Govt and others Vs Noman Aslam and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

R.F.A. No. 288-A/2026

JUDGMENT

Date of hearing...................22.10.2026.................................

Appellant (Government of KPK) By Mr. Fayaz Muhammad, learned Assistant Advocate General.

Respondent in person.

ABDUL FAYAZ, J.- Through this single judgment, this Court intends to decide the instant Regular First Appeal as well as connected Regular First Appeal titled “District Education Officer (Male), Abbottabad vs.

Nouman Aslam and another”, as both appeals involve common questions of law and fact and arise out of separate judgments/orders dated 07.05.2026 passed by the learned Judge, Consumer/Commercial Court, Abbottabad, in Consumer Complaints Nos. 48/CC and 44/CC, respectively, whereby the appellant was directed to refer the cases of the respondents to the Educational Testing and Evaluation Agency (ETEA) for conducting their Quality

Check (QC) tests and to revise the merit lists accordingly, if warranted.

2.Precisely, the facts necessary for disposal of these appeals are that the private respondents, Muhammad Shehryar Sabir and Nouman Aslam, applied for appointment as Primary School Teachers (PST) through ETEA. Having qualified the initial screening test, they were required to appear in the subsequent QC process but were marked absent. Alleging lack of proper intimation regarding the QC schedule, they filed separate complaints before the learned Consumer Court, seeking an opportunity to undergo the said process. The appellant contested the complaints, inter alia, on the ground that disputes relating to recruitment did not fall within the jurisdiction of the Consumer Court.

3.After hearing the parties, the learned Consumer Court allowed both complaints through the impugned judgments/orders.

Feeling aggrieved from the said

judgment/orders, the appellant has preferred the instant appeal as well as connected appeal, primarily contending that the respondents, being candidates seeking employment, do not fall within the definition of a consumer under the Khyber Pakhtunkhwa Consumers Protection Act, 1997, and that the learned Consumer Court lacked jurisdiction to entertain their complaints.

3.Arguments heard and record perused.

4.The controversy arising out of these appeals essentially revolves around the jurisdiction of the learned Consumer Court to entertain complaints concerning the recruitment process conducted through the Educational Testing and Evaluation Agency (ETEA). The pivotal question requiring determination is whether candidates seeking appointment against public posts can invoke the jurisdiction of the Consumer Court for redressal of grievances relating to their exclusion from a particular stage of the

selection process. The answer necessarily depends upon the nature of the dispute, the relationship between the parties and the scope of the Khyber Pakhtunkhwa Consumers Protection Act, 1997 (hereinafter referred to as “the Act”).

5.To appreciate the controversy in its proper legal perspective, reference may be made to sections 2(c) and 2(n) of the Act, which define the expressions “consumer” and “services”, respectively, and are reproduced hereunder:

Section 2(c):

"Consumer" means any person or entity who:

(i)buys goods for a consideration which has been paid or to promised or partly paid and partly promised to be paid or under any system of deferred payment including hire purchase and leasing and includes any user of such goods but docs not include a person who obtains such goods for re-sale or for any commercial purpose; or (ii) hires any goods or services for a consideration which has been paid or promised or partly paid and partly promised to be paid or under any system of deferred payment including hire purchase and leasing and includes any beneficiary of such services.-

Section 2(n):

"Services" includes services of any description which arc made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, manufacturing, processing, accountancy, supply of electrical, mechanical or any other form of energy 3 [including gas and petrol, water, telephone], boarding or lodging, entertainment, medicine, education, construction work, amusement, catering, security, or purveying news or other information and similar other services, but docs not include the rendering of any service free of charge or under the contract of personal services; and”.

6.A plain reading of the aforesaid provisions reveals that the Act extends protection to persons purchasing goods or hiring services for consideration. The definition of “services”, though couched in wide terms, must be construed in harmony with the object and scheme of the Act, which is intended to protect consumers against deficiencies in services and unfair trade practices. The mere fact that a person pays a fee to an agency does not necessarily bring every subsequent dispute within the jurisdiction of the Consumer Court. What is

material is the substance of the transaction, the nature of the grievance and the relief sought. A distinction must, therefore, be drawn between a complaint alleging deficiency in a service and a dispute concerning the exercise of powers under a separate statutory or administrative framework.

7.Applying the above principles to the cases in hand, it is evident that the respondents approached ETEA for participation in a recruitment process initiated by the Education Department for appointment against the posts of Primary School Teacher (PST). ETEA was performing the functions assigned to it in connection with the selection of candidates, whereas the respondents were prospective candidates seeking public employment. Their grievance arose from being marked absent in the Quality Check (QC) process, allegedly without proper intimation. The relief sought was not confined to rectification of a deficiency in testing services but extended to

their further participation in the recruitment process and consequential consideration for appointment. Thus, the substance of the controversy was the respondents' entitlement to proceed to the next stage of recruitment, a matter governed by the applicable recruitment rules rather than the consumer protection mechanism.

8.It is pertinent to observe that the payment of a test fee, even if established, would not by itself confer upon a candidate an enforceable right to participate in a particular stage of recruitment irrespective of the prescribed conditions. Nor would it authorize the Consumer Court to determine the validity of recruitment proceedings or direct alteration of a merit list. The recruitment of public servants is regulated by the relevant laws, rules and prescribed selection criteria, and any grievance concerning their application is required to be examined by the forum competent under the applicable legal

framework. The distinction is significant, for an alleged deficiency in the provision of testing services and a claim seeking enforcement of rights arising from a recruitment process are not necessarily interchangeable merely because both involve the same testing agency.

9.Another material aspect of the matter is that the recruitment framework provided a mechanism for redressal of grievances through the Grievance Redressal Committee. The record also reflects that, in Writ Petition No.

650-A/2026, decided on 21.04.2026, this Court had directed the petitioner therein to approach the said Committee for consideration of his grievance in accordance with law. Although the availability of another remedy does not, by itself, exclude jurisdiction otherwise conferred by statute, it assumes significance where the dispute pertains to matters specifically regulated by the recruitment framework. The respondents could, therefore, have sought

appropriate redressal before the competent forum instead of invoking the jurisdiction of the Consumer Court for directions affecting the selection process.

10.The learned Consumer Court,

however, proceeded to allow the complaints on the premise that proper intimation regarding the QC schedule had not been established and consequently directed the appellant to refer the respondents to ETEA for conducting their QC tests, followed by reconsideration of the merit lists. In doing so, the learned Consumer Court overlooked the jurisdictional distinction between adjudicating a consumer dispute and regulating recruitment proceedings. The question whether the respondents were duly informed of the QC schedule may have warranted examination by the competent authority, but that circumstance could not, in itself, enlarge the statutory jurisdiction of the Consumer Court. Indeed, the nature of the directions issued demonstrates that the learned

Consumer Court effectively assumed supervisory control over a stage of public recruitment, which was beyond the scope of the consumer dispute presented before it.

11.It is a fundamental principle of law that the jurisdiction of a Court or Tribunal constituted under a special statute is circumscribed by the provisions of that statute and cannot be extended by implication, consent of the parties or considerations of equity. A forum lacking jurisdiction over the subject matter cannot assume such jurisdiction merely because the grievance raised before it appears genuine or calls for remedial intervention. The existence of a grievance and the competence of a forum to redress it are two distinct legal questions, and the latter must necessarily be answered before the former can be adjudicated. In the present cases, the learned Consumer Court failed to appreciate this distinction and granted relief extending beyond its statutory authority.

12.In view of the foregoing discussion, this Court is of the considered opinion that the controversy, in its true nature and substance, related to the respondents' participation in the recruitment and selection process for public employment and not to the adjudication of a consumer dispute within the scope of the relief claimed under the Act. The learned Consumer Court, therefore, exercised jurisdiction not vested in it by law. Consequently, the impugned judgments/orders, being founded upon an erroneous assumption of jurisdiction, cannot be sustained. This conclusion does not determine whether the respondents were properly informed of the QC schedule or otherwise entitled to any relief under the applicable recruitment rules, as those questions are left open for determination by the competent forum.

13.For the reasons recorded above, the instant appeal as well as the connected appeal are allowed, and the impugned

judgments/orders dated 07.05.2026 passed by the learned Judge, Consumer/Commercial Court, Abbottabad, in Consumer Complaints are hereby set aside. Consequently, both complaints stand dismissed for want of jurisdiction. However, the respondents shall be at liberty to approach the competent forum for redressal of their grievances, if so advised, in accordance with law.

Announced:

JUDGE

Shahid*/