SABIT ULLAH KHAN, J:- Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has prayed for the following relief: "It is therefore, humbly prayed that, on acceptance of the instant writ petition, this Hon'ble Court may kindly issue an appropriate writ and to direct the respondents-department: i. That the respondents No. 3 & 4 may be directed to appoint the petitioner on the aforementioned post. ii. That the respondents No. 3 & 4 may be restrained to cancel or re-advertised the aforementioned post. iii. Any other relief which this Hon'ble Court deems fit and proper in the circumstances may also be very kindly granted."
2. In essence, the University of Swat published an advertisement in a daily newspaper and its official website, inviting applications from the eligible candidates for the post of 'Associate Professor in Education' (BPS-20). Pursuant to the ibid advertisement, the petitioner, having a Ph.D in the relevant field and publications at her credit being eligible in terms of qualification & experience as per the criteria given in the said advertisement, applied for the post and besides her only one other candidate namely Dr. Farooq Nawaz applied for the said post. As per the quantification sheet for the position, during the procedure of recruitment, after the process of evaluation and assessm ent / marking system for selection, the petitioner stood first by securing higher marks than the competing candidate Dr. Farooq Nawaz. The petitioner secured 33.65 while the other competitor got 16.19 score. Both the candidates were called for interview who appeared before the Selection Board on 23.12.2023 and after the lapse of more than two months the respondents- university was reluctant to declare result of the recruitment process and despite her repeated requests, the respondent-university turned deaf ear at her hence the dissatisfaction of the petitioner led her to knock at the doors of this Court by invoking the constitutional jurisdiction under Article 199 for seeking the redressal of her grievance, hence this petition.,
3. Para-wise comments were called from respondents No. 3 & 4 who submitted the same wherein the respondents-university opposed the issuance of writ by raising certain legal and factual objections.
4. Arguments of learned counsels for the parties heard and record was thoroughly perused.
5. During the pendency of the instant petition, the petitioner brought on record that the respondents-university has re-advertised the said post on 01.03.2024 despite the fact that the process of recruitment has already been finalized for the same and the delay in declaring result regarding the post has been impugned in the instant petition. Learned counsel for the petitioner, during the course of arguments, further informed the Court that petitioner has again applied for the post and the process of assessm ent and evaluation has been finalized and that the petitioner has been blessed with second position in the quantification sheet prepared by the Selection Board and that an email has been sent to the petitioner for interview which has been scheduled for 12th of July, 2025.
6. The respondents-university, in their para-wise comments, about the delay in declaring the result of the earlier process of recruitment, have taken the plea that due to non-availability of suitable candidates and unsatisfactory performances of both the candidates during interview, the Selection Board has unanimously recommended to re-advertise the post, therefore the whole process was cancelled and the result was not declared. They further asserted that in light of the decision of the Selection Board, the post of Associate Professor in Education (BPS-20) has been re- advertised. Learned counsel for the respondents-university further contended that the decision of the Selection Board cannot be challenged before this Court in writ jurisdiction and sought dismissal of the instant petition.
7. According to the prayer clause of the petition in hand, the petitioner is seeking directions of this Court to the respondents No. 3 & 4 to appoint her on the post of Associate Professor in Education (BPS-20) on the basis of already conducted process of recruitment, in this regard comments of the respondents-university is worthy of perusal wherein it has been stated that the Selection Board, after conducting the interview of both the candidates, unanimously recommended that due to the non-availability of suitable candidates and poor performances during the interview by both the competitors, the post in question be re-advertised. Furthermore, in the present case, it is a matter of record that when the earlier seleetiOn process was annulled and fresh advertisement was issued for the same post, the petitioner has participated in the new selection process without any demur or reservation. This act of participation amounts to an unequivocal waiver of any right or objection arising out of the previous process of selection. By entering the fresh process, the petitioner accepted its validity and consequently cannot approbate and reprobate at the same time. It is a settled precept of law that a litigant who voluntarily participates in subsequent proceeding / process cannot thereafter turn around to challenge the validity of the earlier process.
Once a candidate has participated in a subsequent recruitment cycle, he cannot seek to revive objections against the previous process which he had implicitly accepted. By doing so the petitioner has submitted to the jurisdiction and procedure of fresh selection process, thereby acquiescing to the respondents' decision to re-advertise. Such act of participation has therefore, waived her right to appoint on the basis of the previously conducted interview process and the same has become out of consideration by this Court.
8. The second clause of the prayer in the instant petition is to restrain the respondents-university from re advertising the post in question. The re-advertisement of the post in question was the decision of the panel of the Selection Board which had a solid ground of unavailability of a suitable candidate during the process of interview. The suitability of a candidate is primarily a subjective domain of Selection Board and an evaluation involves consideration of multiple factors including temperament, aptitude, communication skills and general fitness for the responsibilities attached to the post, unless there is demonstrable mala fide, patent arbitrariness or violation of statutory provisions, otherwise such determinations are not open to judicial scrutiny. This principle flows from the consistent practice of judicial restraint in administrative matters, which ensures that the courts do not substitute their own opinion for that of the competent authority. It is well settled law that inclusion in a merit list or securing a high position therein does not in itself create an vested right to appointment. The appointing authority is vested with the discretion to determine the suitability of a candidate keeping in view the overall requirements of the post, nature of the duties and other relevant considerations. It is the consistent view of the Superior Courts of our country that even a candidate at the top of the merit list can be refused appointment on valid grounds including unsuitability. Moreover, the issue of "suitability" is a subjective assessment which lies within the exclusive domain of the competent Selection Board unless such an assessment is shown to be patently ' mala fide, arbitrary or without lawful basis and it does not warrant interference by this Court in exercise of its writ jurisdiction. In the present case, the record reflects that the Selection Board, after due consideration, found the petitioner unsuitable for the post. No material has been placed before this Court, to establish mala fide or violation of law in arriving at such conclusion by the Selection Board that could make room for the interference of this Court. In case if the petitioner would have been barred to re-apply by the Selection Board curtailing her constitutional right, then prayer of the petitioner to this extent would have been considered otherwise, in service matters, scope of interference of this Court has been restricted therefore, in absence of any instance of infringement of the right of the petitioner, restraining the respondents-university from initiation of process of recruitment afresh would be unconstitutional.
9. As a collective corollary to the above discussion, Selection Board or Selection Committee constituted for the purpose of recruitment for a certain post has the prerogative at its credit to select a candidate it thinks fit and suitable or reject whom it considers unsuitable and unsatisfactory. The purpose of the constitution of a board or committee and its intent is to search for the best amongst the contenders and when a board or committee considers none amongst the candidates to be the one it is searching for, then cancelling the whole process in the best interest of an institution is the vested authority and powers conferred on it which cannot be questioned before a court of law. The members of the board / committee at the relevant time are the best judges for a person before them during the process of interview and the court is not presumed to interfere in it. Mala fide floating on the surface of record does create a cause for the court to interfere in special circumstances in the job of the Selection Board / Committee, otherwise the powers of the Court are very limited to substitute its opinion over the opinion of such panel. The High Court while sitting in writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot override the decision taken by the Selection Board/ Committee, this parameter has been discussed in numerous pronouncements of this Court. In the case of `Hafiza Bushra Gul vs University of Science & Technology Bannu & others' reported in 2024 PLC (C.S) 302 this Court has held that: "Needless to mention that it was only the respondent university to determine the competency of all who applied for the posts, as it was the university to keep in view the conditions, requirements, importance of the post and suitability and competency of a person to be selected and appointed. The Court should not step into the shoes of the respondent university, that too, to determine the suitability and competency of a person for a particular post."
Similarly in a case reported as 2008 SCMR 960, the Hon'ble Apex Court has also held that: "All the Selection Committees had correctly determined the merit of the candidates for the said post. In our view, the impugned judgment of the High Court is not sustainable. Needless to mention that in exercise of constitutional jurisdiction, the High Court was not expected to perform the functions of a Selection Authority in service matters so as to substitute its opinion for that of a competent authority."
This Court in a constitutional petition cannot interfere in a matter that involves factual controversy nor can it modify or alter the process of selection which is otherwise based on merit and cannot replace its own opinion over the opinion of the selection committee / interviewers. Reliance is placed on 2023 PLC (C.S) 1131 wherein, it has been held that: "Authority of Selection Committee cannot be challenged and questioned because of the fact it is the besi judge at the given time to form an opinion and take decision after judging the ability of candidates. Court cannot enter into the domain of appointing authority or selection to judge the potential of a candidate nor can substitute its own opinion with that of Interview Committee particularly, when no mala fide is apparent."
Learned counsel for the petitioner could not point out any violation of fundamental or statutory rights of the petitioner during the impugned appointment process, therefore, the desired writ sought cannot be issued in her favor.
10. In view of the foregoing discussion, the instant writ petition, being devoid of merit, is hereby dismissed.