Hafiza Saba Amjad Vs P.O.P through Secretary Education etc.

PLJ 2020 Lahore (Note) 117 Present: JAWAD HASSAN, J.

Hafiza SABA AMJAD--Petitioner versus PROVINCE OF PUNJAB through Secretary Education, Lahore and 6 others--Respondents W.P. No. 127709 of 2017, decided on 10.5.2018.

Constitution of Pakistan, 1973-- ----Art. 199--Recruitment Policy, 2016-17, Clause 15(f)--Application for post of SESE-- Petitioner was stood second in final merit list--Non-joining of candidate at serial No. 1-- Applications for issuance of appointment letter--Filling of writ petition--Application was rejected--Violation of fundamental right--Discrimination--Recruitment policy-- Entitlement for appointment--Right after non-joining of candidate at serial No. 1, Petitioner submitted various applications to concerned authorities for issuance of her appointment letter and subsequently filed writ petition before this Court to this effect and ultimately application--According to clause 15(0 of Recruitment Policy, 2016-17 merit lists shall remain valid for a period of 190 days from date of recommendations of District Recruitment Committee and Petitioner obviously applied before expiry of said 190 days-- Record also reflects that advertisement was made under new policy i.e. Recruitment Policy, 2017-18 after her fundamental right was accrued as she was fully entitled to be issued appointment letter being next successful candidate at final merit list when candidate at serial No. 1 did not join--Advertisement regarding left over vacancies were made under Recruitment--Policy, 2017-18 after right of Petitioner was accrued and she was duly entitled to be issued appointment letter--It would not be put of place to mention here that it was not necessary to Petitioner to apply in subsequent recruitment under Recruitment Policy of 2017-18 because already vested right of appointment was accrued in her favour prior to new advertisement--Petitioner, being next successful candidate as per final merit list is entitled for appointment on post of SESE (Science) BPS-14--Petition was allowed. [Para 8, 9 & 10] A, B, C & D 2009 SCMR 382 ref.

Mr. Shahid Mahmood Minhas, Advocate for Petitioner.

Ch. Sultan Mahmood, Assistant-Advocate General and Zubair Khan, Deputy Secretary (Legal) for Respondents.

Date of hearing: 10.5.2018.

ORDER

Through the instant petition, filed under Article 199- of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) the Petitioner has called in question the legality of impugned order dated 28.11.2017 passed by the Respondents No. 5 to 7 whereby her application was rejected.

2.Brief facts, succinctly revealed from the instant petition, are that in pursuance of advertisement by the Respondents, the Petitioner applied for the post of SESE (Science) BPS- 14 and after passing all the tests and interview she stood second on the final merit list whereas one Mehwish Anwer was at serial No. 1. But subsequently, the said Mehwis Anwer did not join the said post rather selected as AEO on 05.07.2017. When

the candidate at serial No. 1 did not join the said post, the Petitioner submitted applications to the concerned authorities for issuance of her appointment letter being next successful candidate as per final merit list but in vain. Thereafter the Petitioner filed W.P. No. 75597/2017 before this Court which was transmitted vide order dated 22.09.2017 to the Respondent No. 5 to decide the matter. In pursuance of said order the Petitioner submitted application dated 03.10.2017 before the Respondents but the same was rejected by the said Respondent vide the impugned order dated 28.11.2017. Hence, this petition.

3.Learned counsel for the Petitioner inter alia submitted that the impugned order is illegal as the same has been passed without taking into consideration the facts in its true perspective; that the impugned order has been passed against the Recruitment Policy, 2016- 17; that the said merit list is intact for 190 days as per clause 15(f) of the Recruitment Policy, 2016-17; that while passing the impugned order the Respondents have relied upon the Recruitment Policy, 2017-18 which is not attracted to the case of the Petitioner; that in similar cases the Respondents have passed orders while relying upon the Recruitment Policy, 2016-17 whereas the Petitioner is being discriminated; that the Respondents are violating the fundamental rights of the Petitioner guaranteed under the Constitution. Learned counsel for the Petitioner, in support of his contentions has relied upon the case titled Government of NWFP through Secretary Education Department, Peshawar and others v. Qasim Shah (2009

SCMR 382).

4.On the other hand learned Law Officer vehemently opposed the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the instant petition on the grounds that the impugned order has rightly been passed; that all the left over vacancies were advertised and filled under the Recruitment Policy, 2017-18 and the Petitioner was at liberty to apply in the same but she did not, as such no fundamental rights of the Petitioner have been infringed.

5.I have heard the arguments of both the sides and perused the record.

6.The bare examination of record reveals the Respondents vide the impugned order dated 28.11.2017 have rejected the application of the Petitioner on the ground that as the previous Recruitment Policy, 2016-17 has been repealed in consequence of induction of new Recruitment Policy, 2017-18 and all the remaining posts have been advertised for new recruitment. In these circumstances, this compliant which relates to the previous Policy has gone redundant. Therefore, it is rejected. During the pendency of this petition, this Court passed various orders to resolve the matter after hearing the Petitioner to remove the alleged discrimination and in pursuance thereof the Respondents also passed order dated 25.04.2018 which has been placed on record. The perusal of said order also reveals that the Respondents observed therein that the contention of the Petitioner to consider her case for issuance of appointment at this belated stage being next in merit candidate under Recruitment Policy, 2016-17 is not justified as all the left over vacancies were advertised and filed under Recruitment Policy, 2017-18. No fundamental rights of the Petitioner were violated as the Petitioner was at liberty to apply in fresh Recruitment Policy, 2017-18 and to be selected and appointed on merit.

7.But on the other hand the stance of the Petitioner is that she applied in the advertisement which was made under the Recruitment Policy, 2016-17 and therefore, her case should have been dealt with under the Recruitment Policy, 2016-17 which provides that if in merit list successful candidate did the not join, on the said post the next candidate shall be selected.

8.I have gone through the whole file and found that in the order dated 25.04.2018 passed by the Respondents during the pendency of this petition, the Respondents have admitted that the Petitioner applied for the above-said post under the Recruitment Policy, 2016-17. They also admitted that as per Para 16(i) of the Policy ibid, in case a person joined the job and left the same within the period of 190 days, then the appointing authority was to offer the job to the next candidate on merit list subject to the approval of the Chairman, District Recruitment Committee. They have also not denied the fact that the candidate on merit No. 1 did not join the post. The record also reveals that right after the non-joining of the candidate at serial No. 1, the Petitioner submitted various applications to the concerned authorities for issuance of her appointment letter and subsequently filed writ petition before this Court to this effect and ultimately application dated 03.10.2017. The record depicts that the Respondents made advertisement under the new Recruitment Policy, 2017-18 on 04.12.2017. Meaning thereby that she did not resorted to the Respondents for redressal of her grievance at belated stage rather well within time but she was refused on vague ground that she came at belated stage. According to clause 15(f) of the Recruitment Policy, 2016-17 merit lists shall remain valid for a period of 190 days from the date of recommendations of the District Recruitment Committee and the Petitioner obviously applied before the expiry of said 190 days. The record also reflects that the advertisement was made under the new policy i.e. Recruitment Policy, 2017-18 after her fundamental right was accrued as she was fully entitled to be issued appointment letter being next successful candidate at final merit list when the candidate at serial No. 1 did not join. Guidance in this regard can be sought from the Government of NWFP case supra in which the Hon’ble Supreme Court of Pakistan held as under:

“Waiting list of candidates. Four posts on which successful candidates did not join were left vacant by authorities to be filled after fresh advertisement. High Court directed the authorities to consider respondent and other remaining successful candidates for appointment against first available vacancy. Validity. When some of the candidates did not join the service, such vacant posts remained vacant and it was imperative for the department to have considered remaining candidates for appointment against such posts. If some selected candidates were still available on waiting list, then such posts could not be kept vacant till the next process of recruitment. Four posts were not filled in the remaining four persons were entitled to be considered for appointment. Failure of authorities to appoint respondent and others in earlier process was not in. accordance with fair practice of recruitment. Respondent was one of the candidates who were selected during earlier recruitment process whereby twenty persons qualified the test and remaining selected candidates, including respondent, were ignored despite availability of seats. Supreme Court declined to interfere with the judgment passed by High Court. Leave to appeal was refused.”

9.In view of above, it can safely be held that the case of the Petitioner is similar to that of the above-mentioned case law in which the Hon’ble Supreme Court of Pakistan has upheld the right of waiting list candidates as the Petitioner has in the case in hand, as such can be relied upon. It is pertinent to mention here that the advertisement regarding the left over vacancies were made under the Recruitment Policy 2017-18 after the right of the Petitioner was accrued and she was duly entitled to be issued appointment letter. It would not be out of place to mention here that it was not necessary to the Petitioner to apply in the subsequent recruitment under the Recruitment Policy of 2017-18 because already vested right of appointment was accrued in her favour prior to new advertisement dated 04.12.2017.

10.In view of above situation, I feel no hesitation to hold that the Petitioner, being the next successful candidate as per final merit list is entitled for the appointment on the post of SESE (Science) BPS-14. Consequently, the instant petition stands accepted and the Respondents are directed to appoint the Petitioner against the abovementioned post without any tergiversation within a period of fort night.

(Y.A.) Appeal accepted