ORDER his Constitutional petition was heard, together with W.P.
No of 1987. It is directed against the proceedings taken and rec ndations made by the Punjab Public Service Commission for th( )intment of Medical Officers/Demonstrators in the Province of th( ab against the advertised fixed number of posts.
11 the three petitioners have set up a plea that their names, ha, 3nce been included in the list of recommendees of Punjab Pu ervice Commission, could not subsequently be excluded from sup for any reason or on a plea of mistake, error or otherwise. Brief resume of facts would help understand the background of se and the legal questions arising for determination. Petitioner No Dr. Amanul Haq. It has been established from the record of the ab Public Service Commission, produced at the hearing, that in )etitioner No,1 obtained in the aggregate 55 marks on the his academic qualifications and viva voce. Somehow, when the It was being compiled and tabulated separately, his marks wet )rrectly recorded as 58 instead of 55 actually obtained. This is iror or accidental slip which allegedly led to the inclusion of his in the list published by the Punjab Public Service Commission of acommendees, for appointment against the aforesaid posts. Axt comes petitioner No,2 Dr. Jan Muhammad, who obtained in marks, that is, 22 marks each for academic qualifications an( voce. It is being admitted, during the hearing, that the mir marks required, as per rules in order to pass in the viva voc it are 30. A candidate getting less than 30 marks in viva vo( rally fails. This means that the petitioner's name was included by functionaries of the Commission in the list of successful car s in spite of his factual failure. The Punjab Public Service Cot ,n was not competent to do so and no provision or power haE cited to support the impugned action of the Punjab Public Seri ommission.
4 the case of petitioner No,3, Dr. Muhammad Iqbal he factually obt 47 marks. On the basis of academic qualifications he was all() 22 marks and in viva voce he secured 25 marks. He, thus, als( in the viva voce test. He was, however, strangely made int( aommendee of the Punjab Public Service Commission, against face falsely showing that he secured 61 marks instead of actual 47 It has been noticed, on a perusal of the record of the Con n, that 61 marks were actually obtained by another candidate, man )r. Muhammad Usman Yousaf, whose result was tabulated, on ter side of the result sheet containing petitioner's result. ThE of Dr. Muhammad lqbal, petitioner No,3, in these unusual circ ices crept into the list of successful recommendees at the cosi r. Usman Yousaf, who was omitted from the said list. This pall rror was rectified through a corrigendum subsequently issued by njab Public Service Commission.
5 atever be the real causes, which led to these undisputed err( the part of the Punjab Public Service Commission, they nee involve this Court into an elaborate inquiry. It is for the ' Punjab Public Service Commission to set its own house in order and to ensure non-recurrence of such like unfortunate events in future. The fact remains that a scrutiny of the record of the Commission by this Court with the assistance of learned counsel has established beyond doubt that the marks actually awarded to the petitioners on the result sheets are signed by the presiding member of the Punjab Public Service Commission. In some of the cases, it was Mr. Muhammad Iqbal, Member, and in other cases it was Chairman of the Commission, Major-General (Retired)
Muhammad Akram. Their signatures are identified by the Secretary as well as the Deputy Director of the Commission, who are conversant with them in the normal course of their business. There is no dispute between the parties as regards the factual marks obtained or the marks necessary for pass percentage. In this patent background, I do not find any justification to interfere with the proceedings taken or orders passed by the Punjab Public Service Commission in accord with the true factual and legal position by issuing impugned corrigendum's.
6. The sole point urged at the hearing by the learned counsel for the petitioners was based on the principle of locus penitential, i.e,, power of receding or rescinding an order before the order had been conveyed and legal rights accrued in favour of a party.
7. I have given considerable thought to the argument advanced by the learned counsel for the petitioners but I am unable to persuade myself to agree with his legal right theory. The term 'legal right' was interpreted by Madras High Court in re: Daniel Halley Walcot and another v. State (AIR 1968 Mad.349) and the following passage occurring therein may be quoted with advantage:- "From the statements of eminent jurists about the concept of 'legal right' the following principles can be deduced broadly to understand what a 'legal right' is:
(i) Legal right in its strict sense is one which is an assertable claim, enforceable before Courts and administrative agencies;
(ii) In its wider sense, a legal right has to be understood as any advantage or benefit conferred upon a person by a rule of law;
(iii) There are legal rights, which are not enforceable; though recognised by the law;
(iv) There are rights recognised by the International Court granted by International Law; but not enforceable; and
(v) A legal right is a capacity of asserting a secured interest rather than a claim that could be asserted in the Courts."
' In the same judgment it is later mentioned that the test of enforceability, though it may be a normal one, is not the only test for determining a legal right. Such right may be one recognised by the rule of law, either by Municipal Law or International Law, without the capacity of being enforced.
A legal right may even be asserted before administrative agencies. It includes the liberty of freedom from penalty. In short, it can be said that a legal right is one which is either enforceable or recognised.
8. In an earlier case the same Court in re: Anandrao Lakshman Rao v. Board of Revenue (AIR 1965 MP 237) while dealing with the term 'legal right' observed that it includes rights conferred by the statute as well and not only rights which were claimed independently of any statute.
9. In a case from Karachi jurisdiction in re: ' Government of East Pakistan v. Federation of Pakistan (PLD 1962 (W.P.) Kar.353) the meaning of the term 'legal right' came up for consideration. The Court held that a legal right obviously meant right recognised by law and capable of being enforced by the power of the State but not necessarily in a Court of law. It is a right of a party recognised and protected by rule of law, the violation of which would be a legal wrong done to his interest and respect for which is a legal duty even though no action may actually lie.
10. From the above analysis of the case law it emerges clear that there must reside in the petitioners a right recognised by law and capable of being enforced by the power of the State, through Courts of law and/or administrative agencies. It is not possible to construe the word 'right' as being synonymous with 'wrong'. In case of each petitioner a wrong on the part of statutory functionaries is being pressed into service for claiming the benefit of a legal right in his favour. It cannot be ignored that sustaining of the pleas of the petitioners would have deleterious effect of depriving third parties of their valuable legal right through the process of perpetuating a legal wrong. A person having recourse to the discretionary and equitable Constitutional jurisdiction of this Court cannot reasonably pray to A this Court to come to his aid and to grant his desire to thrive through a strange set of intentional or unintentional errors at the cost of legal right of another individual. In my humble view, the plea of locus poenitentiae is not available to a person in case where the order or the action relied upon may be found to be without jurisdiction or in excess thereof. No rights can be claimed or superstructure of rights built upon orders which are void or complete nullities in law. In all the three cases, the petitioners are relying on ill-gotten wind-falls as a result of the wrongful acts, errors or accidental or intentional slips on the part of the functionaries of the Punjab Public Service Commission.
11. There is another fatal defect in this writ petition. The petitioners have failed to implead the necessary parties as respondents to the writ petition. These parties are those candidates/doctors who in the process were deprived of their rights and who would be adversely affected as a result of grant of relief to the petitioners. This Court would not condemn those persons behind their back.
This is a matter which should have been attended to by the petitioners while instituting the Constitutional petition.
12. After thoroughly examining the facts and circumstances of this case I am of the considered view that this Court ought to exercise judicial restraint and thus refuse to come to the aid of the petitioners to regain an advantage to which they are not entitled either factually, in all fairness, or in law. The result is that this writ petition fails and is hereby dismissed. Since both the parties have been heard at length, it is disposed of as a notice case. There will be, however, no order as to costs.