TARIQ SALEEM SHEIKH, J.---This Intra-Court Appeal under section 3 of the Law Reforms Ordinance, 1972, is directed against order dated 13-03-2017 passed by the learned Single Judge whereby he accepted W.P. No. 16562/2016 filed by Respondent No.1.
2. Brief facts giving rise to this appeal are that Appellant No.3 invited applications for appointment against various vacancies in the Primary and Secondary Healthcare Centers, Layyah, through an advertisement published in daily "Jang" dated 18-06-2016. Respondent No.1 applied for the post of Health Technician and was interviewed on 11- 07-2016. However , the recruitment process was stalled due to certain injunctive orders issued by this Court in the constitutional petitions filed by some candidates other than Respondent No.1. Meanwhile, Government of the Punjab (Petitioner No.1) vide Notification No. DS (Promotions) 13/20 16 dated 24-08-2016 (the "Notification") prescribed a new mechanism in terms of para 13(vi) of the Recruitment Policy , 2004 for hiring staff from BS-5 to BS-15 at DHQS/THQs/RHCs / BHUs/dispensaries and other allied health facilities managed by the Primary and Secondary Healthcare Department. Under the new regime all recruitments were to be made through written tests conducted by the National Testing Service (NTS). On 13-11-2016, purportedly in pursuance of the Notification, Appellant No.3 placed an advertisement in the newspaper inviting applications for filling existing vacancies.
Respondent No.1 approached Appellants Nos.2 and 3 for appointment as Health Technician contending that he had acquired a vested right to it after his aforementioned interview which could not be taken away by the Notification. Appellants Nos. 2 and 3 did not respond to his request whereupon he filed W.P. No. 16562/2016 which was allowed by the learned Single Judge vide impugned order dated 13-03-2017. Hence, this Intra-Court Appeal.
3. This appeal was initially heard by a learned Division Bench which, vide order dated 19-04-2018, observed that the impugned order was in conflict with the judgment of a Division Bench delivered in I.C.A. No. 448/2016 so it was appropriate that the matter should be placed before a Full Bench of this Court. The Hon'ble Chief Justice has, therefore, constituted this Bench to decide it.
4. The learned Assistant Advocate General contended. that Respondent No.1 was interviewed on 11-07-2016 but neither any merit list was drawn nor appo intment letter was issued to him. As such , no vested right accrued in his favour which could be enforced through a writ of mandamus. He further contended that under paragraph (6) of the Notification the Appointing Authority was competent to scrap the process for the posts in respect of which interviews had been conducted before the cut-of f date (i.e. 24-08-2016). According to him, its decision to make a new start was in public interest and no exception could be taken thereto.
5. The learned counsel for Respondent No.1 controverted the above contentions and supported the impugned order . He contended that the Appellants were obligated to recognize the vested right of Respondent No.1 and appoint him.
6. Arguments heard. Record perused.
7. The recruitment process in the instant case commenced with the publication of advertisement dated 18-06-2016 but was abandoned. Respondent No.1 applied for one of the advertised posts and was interviewed by the designated committee but further proceedings could not take place because of certain injunctive orders passed by this Court. The foremost question that arises for consideration is whether Respondent No.1 had any vested right to seek appointment merely by appearing in the interview .
8. According to Jowith's Dictionary of English Law (2nd Edition), "'right', in its most general sense, is either the liberty (protected by law) of acting or abstaining from acting in a certain manner or the power (enforced by law) of compelling a specific person to do or abstain from doing a particular thing;" and the word "'vested' as a general rule, means 'vested interest' as opposed to contingent." The Black's Law Dictionary (11th Edition) defines the expression "vested right" as "a right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person's consent."
9. Prem's Judicial Dictionary (V ol. IV , 1964) defines "vested right" as follows: "A right is said to be vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest, independent of a contingency . It is a right which cannot be taken away without the consent of the owner . Vested rights can arise from contracts, from statutes and from operation of law ."
Words and Phrases (Permanent Edition), V olume 44, explains: Cal. App.3 Dist.1938. The term "vested right" is often loosely used. In one sense every right is vested. If a man has a right at all, it must be vested in him; otherwise how could it be a right ... The term, however , is frequently used to designate a right which has become so fixed that it is not subject to be divested without the consent of the owner as contradistinguished from rights which are subject to be divested without his consent. Now, a right, whether it be of such a fixed character or not, must be a right to something; and when a man talks vaguely of his vested right, it conduces to clearness to ask: A vested right to what?--Macedo v . Macedo, 84 P .2d 552, 29 Cal. App.2d 378.
(ii) D. Puerto Rico 1948. A "vested right" is one which is absolute, complete, and unconditional, to exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency .--Hutton v.
Autoridad Sobre Hogares De La capital, 78 F . Supp. 988--Const Law 2630.
(iii) Ark. 1941. Rights are "vested" when the right to enjoyment, present or prospec tive, has become the property of some particular person or persons as a present interest, but a mere expectancy of future benefit, or a "contingent interest" in property founded on anticipa ted continuance of existing laws, does not constitute a "vested right".-- Love v . McDonald, 148 S.W .2d 170, 201 Ark. 882.
11. According to Salmond's Jurisprudence (12th Edition), "a right vests when all the facts have accrued which must by law occur in order for the person in question to have the right. A right is conting ent when some but not all of the investitive facts, as they are termed, have occurred."
12. Brian and Alan define "vested right" as a right "which the law recognizes as having accrued to an individual by virtue of certain circumstances and that as a matter of constitutional law cannot be arbitrarily taken away from that individual."
13. Another scholar writes: "When all of the investitive facts which are necessary to create a right have occurred, then, in what is commonly regarded as the strictly technical sense of the term, the right is said to be "vested"--a vested right in the technical sense being, simply , one the title of which is complete and unconditional. "
14. In J.S. Yadav v. State of U.P. and another [(2011) 6 SCC 5701 the Supreme Court of India ruled that "rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights."
15. In Vishwas Bajirao Patil v. The State of Maharashtra (AIR 2019 Born 311) the High Court of Bombay held that "the expression 'vested rights' is not defined by the legislature in any statute ... the word 'vest' is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage of the said word 'vest' has also acquired meaning as 'an absolute or indefeas ible right.' It had a 'legitimate' or 'settled expectation' to obtain right to enjoy the property etc. Such 'settled expectation' can be rendered impossible of fulfilment due to change in law by the legislature. Besides this, such 'settled expectation' or the so-called 'vested right' cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law ."
16. In Messrs Mardan Industries Ltd., Sakhakot, Malakand Agency and another v. Government of Pakistan and another [PLD 1965 (W. P.) Pesh. 471 the West Pakistan High Court observed that "vested right is an immediate fixed right of present or future enjoyment and rights are vested in contradistinction to being expectant or contingent."
17. The Hon'ble Supreme Court of Pakistan had the occasion to consider the expression "vested right" in Nabi Ahmed and another v. Home Secretary , Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599). It observed that "vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies but are the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re- cross-examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavorable and often after his examination-in-chief is over. The occasion to cross-examine may not arise or may not be exercised but the right is not to be denied." This view was reaffirmed in Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) and Asadullah Mangi and others v . Pakistan International Airlines Corporation and others ( 2005 SCMR 445 ).
18. From the above references one may infer that "vested rights" are claims enforceable under law. They are rights that have "accrued to the possessor with no conditions" and cannot be taken away arbitrarily . An interest is a mere expectancy until it matures into an enforceable legal right.
19. On the touchstone of the principles discussed above, an interview does not create vested right in favour of a candidate because it is never the finale of the requirement process. The candidates may be required to fulfil certain other recruitment like, for example, medical examination, furnishing of bond and verification of testimonials, before their appointments are notified. In the instant case, Respondent No.1 was interviewed by the designated committee but further proceedings were stalled. The Appellants neither displayed any merit list nor issued appointment letter to him after it. There is no evidence that he was even selected in that interview . Hence, he cannot claim any vested right for appointment to the post he applied for. We have the support of Secretary Finance and others v. Ghulam Safdar ( 2005 SCMR 534 ) for our view in which the Hon'ble Supreme Court of Pakistan held: "... mere selection in written examination and interview test would not, by itself, vest candidates with a Fundamental Right for enforcement as such in the exercise of constitutional jurisdiction of the High Court..."
Further reference may be made to Riaz Gul and 5 others v. Federation of Pakistan through Secretary , Ministry of Water and Power Government of Pakistan, Islamabad, and 36 others [2016 PLC (C.S.) 350], Dr.1 2 3 4 5 Muhammad Waseem and 4 others v. Province of Sindh through Secretary and others [2018 PLC (C.S.) Note 74], Saifullah v. Inspector General, Punjab Police, Lahore, and 21 others [2019 PLC (C. S.) 1345], Jai Singh Dalal and others v. State of Haryana and another [1993 Supp. (2) SCC 600], Vijay Kumar Mishra and another v. High Court of Judicature at Patna and others [(2016) 9 SCC 313] and Lt. 'CDR. M. Ramesh v. Union of India and others (AIR 2018 SC 1965).
20. Legitimate expectation arises when the citizens expect that they would benefit from a particular policy or decision taken by the Government. This principle can be invoked even if no vested right has accrued. In the present case it may be argued that Respondent No.1 had a legitimate expectation that he would be appointed if he succeeded in the interview . In Lt. CDR. M. Ramesh v. Union of India and others (AIR 2018 SC 1965) the Supreme Court of India held that since the Executive can change any policy for good reasons its decision would be struck down only if it is proved to be mala fide, arbitrary or capricious. We have noticed that the Notification prescribes a new mechanism for future recruitments in BS-5 to BS-15 and stipulates that every candidate shall be evaluated through a written test conducted by the NTS for which syllabus would be drawn by the Primary and Secondary Healthcare Department. The new system is more transparent and in accordance with the Government's policy to promote justice and fair play. Therefore, we hold that the personal interest of Respondent No.1 must give way to public interest and the Government's decision to scrap the previous recruitment process must prevail. In State of Kerala and another v. Peoples Union for Civil Liberties, Kerala State Unit and others [(2009) 8 SCC 461 the Supreme Court of India held: "The claim based on the vested right or settled expectation to obtain sanction cannot be set up against statutory provisions. It cannot be countenanced against public interest and conveniences which are sought to be served."
21. The learned Single Judge has essentially relied on paragraphs (4) and (5) of the Notification for his decision.
The. Appellants contend that paragraph (6) was, in fact, relevant to the issue which he has not taken into account.
In order to appreciate this contention, it is necessary to reproduce all these three paragraphs. They read:
4. The instant mechanism shall be applicable for recruitment against all posts to be advertised on/after 25th August, 2016.
5. For posts, in respect of which, advertisement has already appeared in newspapers before the cut-of f date i.e. 25th August, 2016, and the closing date of application is after the cut-of f date i.e. 25th August, 2016, the concerned Appointing Authority shall re-advertise the posts as per the mechanism stated above.
6. For posts, in respect of which, the interview is in process/closing date was before the cut-of f date i.e. before 24th August, 2016, the Appointing Authority may continue with the process.
22. Since the interviews in the instant case were held before the cutof f date, i.e. 24-08-2016, paragraph (6) was applicable. It was the discretion of the Appointing. Authority to continue with the process but it decided otherwise. In Secretary of State v. Tameside, (1976 ) 3 All ER 665, Lord Diplock said that the very conce pt of discretion "involves a right to choose between more than one possible course of action on which there is room for reasonable people to hold differing opinions as to which is to be preferred." Justice Fazal Karim adds that the course adopted by the authority must always be lawful because it has no discretion to choose an illegal alternative. The Government's decision is justified for the reasons we have discussed in the earlier part of this judgment.
23. Writ of mandamus is an extraordinary remedy which can be issued only to enforce legal right of an aggrieved person. The following observations of the Hon'ble Supreme Court in Asadullah Mangi and others v. Pakistan International Airlines Corporation and others ( 2005 SCMR 445 ) are quite instructive: "It is well-settled by now that unless it is established beyond any doubt that a person has a guaranteed fundamental or legal right in his favour , causing of legal injury or loss does not arise. There is no cavil with the proposition that the right which is the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by softie, one who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence to give jurisdiction to the High Court in the matter . Unless whatever right, personal of otherwise on which the application is based is established, no order can issued under Art. 199..."6
24. We hold that Respondent No.1 had no enforceable right for which he could seek an order in the nature of mandamus. Further , there is no reason for us to interfere in the discretion exercised by the Appointing Authority under paragraph (6) of the Notification scrapping the hiring process initiated on 18-06-2016. Accordingly , this appeal is allowed . The impugned order dated 13-3-2017 is set aside and W.P. No.16562/2016 is dismissed. No order as to costs. Brian W. Blacesser et al., Land Use and the Constitution: Principles for Planning Practice 8-9 (Brian W.
Blacesser & Alan C. Weinstein eds., 1889) D.V. Cower, "Vested and Contingent Rights," (1949) 66 S.African LJ 404. Internal citations omitted. www. encyclopedia, corn thelawdictionary.org> vested-right.
Fazal Karim, Judicial Review of Public Actions (Second Edition), p.1860.