Nabila Rasheed vs Gop (Secretary School Edu) etc.

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Writ Petition No.13491 of 2017

Nabila Rasheed vs Govt. of Punjab etc

S.No. of Date of Order with signature of Judge and that of parties or Order/ order/ counsel where necessary Proceeding proceeding 12.04.2018 Mr. Kabeer Ahmad Gill, Advocate for petitioner. Mr. Raza-ul-Karim Butt, Addl: A.G. with Muhammad Aslam, Deputy DEO, S.E. Lodhran and Nasir Abbas, Deputy DEO, Muzaffargarh.

Raja Naveed Azam, Advocate for respondent No.7 in Writ Petition No.14993 of 2017.

Through this single order, I intend to decide this petition alongwith connected matters bearing Writ Petition Nos. 14993, 15690 and 15691 of 2017 as common question of law and facts is involved in all these petitions.

2.Through this constitutional petition, the petitioner has made the following prayer:

“Under the above submissions, it is therefore, most respectfully prayed that this petition may very kindly be accepted and the impugned final list (Annex-E) to the extent of placement of name of petitioner at Sr. No.17 instead of Sr. No.01 may kindly be declared illegal, against law and facts, be set aside and respondents may kindly be directed to issue appointment letter to the petitioner for the post of

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(ESE) to meet the ends of justice and appointment letter issued in favour of respondent No.6 may kindly be declared, against law and recruitment policy, be set-aside.

It is further prayed that respondent No.3 may also be directed to award marks i.e. 6.62 of M.A. English and thereafter revised the final merit list.”

Whereas in the connected petitions, the petitioners seek setting-aside of the impugned orders passed by respondent No.2 whereby complaints filed by the petitioners against inaction of the respondent/department were dismissed.

3.The grievance of the petitioner is that the petitioner is 1st Divisioner in BA and holds 3rd division in MA. The respondents initially allowed the marks to the petitioner for MA degree which were later on withdrawn and the petitioner was placed lower side on the merit list and could not be appointed. However, if marks of MA are included, the petitioner would be higher on merit list and have a fair chance of being appointed.

4.The relevant clause 5 of the appointment policy provides as under:

“A candidate with Graduation Degree with 2nd Division and master Degree with 3rd Division shall be eligible. Zero marks shall be given in Master.”

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This Court vide judgment dated 06.09.2017 passed in Writ Petition No. 11226 of 2017 had observed as under:

“Now, plain reading of this clause shows that inspite of the fact that the petitioner has done the Master degree in III Division, this clause is not applicable to her as she has got Graduation degree in I-Division and for this reason her marks could not have been deducted under this clause. This clause does not cater with a situation where a candidate possess Graduation Degree in I-division. Therefore, the petitioner was wrongly awarded zero marks for her M.A English.

The awarding of zero marks for the Master Degree under clause 5 ibid by the TPV is against the Recruitment Policy mentioned above. There is no such concept in the policy. This has been admitted by the respondents in the letter issued vide memo No.4967/Admn Chief Executive Officer, District Education Authority, Dera Ghazi Khan, dated 29.07.2017. The respondents on account of mala fide and in wrong exercise of jurisdiction have deprived the petitioner from her due right.”

5.The appeal (ICA No. 356 of 2017) filed by the respondent department against the afore referred judgment was dismissed by this Court vide order dated 13.11.2017 wherein the said order was upheld by holding as under:

“A plain reading of clause 5 of Third Party Validation (TPV) of recruitment of educators reveals that only graduates in 3rd division were to

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be dealt with. It does not cater with the situation where the candidate had procured 1st division in the graduation degree. Undoubtedly, a 2nd divisioner graduate with 3rd division in M.A. was eligible to apply but with zero marks for M.A. This regulation, therefore, is not applicable to respondent as she is 1st division in graduation.”

6.In the present case, the petitioner has not been awarded marks of MA whereas the petitioner had obtained 1st division in graduation degree, therefore, keeping in view the orders passed in ICA No.356 of 2017 and in Writ Petition No.11226 of 2017, the petitioner having graduated in 1st division is found entitled for awarding the marks for MA in 3rd division in view of the condition of the afore referred policy.

7.For what has been discussed above, this petition alongwith the connected petitions is allowed in terms that the action of the respondents in not allowing marks for 3rd Division in M.A. despite the fact that petitioners are 1st Divisioners in BA is declared to be ultra vires the appointment policy and the matter is remanded to respondent No.4 to recalculate the merit of the petitioner keeping in view the afore referred observations made by the Court and reconsider the petitioner’s claim. In case the merit of any of the already appointed person is disturbed,

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the respondents shall take into consideration whether the said candidates can be adjusted at any available seat.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *