' MAHBOOB AHMAD, J.--This Intra Court Appeal under section 3 the Law Reforms Act, 1972, is directed against judgment dated 19-2-198 delivered by a learned Single Judge of this Court in Writ Petition No, 68 of 198 By the said order that writ petition was dismissed.
2. The facts may briefly be summarized as under:-- ' On requisition by the Punjab Health Department the Public Service Commission took steps for selection of candidates for seven posts of Pathologists in the Health Department Punjab. On 9-7- 1988 seven candidates from the merit list were recommended for appointment by the Commission. The appellant claims to be at No, 8 of the merit list. Before the seven posts aforementioned could be filled in two other posts of the same nature fell vacant and a requisition was sent by respondent No, 1 to the Public Service Commission and the posts were advertised by the said Commission through a Public Notice on 7-10-1988. In the meanwhile one of the seven recommenders of the earlier requisition did not join the service and offer of his appointment was cancelled by respondent No, 1 on 7-12-1988. On 10-12-1988 respondent No, 1 requested the Public Service Commission to increase the number of vacancies of the already made requisition from two to three on account of the new vacancy caused due to the non-joining of the seventh recommended of the 1st requisition, namely, Dr. Ishtiaq Ahmed.
' The appellant who had appeared before the Commission in respect of the 1st requisition having not been recommended applied afresh against the subsequent requisition of respondent No, 1.
Later, however, he attempted to get into service by asserting that he being at No, 8 of the merit list of the 1st requisition should be accommodated against the vacancy not filled due to refusal of Dr. Ishtiaq Ahmed aforementioned. This request was not acceded to by the relevant quarters whereupon the appellant instituted a Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and called in question the refusal of the Public Service Commission to recommend him for appointment as Clinical Pathologist in the service of respondent No,
1. This Constitutional petition was dismissed by a learned Single Judge of this Court by his judgment dated 19-2-1989, impugned in the present appeal.
3. The learned counsel for the appellant only contended that Regulation 27 of the Punjab Public Service Commission Regulations 1987, enjoins upon respondent No, 1 to ask for a substitute in case a recommended candidate fails to join the post or is declared medically unfit and that this regulation having been violated the act of the respondents is liable to be quashed and the appellant is entitled to be substituted in place of the candidate who had refused to join the service.
In support of this contention learned counsel has relied upon Mazhar Hussain v. Province of Punjab PLD 1985 Lah.
394. In particular reference was made by the learned counsel to para. 12 of the report appearing at page 399.
4. We have duly considered the above contention but are unable to agree with the same.
Regulation 27 ibid reads as under:- "27. If a recommended candidate fails to join the post or is declared medically unfit, a substitute can be provided from the same merit list, if so requested by the Department concerned."
A bare perusal of the aforementioned Regulation shows that the power the Public Service Commission comes into play only when a request is made by relevant Department for a substitute. If such a request is made then the bloc Service Commission will abide by the Regulations immediately following gelation 27 viz. Regulations 28, 29 and 30.
' Regulation 30 puts a time limit during which the power available to public Service Commission under Regulation No, 27 can be exercised. The limit one year from the date of issue of the recommendations or till the next election for a similar post whichever is earlier. It being the established position that no request was made by the Department for a substitute on account of the failure of the previous recommended to join the service, there was no occasion for the Public Service Commission to act under Regulation No, 27 and, therefore, no direction could be issued to the said Commission for recommending the name of the appellant as a substitute.
5. Yet another aspect of the matter is that the Public Service Commission could not have recommended the appellant as a substitute inasmuch as before the post fell vacant on account of refusal of Dr. Ishtiaq Ahmed, respondent No, 1 had made a requisition for similar posts and thus the embargo envisaged by Regulation No, 30 on the exercise of powers vested by Regulation No, 27 had by the efflux of time emerged in the field and the Public Service Commission stood divested from exercising the powers available to it under Regulation No,
27. The above discussion leads to an irresistible conclusion that there was no violation of Regulation No, 27 or for the matter any other Regulation by any of the respondents.
6. The authority cited by the learned counsel for the appellant viz. Mazhar Hussain v. Province of Punjab PLD 1985 Lah. 394 could only be pressed into service if it had been first established that there had been a violation of any Regulation or statutory provisions by any of the respondents.
Otherwise also the said authority proceeds on wholly different facts and is not attracted to the attendant circumstances of the case in hand.
7. We may further observe that we had pointed out to the learned counsel for the appellant that the language employed by Regulation No, 27 in no manner makes it mandatory on the Government to make a request for a substitute and, therefore, how could the Public Service Commission be compelled to invoke Regulation No, 27 unless the pre-requisite therefor, i,e,, the request had been made by the Department. The learned counsel was unable to meet the above point raised by us.
8. Before parting with the case it would be worthy of mention that despite opportunity afforded the learned counsel for the appellant could not find any fault with the findings of the learned Single Judge on the contentions raised before him and some of which have been repaginated in the grounds of appeal.
9. In view of the foregoing discussion we find no merits in this appeal which is accordingly dismissed in limine.