' SYED IBNE ALI, C.J.---Through the instant writ petition Nek Amal Jan, petitioner, prays that the appointment order of respondent No,4 herein, Mr. Ilyas Khan, may be declared as illegal and void with a direction to respondents 1 to 3 to decide the issue strictly on the basis of merits approved by the Selection Committee and to disregard the recommendations of the Minister or any other authority.
2. The relevant facts, in brief, are that a post of Junior Clerk in BPS-5 was advertised locally for appointment in the Agency Headquarters Hospital, Miran Shah, North Waziristan. About 27 candidates from all over the Agency, including the petitioner herein, submitted applications therefor, whereafter written test and interview was conducted on 15-12-1994 wherein the petitioner secured highest marks and was placed on the top of the merit list but when the result was announced on 24-12-1994 respondent No,4 was appointed against the said post, who did not fulfil the required qualification for the post, he is over-age and also do not know typing which is the basic requirement of the post of a junior clerk. The petitioner further submitted that in spite of announcement time and again by the Hospital Administration that merit alone would be the criterion for appointment, respondent No,4 has been appointed in violation of the prescribed rules and when the petitioner approached respondent No,3, Medical Superintendent, D.H.Q. Hospital, Miran Shah for revising the order, he refused to do so with lame excuses, whereafter the petitioner approached the Commissioner to get some redress but in vain, hence the instant Constitutional writ petition.
3. Pre-admission notice was issued to the learned Advocate-General whereafter comments were called from respondent No,2. All the three respondents, however, submitted joint comments and on the request of respondent No,4 the Court also issued notice to respondent No,4, who too furnished his written statement.
4. We have heard the learned counsel for the petitioner as well as respondent No,4 and the learned Advocate-General for respondents 1 to 3. It was contended by the learned counsel for the petitioner that the Selection Committee was not properly constituted, which according to Notification consists of one Chairman and two Members under the Rules. He' further contended that the post in question was not advertised in accordance with Rule 10(2) of Appointment and Promotion and Transfer Rules, 1q89. He then submitted that the petitioner stands on superior ground in merit list.
He next argued that respondent No,4 was appointed by Secretary, Health Department whose office is at Peshawar, therefore, Article 247 of the Constitution of the Islamic Republic of Pakistan, 1973 is not attracted in the instant case.
5. A perusal of the record, which contains different Annexures, would show that in fact appointment of respondent No,4 was made by respondent No,3, who is admittedly working at Miran Shah. All the applicants including the petitioner and respondent No,4 are residents of FATA, selection was made at Miran Shah, vacant post was at Miran Shah and the selection was made at Miran Shah, therefore, the petitioner is not correct in saying that the appointment of respondent No,4 was made at Peshawar. It is further borne out from the record that earlier the petitioner was selected for dispenser training course for the session 1994-95. Meanwhile, he had also applied for C.T. Training for the same Session 1994-95 and was selected on 18-9-1994 for the said training but when the petitioner applied for the present post, he submitted an application for striking off his name from dispenser training course and accordingly vide order dated 19-11-1994 contained in Annexure "RF" his name was struck down from the list. All these facts have been concealed by the petitioner in the instant petition, therefore, we hold that he has not come to this Court with clean hands. When the abovementioned facts were brought to the notice of the Selection Committee, respondent No,3 asked the petitioner that as he has been undergoing C.T. Training in the Elementary College, Mirali, therefore, he should produce his relieving certificates from the concerned Principal but he failed to do so. It was thereafter that respondent No,4 was selected for the said post. As regards the question of over-age of respondent No,4, the record shows that admittedly he was an employee of Afghan Refugees Organisation and had at his credit five years' service and vide Notification No,S0S- III(S&GAD)2(91)/86, dated 26-5-1991 issued by the Government of N.-W.F.P., 10 years' relaxation of age has been granted specially to the employees of Afghan Refugees, therefore, he cannot be termed as ' over-age' in the matter of his appointment to the impugned post of Junior Clerk. The learned counsel for the petitioner has referred to some Rules, presumably the Rules framed under the Civil Servants Act, 1973 but he has lost sight of the fact that this Act is not extended to the FATA. Furthermore, the fact that 27 candidates took part for the post of a Junior Clerk will show that sufficient publicity was given by the respondents for the said post and they had also announced it in the Agency through beat of drum, therefore, no advertisement in the newspaper was necessary in the absence of any Rules to that effect.
6. As regards the question of jurisdiction of the superior Courts in respect of FATA, we get full support from an authority reported in Qaum Bangash and others v. Qaum Turi and others (1991 SCMR 2400) wherein their Lordships of the Supreme Court of Pakistan have clearly held that Peshawar High Court did not possess jurisdiction under the Constitution in relation to the Federally Administered Tribal Areas. The relevant observations made in this authority are reproduced hereunder with advantage:-- ".... Clause (7) of Article 261 of Interim Constitution of 1972 provided as under:--
(7) Neither the Supreme Court nor a High Court shall exercise any jurisdiction under this Constitution in relation to a Tribal Area, unless the Federal Legislature by law otherwise provides: ' Provided that nothing in this clause shall affect the jurisdiction which the Supreme Court or a High Court exercised in relation to a Tribal Area immediately before the commencing day. It would, therefore, be seen that the Peshawar High Court did not possess jurisdiction over any of the Federally Administered Tribal Areas even after the promulgation of P.O. No,28 of 1970 or Act No,XXVII of 1973. Kurram Agency comes within the "Federally Administered Tribal Areas" according to the definition of the term in Article 260 of Interim Constitution and Article 246 of 1973 Constitution jurisdiction with regard to which continued to be excluded by virtue of clause (7) of Article 261 and Article 247 of the two Constitutions respectively which are identical provisions.
' No other enactment was brought to our notice extending the jurisdiction of the Peshawar High Court to the area in question, namely, Kurram Agency forming part of the Federally Administered Tribal Area. Therefore, it appears that the Peshawar High Court did not have jurisdiction under the Constitution in relation to the ' Federally Administered Tribal Areas until 1980 when the Constitutional petition was instituted by the appellants in this case. This appears to be the position as found in Muhammad Afzal v.
Assistant Political Officer (1985 PCr.LJ (Karachi) 1784) and Khalid Pervez v. Federation of Islamic Republic (PLD 1987 Lah. 323)."
' In this very authority it was further held as under:-- "In Abdul Rahim and others v. Home Secretary, Government of West Pakistan and another (PLD 1974 SC 109), in somewhat similar circumstances, it was held that the expression ' in relation to Tribal Area', which expression also occurs in clause (7) of Article 247 of present Constitution is not an expression of art with a defined meaning, but has a wide import and 'postulates of a connection of one thing with another, a nexus'. In a dispute with regard to land, it was held that the situs of the land and the residence of the two sets of claimants were decisive in the matter whether the matter related to tribal area. Also the fact that final order was passed by the Home Secretary at a place in the settled area, was found not to snap the relationship of the dispute with the tribal area. These principles are fully applicable to the present case in whith the dispute related to land situated at Kurram, the criminal offences took place in the territorial area comprised therein and the parties also resided within the tribal area. Consequently on this score also the Peshawar High Court did not acquire jurisdiction in this matter.
' As regards the argument that Federally Administered Tribal Areas form part of Pakistan, therefore, they would be subject to the jurisdiction of the superior Courts, it is sufficient to state that under clause (7) of Article 247, the Constitution has expressly excluded the jurisdiction of these Courts in relation to the Tribal Area, unless the Parliament by law otherwise provides. As discussed above there is no Act of Parliament providing otherwise in respect of the Federally Administered Tribal Areas of N.-W.F.P. And the superior Courts did not exercise jurisdiction in such areas immediately before the commencing day of the Constitution. The contention is, therefore, devoid of merit."
7. Taking all the facts into consideration coupled with the legal position, as explained above, we are of the opinion that this writ petition has no merits, which is hereby dismissed with not order as to costs.