusing order and does not constitute precedent. Even otherwise, the finding of the Court in the leave refusing order to the effect that when some of the selected candidates did not join service, such posts remain vacant, it is imperative for the department to have considered the remaining candidates for appointment against the other posts proceeds on the premise that there are some candidates who are still available on the "waiting list", In the said case, apparently , there was a waiting list maintained by the concerned department and failure of the department to appoint candidates who had qualified and their names existed on the waiting list was found to be unfair . It is clear and obvious that there was no waiting list in the instant case. Besides being distinguishable on facts as well as the relevant law insofar as it did not relate to nor examine the regulations of KPK Public Service. Commission. It is apparent that the department was required its internal rules to maintain a waiting list and the names of the petitioners before the High Court, appear ed in the waiting list, there were vacant posts available, they qualified for the same, yet they were denied appointment by the departmental authorities. The issues in the precedent case and the case before us, the facts involved and the legal questions addressed are totally dif ferent.
11. In the instant case, as noted above, the regulations of SPSC do not require preparation of a list of candidates, who failed to meet the merit nor is there any requirement or provision in the law, rules or regulations governing SPSC or the concerned department for maintaining a waiting list. In the absence of both the said requirements, no right to appointment had accrued in favour of the petitioners which could have been enforced by the High Court in exercise of its constitutional jurisdiction. The basic law on the subject has been laid down by this Court in the case of Musa Wazir v. NWFP Public Service Commission (1993 SCMR 1124) which has consistently been followed wherein it was clearly and categorically held as follows: "8. In the case of posts vacated by non-joinder of selected candidates or subsequent requisitions received the ordinary course for the Commission and the government would have to advertise it. The only exception and the most unusual would be as pointed in the same instructions refer-ed to in paragraph 7, instruction 2.12 which reads as hereunder:-- " The Department, while sending a requisition, may mention the number of vacancies at the time and any additional number of vacancies that are likely to occur in the near future so that the Commission may take the opportunity to select more candidates than the number of actual vacancies at the time of reference and recommend them later when a reference is made for filling additional new vacancies."
9. In an exceptional situation such additional vacancies subsequently reported to the Commission would get assimilated to the vacancies already advertised and the selection will take place from the result of the combined competitive examination as a single, selection.
10. It is also advisable for the Government and the Commission to consider or not whether it is more fair, proper and regular to have annual or once in two years a combined competitive examination instead of keeping the practice erratic and uncertain. A practice of holding combined competitive examina tions once a year or once in two years would end to certain extent the frustration and the disappointment that prevails in the fresh graduates who are eligible to take such examinations and to compete but are denied the opportunity to do so.
11. The practice of keeping a waiting list in a competitive examination system is actually introducing a contradictory concept. The waiting list is maintained in a qualifying examination while in a competitive examination all vacancies are filled up in one go. Even if the filling up is staggered the competitive examination is one and has to be treated as one selection for the purposes of recruitment and it cannot be divided into subsequent selection and prior selection the competitive examination remaining one and the same. Besides, the system which has prevailed in the Province is highly manipulative and unfair . Observation of the High Court on merits reproduced above shows that it came to the conclusion that the practice of the Commission was unfair , created apprehension in the minds of the candidates, was manipulative in the hands of those dealing with the candidates and-was the cause of heart burning of the persons affected and working in the Government service. The practice in the matter of recruitment, promotion etc has always to be such so as to foster competence, discipline and efficiency in public service. Not only these objects should be advanced but they must appear manifestly to be advanced. If the system is arbitrary , capricious, unfair , leads to abiding heart burning and litigation then it is derogatory of the laudable objects for which the public service is required to be established.
13. So far as the Commission's policy and practice spelt out in the letter dated 8th January , 1989 reproduced in the judgment is concerned, there are certain legal objections to it. In the first place, the examination being competitive, there could be no practice of maintaining a list of qualified candidates for six months or its revalidation by the Government for a longer period. Requ isitions made cannot be adjusted out of such lists without proper advertisement. As held by this Court in the case of Abdul Jabbar Memon (Huma n Rights Case No.104/1992) it would otherwise be a violation of the Fundamental Rights of the citizens and not condonable on any ground of expediency or administrative convenience."
12. The law laid down in the said judgment is the settled law on the subject and is good law. We find no reason, basis or justification to alter or deviate from the same. Further , we affirm and reiterate the principles of law laid down in the said case and reaf firm the following principles: i) in matters of competitive examination held by Public Service Commissions all vacancies are required to be filled up in one go. Even if the filling up is staggered the competitive examination is one and has to be treated as one selection for the purpose of recruitment. ii) In posts remaining vacant on account of non-availability of suitable candidates, failure of the recommended candidates, to occupy or falling vacant by reason of the qualified candidates quitting the posts after joining need to re-advertised and subjected to open competition; iii) The practice in the matter of recruitment/promotion, etc must always be fair, transparent and open to competition in order to hire the best available human resource to foster , competence, excellence and efficiency in public service; and iv) Only in exceptional cases and provided the rules and regulations provide for waiting list of the qualified candidates who did not in the first place meet the merit, to be maintained for a limited time (maximum of three months) on the request of the department by the relevant Public Service Commission or the department (in case recruitment is made by the department under the law, rules and regulations through an open and transparent recruitment process involving test and interview) in order to ensure that in case of an urgent need to fill the vacancies, the qualified candidates may be recommended and offered the availab le seats from such "waiting list" strictly following the rule of merit. However , it is re-emphasized that such practice must always be limited to exceptional circumstances and provided the laws, rules and regulations of the Public Service Commissions and/or the concerned departments so permit.
13. Corning to the facts of the instant case, we find that there is no such provision in SPSC regulations on the basis of which the petitioners could have claimed any such right.
14. Looking at it from another angle, the petitioners seek appointments against an advertisement that appeared in 2008. They approached the High Court in 2014 and did not succeed. Even, the High Court observed in 2019 that much water had already flown under the bridge, the petitioners could not even otherwise be accommodated as they had become overage and their appointment would be impracticable, disrupt and disturb the organizational structure, affect the rights, seniority and promotions, etc of the incumbent staff and would unjustified in view of the fact that they had admittedly not met the criteria of being selected on merit by SPSC having obtained lesser marks than the successful candidates. In additi on, and without prejudice to the above, we are of the view that no right vested in the petitioners either by law or the constitution. Even the maintainability of their petition before the High Court under Article 199 of the Constitution was open to serious question and in our humble opinion the same was not maintainable.
15. For the reasons recorded above, we do not find any merit in this petition. It is accordingly dismissed. Leave to appeal is refused. All pending C.M.As. also stand disposed of accordingly .