Imran Yousaf Vs Govt of KP, etc

Judgment Sheet

PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.812-A/2025

Imran Yousaf... (Petitioner)

versus

Govt. of KP, etc...(Respondents)

Present: Mr. Junaid Anwar Khan, Advocate for petitioner.

Mr. Basharat Khan, Additional Advocate General for respondents alongwith Muhammad Toseef ADEO Primary DEO (M) Mansehra.

Date of hearing: 08.04.2026.

JUDGMENT

SYED MUDASSER AMEER, J.- Through this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks a declaration that the refusal of the respondents to consider and appoint him against the post of Primary School Teacher (PST) for Union Council Hangari, Tehsil Balakot, District Mansehra, despite the availability of a vacancy, is illegal, arbitrary and

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

unconstitutional, and further seeks a direction to the respondents to issue his appointment order forthwith.

2.Briefly stated, certain posts of Primary School Teacher (PST) were advertised, including thirty vacant posts for Village Council Hangari, Tehsil Balakot, District Mansehra. After completion of the test and interview process, a merit list was prepared wherein the petitioner secured Serial No.36. Initially, twenty four candidates were appointed. Thereafter, five further appointments were made from the same merit list, including the candidate placed at Serial No.35.

3.During the verification process, it transpired that one of the appointees, namely Liaqat Masood, had produced a forged degree. His appointment was therefore withdrawn vide order dated 24.06.2025. The petitioner, being next in line on the merit list, submitted applications to the concerned authorities requesting appointment against the vacancy so created. His request was not acted upon. Hence the present petition.

4.The respondents have filed their para-wise comments.

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

5.Learned counsel for the parties were heard and the record has been perused.

6.The case of the petitioner is that once the appointment of Liaqat Masood was withdrawn on account of forged documents, the vacancy reverted to the merit list and the petitioner, being next in line, was entitled to appointment.

7.The respondents, on the other hand, contend that the waiting list remains valid only for ninety days, and that since a considerable period has elapsed after the recruitment process, the petitioner cannot now claim appointment, particularly when the posts of PST have already been re-advertised.

8.The argument of the respondents overlooks the very object of maintaining waiting lists for qualifying examinations. The purpose of such lists is to ensure that if a selected candidate does not join service or is subsequently found ineligible, the candidate next in order of merit may be considered for appointment without initiating a fresh recruitment process.

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

9.This policy itself flows from the judgment of the Hon’ble Supreme Court of Pakistan in Civil Petition No.1697 of 2010 titled “Naimatullah v. N.W.F.P Public Service Commission, Peshawar”, decided on 05.10.2010. In the said judgment, the apex Court slightly modified the earlier law laid down in Musa Wazir v.

N.W.F.P Public Service Commission (1993 SCMR

10.In Musa Wazir’s case, the practice of maintaining waiting lists was disapproved and it was held that vacancies arising due to non-joinder of selectees should ordinarily be re-advertised. However, in Naimatullah’s case, the Supreme Court recognised that a limited waiting list may still be maintained so that vacancies arising from non-joinder of selectees may be filled without unnecessary delay, provided that such exercise is confined within a reasonable period. The Court observed:

“A balance is to be struck so that a fair chance is provided to a candidate who has passed the competitive examination but has failed to be selected on merit and at the same time prevent the adverse fallout of

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

maintaining a waiting list for a long period.”

11.In consequence of the aforesaid judgment, clause (j) was incorporated in the Recruitment Policy for the Provincial Services (vide No. SOR-VI(E&AD)1- 10/2010/Vol-VII dated 10th December 2014), now embodied in ESTACODE 2024, whereby the waiting list is to remain valid for three months (90 days) from the date of issuance of the offer of appointment.

12.The principle laid down in Naimatullah’s case therefore requires a twofold balance. First, a fair opportunity must be available to the candidate next in merit who has successfully passed the examination.

Second, the adverse consequences of maintaining a waiting list for an indefinite period must be avoided.

13.In the present case, the petitioner stands at Serial No.36, while the candidate at Serial No.35 was appointed vide order dated 23.09.2023. To that extent, the first limb of the balance clearly favours the petitioner.

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

14.As regards the second limb, it is an admitted position that the appointment of Liaqat Masood was withdrawn on 24.06.2025 after verification revealed that his degree was forged. The delay in such verification cannot be attributed to the petitioner. The record further shows that soon after the withdrawal of the said appointment, the petitioner submitted an application bearing the receiving stamp of respondent No.3 dated 08.07.2025, requesting appointment against the vacancy.

15.It is true that candidates placed on a waiting list are otherwise fully qualified. Their non-appointment occurs not because of any deficiency on their part, but only because a candidate placed above them in the merit list has secured slightly higher marks.

16.Consequently, candidates next in line ordinarily acquire a legitimate expectation that in case a selected candidate does not join service or is found ineligible, they will be considered for appointment against the post.

This expectation flows from the merit list prepared by the department itself. In Naimatullah’s case, and through the subsequent amendment in the recruitment

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

policy, this expectation has been recognised, though limited to a period of ninety days. The candidates thus enter the recruitment process with the clear understanding that their chance of being considered in such circumstances will subsist only during that period.

17.The present case, however, stands on a different and much stronger footing. It does not arise from a situation where a duly appointed candidate later left service or was removed for some subsequent reason.

Rather, it is a case where the candidate placed above the petitioner had secured appointment on the basis of forged documents. In truth, therefore, he was never entitled to appointment in the first place.

18.Once it is established that the candidate placed above the petitioner had obtained appointment through forged credentials, the inevitable consequence is that the petitioner was, in fact, the person rightfully entitled to the appointment at the relevant time. His exclusion from appointment occurred only because the forgery remained undetected during the selection process.

19.To now deny appointment to the petitioner would amount to penalizing him twice. First, he was

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

deprived of appointment because of the illegal act of the delinquent candidate. Second, he would again be deprived because the authorities failed to detect the forgery in time. Such a result cannot be sustained under the law, much less under the Constitution.

20.Article 4 of the Constitution guarantees the inalienable right of every person to be treated in accordance with law and to enjoy the protection of law.

Denying consideration to the petitioner in the present circumstances would offend that constitutional guarantee.

21.The august Supreme Court of Pakistan in NWFP through Secretary Education Department and others v.

Qasim Shah (2009 SCMR 382) has held that leaving qualified candidates unappointed despite the availability of vacancies does not conform to the principles of fairness governing public recruitment.

22.Had the department completed its scrutiny and verification process within the prescribed time, the petitioner would have been considered for appointment well within the period of validity of the waiting list. The

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

authorities cannot take advantage of their own delay to defeat a legitimate claim.

23.In a similar situation, this Court in Shahid Habib v. Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Education Department, Peshawar (2019 PLC (C.S.) 1426) held that where the appointment of a selected candidate is withdrawn, the candidate next in the merit list ought to be appointed against the resultant vacancy.

24.The limitation of ninety days for the operation of waiting lists presupposes that the verification and scrutiny of selected candidates will be completed within that period. Otherwise, the waiting list itself would lose its very purpose.

25.In the circumstances of the present case, the petitioner cannot be deprived of his lawful claim merely on the ground of expiry of the prescribed period of ninety days, particularly when the delay occurred due to the time taken by the department itself in verifying the credentials of the wrongly selected candidate.

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.

26.For these reasons, the petition is allowed. The respondents are directed to issue the appointment order to the petitioner against the vacant post of PST for Union Council Hangari, Tehsil Balakot, District Mansehra within fifteen (15) days from the date of receipt of this judgment.

ANNOUNCED.

(Jamil)

JUDGE

JUDGE

(DB)Hon’ble Mr. Justice Syed Mudasser Ameer, Hon’ble Mr. Justice Aurangzeb.