' JAVED IQBAL, J.---This is a Constitutional Petition preferred under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:- "(i) That letter No,SOL(E)5-233/90/3333, dated 26-10-1993 issued by respondent No,1 is illegal, void, arbitrary, malicious and prejudicial as such of no legal effect.
(ii) That Rule 6 of Balochistan Livestock Department Officers (Grade-16 and above) Service Rules, 1982 is unreasonable, ambiguous and unconstitutional therefore, liable to be struck down.
(iii) That in case the respondent No,1 cannot request for filling the posts in question until and unless the amendment in the rules is made by the Government as already proposed by the Department, then the respondents be restrained from filling the posts of Deputy Director (B-18) through initial recruitment and the respondent No,2 may be restrained from holding interviews of taking any steps towards the filling of said posts.
(iv) Any other relief as may be deemed fit and appropriate in the circumstances of the case may also be granted alongwith cost of the petition."
2. Briefly stated the facts of the case are. That all the petitioners are Veterinary Doctors, having graduated from different Universities and subsequently joined Livestock Department, Government of Balochistan, as Veterinary Officers (B-17). It is further averred that Dr. Masood Ahmed (petitioner No,1) has more than 20 years of service at his credit and performing duties as Assistant Director and similarly Dr. Muhammad Iqbal (Petitioner No, 2) has put in 20 years service and is Assistant Director (B-17) and also officiating as Deputy Director in his own scale, while Dr. Ishfaq Hussain (petitioner No, 3) has also 20 years of service at his credit and working as Assistant Director (B-17).
Dr. Nisar Ahmed (Petitioner No,4) has also 20 years of service at his credit and presently posted as Assistant Director. The services of the employees of Livestock Department are regulated through Balochistan Livestock Department Officers (Grade-16 and above) Service Rules, which prescribes the method of the recruitment and other condition of service. It is further averred that the appointments are made in accordance with the manner as specified in the appendix of the rules as mentioned hereinabove. According to Rule 6, the age limit has been prescribed from 21 years to 35 years in respect of appointment by initial recruitment. The posts of Deputy Director (B-18)
Assistant Director (B-17) and Veterinary Officer (B17) can be filled by way of initial recruitment. The person eligible for the posts of Deputy Director and Assistant Director for the purposes of initial recruitment can be from the Department itself subject to the condition that they have requisite experience at their credit duly mentioned in the column of qualifications, in the appendix attached with the rules. The quota of initial recruitment for the post of Deputy Director has been fixed as 20%, while 70% has been reserved for promotion. It is further averred that various posts of Deputy Director are lying vacant, which were advertised by the Government of Balochistan in the year 1991 for initial recruitment through Balochistan Public Service Commission and the petitioners alongwith other eligible persons applied for the same on the basis of their experience and qualification. The said posts were, however, subsequently withdrawn by the Government of Balochistan. In January, 1993 the post of Deputy Directors were advertised again by the Balochistan Public Service Commission for filling the vacant posts through initial recruitment and the age limit was prescribed from 20 years to 35 years, and therefore, various eligible Officers could not apply due to the above stipulated condition. Appreciating the difficulties of serving officer, the Department vide its letter dated 1-2-1993 requested the Balochistan Public Service Commission that the requisition furnished may be treated as withdrawn as a few amendments were under consideration to be incorporated in the prevailing rules. Some progress in this regard was made upto the extent of correspondence in between the S&GAD and Livestock Department, but it could not be materialized and resultantly on 6-12-1993 again the Balochistan Public Service Commission made an advertisement wherein application were invited for the post of Deputy Director, Specialized Field (B-18) in the Livestock Department, and the age limit was again fixed from 20 years to 38 years in pursuant to the ride as mentioned above, which also includes 3 years relaxation given by the Government of Balochistan.
Being aggrieved of the said advertisement, this petition has been filed.
3. It is mainly contended by Mr. Shakeel Ahmed, Advocate, on behalf of the petitioners that the requisition made by the Provincial Government of Balochistan, vide letter dated 26-10-1993 to Balochistan Public Service Commission for filling the vacant vacancies is patently illegal and without lawful authority, b: cause previously such requisition was withdrawn by the Provincial Government as some defects were required to be removed from the Rules. It is next contended that Rule 6(1) of Balochistan Livestock Department Officers (Grade-16 and above) Service Rules, 1982 is ultra vires as the same intends to deprive the eligible persons to appear for the post in question, as such liable to be struck down and moreso, the recommendation made by the Live Stock Department for making suitable amendment may be incorporated in order to improve the professional capabilities, so that a Corps highly qualified specialists could be organized. It is also pointed out that no justification whatsoever has been given for re-advertisement of post in question and as such the same may be directed to be withdrawn. It is also argued with vehemence that rule 6 of the said Rules is unreasonable and is ambiguous which specifies the age limit from 21 years to 35 years in respect of Veterinary Officer (B-17), Assistant Director (B-17) and Deputy Director (B-18), because in such a situation the Veterinary Officers cannot apply for the post of Deputy Director through initial recruitment as they could not fulfil the qualification of age, which would permanently deprive them from promotion which is legal right and cannot be snatched away without any lawful justifcation.
4. Mr. Muhammad Yaqoob Khan Yousafzai, learned Advocate-General has strenuously controverted the said position and urged emphatically that no legal right whatsoever of the petitioners have been infringed and accordingly no cause of action is available to them. It is next contended that the Provincial Government is fully competent to fill the vacant vacancies and place requisition before Public Service Commission for completion of necessary formalities and no embargo whatsoever can be imposed on its jurisdiction as the exercise in hand was completed in pursuant to the Rules and no irregularity either was committed or could be pointed out by the petitioners. It is further mentioned that the matter falls within the ambit of Provincial Government and Public Service Commission and as such no interference is called for specially when there is no violation of any rule or policy formulated in this regard. It is also pointed out that Provincial Government cannot be compelled to make certain amendment in the prevalent rule for the benefit of certain group of Officers. It is also argued that the petitioners are not aggrieved persons and as such the jurisdiction as conferred upon this court under Article 199 of the constitution cannot be exercised in their favour. It is also contended that no right whatsoever as guaranteed by the Constitution has been infringed.
5. We have carefully examined the respective contentions as adduced on behalf of the petitioners and for respondents in the light of relevant Provisions of law and available record. Let we make it clear at the outset that the powers as conferred upon this Court under Article 199 of the Constitution are wide and very extraordinary, but should be exercised with great circumspection.
They are not intended to be mere substitute for the ordinary remedies, which are generally available. (Khaleeq v. Pakistan PLD 1957 Dacca 437). It is imperative to note that a person who invokes the Constitutional jurisdiction must be a person, who is aggrieved in a real sense by any action taken or proceeding as initiated against him by a Government functionary discharging its function in connection with the affairs of the Province and it is also a mandatory prerequisite before invoking jurisdiction under Article 199 of the Constitution that it must be shown that the functionary is doing some thing, which under the law he cannot do. A careful scrutiny of the record and contents of parawise comments as furnished on behalf of Government of Balochistan, are demonstrative of the fact that no action whatsoever adverse to the interest of petitioners has been taken. 75% quota out of the vacant vacancies has already been allocated for the promotees and rest of the 25% has been reserved for initial recruitments. Admittedly an effort was made by the Department to get the promotion quota further enhanced, but the same could not be materialized.
In such an eventuality it could not be imagined by any stretch of imagination that some right was accrued in favour of the petitioners. The official proposal made by the Administrative Department carry a little weight till completion of all the necessary formalities such as approval of Government, promulgation of rules and its publication in official gazette and issuance of subsequent directions in pursuant to the said rules. No exercise of such nature was ever carried out by the Provincial Government. No doubt that a working paper was prepared in view of the demand made by Pakistan Veterinary Medical Association, Balochistan Zone for making necessary amendments in the Service Rules of Livestock Department of 1982, but it does not amount to any change or amendment in the prevalent rules, which are also at par with rules on the subject being followed by the other Provinces. Neither the Provincial Government can be compelled to refrain from making requisition to Public Service Commission nor the Public Service Commission can be directed that no advertisement should be made as there is no such law and moreso, there is no plausible justification to make such a direction by this Court, while exercising its authority under Article 199 of the Constitution. It is worthwhile to mention here that 75% seats have already been reserved for promotees, and therefore, they cannot be allowed to usurp the quota meant for initial direct recruitment. What would be the fate of those, who are qualified but unemployed if the promotees are absorbed against their share which otherwise is too little.
6. In our view the petitioner cannot be termed as aggrieved persons, because they have not suffered a legal grievance and no decision whatsoever has either been made or pronounced by the Provincial Government by depriving them wrongfully and affected their right or title. (PLD 1965 Dacca 231) it hardly needs any explanation that the jurisdiction as conferred upon under Article 199 of the Constitution can be invoked only by a person aggrieved and that too against a specific and definable act of omission or commission on. Part of relevant authority. The petitioners could not point out any specific and definable act which affected their right which was adverse to their interest. (PLD 1972 Lahore 489). We have also focused our attention to the point whether the Provincial Government has lawful authority to get the post advertised or not. In so far as the question "what is lawful authority of a person and whether the act questioned was beyond such authority will depend on the terms of the statute under which he purported to act. In ordinary cases, there will be no difficulty in determining the absence or excess of jurisdiction" (Colonial Bank of Australasia v. William, 1874 LR 5 PC 417, 443; R. v. Wilboden Justices, (1947) 2 AUER 838; Tariq Transport Company, Lahore v. Sargodha Bhera Bus Service PLD 1958 SC (Pak.) 437). "A person may lack lawful authority because (1) he has no jurisdiction on the subject-matter, or (2) he has no jurisdiction over the property, or (3) he has no jurisdiction over the territory; or (4) his own appointment under the statute is illegal; or (5) he had no jurisdiction make the kind of order he actually made." The essential condition for the exercise of writ jurisdiction are excess or denial of jurisdiction or contravention of the law under which a functionary acts, resulting in some legal injury to the applicant." (Halsbury's Laws of England, Third Edn., Vol.II, paras 260, 268 to 270, and Fazaldin v. Commissioner, PLD 1968 Pesh. 30, and Muhammad Ali Khan v. Muhammad Nawaz Khan PLD 1974 Lahore 189.
7. We have carefully examined the main contention of Mr. Shakeel Ahmed, Advocate, in the light of criterion as mentioned above and we are of the considered opinion that the Provincial Government was fully competent to make advertisement of the posts in question and place requisition before Public Service Commission in pursuant to the relevant rules, which are neither ultra vires nor unlawful. It may not be out of place to mention here that the quota as meant for the direct recruitment is for the safeguard of qualified youngsters, and therefore, the question of any discrimination does not arise. The premier contention of Mr. Shakeei Ahmed Advocate, that every one should be equally treated seems to be devoid of merits particularly in this case keeping view the circumstances as mentioned above. The right of equality as guaranteed by the Constitution has never been effected. Let we make it clear that:- "The basic right of equality before law and equal protection of law is an objective rule and it rests on the consideration of human value. It conceives the celebrated norm of equality as all citizens of free state, as human beings, are entitled to equal dignity, grace, honour, privileges and duties. The right of equality, apart from its proverbial significance, postulated that all citizens placed is similar position and possessing equal qualifications and status, are entitled to indiscriminate place, privileges and liabilities. In other words, the citizens possessing equal qualifications and status, cannot be placed in a discriminatory position, by allowing an artificial, arbitrary and mala fide division. The right of equality before law and equal protection of law, introduced in the Constitution, provided a guarantee to citizens against discriminatory and arbitrary treatment and actions. A piece of legislation, and executive act or omission which creates unreasonable and irrational discrimination among the citizens having equal qualifications and position, contravenes the right of equality."
(1991 MLD 930).
8. A bare perusal of what has been reproduced above would make it clear what actually the basic right of equality before law and equal protection law is and there is no further scope to make any addition except that what has been mentioned above. The concept of equal treatment of law cannot be invoked in any manner in the case.
9. In view of what has been discussed above, the petition being devoid of merit and mis-conceived in nature hardly needs any consideration, and as such the same is dismissed with order as to cost.
' These are the reasons for our short order dated 31-1-1994