' ABDUR REBHAN KHAN KAM, J.-This constitutional petition filed by Raza Ali Zaidi an employee in Excise and Taxation Department Peshawar is directed against the decision of N.-W. F. P. Public Service Commission communicated to the petitioner through respondent No, 2 vide letter dated 9- 4-1980, withdrawing its recommendation in respect of the selection of the petitioner as Excise and Taxation Officer.
2. By means of an advertisement issued in December, 1977, the N.-W. F. P. Public Service Commission invited applications for filling four posts of Excise and Taxation Officers (Grade 16) in the Excise and Taxation Department. The petitioner serving as Sub-Inspector in Excise and Taxation Department Peshawar and possessing requisite qualification as mentioned in the advertisement applied for one of the posts so advertised and competed with other candidates. The petitioner qualified the written test and was summoned for an interview alongwith others. He was ultimately selected and was recommended to the respondent No, 2 for bis appointment as Excise and Taxation Officer. Before respondent No, 2 could issue the appointment order of the petitioner as Excise and Taxation Officer, the then serving Excise and Taxation Officers on temporary basis filed a Writ Petition and obtained a stay order restraining the Government from further appointments against the existing vacancies of Excise and Taxation Officers. Consequently the appointment of the petitioner was held in abeyance. Meanwhile a case was registered against the petitioner under the Anti-Corruption Laws and was subsequently sent to the Special Judge, Anti-Corruption for trial.
During this period the then Director Excise and Taxation N.-W. F. P. Namely Abdur Rauf Durrani also recorded adverse remarks in the annual confidential report of the petitioner pertaining to a period from 4-5-1977 to 30-9-1977 which were duly communicated to him. The petitioner made a representation on 3-7-1978 against the said remarks. He was tried by the Special Judge, Anti- Corruption in connection with the case referred to above and was acquitted of the charge. After his acquittal from the mentioned charge the petitioner made representation to the respondents about his appointment in the said capacity on the basis of his selection by the Public Service Commission but it appears that the respondent did not respond to the representation made by the petitioner and ultimately the petitioner was informed on 14-4-1980 by the Director Excel and Taxation that respondent No, 1 had elected to withdraw the recommendations concerning his appointment as Excise and Taxation Officer and that his case has been finally dropped by the Government for such appointment.
3. Aggrieved by the mentioned, order the petitioner has come to this Court seeking relief through the present constitutional petition. His main contention is that during all this period none of the respondents has communicated any reason to the petitioner for withdrawal of the recommendations nor was he provided any opportunity at any stage to be heard. The petitioner has claimed that under the law once the Public Service Commission selects a candidate and communicates its recommendation to the concerned authority for the appointment of the said candidate, the Public Service Commission becomes futicnis officio and cannot withdraw its recommendation Steady,
4. The stand taken by the respondent in the written statement filed in connection with the present petition is that the Commission had declined to -confirm its provisional recommendations for cogent reason, that the petitioner had earned adverse remarks in 1977 which were conveyed to him on 28-5-1978 while the provisional recommendations were made on 8-10-1978 and that the adverse remarks so communicated to the petitioner had not been expunged by that time and that his acquittal in the Anti-Corruption case was also not-found honourable.
5. It was also stated that the petitioner belongs to Zone-4 for which there was no vacancy but since no qualified candidate was available from Zone-2 the Commission recommended him provisionally for such appointment.
6. We have heard the learned counsel for the parties and also gone through the relevant material available on the record with their assistance.
7. Photostat copy of the letter dated 8-10-1978 containing the recommendations by the Public Service Commission is available on the record. Para. No, 4 of this letter reads as under :- "Recommendation is provisional and subject to passing such medical test as may be required under the rules. Additionally, character rolls of the two in service candidates i. e. S. Samiul Haq and Syed Raza Ali Zaidi awaited from the Departments concerned, are also material for their confirmation."
8. In the summary prepared in connection with the appointment of Excise and Taxation Officers through initial recruitment for the approval of the Governor it was pointed out that out of the four selectees of the Public Service Commission, the cases of three candidates were clear or such appointment whereas the 4th candidate, namely, S. Raze Ali Zaidi being involved in a corruption case, his case has been referred back to the Public Service Commission for advise.
9. The petitioner was subsequently informed through the Excise and Taxation Officer that the recommendations concerning his appointment by the Public Service Commission have been withdrawn and his case for such appointment has been finally dropped. Contents of the letter No, 3332/Estb: P-FPCXHV. D. 39, dated 14-4-1980 are :- "Please inform S. Reza Ali Zaidi, Excise and Taxation Sub-Inspector, Peshawar that the Public Service Commission N.-W. F. P. Has withdrawn their recommendation in respect of his appointment as Excise and Taxation Officer and the case has been dropped by the Board of Revenue".
10. Learned counsel for the petitioner while placing reliance on Muhammad Aslam Khaki v. Vice- Chancellor, Gornal University, D. I. Khan (1) and Dr. Umar All v. N.-W. F. P. And 2 others (2), contended that once the Public Service Commission has selected a candidate and communicated its recommendations to the authority concerned, the selection has taken legal effect and in pursuance thereof certain rights have been accrued to the candidate and this decisive step having been taken, the recommendations so made cannot be withdrawn or rescinded to the deterrent of those rights so acquired. His next contention was that the recommendations were withdrawn without disclosing any valid reason for such action and stressed that the respondents Nos. 1 and 2 were under statutory obligation to communicate the reasons, if any, for withdrawing such recommendations. No such reasons were communicated to the petitioner nor was he ever served with a show- {{FOOT NOTE}}
(1) PLD 1980 Ptah. 128 (2) NLR 1980 (Ser.) Posh. 111 {{FOOT NOTE}} cause notice. He accordingly submitted that even if it is found that the Public Service Commission could withdraw its recommendation at that stage, it was incumbent upon it to have given a show- cause notice and to have provided an opportunity to the petitioner to be heard.
11. While making a reference to the University of Dacca and others v. Zakir 'Ahmed (1), he submitted that in all proceedings by whomsoever, held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other rights of the parties concerned. He contended that in the absence of any express word in any enactment giving such powers, excluding the principles of natural justice, the Courts of law are inclined generally to imply that the power so given is coupled with the duty to act in accordance with such principles of natural justice as may be applicable in the facts and circumstances of a specific case.
12. Learned counsel also assailed the assertion of the respondents that the nature of the recommendations made in the instant case were provisional. According to him the recommendations by the Public Service Commission shall always be considered as final as there is no procedure for sending provisional recommendations.
13. In reply to the arguments addressed by the learned counsel for the petitioner, the learned counsel for the respondents contended that the rule of natural justice embodied in the maxim audi alteram partem cannot have a universal application particularly in such like cases where any recommendations and that too of provisional character are made and such recommendations have not been given any legal effect. He submitted that since the petitioner by such recommendations had acquired no legal right there was no necessity for issuing ' show-cause notice nor has this remained a practice of the Commission. He further submitted that the recommendations of the Commission being only advisory in nature it being open to the appointing authority not to accept its advise, it is difficult to understand how a valid right can be claimed by the petitioner on the basis of such recommendations and how a writ petition can be entertained on the basis of such claim. He further submitted that in view of the principles embodied in the provisions contained in section 21 of the General Clauses Act, the Commission and for that matter the Government who bad the power to make an order has also the power to undo it if the recommendations or the orders whatever may be the case have not taken legal effect and in pursuance thereof certain legal rights have not been created in favour of the candidate. He accordingly submitted that the, petitioner having acquired no such right, the writ petition filed by him is not maintainable.
14. The functions of the N.-W. F. P. Public Service Commission as provided in section 6 of the N.-W. F.
P. Public Service Commission Act, 197 are to conduct tests and examinations for recruitment to such service an posts in connection with the affairs of the Province as may be prescribed. Its authority as regards -terms and conditions of servlet of such person can only be advisory. It, therefore, follows that the recommendation of Public Service Commission being advisory in nature would hardly provide a ground for claiming a vested right or provide a cause for filing of constitutional petition. In the instant ,case, as stated, the recommendations were provisional I nature at that stage and were yet to be confirmed by the Public Service Commission and accepted' by the Government. The principles laid down in,
15. {{FOOT NOTE}}
(1) PLD 1965 SC 90 {{FOOT NOTE}} Pakistan through the Secretary, Ministry of Finante v. Muhammad Inamayatullah Farukki (1) which were referred to in the course of argument by both the learned counsel representing the parties before us read :- "There can hardly be any dispute with rule that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae i. e. The power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
15. In the instant case the recommendations were provisional and such recommendations having neither been confirmed nor accepted would be considered having not taken legal effect. As such the question of claiming legal right in the circumstances by the petitioner does not at all arise. The recommendation of the Commission and that too of provisional character not sacrosanct and the last word in the eye of law for the reason that the B decision with regard to the proper appointment and the acceptance of such recommendations ultimately rests with the competent authority. In th absence of such rights as indicated above the petitioner will not be entitled to any relief and shall have no locus standi to file a writ. The other authorities, referred to above, relied upon by the learned counsel for the petitioner having altogether different facts are of no help to the petitioner.
The recommendations having taken no legal effect and the petitioner having acquired no legal right, the principles laid down are not applicable to the facts of the present case.
16. Learned counsel for the respondents in the instant case has produced the relevant record of the Commission for our perusal. We have observed that there are numerous instances on their record where the recommendations of Public Service Commission, like the one before us, were made in provisional manner. We have further observed that some of these provisional recommendations were not confirmed for the reasons mentioned therein. It has also come to our notice that in cases of candidates in service such practice of making provisional recommendations is a routine matter because the confidential record of such candidates is always sent at a later stage and subsequent to the success of the candidate, in test/interview of the Public Service Commission. It, therefore, follows that this is not the individual case wherein the recommendations of provisional character were made and which were not confirmed. No case of discrimination made out and no legal right having been established, the petitioner has no ground to claim exceptional treatment.
17. Learned counsel for the petitioner lastly submitted that the impugned order concerning withdrawal 01 the recommendations being based on no reason is arbitrary and should be struck down on that score alone. This objection too is besides the point for the reason that at the given time the petitioner was having entry in his record and also remained involved in a corruption case.
The adverse remarks, no doubt, were expunged by the Commissioner, Peshawar Division, Peshawar but at the time when the case on {{FOOT NOTE}}
(1) PLD 1969 SC 407 {{FOOT NOTE}} the petitioner for appointment had been finally dropped. It cannot, therefore be said that the withdrawal of the recommendations were based on no reason.
18. No doubt all statutory bodies and functionaries are under obligation to act in accordance with law and relevant rules and procedure and a deliberate or flagrant disregard thereof would render their acts without lawful authority so as to attract the power of judicial review vesting in superior Courts. Such circumstances, however, would be an exception to the rule that ordinarily no writ would lie to challenge the advice tendered byt the Public Service Commission in the performance of its function. No illegality in the procedure or deviation from the prescribed rules having been detected, no such exceptional circumstance for filing the present writ petition is available to the petitioner.
19. In view of what has been stated above, we are of the view that the recommendations of the Public Service Commission and that too provisional character being advisory in nature would hardly furnish a ground to the petitioner for filing a constitutional petition and in the absence of any legal right, it would not be possible for us to afford any relief to the petitioner.
20. Consequently the petition fails and is accordingly dismissed. But having regard to the special circumstances of the case we make no order as to costs.