' The judgment shall also dispose of the connected Constitutional Petition No, 5195/83 in Re : Jam Manzoor Ahmad v. Punjab Public Service Commission as both these Constitutional Petitions are directed against the same respondents and the controversies sought to be resolved in both the cases are the same.
2. Some posts of Civil Judges to be filled through competitive examination were advertised by the Punjab Public Service Commission through their Notification No,
6. Exh. 82 and the last date for receiving applications was prescribed as 20th June, 1982. The petitioners in both the under consideration Constitutional Petitions applied for the aforesaid posts and took the written examination held by the Punjab Public Service Commission. As a result of the written examination, the petitioners were declared to have qualified the written examination. Subsequently, on 2nd July, 1983 schedule for holding interview (viva voce test) was announced. In accordance with the said schedule, Altaf Ahmad Asmat petitioner in W. P. No, 4275 of 1983 was interviewed on 26th July, 1983.
On the said date, the interview was conducted originally by Mr. Sarfraz Hussain, Senior Member, Punjab Public Service Commission and subsequently by Mr. Sarfraz Hussain as also by the Punjab Public Service Commission.
3. Similarly, Jam Manzoor Ahmad petitioner in Writ Petition No, 5195/83 was interviewed, on 4th August, 1983 by only the Chairman of the Punjab Public Service Commission. , The petitioners have assailed the validity of their respective viva voce test by invoking the constitutional jurisdiction of this Court through under consideration Constitutional Petitions.
4. It has been contended on behalf of the petitioners that the Punjab Public Service Commission has been constituted under section 3 of the Punjab Public Service Commission Ordinance, 1978 and under section 7 (ibid) it is the function of the Commission to conduct tests, examinations or interviews for selection of suitable persons for appointments to civil service of Punjab. It has further been urged that the Commission performs its functions under the Punjab Public Service Commission Ordinance, 1978 in accordance with the Punjab Public Service Commission (Functions)
Rules, 1978, framed under the said Ordinance. It has been pleaded further that under the provisions of the Ordinance and the Function Rules, interviews have to be conducted by the Commission and not by Chairman singly or by one or more than one Members. It has thus urged that the selection which has not been made by the Commission is not legally valid. A selection as a result of interview conducted by Chairman alone or by one or two Members purporting to act as Commission is a nullity in the eye of law.
5. The Punjab Service Commission in its parawise comments submitted that under instructions from the Provincial Government, the Commission could empower only one Member of the Commission to hold interview for the posts for Grades 16 and 17 and that besides the Chairman of the Commission or a Member of the Commission, the Interview Committee on 26th July, 1983 comprised of (1) Mr. Justice S.S. Jan, Judge, Lahore High Court, Lahore, (2) Mr. Justice Mahboob Ahmad, Judge, Lahore High Court, Lahore ; and (3) Mian Muhammad Arshad, Additional Secretary/Acting Secretary, Government of the Punjab, Law Department. Same was the constitution of the Committee on 4th August, 1983. On 27th July, 1983 the Committee was chaired by Mr. Sarfraz Hussain, Senior Member, Punjab Public Service Commission as on that day, the Chairman himself happened to be at Rawalpindi in connection with some official work while on 4th August, 1983 the Committee was chaired by the Chairman, Punjab Public Service Commission, himself. It has further been submitted on behalf of the Commission that the two honourable Judges of the Lahore High Court, actively participated in the interview proceedings as Advisers/Subject Specialists and their advice was reflected in the selection or rejection of the candidates in all cases throughout the series. It has further been claimed that the results of the Interview Committees were scrutinized and approved by the Full Commission and thus amounted to recommendations by the Full Commission and not by a single Member or the Chairman of the Commission.
6. It has been argued on behalf of the petitioners that the instructions of the Provincial Government referred to in the comments of the Politic Service Commission to the effect that one Member of the Commission instead of two Members could be empowered to hold interview for the posts of Grades 16 and 17 could not take place for statutory rule and thus were of on validity in the eye of law.
7. Section 3(1) of the Punjab Public Service Commission Ordinance, 1978 provides that there shall be a Commission consisting of such number of members as may be determined by the Governor.
Section 3(5) (ibid) further provides that no proceedings or act of the Commission shall be invalid merely on the ground of existence of any vacancy in, or any defect in the Constitution of the Commission.
8. It thus transpires from the afore-mentioned statutory provisions of the relevant law that it is discretionary with the Governor to determine the number of the Members of the Commission, one out of whom has to be nominated as Chairman of the Commission by the Governor. It is further manifest from these provisions that no proceedings or act of the Commission shall be considered to have been rendered invalid merely for the reason that there existed any vacancy in or any defect in the Constitution of the Commission. The provisions of subsection (5) of section 3 (ibid) thus take care of the situation where proceedings of the Commission are conducted by one or more than one Members or by Chairman alone. On account of these provisions, the validity of such proceedings is not impaired on account of the fact that the entire Commission did not conduct the proceedings.
9. Section 10 of the Punjab Public Service Commission Ordinance, 1978 empowers the Government to make rules for carrying out the purpose of this Ordinance by notification in the official Gazette.
The 'Government' referred to in section 10 (ibid) obviously means the Government in the appropriate administrative Department as constituted under the Punjab Government Rules of Business. Admittedly, under the said rules, Services General Administration and Information Department is the appropriate administrative Department in the case of the Punjab Public Service Commission. Vide letter No, S.O. Cab-I (S & G A D) 11-2/82, dated 30th April, 1983, the Provincial Government in the aforesaid Department directed the Public Service Commission to implement the recommendations of the Committee charged with the task of streamlining the procedure of the Punjab Public Service Commission. The recommendations of the Committee were as under :- "133. The Committee suggested that the Commission may consider empowering instead of two Members, one Member of the Commission to hold interviews for posts at least for Grades 16 and 17.
At present atleast two Members conduct interviews."
10. Needless to say that before issuing the directive through letter, dated 30th April, 1983, the aforersaid recommendations of the relevant Committee were examined in a meeting held in the room of the Additional Secretary of the Department. Such instructions of the Government have a'B binding force like a rule. In Government of West Pakistan and another v. Dr. A. A. Aziz (1) it was held that instructions issued by Government in connection with posts were not less binding upon Government, than if such instructions were incorporated in rules of service. In Khan Faiz Ullah Khan v. Government of Pakistan (2), it was ruled that even instructions contained in memoranda issued by appropriate Government could be regarded as being in nature of statutory rules provided they are expressed with precision and yet possess generality so as to be capable of application to large number of cases. Similar view was expressed in the Province of West Pakistan and another v. Ch. Din Muhammad and others (3).
11. There can be no quarrel about the fact that the instructions issued to the Punjab Public Service Commission through Government letter, dated 30th April, 1983 were of general application and express in terms. Such instructions thus had the binding force as that of a statutory rule.
12. Reliance on behalf of the petitioners has been placed on Ashiq Muhammad Khan Mazari v.
Chairman, Federal Land Commission and others (4) wherein it was held that the authority delegated under the notification under paragraph 29 was not exercisable by the Chairman sitting singly and orders passed by him were, therefore, completely devoid of jurisdiction. This case is distinguishable on merits from the under consideration two matters because in the instant cases the Commission does not exercise delegated powers. It has been constituted under a statute viz. Punjab Public Service Commission Ordinance, 1978. The said Ordinance validates actions of the Commission even if there was any defect in the Constitution of the Commission. Moreover, the Provincial Government under the said statute has been empowered to make rules for giving effect to the provisions of the Ordinance and the said Government in the appropriate Department has directed the Commission that one Member could validly conduct interviews for posts of Grades 16 and 17.
13. The question of validity of the action of the Punjab Public Service Commission whereby interviews in the under consideration cases were conducted by the Chairman of the Commission or by a Senior Member of the Commission sitting singly and not by the entire Commission apart, we cannot lose sight of the fact that the petitioners have invoked the writ jurisdiction of this Court for getting it declared that the interviews conducted by the Commission were illegal. Writ jurisdiction has to be exercised in aid of justice and not to advance the cause of injustice.
14. In the circumstances of the under consideration case, as already observed, the Committee which interviewed the petitioners comprised of two senior Honourable Judges of this Court and the Acting Secretary of the Government of the Punjab. Law Department, besides the Chairman of the Punjab Public Service Commission or the Senior Member of the said Commission.
(1) PLD 1966 SC 188 (2) PLD 1974 SC 291
(3) PLD 1964 SC 21 (4) PLD 1977 Lah. 461
15. It is a common ground between the parties th4t the two Honourable] Judges of this Court actively participated in the proceedings of viva voce test and their advice has been reflected in the selection or rejection of candidates. No injustice has, therefore, been done to the petitioners who could not unfortunately be selected as a result of the aforementioned viva voce test The discretionary jurisdiction under the Constitution, therefore, cannot justifiably be exercised in favour of the petitioners. In Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others (1) it was held : "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court. It must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality then extraordinary jurisdiction ought not to be allowed to be invoked."
16. In Ghulam Rasul and others v. All Akbar and others (2) it was ruled : "Under the writ jurisdiction the High Court has a discretion and it is not bound to interfere in a case where substantial justice has been done even though the proceedings in which this justice has been done were initiated irregularly or a legal objection to the order is maintainable."
17. In Hirjina .& Co, (Pak) Ltd., Karachi v. The Settlement Commissioner, Karachi and 2 others (3) it was held that extraordinary writ jurisdiction of the High Court should not be allowed to be invoked in case of an order which has set the wrong right even if such order was passed beyond jurisdiction.
18. In the light of the foregoing conclusions, it is held that there is no merit in the petitioner's case justifying exercise of constitutional dismissed tion in their favour to declare that the result of their viva voce test was o no legal effect. Both the Constitutional Petitions are, therefore, dismissed leaving the parties to bear their own costs,
(1) PLD 1973 SC 236 (2) 1974 SCMR 64
(3) PLD 1976 Kar. 1110