Said Rahman Vs Govt of KPK and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

D.I.Khan BENCH (Judicial Department)

W.P.No.264-D/2016

Said Rehman

Versus

Govt of KPK etc.

JUDGMENT

Date of hearing: 22.01.2018.

Appellant-petitioner by Burhan Latif Khaisori Advocate Respondent by Mr. Kamran Hayat Khan Miankhel Additional Advocate General

SHAKEEL AHMAD, J.- Through this instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner seeks the following relief.

“It is therefore, most humbly prayed that on acceptance/issuance of the instant writ petition and by directing the official respondents to appoint/adjust the

petitioner according to his own merit being high as compared to the private respondents and by declaring the order issued by the official respondents dated 06.10.2011, 01.12.2011 alongwith recent

(D.B)

Hon’ble Justice Ijaz Anwar Hon’ble Justice Shakeel Ahmad

adverse order against the petitioner

according to the minutes of the meeting

dated 30.12.2015 as null and void, full of ulterior motives and behind the norms of justice or any other relief whatsoever this honourable Court deemed fit may

graciously be granted to the petitioner”.

2.Brief facts of the case urged by the petitioner through this petition are that he possesses master degree in Physics. In pursuance of the advertisement in the Daily Aaj dated 29.05.2011, he applied for the post of lecturer in Physics (BPS-17) on the terms and conditions mentioned therein, but he was not called for interview, whereafter, he submitted appeal on 20.10.2011, which was declined on the ground that he has not submitted his testimonials/record well in time, therefore, he was not considered for appointment as is reflected from the minutes of meeting dated 19.11.2015, hence this petition.

3.It mainly argued by the learned counsel for the petitioner that he had applied for the post of lecturer in Physics through TCS. On 01.06.2011, the consignment was delivered to one Jamshed on 02.06.2011 at 12 noon within the prescribed date and time, therefore, the

(D.B)

Hon’ble Justice Ijaz Anwar Hon’ble Justice Shakeel Ahmad

respondents are under legal obligation to call him for interview. The respondents submitted their para wise comments and denied receipt of application sent by the petitioner through TCS and argued that the testimonials/applications of the testimony was not received by the petitioner and contended that the petitioner has raised disputed question of facts and factual controversy is involved, therefore, the writ petition is not maintainable, and the same is liable to be dismissed.

4.Arguments heard and record perused with the able assistance of the learned counsel for the parties.

5.The petitioner has raised disputed question of facts and factual controversy cannot be decided by us in the constitutional jurisdiction. The Hon’ble Supreme Court in its judgment reported in PLD 1983 SC 280 “State Life Insurance Corporation of Pakistan vs Pakistan Tobacco Company Limited” held that the controverted question of facts, adjudication on which possible only after obtaining all types of evidence can be determined only by the Court having plenary jurisdiction in the matter and that on such grounds constitutional petition was incompetent. Reliance is also placed on the

(D.B)

Hon’ble Justice Ijaz Anwar Hon’ble Justice Shakeel Ahmad

case “Mst. Kaniz Fatima vs Muhammad Saleem 2001 SCMR 1493” wherein it was held as under.

“ Controverted question of fact, adjudication of which is possible only after obtaining all types of evidence having by the parties can be determined only by the forums concerned and in such-like cases, Constitution petition would not be competent and the relief in Constitutional jurisdiction being discretionary should not be granted to hold retention of ill gotten gain. It is mandatory and obligatory for a party invoking Constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. Disputed questions of fact could not be decided in Constitutional Jurisdiction. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. It is mandatory and obligatory for a party invoking the Constitutional jurisdiction to establish a clear legal right which should be beyond any doubt and controversy. The Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing of Constitutional petition.”

In this respect reliance can also be placed on the cases “Anjuman Fruit Arthian vs Deputy Commissioner, Faisalabad 2011 SCMR 279” and “Mst. Tahira and

(D.B)

Hon’ble Justice Ijaz Anwar Hon’ble Justice Shakeel Ahmad

another vs Muhammad Irfan and another(PLJ 2018, Peshawar”

6.After examining, the entire material, we have no doubt in our mind that the contentions raised by the parties cannot be decided without evidence. We cannot enter into factual realm or embark upon an exercise to determine the controverted question of facts. The resolution of such like controverted issue is left to be decided by the proper forum prescribed by a law.

Indulgence in such exercise would have effect of prempting and enforcing upon jurisdiction lawfully vested in the competent Courts.

6.In view of the above discussion, this constitutional petition is dismissed in limine.

Announced.

Dt:22.01.2018.

Minhas/* JUDGE

JUDGE

(D.B)

Hon’ble Justice Ijaz Anwar Hon’ble Justice Shakeel Ahmad