MUHAMMAD FAISAL KAMAL ALAM, J.----Due to commonality, the subject Constitutional Petitions (Petitions) are decided by this Judgment.
2. Petitioners are aggrieved of inaction of Respondents who have not issued the Petitioners fresh letters for their Medical Fitness Test.
3. The relevant facts are that Petitioners in response to a Public Advertisement dated 05-04-2007, for recruitment of Primary School Teachers on contract basis, applied for the same and appeared in Written Examination conducted by Institute of Business Administration (IBA) on 26-07-2007 whereafter being purportedly successful candidates, they (Petitioners) appeared in Interview (viva-voce), whereafter, they were issued Offer Letters dated 01-02-2008 subject to their Medical Fitness to be certified by an authorized Medical Officer.
4. It is contended by the learned Advocates appearing for different Petitioners, that although Petitioners appeared before the Civil Surgeon, Civil Hospital, Khairpur for their Physical Test, but the Doctor refused to take Medical Test and addressed a letter to Respondents for issuance of fresh letters, on the ground that time mentioned in the Offer Letters was already lapsed. Thereafter, the cause for filing subject Petitions arose, as according to Petitioners' learned Advocates, the subsequent letters for conducting Medical Fitness Test of Petitioners, were never issued by Respondents. They have relied upon the Judgment handed down in C.P. No. D-1051 of 2007 in the case of Amanullah and others v. Province of Sindh and others (Amanullah's case) followed by Orders in subsequent Petitions. Learned counsel for the Petitioners has also filed a Statement dated 02-02-2021 along with a copy of the Order dated 11-08-2011 passed by the Hon'ble Supreme Court in number of Civil Petitions preferred by present Respondents against the decision of Amanullah's case and others.
5. The above arguments have been controverted by Mr. Zulfiqar Ali Naich, learned Assistant Advocate General Sindh. He has referred to the para wise comments filed by different official Respondents. Per Written Statement of District Education Officer, since Petitioners failed to pass the Written Test with minimum 60% of marks, hence, the Petitioners were/are not eligible for the post they have applied for. He has appended with his Written Statement the decision of learned Division Bench of his Court passed in C.Ps. Nos. D-670 and 1090 of 2008. Para wise comments on behalf of Respondent No.2 has also reiterated the stance of other Respondents, about the eligibility criteria of Primary School Teachers and ineligibility of Petitioners. Learned AAG has referred to the Judgment of Hon'ble Supreme Court passed in Civil Petition No. 186-K of 2013-Muhammad Arif and others v.
Province of Sindh through Chief Secretary and others (Arif's case), which is appended with the para wise comments.
In addition to the above, learned Assistant Advocate General Sindh has filed a Statement dated 03-02-2021 accompanied by the following:
(i) A Notification dated 19-07-2008, in which a Committee was formed for appointments of candidates for the post of Primary and Junior School Teachers.
(ii) Recruitment Policy, 2007 dated 25-04-2007.
(iii) Test Result conducted by IBA for Primary School Teachers.
6. Arguments heard and record perused.
7. Decision given in Amanullah's case (ibid) has been perused. It was decided by the consent Order of 04-05-2011 whereby letters issued to all petitioners for cancelling their offer letters were set aside, but, at the same time, the decision of Respondents to individually scrutinize the educational qualification of successful candidates for the post of School Teachers, was in fact, kept intact and a mechanism was outlined, whereby show-cause notices were to be issued to ineligible persons / candidates only, who did not possess prescribed qualification; and those who are eligible were to be posted in accordance with their qualification. In Hon'ble Supreme Court, the Civil Petitions Nos. 594-K to 611-K of 2011, challenging the above Amanullah's order along with other decisions, was disposed of on the Statement of learned Advocate General Sindh that Government of Sindh (Respondents) would make compliance, and upon their request timeframe mentioned in the above consent Order dated 04-05-2011 was enlarged.
8. On the other hand, learned AAG has relied upon the decision dated 24-11-2008 handed down by another learned Division Bench of this Court in the afore referred two Petitions (C.Ps. Nos. D-670 and 1090 of 2008), wherein, same advertisement which it; the subject matter of instant Petitions, was considered. Almost identical arguments were advanced in the above case, that criteria of 60% marks as mentioned in the Policy is not applicable to the petitioners of the above petition. However, the learned Division Bench did not agree with this line of argument and upheld the criteria of passing marks and interview marks as mentioned in the policy; while dismissing the petitions. It is held that since offer letter was not acted upon and no posting order was issued therefore, no right was accrued in favour of petitioners.
The Hon'ble Supreme Court has also dealt with similar issues in its decision given in Civil Petition No. 186-K of 2013 the Arif's case. The Apex Court declined the relief to petitioner claiming to be a successful candidate for the post of School Teacher, on the grounds that already another learned Division Bench of this Court has endorsed the Recruitment Policy dated 10-07-2008 (subsequent to the present Recruitment Policy of 2007), containing, inter alia, minimum threshold of 60% marks in written test, which decision is reported in 2012 CLC 16-Shabbir Hussain v. Executive District Officer (Education), Larkana and 5 others and the second factor which weighed with the apex Court for dismissing the petition was the laches. In this decision, it is also held that consent order cannot be cited as precedent.
9. In compliance of the order of this Court, Respondent No.2- District Education Officer has also filed a Statement in which result I score of Petitioners is mentioned. None of the Petitioners has scored 60% or more marks and thus, does not fulfill the criteria as laid down in the Recruitment Policy referred above, which is enclosed with the Statement of learned Additional A.G. The said Recruitment Policy has been examined, in which it is very clearly stated under the heading "Selection / Ranking Criteria for candidates", that only those candidates who have Obtained 60% or more marks, will be considered for the merit list.
10. The decision in Amanullah's case is not applicable to the facts of present Petitions primarily for three reasons; firstly, that it is on different facts, where the candidates have crossed the first hurdle of eligibility criteria and Respondents in order to forestall an illegality, had decided to scrutinize the educational record (testimonials) of successful candidates; secondly, that decision of learned Division Bench and that of the Hon'ble Supreme Court has not laid down any rule or enunciated any principle of law, having a binding force in terms of Articles 189 and 201 of the Constitution; thirdly, the afore referred decision of Hon'ble Supreme Court in Arif's case, while dealing with the same contentions, has clearly held that consent order cannot be cited as precedent.
11. Although it is a settled principle as evolved through many decisions, Multiline case (PLD 1995 Supreme Court 423-Multiline Associates v. Ardeshir Cowasjee and 2 others) being tine of them, that the decision of one Division Bench is binding on the other Division Bench, on the same point and if a contrary view had to be taken, then request for constitution of a Larger Bench should be made; but, this principle of judicial precedent or stare decisis is not extended to consent orders, but only those decisions in which question of law is decided. There is a judicial consensus on this law point, not only amongst our Superior Courts but also in Foreign jurisdiction. Following case law fortifies this view:
(i) Murad Ali v. Collector of Central Excise and Land Customs (PLD 1963 (W.P.) Karachi 280)
(ii) Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others (PLD 1997 Supreme Court 84)
(iii) Fazal-ur-Rehman v. Khurshid Ali and another (2012 SCMR 635)
(iv) Ghulam Yasin and others v. Ajab Gul (2013 SCMR 23)
12. Crux of the above is that decision of one Division Bench on a question of fact is not binding on the other Division Bench; if a second Division Bench is of the different view, on a question of law decided by the earlier Division Bench, then request to the learned Chief Justice for constitution of a Larger Bench should be made; disposal of the case as a result of compromise between the parties, without adverting to the legal issues, cannot be treated as enunciation of law in terms of Article 189 of the Constitution; only that judgment has a binding force which has been rendered after considering all the conceivable aspects of the relevant law.
13. Conclusion of the above discussion is, that the decision in Amanullah's case since was admittedly passed on consent, of both petitioners and official respondents, therefore, it is not binding on this Bench, coupled with the fact that in the said case, facts were different (as already observed in the foregoing paragraphs). Secondly, in view of the above principle of stare decisis, the Amanullah's case which was maintained by the Hon'ble Supreme Court, does not carry a binding effect. Thirdly, Petitioners have challenged their grievances of July 2007 in the year 2011.
Some of the Petitions were filed in the year 2012, that is, after four and five years, and thus, they are also hit by laches, as held in Arif's case (supra). Petitioners have failed to point out any illegality in the overall procedure adopted by Respondents in the recruitment of School Teachers, in terms of the aforementioned Recruitment Policy. Since no illegality has been committed by Respondents, therefore, all the present Petitions are devoid of merits and are dismissed.
It is necessary to observe, that we have taken a lenient view and have not imposed cost individually upon Petitioners.
4. We must appreciate the efforts of Legal Research Cell of this Court, which has provided able assistance.