' This Constitutional petition has been filed against the order, dated 23-8-1993 passed by respondent No,4 (Wafaqi Mohtasib) whereby the selection of the petitioner for the post of Headmistress Embassy School at Jeddah has been declared null and void on account of her inelegibility and respondent No,5 was directed to be nominated for the said post.
2. The factual background of the case is that the Ministry of Education, Government of Pakistan through Overseas Employment Corporation Private Limited advertised a vacant post of Headmistress in Embassy School, Jeddah to be filled in from suitable candidates requiring the following qualification and experience, on contract basis. The advertisement was as under:--- "ONE HEADMISTRESS: Minimum 2nd Class Master's Degree. 20 years academic/administrative experience in reputed educational institutions in Pakistan. Preference will be given to those having professional degrees. Age 45 years and above.
TERMS OF EMPLOYMENT: (i) Period of Contract--initially for 2 years and extendable up to 5 years on yearly basis. (ii) Salary and benefits will be intimated at the time of interview. (iii) Selection on merits.
3. The petitioner and the respondent No,5 were the candidates before the Selection Board with the following qualifications: Petitioner.
(a) B.Ed. 2nd Class.
(b) MA. 2nd Class.
(c) BA. 2nd Class.
(d) Intermediate 2nd Class.
(e) Matric 1st Class.
(f) 20 years experience which includes her service in Embassy School at Beijing and Jeddah.
Respondent No,5.
(a) Ph. D. (Educational and Psychological Tests).
(b) MA. Psychology 1st Class.
(c) B.Ed. 2nd Class.
(d) BA. 1st Class.
(e) Intermediate 2nd Class.
(f) Matric 1st Class.
(g) 24 years' academic experience as Lecturer/Associate Professor in Peshawar University including 4 years' administrative experience as Chairperson, Department of Psychology, Peshawar University.
(h) She is also member of the (i) Senate of the University of Peshawar, (ii) Academic Council (iii)
Faculty of Arts, (iv) member of Board of Studies in Home Economics in the University of Peshawar,
(v) National Curriculam Review Committee, (vi) Institute of Psychology, Centre of Excellence, Quaid-i-Azam University, (vii) International Council of Psychology.
(i) She is also working as an external psychologist for F.P.S.C.
(j) She has produced number of publications on education apart from her research thesis.
(k) She also possesses many distinctions/awards.
4. It is stated that Selection Board interviewed respondent No,5 at Peshawar on 29-6-1993 and selected her as principal candidate but the petitioner who was working as teacher in Embassy School at Jaddah with an experience of 20 years of teaching at school level was given preference and was selected for the post to be appointed by the competent authority.
5. Feeling aggrieved of the selection of the petitioner, respondent No,5 lodged a complaint against the Ministry of Education, Islamabad before respondent No,4 challenging the decision of the selection authority on the ground that it was made not on merits taking into account the better qualification and experience but for the reason of school administrative experience not otherwise a requirement to be considered for the job. The position awarded to the two rival candidates in the interview was as under: {{TABLE}} Total numberNumber obtained by Almas Khanum petitionerNumber obtained by Dr.Mah Nazir Riaz respondent No.5 Academic Qualification50 31 47 Experience 20 12 4 Interview 30 18 10 Total 100 61 61
6. Respondent No,4 at the close of the proceedings concluded that four marks out of twenty for experience and ten out of thirty marks in interview to respondent No,5 having brilliant academic record with long experience in the Educational Institution of University level was a mockery of merits with the observation that present petitioner was extended undue benefit by awarding him twenty marks for her experience and eighteen marks in the interview with the intention to equalize her with respondent No,5 who undoubtedly has better merits on the basis of her qualification and experience. In nutshell, it was held that the selection of the petitioner was typical case of gross maladministration to be interfered with to undo the injustice done. Respondent No,5 was recommended to be nominated for the post.
7. The learned counsel for the petitioner inter alia raised the following contentions:
(i) Wafaqi Mohtasib was not competent to entertain the complaint of respondent No,5 and to investigate the matter of selection of the petitioner as Headmistress of Embassy School at Jeddah for want of jurisdiction.
(ii) That the petitioner was not provided an opportunity of hearing by respondent No,4 before passing the impugned order.
(iii) That respondent No,5 is not eligible to be appointed against the post of Headmistress advertised.
8. The very first question relating to the jurisdiction of respondent No,4 is to be determined keeping in view the nature of an administrative order passed or action taken vis-a-vis the facts of a particular case. If a matter is deemed not relatable to the maladministration as defined under section 2 of Ombudsman Ordinance, 1983, it stands to be excluded from the jurisdiction of Wafaqi Mohtasib. Maladministration has been defined in section 2 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 which reads as under: ' Maladministration' includes:-
(i) A decision, process, recommendation, act of omission or commission which---
(a) is contrary to law, rules, or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers, or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excess; and
(ii) neglect, inattention, delay, incompetence, inefficiency and inaptitude, in the administration or discharge of duties and responsibilities.
9. The jurisdiction, function and powers of Wafaqi Mohtasib are governed by section 9 of the ibid Ordinance.
Section 9. Jurisdiction, functions and powers of Mohtasib.---The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any agency or any of its officers or employees: ' Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which---
(a) are sub judice before a Court of competent jurisdiction or judicial tribunal or board in Pakistan on the date of the receipt of complaint, reference or motion by him; or
(b) relate to the external affairs of Pakistan or dealings of Pakistan with any foreign State or Government; or
(c) relate to or are connected with the defence of Pakistan or any part thereof, the military, naval and air forces of Pakistan, or the matters covered by the laws relating to those forces.
(2) Notwithstanding anything contained in clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the agency in which he is, or has been working in respect of any personal grievance relating to his service therein.
10. The complaint lodged by respondent No,5 was entertained and proceedings were initiated by respondent No,4 assuming the jurisdiction in the matter treating the selection of the petitioner to be oppressive and for irrelevant consideration making out a case of maladministration falling within the purview of section 2(b) of Ombudsman Order, 1983. The advertisement contained, that a candidate should possess the academic/administrative experience in a reputed educational institution in Pakistan with no condition of having any experience of school administration. The petitioner as well as respondent No,5 with the requisite experience secured equal position in the interview, but the petitioner was selected for reason of her having school administrative experience. The exclusion of better academic qualification and teaching experience from consideration as an additional factor, bringing the matter whithin the purview of maladministration whether with the element of favour or not was the major consideration with respondent No,4 to interfere in the matter. The action of an official agency if appearing to be unreasonable, unjust, oppressive and arbitrary shall amount to maladministration falling whithin the ambit of section 9 of P.P.O. 1 of 1983 for the purpose of exercise of jurisdiction by the Ombudsman in the matter to undo an act of administrative excess. The respondent No,4 having found the selection of the petitioner not A made on the basis of merits, competently took cognizance of the matter and in exercise of his jurisdiction passed the order assailed in this petition.
11. The functioning of an authority or a Tribunal, as the case may be, if is not in conflict to the spirit and intention of the statute under which it was created and if while discharging the function, a real and honest endeavour to judge the facts on merits of the case is made and after proper application of law, arrived at a finding of fact, even if erroneous will not be reviewed by this Court.
The error of law even shall not furnish a ground for interference unless the law on the subject is so misunderstood or misapplied in a manner to affect the proper functioning of the Tribunal or authority as the case may be, or the decision of the case before it renders ineffective, but if the conclusion arrived at is suffering from a disqualification of the nature that no reasonable person would arrive at such conclusion, the non-interference would amount to failure to dispense the justice. However, the Court will not ordinarily enter into the examination of findings of fact arrived at by a forum with a view to review it or to substitute the same with another possible view. The proceedings in the present case and order passed thereon do not suffer from an error to qualify the test for interference by this Court.
12. The contention of the learned counsel regarding the territorial jurisdiction of respondent No,4 is devoid of any force. Admittedly the school in question is in the control and management of the Government of Pakistan and the selection for the post of Headmistress was made by the Ministry of Education, Governemnt of Pakistan at Islamabad. The grievance of respondent C No,5 was not against the school administration but the concerned authorities in the Ministry of Education in Pakistan, thus mere fact that school is functioning at Jeddah, shall not oust the jurisdiction of respondent No,4 in the matter. The objection raised if is to be sustained, this petition before this Court also goes for want of jurisdiction.
13. The next contention of the learned counsel is that the impugned order was passed without providing an opportunity of hearing to the petitioner.
14. Undoubtedly the procedure of Ombudsman for disposal of a matter before him is of judicial nature. A matter before him is investigated through method of examination of relevant record and entertaining the material in support of respective stands and after hearing arguments on questions of fact and law arising therein, a definite and self-operative order is passed but it is not imperative for the Ombudsman to necessarily call each individual other than a complainant, who is interested in a matter to join the proceedings as respondent and decide the matter vis-a-vis the respective claims of the private parties inter se. The law provides that Wafaqi Mohtasib may undertake any investigation into the allegation of maladministration on the part of any agency or any of its officers or employees on a complaint by aggrieved person or a reference mentioned therein. The concerned agencies including respondent No,3 were given a number of hearings and opportunities to produce the relevant record in justification of their action, so much so a contempt notice was issued to the officials of respondent No,2 for non-compliance of directions of Mohtasib and ultimately the notice was discharged on their tendering pardon. The impugned order was passed after hearing the concerned agencies and in presence of their representatives and respondent No,4 was not bound to hear the petitioner as the allegation of maladministration was against the official agency and not the petitioner. Further respondent No,5 aggrieved of the action of respondents Nos.2 and 3 moved respondent No,4 charging them for extending undue favour to the petitioner in the matter of selection for the post in question, therefore, not the petitioner but respondents Nos.2 and 3 had to explain their position and conduct and were required to justify their action. The petitioner being beneficiary undoubtedly had the knowledge about the proceedings but she kept silent and did not join the proceedings probably for the reason that she had nothing to add in support of her selection and was also not in a position to defend the official agency. The institution of Wafaqi Mohtasib was established to check the functioning of the official agencies in relation to their affairs and not to decide the litigation between the two individuals, therefore, it was not the requirement of the case to necessarily call the petitioner to participate in the proceedings before respondent No,4.
15. After thorough probe and investigation in the matter respondent No,4 formed an opinion in the matter which cannot be substituted with another possible view in the given facts. The learned counsel for the petitioner has not been able to point out the exercise of jurisdiction by respondent No,4 in conflict to section 9 read with section 2 of Ombudsman Order, 1983 to declare the impugned order, subject-matter of this petition, to be without lawful authority. A finding of fact in a matter relating to the maladministration not being the result of non-reading or misreading of material/evidence or misinterpretation of the provisions of law relied upon cannot be disturbed by this Court in the exercise of its Constitutional jurisdiction.
16. There is no denial to the proposition that the special remedy for enforcement of right if provided in the statute, must be availed. The petitioner without first availing the remedy of representation before the President of Pakistan provided under section 32 of Ombudsman Order, 1983 being not less convenient, beneficial and effective has filed this petition before this Court which is not maintainable.
17. For the foregoing reasons, I see no ground to interfere in the matter, The petition is accordingly dismissed in limine.