' MANZOOR HUSSAIN SIAL, J.---The petitioner seeks leave to appeal against judgment dated 27-7- 1993 of the Baluchistan High Court, whereby Constitution Petition No,201/93 filed by him was dismissed.
2. The facts giving rise to this petition are that in response to an advertisement made by the Federal Public Service Commission (hereinafter referred as Commission) published on 3-11-1989 in daily "Dawn" Karachi, inviting applications for the posts of six Judicial Members, Income Tax Appellate Tribunal, Law and Justice Division in BPS-21 the petitioner applied for one of the posts reserved for Baluchistan.
3. The petitioner appeared before the Commission for interview on 12th February, 1991 at Karachi. He was informed by the Commission vide its letter dated 25th April, 1991, that his name has been recommended for the consideration of the Government for his appointment against the post applied for, subject to verification of his character antecedents and medical examination if necessary and other formalities as required under the rules.
4. The petitioner did not receive any information in this behalf from the concerned quarters even after lapse of considerable time which led him to move application on 2-2-1993 to the President of Pakistan, whereupon he was informed vide letter dated 7th March, 1993 issued by the President Secretariat that the inquiry made in the matter revealed that the Commission on reconsideration withdrew his nomination. The petitioner on 22-3-1993 through an application asked the Commission for furnishing the basis of the withdrawal of his nomination, but receiving no response invoked the Constitutional jurisdiction of the High Court wherein paradise comments were called from the respondents. The position taken up by the respondents in the paradise comments was that in accordance with the condition of recommendation, the service record of the candidates in the Government service was requisitioned. The examination whereof showed that the petitioner's service record was not satisfactory and did not justify his appointment for the post applied for.
Accordingly, his nomination was withdrawn.
5. The learned Single Judge of the Baluchistan High Court after hearing the petitioner as also the learned counsel for respondents dismissed the petition vide impugned judgment, holding that the Commission only acts as an advisory body. The Government is, therefore, not bound to accept the recommendation nor a vested right is created in favor of the petitioner merely because his name was recommended for consideration for appointment against the post of Member Judicial Income Tax Appellate Tribunal.
6. The petitioner appeared in person and argued the case himself.
' The first contention raised by the petitioner was that on 26-7-1993, he moved application under Order I, Rule 10 read with section 151, C.P.C. For impleading Establishment Division, Government of Pakistan, as one of the respondents. The case was fixed for hearing on 27-7-1993 and on that day arguments advanced by the learned counsel for petitioner were only with regard to that application, but the learned Judges without hearing him dismissed the main petition.
' The next contention advanced by the petitioner was that the adverse entries in his service record were more or less advisory in nature, the same had already been expunged; therefore, the decision of withdrawal of his nomination was not called for. The third submission made by the petitioner was that he was not provided opportunity of hearing either by the Commission or by the Government before withdrawal of his nomination. The last submission made by him was that although the Commission has the status of consultative or advisory body but the appointing authority was bound to obey its recommendation.
' In support of his submissions he relied on The Punjab Public Service Commission, Lahore through its Secretary v. Ali Gul Khan and 4 others (1976 SCMR 212), Mazhar Hussain v. Province of Punjab (PLD 1985 Lahore 394), Muhammad Farooq M.Memon, Advocate v. Government of Sindh through its Chief Secretary, Karachi (1986 CLC 1408) and Nazir Ahmad Kasana v. Islamic Republic of Pakistan through Secretary, Establishment Division, Government of Pakistan and 2 others (1990 PLC (C.S.)
573).
8. We have considered the contentions raised by the petitioner but find no merit in them. As regards the first contention that the petitioner's counsel addressed arguments in respect of a miscellaneous application under Order I, Rule 10 read with section 151, C.P.C. Only and did not argue the main Constitution petition; therefore, the learned Judges were not justified to dismiss the main petition, the petitioner has opted not to file affidavit of the learned counsel who argued the case on his behalf to testify this assertion in the absence whereof; it is difficult to believe that the impugned judgment on merits was passed without hearing the petitioner or his counsel. Even otherwise, the entertainment of the miscellaneous application and its determination, being depended on the admission of the main petition, it does not appeal to reason that the learned Judges entertained the miscellaneous application without having first admitted the main petition for regular hearing. It is not discernible from the documents on the file that the learned counsel for the petitioner only argued the miscellaneous application and did not argue the main petition which was still at the motion stage.
' As regards the next contention that the entries in his service record, were not adverse or that the same stood expunged by the competent authority, the petitioner failed to file or produce any document to show that the adverse entries in the service record had been expunged. It is, therefore, not possible to accept bald assertion of the petitioner.
' As far as his submission that he was not afforded opportunity of hearing before his nomination was withdrawn, suffice it to say that conditional recommendation made by the Commission for the appointment of the petitioner against the post applied for, did not confer upon the petitioner a vested right for his appointment. The letter dated 22-4-1993 addressed to the petitioner by the Commission shows that the petitioner's name was recommended by the Commission for consideration for appointment to the post subject to verification of his character, antecedents medical examination and completion of other formalities as required under the rules. On examination of his character role it transpired that there were adverse entries concerning his integrity. The recommendation earlier made by the Commission on re-evaluation of his service record was withdrawn holding the petitioner not suitable for appointment as Judicial Member Income Tax Appellate Tribunal. The petitioner, therefore, cannot claim that right had accrued in his favour because the very recommendation made by the Commission was conditional.
9. The last contention advanced by the petitioner was rather misconceived. He himself conceded that the' Commission was an Advisory Body. The appointing authority, therefore, may or may not accept the advice tendered by the Commission. In the instant case, however, the question of binding nature of the Commission's advice does not arise because the Commission itself on examining petitioner's service record came to the conclusion that the petitioner was not suitable candidate for the post applied for and withdrew the nomination.
' Adverting to the precedents cited by the petitioner, the dicta laid down in Ali Gul Kahn's case (1976 SCMR 212) rather goes against the petitioner. It was held in that case that selection of candidate for the post advertised by the Commission could not be determined without reference to the character of the candidates. It was further held that the Commission is entitled to examine character rolls of the candidates to assess their suitability for the post. The decision of the High Court to the contrary was not approved by the Supreme Court and the appeal filed by the Commission was allowed. The rest of two cases Muhammad Farooq Memon (1986 CLC 1408) and Mazhar Hussain (PLD 1985 Lah. 394) are distinguishable inasmuch as that both the aforesaid cases were of direct recruits and not of candidates in Government service, therefore, the allegations on the basis whereof the Government declined to appoint them were ultimately found baseless. The High Court in that circumstance declared the order refusing to appoint them against the recommendation of the Commission without lawful authority. In Nazir Ahmad Kasana's case (PLD 1990 Lah. 417) the learned Single Judge of the Lahore High Court found that on the basis of his good service record, qualifications and experience, the Commission made recommendation for his appointment but Establishment Division misled the appointing authority and obtained order rejecting his candidature. The High Court declared the order of the appointing authority illegal being contrary to the service record of the candidate and recommendation of the Commission.
We have gone through the file in the light of the submissions made by the petitioner but find no legal flaw in the impugned judgment of the Division Bench of the Baluchistan High Court. This petition being devoid of substance is dismissed and .