1. SHAFIUR RAHMAN, J.--The petitioner seeks leave to appeal against the appellate judgment of the Appeal Bench of the Lahore High Court dated 15-10-1984 whereby the order of the learned Judge in Chambers allowing the constitutional petition filed by respondent No. 3, was upheld.
2. The respondent was holding ad hoc the post of Mines Labour Welfare Officer in the Labour Department of the Government of Punjab. This post was advertised by the Punjab Public Service Commission (hereinafter referred to as the Commission) for making regular appointment to it. The qualification prescribed was "Degree from a recognised University with Economics or Sociology as one of the subjects". He applied for it and was interviewed alongwith other eligible persons. The petitioner had also applied for the same post though he did not hold a Degree with either Economics or Sociology as a subject. His subject for degree was social work. The Commission instead of finalising the result of the eligible, made a reference to the Government about the eligibility of the petitioner. The Government included social work also as a degree subject and directed fresh advertisement. The post was advertised afresh with the revised qualification, but those who had already applied were directed not to apply afresh. A second round of interviews of eligibles took place. The petitioner was interviewed but not the respondent No. 3. He thereupon invoked the constitutional jurisdiction of the High Court making a grievance as summarised below in his own words-- (i)That, besides the petitioner, Mr. Muhammad Zafarullah Khan was also called for interview and he appeared before the interview committee. The nominations were, however, not announced as a consequence of this interview.
3. (ii)That the petitioner was not called for interview pursuant to second advertisement. However, Mr. Muhammad Zafrullah Khan, who was called for interview and also appeared before the interview committee was again called for interview in April, 1983 and was interviewed by the committee.
4. (i.e)That the petitioner has also a strong feeling that respondent No. 1, with a view to select one Mr. Muhammad Zafarullah Khan against the post of the Mines Labour Welfare Officer, extended the date and has also recommended his name for appointment excluding all others as well as the result of the previous interviews held in June, 1982.
5. In the parawise comments the Commission stated as follows:-- (i)Mr. Muhammad Zafrullah Ithan a candidate for the said post was also called for interview on 28- 6-1982 but was not interviewed for the reason that a clarification was sought from Administrative Department/ Services General Administration and Information Department about the service rules relevant to this post.
6. (ii)The results of the interviews had been sealed on the days of the interviews. Fresh applications for the said post were also invited from the fresh candidates issuing partial modification to their previous Advertisement No. 30-B/81. The candidates who had earlier applied were not required to apply again for this post: It became necessary after the receipt of clarification from the Department. The petitioner was already interviewed on 22-6-1982. Hence there was no need to call him for interview again. Mr. Zafrullah Khan was however, interviewed as he was not interviewed previously.
7. (i.e)The applications from the fresh candidates were examined in accordance with the terms of the partial modification and the service Rules and eligible candidates were called for interview on 12- 2-1983 including Mr. Zafrullah Khan whose interview was previously dropped, the latter was interviewed for the first the, and not twice alleged by the petitioner and besides him 3 others candidates were interviewed.
8. The learned Judge in Chambers allowed the petition observing as follows-- "The objection is that as not less than to members are a Committee entitled to interview, the examination only by one member was not an at performed under the law. The defect, therefore, is not of a nature which stood cured. Even otherwise, the members who interviewed the respondent No. 3 should have examined the petitioner as well so as to decide 'who out of them was more suitable candidate.
9. In view of the above, the omission/ refusal to interview the petitioner is without lawful authority. The respondent Commission is directed to examine both the candidates again and make fresh recommendations. Meanwhile, respondent No. 3 may continue to function. "
10. It was the petitioner who filed an intra-Court appeal and the following order was passed-- "It would appear that in pursuance of the first advertisement respondent No. 3 alongwith others was interviewed but not the appellant. No final decision was taken. Fresh advertisement was issued calling for applications although with a proviso that earlier candidates may not apply. But now in pursuance of the second advertisement all the applicants old or new were to be examined to find out as to who was better suitable for the job than the others. Since in pursuance of the second notification, respondent No. 3 was not even called for interview, his grievance before the learned Single Judge was right and the learned Single Judge, if we may say so with respect, most appropriately directed that the appellant and the respondent No. 3, who appear to be effective competitors should be examined to find out as to who amongst them is better qualified or entitled to selection. No interference is called for in the order of the learned Single Judge. The appeal is, therefore, dismissed in limine. "
11. The learned counsel for the petitioner has contended before us that as the Public Service Commission is a statutory body entrusted with the duty of only making recommendations which are secret and not binding as such a petition was not competent at all. Further, it is contended that a notification appeared after the institution of the constitutional petition whereby the petitioner had been appointed to the post. Without setting aside the subsequent notification the constitutional petition could not have been allowed nor could that notification be indirectly dislodged by such a challenge.
12. We find that the Public Service Commission has not made a grievance and conclusion of the High Court is based on the finding that the Public Service Commission with one Member was not properly constituted when interviewing the petitioner. The decision in Maqbool Ahmad Maqbool v.
13. The Province of Punjab and 10 others 1971 SCMR 727 would not be directly applicable because it is the exclusion from the second interview which the petitioner had challenged and not his earlier interview by one Member of the Commission. Under the orders made by the High Court the statutory authority, namely, the Commission has been called upon to perform its statutory recommendatory role in accordance with law. Subsequent notification pending the constitution petition in the High Court would not displace the grievance of the petitioner so far as the functioning of the Commission is concerned. The impugned order does not in any manner' abridge the discretion possessed in the matter by the recommending authority or the authority competent to make the appointment. In the circumstances, we do not consider this to be a fit case for further examination in this Court and leave to appeal is, therefore, refused.