Muhammad Riaz Vs Govt. of KPK etc

I

Judsment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

W.P.No. l5-N2017.

JUD

Date of hearing 25.04.2018

P etitioner (Mohammad Riaz Mr. Khurram Ghias Khan Swati) by Advocate.

Respondents (Govt. of KPK etc) Mr. Yasir Zahoor Abbasi, by' Assistant A.G.

Respondent No. j by Mn Abdul Saboor Khan, Advocate.

SYEDARSHAD ,L'- Petitioner Muhammad Riaz Swati seeks the constitutional jurisdiction ofthis Court praying that:-

"It is, therefore, very humbly prayed that this Honoruable Court may graciously be pleased to declare that respondent No. I or its fficial was having no lawful authority to award two additional marks to respondent r' No. 3 on the basis of a degreewhich as per rules and regulation ofrespondent No. I was minimum prescribed qualification, thus, the same two additional marks will be non-est in the merit position of respondent No.i."

Chronology of the facts are as following:-

04.06.2009: Respondents issued advertisement No. 05 of 2009, inter-alia inviting applications for 26 posts of Executive District Officer/ Additional Director BPS-19. The required qualification for the post was as following:-

uo TION: (i) Ph.D in Education and Seven years teaching/administrative experience in Govt: recognized education institutions/ffice ; or

(it)M.Phil in Education and Nine years teaching/administrative experience in Govt: recognized educational ins titutions Office; or (iiil M,4/MSc in 2"d Div with M.Ed/M.A (Education) / M.A (Education Planning & Management) or equivalent qualification with at least tvvelve years teaching/ adminis trative experience in Govt: recognized educational ins titutions/ office. Ase Limit: 35 to 50 years. Pav Scale: BPS-19. Elisibilitv: Both Sexes. Allocation: Merit.

Note : Experience wherever prescribed shall be counted after the minimum qualifications for the post(s), if not specifically provided otherwis e against the advertised post(s). "

18.06.2010 The Public Service Commrssion sent recommendations to the govemment of the candidates who qualified the test and interview.

According to this list, Muhammad Riaz, the petitioner was placed at Serial No.09 whereas Gohar Ali, respondent No. 3 was placed at serial No. 12 of the said list. It is also provided in the said recommendation that the inter-se seniority of the recommendees would be sent later.

23.06.2010: Respondent Gohar Ali filed an application to the Chairman, Public Service Commission for awarding him additional marks for his additional qualification i.e. Masters in Management Studies from the University of Essex U.K.

26.07.2010: Deputy Secretary-Il wrote a letter to Gohar Ali wherein it was stated that the contention of allowing additional marks against additional qualification of M.A Management Studies was considerable, however, r'* since the result has already been declared as such, at the belated stage, the request cannot be entertained.

29.07.2010: Respondent Gohar Ali Khan wrote a letter to the Chairman Public Service Commission with the same request.

30.09.2010: Once again, the respondent Gohar Ali filed a representation before the Chairman Public Service Commission wherein the same request for additional marks was reiterated.

24.06.2011: 02 Marks were added in the marking sheet/quantification sheet of respondent Gohar Ali Khan.

30.06.2011: It was communicated to respondent No. 3 Gohar Ali Khan that his request for additional 02 marks for his additional qualification of M.A Management Studies was approved.

12.02.2012: Respondent Gohar Ali Khan requested the Director Recruitment, Khyber Pakhtunkhwa Public Service Commission, for issuance of revised merit list for the post of Executive District Officers, BPS-

08.05.2012: The worthy Chief Secretary, Govemment of Khyber Pakhtunkhwa had issued a final seniority list of officers in BPS-19, i.e. Executive District Off,rcers/ Additional Directors, wherein respondent Gohar Ali Khan was placed at Serial No. 08 whereas the present petitioner was placed at Serial No. l0 of the said seniority list.

ll/.P No. 362 of 2013 tilled Qasim Khan Executive District Ollicer Vs. Chief Seuetary:- The aforesaid seniority List of Executive District Officers as on 20.02.2012, remained subject matter of the writ petition.

W.P No. 2049 of 2014 titled Ghulam Qasim Khan Vs. Government.

Once again the said seniority list remained subject matter of the writ petition.

c 31.01.2014: Two incumbents Basheer Hussain /,' Shah and Muhammad Rafique, who were at Serial No.l and 2 of the seniority list, were promoted to BPS-20 on regular basis.

28.01.2016: The petitioner filed an application to the Chairman Public Service Commission requesting for release of inter-se seniority list of the 27 Executive District Officers BPS- I 9.

22.02.2016: The said list was provided to the petitioner by the Public Service Commission.

19.05.2016: The petitioner once again filed an application to provide the detailed list with their scoring position.

28.07.2016: The record relating to the enhancement of two additional marks was asked by the petitioner.

31.08.2016: Said request was repeated.

27.09.2016: Again the said request was repeated.

26.10.2016: Certain record was provided to the petitioner.

J In essence, the petitioner has two fold grievances, firstly that the Public Service Commission t had recommended the Provincial Govemment, the 4 merit list of the Executive District Officers against which appointments were issued and thereafter the

Public Service Commission had no mandate to recalculate/award additional marks to the respondent No. 3 and secondly that against the decree of M.A Management Studies, respondent No. 3 could not have been granted additional marks as essentially, the same is basic qualification for the post and under relevant rules, the additional marks for basic/minimum required qualification could not be granted to the respondent No.3.

4.Against that, the defense of the respondents is that in the application filed by the respondent No. 3 against the post of Executive District Offrcer, he had disclosed his degree of M.A Management Studies, however, in the quantification chart, inadvertently no marks were given to the respondent for his M.A Management Studies. They have further asserted that indeed the petitioner was granted additional marks for his LLB degree, therefore, respondent No. 3 was also entitled for additional marks 4u' which was rightly granted by the competent authority.

5 Arguments of the parties were heard at length and the record was perused with their valuable assistance.

6 Respondent No. 3 while applying against the post, in his application had introduced himself to have obtained the following qualihcation:- Certificate/ School / Board / Year of Marks Division Subject. Diploma/ college/ University Passing obtained and degree / institution as and total position in Postgrad uate whole Marks. Board/ degree or in University.

pans If I st, 2'd or 3'd M,A Accounting, University 2007 70 % with ln L Management in organiztion Management Finance and of Essex (as Distinction 2) perspective on management Studies Management U.K whole) 3) production and performance Deptt: 4) psychology

5)Research methodology and management

6)Business accountability

7)Dissertation M.Ed I.F.R Peshawar 1993 4701700 ld l) Advance educational University of University (As psychology. Peshawar Peshawar whole) 2) Educational measurement.

3)Physical education.

4)Guidance & counseling.

5)Planning 6) H. Education.

7)Science.

M.Sc G.P.G.T -do- 1990 640n200 Zd Inorganic chemistry (Chemistry) College Saidu (as Sharif Swat. whole) B.Ed Govt: College University 1988 660/1 100 I't l) Philosophy & History of ofEducation of the -do- Education.

Lahore Punjab 2) Educational Psychology. Lahore 3) Sch. a) Islamiyat 5) Pak Studies 6) ...7) bioloev.

B.Sc Govt: Superior Peshawar 1987 260t550 2nd' l) Chemistry 2) Statistics 3) Science University -do- 4) Islamiat 5) Pak Studies. College Peshawar Peshawar F.Sc F.C Degree F.BISE 1984 47y1100 -do- Pre-medical College for Islamabad -do- Boys Peshawar Cantt:

SSC/Maric GHS Torkha BISE t98l 505/850 -do- Science. Nowshehra Peshawar -do-

The quantification chart ofboth the candidates reflects 4/ their position as under:-

Petitioner Respondent No. 3

Qualification: Qualification:

B.Sc 2601550 B.A(3121600) 286/5s0 M.Sc (Chemistrv) 587/1 100 M.A (Pol: Science) 512ll100

(640/1200) (46sl1000) M.Ed (4701700) 671l1000 (640/1200) 1518D650: M.Ed 560/1000

Adl:/Higher Qual: Nil. 15.37=15+2+6+30=53 Distinction/Hifz: Nil. Adl:/Higher Qual: L.L.B in 1984 (on zt.oa.zott, 2 marks for Distinction/Hifz: Nil. addilionot qualiJicalion were granted to rcspondent No, 3 whereby his scote w t enhanced lrom 52 to 54.

7 The careful examination of the record reveals that there is no specific order of the Public Service Commission whereby 02 additional marks were granted to respondent No. 3 with application of mind. It also transpires from the record that the said 02 marks were added after the recommendations were issued by the Public Service Commission to the Provincial Govemment and prima-facie it appears that the Public Service Commission at the relevant time had no jurisdiction to add 02 additional marks to the respondent No. 3 which too when a similar request was earlier declined by them. However, under Part-Vl (Regulation No. 29 of the Public Service Regulations, 2003) the person possessing additional relevant qualification is entitled to the award of further 02 marks 4,' and in this regard the petitioner was also grxfted 02 additional marks for his LLB degree. Whether M.A

l0

Management Studies is an additional qualification for the post of Executive District Offrcer, has neither been provided in the advertisement nor in the relevant regulations. However, certain instances which are relevant to the present controversy of additional relevant subject, which can be considered for award of additional marks has been provided in the Regulations, for instance:-

Subject of advertised post Additional relevant subjects.

Arabic Islamic Culture/Islamiyat.

Arabic-cum-Islamiyat Islamic Culture/ Islamic History Biology Botany or Zoology, provided the candidate holds Master's Degee in both of them.

Botany ZoologylBiology.

Chemistry Applied Chemistry / Agriculture Chemistry/ Chemical Engineering/ Physical Chemistry.

Education Psychology

Islamiyat Arabic/ Islamic History/ Islamic Culture.

8.It is one of the assertion of the petitioner that M.A Management studies is the one of the minimum qualification for the post, therefore under Regulations, the said qualification cannot be 4 considered for the purpose of additional marks.

However, the leamed counsel could not refer to any

rule in support of his above mentioned assertions. The only rule which bars the consideration of additional qualification for additional marks is regulation 29 (k) which reads as under:-

"29. (k) The marks reservedfor additional relevant qualification shall be awarded at the rate of one markfor each additional relevant Diploma or Degree. Similarly, the marks reserved for higher relevant qualifi.cation, shall be awarded at the rate of one markfor each higher relevant Diploma or Degree. However, for Doctorate of Philosophy (Ph D) and equivalent qualifi cations, three marlcs shall be atuarded. If the additional qualification is only a repetition of the original qmlifications, no additional marlrs will be given.

Explanalion A candidate having M.A English .fro* Peshawar University will not be given additional marl<s for MA English fro* Punjab University. "

The aforesaid explanation clearly envisages that only that qualification which cannot be considered for additional marks is the same qualification from another university. In the case of respondent, his minimum 4; qualification which was considered for the post of Executive District Officer, was M.Ed and MSc and

despite the fact that he had provided his qualification of M.A management Studies from the University of Essex, U.K no marks were awarded to him in the quantification chart. Therefore, despite the fact that prima-facie it appears that respondents Public Service Commission had awarded the additional 02 marks to respondent No.3, at the time when it was functus officio, however, it also appears from the record that respondent Public Service Commission had granted to respondent No. 3, what he was legally entitled.

Therefore, when the respondent has not caused any injustice to the parties, rather has cured/rectified its manifest irregularity and in such circumstances, we can legitimately refuse to issue any writ for setting aside the impugned conduct of respondent. In this regard, reliance can be placed on "Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner (PLD 1973 SC 236)", whereby it was held that:-

" An order in the nature of a writ

4' of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to involre this discretionary power of a Court, it must be shown that the order sought to be set aside

had occasioned some injustice to the parties. if it does not work arry injustice to anY PartY, rather it cures a manifest illegalitY, then the extraordinary jurisdiction ought not to be allowed to be invoked."

The said view was re-afftrmed by the apex Court in"Messrs Best Buy Computers, Lahore Vs. Ditector, Intelligence & Investigalion (Customs & Excise), Lahore and others (2009 SCMR 19)".

9 Even otherwise the additional marks were allowed to respondent No. 3 on 30.06.2011 on the basis of which a final seniority list of all the Executive District Officers was issued on 08.05.2012. On the basis of the said seniority list, in the year 2014 two incumbents were promoted to BPS-20 and the said seniority list also remained subject of litigation before this Court. Therefore, assertion ofthe petitioner that he had no knowledge ofthe seniority list, does not appear to be correct and thus the present petition is also hit by the principle of laches.

10.No doubt, delay in filing a constitutional petition per se is no ground for dismissal of the / petitioner, if the petitioner can establish before the Court that the impugned action of the respondent/

t4

public functionary is based on malafide and against law. However, in the present case, the impugned action of the respondent is not based on malafide, rather was passed to grant a person what was his due. In this view of the matter, we are not inclined to interfere in the matter and thus dismiss the present petition.

Announ ced.

Dt.25.04.2018.

JU E

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JUDGE

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