Razi Rizwan vs VC. Gomal University

2014 P L C (C.S.) 318

[Peshawar High Court]

Before Rooh-ul-Amin Khan, J

RAZI RIZWAN

Versus

VICE-CHANCELLOR, GOMAL UNIVERSITY D.I. KHAN and 3 others

Civil Miscellaneous No.16 of 2012 and Writ Petition No.861 of 2011, decided on 24th January, Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil Service---Recruitment---Appointment to the post of Health Technician at University---Merit list---Petitioner in response to an advertisement, applied for the post of Health Technician and after the test, his name was placed second on the merit list, whereafter the person who was first on the merit list could not join the new assignment--- Contention of the petitioner was that after the person who was first on the merit list could not join the post, the petitioner became entitled to appointment---Validity---When the first selected candidate could not join the service, such post still remained vacant and it was imperative for the University to have considered the petitioner against the same, as he was second on the merit list-- -Petitioner was fully qualified for the post and was called for the test and interview wherein he participated and was declared successful, and therefore for all intents and purposes he was entitled to be offered the post of Health Technician---Petitioner's vested right was illegally refused to him---High Court directed the University to consider the petitioner for appointment against the vacant post---Constitutional petition was allowed, in circumstances.

Government of N.-W.F.P. through Secretary Education Department Peshawar and others v. Qasim Shah 2009 SCMR 382 rel.

Sh. Iftikhar-ul-Haq for Petitioner.

Rashidullah Khan Kundi for Respondents.

Date of hearing: 24th January, 2013.

JUDGMENT

ROOH-UL-AMIN KHAN, J.--- Razi Rizwan, petitioner herein, through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has prayed for issuance of directions to the respondents/functionaries of the Gomal University D.I.Khan, to appoint him as a Health Technician in view of the test/interview held on 20-9-2011.

2.Facts of the case as narrated by the petitioner in the petition are that in pursuance to the advertisement published in daily Mashriq dated 15-11-2009, the Gomal University D.I.Khan invited applications for recruitment to various posts including the post of Health Technician. The petitioner having the requisite qualifications for the post of Health Technician, applied for the same and after going through the screening test was called for written test in which he appeared on 20-9-2011 vide call letter No.99. When declared successful in the written test, he was called for interview held on 22-9-2011 wherein he obtained 14.5 marks out of the total 20 marks and thus stood second in the merit list. The topper amongst the lot was one Munawar Gul who was already in service of the same nature in the office of Executive District Officer Health Bannu. However, due to some domestic problems, he could not join the new assignment in the Gomal University D.I.Khan and thus his relinquishment Order bearing No.2785-89/PF(E-5) dated 24-9- 2001 was cancelled/withdrawn by the Executive District Officer Bannu vide Order No.2809-13 dated 27-9-2011. As such, the petitioner became first in the merit list for appointment on the post of Health Technician for which he repeatedly approached the respondents, but in vain, hence this writ petition along with an application for an interim relief restraining the respondents from filling up the post in question till the decision of the main petition.

3.Comments were called from respondents Nos.1 and 2 who filed the same raising some legal and factual objections but admitted the fact that after test and interview the name of petitioner was placed at S.No.2 of the merit list by the internal Selection Committee. This case was fixed for hearing on 22-1-2013, but on the request of Mr.Abdul Hameed Khan Kundi, representative of the Gomal University to make available their counsel, it was adjourned for 23- 1-2013. On the date fixed, the above named person again sought adjournment on the same ground and thus the case was adjourned for today. Learned counsel for the parties were heard and relevant record perused.

4.Having considered the matter from all angles, we are firm in our view that when the first selected candidate could not join the services of the respondents on the post of Health Technician, such post still remained vacant and it was imperative for the respondent's University to have considered the petitioner against the same being next in the merit list. Admittedly, the petitioner had stood second in the merit list in pursuance of the test/interview held for the post of Health Technician on 20-9-2011 and 22-9-2011 respectively and was thus placed in second position in the merit list. The record also depicts that the topper, namely, Munawar Gul, had refused to joint the post of Health Technician in the respondents' University due to his domestic affairs as is evident from the cancellation/withdrawal order of the Executive District Officer Health Bannu bearing No.2809-13 dated 27-9-2011. The record further discloses that the petitioner being fully qualified for the post in question was called for test and interview wherein he participated and declared successful. Thus for all intents and purposes, he was entitled to had

been offered the post of Health Technician by the respondents after the refusal of the topper, namely, Munawar Gul, but despite his repeated requests, such vested right was illegally refused to him.

5.For the reasons stated above, and in view of the dictum handed down by the honourable apex Court in the case titled as "Government of N.-W.F.P. through Secretary Education Department Peshawar and others v. Qasim Shah, reported as 2009 SCMR 382 we admit this writ petition for regular hearing, allow the same and in consequence direct respondents Nos.1 and 2 to consider the petitioner for appointment against the vacant post of Health Technician.

KMZ/189/P Petition allowed.