'Time and tide wait for none'
MUHAMMAD SHAN GUL, J. Through this judgment the titled constitutional petition is sought to be decided.
2. The petitioner before this Court applied for the post of Assistant Director (Awareness and Training), BS-17, at the Punjab Information Commission, a next step agency of the Information Department of the Province of Punjab. An advertisement was placed in the press on 02.2.2019 but since a ban against recruitment was put in place and the process was stalled, the advertisement was repeated on 20.9.2019. However, the petitioner submitted his application on 21.2.2019 as a result of the first advertisement. The petitioner applied for the post through the National Testing Service
(NTS) by filing his application form enclosing the following documents noted in his own handwriting in column No.16: 1). Copy of Matric result card.
2). Copy of Intermediate result card.
3). Copy of Bachelors of Commerce result card.
4). Copy of Bachelor of law result card.
5). Copy of D.I.T certificate.
6). Copy of Domicile.
7). Copy of experience certificate.
3. What is conspicuously missing from the documents referred above is any certificate showing that the petitioner was a position-holder in any examination. This is of the essence and the following discourse shall highlight that the main controversy in the matter revolves around such a certificate. The Contract Appointment Policy, 2004 in terms of which the appointment was to be made provides for the grant of five extra marks to an applicant in the case that he is a position- holder.
4. A written test was conducted by National Testing Service on 08.12.2019 and a total of 09 candidates including the petitioner qualified and were, therefore, called for interview. The Selection Committee so constituted conducted interview of these 09 candidates on 19.3.2020 and allocated the following marks to the top 04 candidates:- 1).Nauman Nazir 74Recommended 2).Kanwal Shezadi 72Awaiting Candidate 3).Muhammad Mashood Ghani71Not Recommended.
4).Shahrukh Latif 70Not Recommended.
The interview was conducted and marks allocated in terms of the governing legal regime i.e. the Contract Appointment Policy, 2004 in terms of which all contractual appointments are made and which fact is also highlighted in the advertisement so published. While the candidate selected i.e. respondent No.3 was awarded 18 marks out of 20 in the interview on account of his expertise in right to information laws (RTI) and because of his relatively better acumen and better acquaintance with information laws, the petitioner was granted 10 marks out of 20 marks in the interview. The grievance of the petitioner that brought him before this Court is that he was not granted 05 additional marks for having obtained a position in LLB examination which he passed from Gomal University, Khyber Pakhtunkhwa. It is this aspect of the matter which is moot before this Court and which is sought to be addressed through the present judgment.
5. It is the case of the petitioner that while he did not append such a certificate depicting that he was a position-holder with his application form but he verbally mentioned such a fact to the concerned authorities. This claim is outrightly denied by the respondents who relied on the application form submitted by the petitioner in which no mention of any such certificate has been made and alongwith which no such certificate has been appended. The respondents retort that the petitioner did not enclose any certificate with his original application form and that even at the time of interview he did not submit any position holding certificate and naturally he was not considered for being awarded 05 additional marks for holding a position. According to the respondents, this omission is crucial since the petitioner was indolent in not coughing up the requisite certificate at the relevant time and not even remotely mentioning the presence of such a certificate either at the time of applying or even at the stage of interview.
6. The chronological facts which emerge as a result of arguments of the counsel for the parties are that the petitioner filed his application for seeking appointment on 21.2.2019. The merit list was finalized on 19.3.2020. The merit list was approved on 12.6.2020 and respondent No.3, Nauman Nazir, who stood first in terms of marks, was appointed and joined service on 25.6.2020. According to documents available on the record as also according to the reply submitted by the respondents it was on 25.8.2020, one and half years after having applied for the post in question and five months after finalization of the merit list and holding of interview and much after respondent No.3 had gained appointment and joined service that the petitioner, for the first time, while filing a representation addressed to the respondents complained of not being awarded 05 additional marks for being a position-holder. What is of interest to note in this context is that the petitioner in his representation did not even remotely assert that he had enclosed such a certificate with his candidature form or even volunteered such a fact at the time of interview. Hence, for the record, it was on 25.8.2020, quite late in the day that the petitioner for the first time asserted his entitlement to 05 additional marks on the basis of a position holding certificate.
7. The petitioner present in person before the Court was confronted with this question and after indulging in bald rhetoric he submitted that there is no column in the application form which requires the submission of such a certificate. This on the face of it is an admission on the part of the petitioner that he actually did not append such a certificate with his application form and that he did not even volunteer such information at the relevant time. This fact alone is enough to dismiss this petition!
8. It may be added here that the petitioner and his counsel then contended that in terms of the Service Regulations of Punjab Information Commission, 60% marks in NTS are required for becoming eligible for the post in question while respondent No.3 did not secure 60% marks. This argument on the face of it is misconceived because according to the terms and conditions appearing in the advertisement it was only the Selection Committee which was to be constituted in terms of Service Rules of Punjab Information Commission while the contractual appointment in issue, the one claimed by the petitioner, was being offered under the legal regime of the Contract Appointment Policy, 2004 and which is evident from Clause-5 and 5-A of the advertisement and, therefore, this argument does not allow the petitioner to make any headway either.
9. The representation filed by the petitioner was, of course, rejected and which is why the present petition was filed.
10. What is most conspicuous and interesting and even of the essence in the present context is a certificate signed and issued by the Selection Committee constituted for making the appointment in question and which certificate has been appended as Annex-B with the reply submitted by the respondents and which certificate reads as follows: Certificate We the members Selection Committee for recruitment of the post of Assistant Director (Awareness & Training) do hereby affirm that the alleged academic position holding certificate of Mr. Shahrukh Latif was not part of his Application Form No.50988 filed to NTS and received by the Commission. Likewise said certificate was not submitted by him during his interview.
Mehboob Qadir Shah Chief Information Commissioner, Punjab Information Commission, Lahore.
Mr. Abdul Wahid, Deputy Director, DGPR, Lahore.
Saleem Akhtar Saddiqui, Assistant Director, Punjab Information Commission, Lahore.
11. This certificate was unanimously and simultaneously signed by all Committee Members and since the petitioner has not alleged any malice against such Committee Members, has not been able to demonstrate any animosity or ill-will that such Committee Members had against the petitioner or for that matter referred to any ulteriors that the Committee Members may have had against the petitioner, there is no reason to disbelieve such a certificate.
12. Therefore, what transpires from the preceding narrative is that the petitioner failed to submit his position holding certificate at the time of applying, remained indolent even thereafter, did not even bother to volunteer such information even at the time of interview and only after 18 months of having applied for the post in question did the petitioner wake up from his slumber for the first time and volunteered such information by way of filing a representation on 25.8.2020 which is much after respondent No.3 who had been declared a successful candidate had joined service. The petitioner's tacit admission before this Court upon being confronted also confirms this fact.
Hence, it is obvious and evident that the petitioner was indolent and not vigilant. The much hackneyed clich of equity helping the vigilant and not indolent is indeed attracted to the present matter.
13. While the counsel for the petitioner as also the petitioner present in person have relied on "Dr. Numan Muhammad Khan v. CA&DD through Secretary and others" (2019 MLD 97) in support of their claim, learned Law Officers have relied upon on "Muhammad Zahid and another v. Director of Schools and Literacy, N.W.FP. Peshawar and 2 others" (2002 CLC 1576) (Division Bench of Peshawar High Court) and "Imran Shafee v. Saeed Ahmed and 5 others" (2019 PLC(CS) Note 17)
(Supreme Court of AJ&K) in response thereto.
14. In "Dr. Numan Muhammad Khan v. CA&DD through Secretary and others" (2019 MLD 97) the question before the Court about an existing certificate having not been taken into account while ordering appointment was answered in favour of the petitioner by the Court but without any rationale or reasons, respectfully speaking. No reasons have been highlighted in the judgment for providing relief to the petitioner and hence the judgment comes across as incuriam, respectfully speaking, since it does not contain any rationale or reasons whatsoever. On the other hand, in "Muhammad Zahid and another v. Director of Schools and Literacy, N.W.F.P. Peshawar and 2 others" (2002 CLC 1576) at paragraph No.6 it has been held as follows:- "6. When a time bound schedule for submission of applications and documents is advertised, the candidates are bound to submit their documents within that period. Their eligibility is checked on the basis of such record, and calls for test/interview are issued to the eligible candidates accordingly. Marking is made in case of each candidate for his result in the test/interview and for his qualifications as shown by him through his application and testimonials. The candidate himself makes the representative of the employing authority to believe that the candidate had only those qualifications which he had shown. After completion of the exercise, certain rights of preference and appointment accrue to other persons, which cannot be snatched by the turn or afterthought of a candidate at later stage. Allowing the use of such turn or afterthought will make the whole exercise shaky, unreliable and inconclusive."
15. In "Imran Shafee v. Saeed Ahmed and 5 others" (2019 PLC (CS) Note 17), it has been held as follows: "Similarly, identical controversy was considered in the case reported as Muhammad Shakeel Khan v. AJK Public Service Commission and 3 others (1998 SCR 359), wherein a document was received after the last date fixed for receipt of the applications. Merit was changed. The action of the Public Service Commission was challenged before the High Court through writ petition. The same was accepted and the case was remanded to the Public Service Commission. On appeal, this Court in paragraphs 11 and 12 observed as under:- "11. It becomes evident from the analysis of the case law that on the basis of test and interview conducted by the Commission the appellant was declared successful for one of the posts of Assistant Directors/Social Welfare Officers reserved for District Poonch and his name was shown in the merit list but ultimately on the basis of a document which was obtained on 9.12.1997 and placed on record of the Commission on 16.12.1997 could not have been considered by the Commission as the application of respondent No.4 on the stipulated date i.e. 10.11 1996, was incomplete and the same should not have been considered after a couple of days. Thus it follows that the Commission was not justified to retrace its steps having once decided in favour of appellant on the relevant date.
12. So far as the contention of the learned counsel for respondents is concerned that the recommendations made by the Commission was not acted upon so no right had accrued to the appellant which had been snatched away by the Commission, on careful consideration merits no consideration for the simple reason that if any party vested with jurisdiction violates its own rules the same is not exempted from judicial review. The High Court in our view committed an illegality by over-looking the above aspect of the case."
6. As stated above the last date in this case fixed for receipt of the applications was 31.12.2013 and at that time the appellant was not in possession of legal certificate of experience issued by the Principal Crescent Modal College. All the subsequent documents which have been considered by the Public Service Commission were issued in 2015-16 much after the last date fixed for receipt of the applications. It appears an afterthought for maneuvering the recommendations of the Public Service Commission in favour of the appellant, herein. No affidavit on behalf of the Principal of Crescent Modal College has been placed on record that why the name of the appellant, herein, was not included in the staff list and why the date of joining or leaving the institution has not been mentioned in the certificate issued on 10.12.2015. The action of the Public Service Commission regarding consideration of the certificates after the last date fixed for receipt of the applications without recording any reason is illegal and violative of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, hence, is declared without lawful authority."
16. On another note, this petition filed by the petitioner cannot possibly be perpetuated in equitable jurisdiction since the petitioner has been found to be indolent. In "Rai Muhammad Ashraf v.
Additional Sessions Judge, Nankana Sahib and 6 others" (PLD 2022 Lahore 409), it has been held at paragraph No.9 as follows:- "9. Needless to say that under Article 37(d) of the Constitution of the Islamic Republic of Pakistan, 1973, the State is bound to ensure inexpensive and expeditious justice. The provisions requiring a party to lis to do certain at within a prescribed limitation are introduced in order to curb long standing litigation, save precious public time and inconvenience to the parties. The conduct of a party is a relevant fact in the administration of justice. A party cannot be allowed to play hide and seek with the Court and to prolong the matter unnecessarily as well as to engage the machinery of the State department unnecessarily as per his whims and caprice besides wasting precious time of the Court. The Rules of Procedure are enacted to regulate the safe administration of justice in accordance with law and to check unnecessary delay in resolving the dispute between the parties. The golden maxim that "law aids the vigilant and not the indolent" provides that helpful hand could not be extended to a litigant having gone into deep slumber on having become forgetful of his/her rights. Those who sleep over their rights, stand estopped from getting their enforcement though their right continues
17. In "Mst. Fahmeeda Bibi v. D.C.O. and others" (2011 PLC (CS) 952), it has been held at paragraph No.5 as follows:- "The petitioner failed to submit her professional qualification as PTC within the prescribed period i.e. within three years after her appointment. Last date according to appointment letter column No.7 was 31.1.1998 but she never produced any PTC certificate. Department give notice to petitioner but she remained silent up to 11.3.1999. Law help those who are vigilant not those who are indolent. Petitioner's termination order was passed on 11.3.1999 and writ petition is filed on 03.12.2009 after near about 10 years. Relief cannot be granted to the petitioner who slept for near about 10 years for her rights. This writ petition is also hit by laches and the same is hereby dismissed being meritless."
18. In "Muhammad Salman Khan Baloch v. Syed Mustafa Kamal and others" (2021 CLC 1564), it has been held at paragraph No.8 as follows:- "Delay would defeat equity which aids vigilant and not an indolent. Laches in the simplest form meant failure of a person to do something which should have been done by him within a reasonable time, if remedy of constitutional petition was not availed within reasonable time the interference could be refused on the ground of laches."
19. Respondent No.3 having been appointed and having acquired a right cannot possibly be put in discomfort especially on the asking of an indolent petitioner who kept sleeping over his rights.
20. Viewed from all angles, this petition does not call for any interference and is, therefore, dismissed.