Muhammad Aqib Irshad Vs Govt

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Writ Petition No. 205-A/2023

JUDGMENT

Date of hearing...................10.10.2023.................................

Petitioner (Muhammad Aqib Irshad) By Mr. Muhammad Arshad Khan Tanoli, Advocate.

Respondents (Govt: of Khyber Pakhtunkhwa and others) By Syed Wajahat Hussain Shah, Asstt: A.G.

KAMRAN HAYAT MIANKHEL, J.- Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek the following relief:- “It is, therefore, humbly prayed that on acceptance of instant writ petition, respondents may graciously be directed to appoint the petitioner as SST Biochemistry against 02 vacant posts. Any other relief which this Honourable Court deems fit and proper in the circumstances of the case may also be granted to the petitioner. ”

2.Brief facts of the instant writ petition are that the respondents advertised different posts including the post of SST Biochemistry BPS-16 in District Abbottabad required to be filled through

Educational Testing and Evaluation Agency (ETEA). The present petitioner applied for the post of SST Biochemistry BPS-16 and he appeared in test for the said post and qualified the same by securing 139.48. Thereafter the petitioner was placed at Serial No.4 of the merit list. The candidates at S.Nos.1 to 3 of the merit list were appointed vide notification dated 20.06.2022 but the candidate at S.No.2 namely Mazhar Hussain did not join the post and submitted affidavit in this regard on 03.08.2022.

The petitioner being next meritorious candidate is eligible for appointment on the post of SST Biochemistry but in vain, hence, this constitutional petition.

3.Respondents were put on notice to file their comments, which they have filed.

4.Arguments heard and record perused.

5.Perusal of record reveals that petitioner in response to advertisement in newspaper regarding appointment against various posts, applied for the post of SST Biochemistry BPS-16 in District Abbottabad. The petitioner alongwith other candidates appeared in the test, he secured 139.48 marks and was placed at merit list at S.No.4. The candidate, who stood at S.No.2

namely Mazhar Hussain of the merit list was appointed on the post of SST Biochemistry BPS- 16 vide notification dated 20.06.2022 but he did not join the same, hence, in such eventuality, the petitioner substituted his right and became next candidate on the merit list.

6.The petitioner being the next eligible candidate as per waiting list became eligible to be offered the post and the same cannot be kept waiting and the department is under the obligation to consider the next eligible candidate for appointment against the post. The hectic drill of subsequent requisitions in ordinary course to re- advertise the vacancy would on one hand frustrate the procedure adopted and on the other, would deprive the successful candidate, in favour of whom a vested right has been accrued due to his non-appointment. In case titled Government of N.-W.F.P through Secretary, Education Department, Peshawar and others v. Qasim Shah 2009 SCMR 382, the honourable apex court observed that:---

"We are of the view that when some of the selected candidates do not join the service, such posts remain vacant and it was imperative for the department to have considered the remaining candidates for appointment against said posts. Such posts cannot be kept vacant till the next process of recruitment, if

some of the selected candidates were still available on the waiting list. In this view of the matter i.e. four posts were not filled in, the remaining four persons were entitled to be considered for appointment. The failure of the department to appoint the respondent and others in the earlier process was not in accordance with the fair practice of recruitment. It is not denied that respondent was one of the candidates who was selected during the earlier recruitment process whereby twenty persons qualified the test and interview but only sixteen persons were appointed and the remaining selected candidates, including the respondent, were ignored despite the availability of seats."

Further reliance is placed on the judgment of Honourable Supreme Court of Pakistan titled Government of Punjab through Secretary Cooperation Department, Lahore and others Versus Asad Abbas (2022 SCMR 739).

7.The respondents have admitted the position of the petitioner in the merit list and forwarded the case of petitioner being next meritorious through letter dated 03.10.2022 but the competent authority (respondent No.2) rejected the appointment on the only pretext that waiting list has been expired. The plea of the respondents that waiting list was for three months and has thus expired is of no help to the respondents as it was imperative duty of the respondents to have send the name of petitioner to the appointing authority for his appointment for

such post cannot be kept vacant till the next process of recruitment. The petitioner cannot be punished for the laxity of the respondents. Had they sent the name of petitioner in time, when the appointed candidate did not join the service, the petitioner should not have knocked the door of this court for redressal of his grievance. The purpose of waiting list is that if one or more appointed candidates do not join then the meritorious one on the waiting list should be appointed but if respondents behave in such a lackluster, apathetic and torpid manner then the purpose of maintaining waiting list will be an excessive in futility.

8.For the foretasted reasons, we, therefore, admit the instant petition and allow with direction to respondents to appoint the petitioners on the posts of SST Biochemistry BSP-16 at District Abbottabad forthwith.

Announced.

JUDGE

JUDGE

Hon’ble Mr. Justice Shakeel Ahmad Hon’ble Mr. Justice Kamran Hayat Miankhel Aftab PS*/