Hafiza Bushra Gul Vs University of Secience & Technology Bannu

JT'DGMENT SHEET

IN THE PESIIAWAR HIGH COURT,

BANNU BENCH

lJudicial Departmentl

W.P No.451-Bl20l5 Hafiza Bushra Gul Vs University of Science & Technology, Bannu through its Vice Chancellor & others

JT'DGMENT

Date of hearing: 04.10.2022

For Petitioner: IWs Anwar-ul-Haq and Farid Ullah Khan Advocates

For Respondents: Masood Iqbal Khattak Advocate for vate res dents

For Respondents: Mr. Hamed Khan Advocate (for respondent university)

**r*:1.***

SAHIBZADA ASAD J.--- The petitioner through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks the following relief:

"It is, therefore, most humbly prayed that this Hon'ble Court may very graciously be pleased to ensure the principle of merit by clirecting the respondents to appoint the petitioner against her deserved position and may suggest any other remedy deems fit in the circumstances, to meet the

ends ofjustice."

2.The transient facts giving rise to the instant petition are that the University of Science & Technology, Bannu advertised several posts including Lecturer in Physics, through an advertisement, Which was widely circulated in the press on 05.09.2013. The petitioner and all others desiring for the posts applied for the same and were tested by the Nation4l Testing Service on 27.04.2014. The result was declared and the petitioner stood successful by scoring 65 marks; After having been shortlisted, she alongwith others were called for demonstration on 25.07.2014 followed by interview conducted by the Selection Board on29.05.2015.

3.After demonstration and interview, a final merit list was prepared, where the petitioner could not succeed in retaining her position amongst the three, who were to be appointed, as the respondents No.5, 6 & 7 were blessed with higher score to that of the petitioner and as such, they were appointed. The petitioner was shocked to the core and her dissatisfaction, led her to knock at the doors of this Court for the redressal of her grievance.

4.After hearing the leamed counsel for the petitioner, at the initial stage, the respondent university was directed to file it's para-wise comments, which it did.

5.The record speaks loud & clear that the posts were advertised way back in the year 2013 and all desirous candidates, including the petitioner, applied for the same and ultimately, the respondents ,succeeded to be appointed against the posts.

6.The main thrust of the arguments of leamed counsel for the petitioner was; that the respondent university did not take into consideration the rules & regulations and even, the statutes and that the appointments were made in utter disregard of the same;

that the university had no choice to go for appointment by pressing into service its own statutes, that too, when the same were not in existence when the posts were advertised; rhat mala fide floats on. surface when the number of seats were increased from two to three with the sole purpose to accommodate the blue eyed and that when the posts were advertised, there were no rules for marking and evaluation, except the one adopted by the University of Peshawar i.e. The Rules Relating To Evaluation / Marking For Selection Of University

Officers -1999 ('the rules"), so under all circumstances, the respondent university was under the obligation to apply the same.

7.Contrarily, it was argued for the respondent university that the university regulates its affairs strictly in accordance with it's statutes. It was further highlighted that neither the petitioner nor leamed counsel for the petitioner could lay hands on any of the appointment order, where the rules of 1999 were followed for marking and evaluation. To the end of his arguments, the leamed counsel stressed hard that the Selection Board was competent to make recommendations for appointment against the posts and that the petitioner could not point out any illegality or irregularity in the entire process. To the increase in number of seats, the leamed counsel for the respondent / university invited the attention of this Court to the advertisement where it has clearly been mentioned that the university reserves the right to increase or decrease the number of seats at an appropriate stage, if the circumstances so demand.

8.We heard with patience the leamed counsel for the panies and with their valuable assistance, the record was scanned through.

9.The points for determination are that; as to whether the process of selection was transparent or the Selection Board fell a prey to the outside influence; as to whether the petitioner could succeed in placing herself at a respectable position of the merit list and as to whether the appointrnent of the respondents was:not in accordance with the merit, policy, rules and law on the subject; as to what rules the university was supposed to follow - whether the rules adopted by the University of Peshawar l.e. the Rules Relating to Evaluation / Marking For Selection Of University Officers - 1999 or the university had its own rules to manage its affairs. We are to determine as to whether the petitioner surrendered herself to the process in vogue and as to whether by doing so, she waived off her right to resist the same.

10.The relevant record, right frcm the merit list prepared by the National Testing Service to the recommendations made by the Selection Board was revisited, neither we could come across any illegality or irregularity to have either been committed nor the petitioner could succeed in bringing on record any substantial evidence / documents to substantiate her claim. The grievance of the petitioner is not from the role

played by the Selection Board.and even, the petitioner could not point out that any favour was extended to the respondents by the Selection Board, what we understand is nothing, but the anxiety ofthe petitioner that instead of having its own mechanism regarcing marking and evaluation, the Selection Board should have followed the rules of 1999. We deem it essential to know as to whether, in fact, the respondent university had adopted the rules of 1999 for the purpose of marking and evaluation as was done by the Universlity of Peshawar. In order to resolve the mystery, we wanted the assistance of leamed counsel for the petitioner on this particular aspect of the case, but he could not point out any document in that respect and even, no notification regarding the adoption of rules of 1999 was evei published in the official gazette. When the record is silent on this particular aspect of the case ahd when nothing ls available in support of the claim of the petitioner regarding her claim of marking and evaluation in light of the rules of 1999, then this Court is ntlt in a happy mood to hold otherwise, but that the university was competent enough to follow the rules in its possession for the purpose. When record is silent as to what rules were in

vogue by the time and when the petitioner failed to convince us otherwise, then we lurk no doubt in mind that the university adhered to the procedure strictly laid down in its statutes. The submission of the leamed counsel for the petitioner regarding the prospective and retrospective application ofrules doesnot apply. Even, if, for the sake of arguments, it is admitted that at the time when the posts were advertised, the university was having no rules and that when it had no rules, then the rules available must be the determining factor. We are not persuaded, as there is no cavil to the proposition that the competent authority can press into service the law / rules for appointment, which is in vogue at the time of appointment. We are afraid that it is not the date of advertisement, rather the determining factor is the date of appointment and we are, without amb,iguity, holding that the university statutes were fully operational by the time.

When such is the state of affairs, we lurk no doubt in mind that the Selection Board was competent to make marking and evaluation strictly in accordance with the procedure provided for the purpoie. This limb of arguments of leamed counsel for the petitioner could not succeed to convince us in any other manner, but that the

respondent university fully complied with the procedure chalked out for the purpose. The Apex Court in case titled "Mushtaq Ahmod Moral add others Vs The Honourable Lahore Hish Court. Lahore and olhers" 997 1043 held that:

"It is evidenl from the above-quoted extract that by now it is a well

established principle of law that the rules applicable and lhe conditions

required to be specitied are those

which are in force on the date of

appointmenl and nol which were

obtaining earlier i.e. at the time of inviting applications etc. "

11.Similarly, in the case of "Sh. Muhanuud Sadiq vs. Federal Public Service Commission and others' 013 SCMR 264 contention of a candidate was that the calculation of his marks had to be made in accordance with the formula, which was in vogue at the time when he applied for his appoinfrnent, but appointing authority had reviewed the formula subsequently and changed it because of which he was declared runsuccessful. The Apex Court was, however, pleased to hold that:

"Thus in view of the law laid down in lhe above judgment, we ore constrained to hold lhot the appellant has no vesled right to claim that, while making calbulation, formula noted in lhe leave granting order reproduced hereinabovg should be followed instead of the new formula, which was made applicable. Thus for the foregoing reasons, we are of the opinion that the instant appeal has no force, therefore, lhe same is dismissed leaving the porlies lo bear their own costs."

12.Further, in the case of uDr. Alvas eer Tahir vs.

Secretarv M/O Education (Now M/O CADD, Islamabad and olhers" (2014 SCMR 997) the Apex Court has held that:

"For enactmenl of rules or amendment therein is the prerogative of the Government. It can enact and amend the rules occording to the needs and exigencies of service. It is

not individual but institutional interest or uplift which shapes its service structure. Alright, at the time of appointmenl of the respondents, no such rules were enacled or enforced bul it does nol mean that lhe institution or lhe . department having thus started would remain in wilderness. Il may change with a change in atlending circumstances and future prospects. Its right to improve and update ils service structure to keep pace with modern age which is indisputably the age of specialization cannol be restrained or restricted on lhe ground that ot the lime of appoinlment of one or a few civil servdnts, such qualificalion was not a requirement for

promolion. Higher qualification or a more specialized qualification for a posl in a higher scale is a need ofthe hour which has to be taken care of,

The vires or validity of Rules or

amendments therein dttending to

such aspecls, connol, therefore, be

looked askance at.'

13.This is astonishing that the petitioner participated in the process, right from her appearance in the NTS test till her demonstration and interview, irnd that never ever c she resisted the procedure nor she protested, rather she surrendered to the process, which impliedly conveys her full confidence in the entire selection process. This is unfortunate that on one hand, she surendered to the process, but on the other, when she could not succeed to be appointed against the posts, she expressed her dissatisfaction. We are confident to hold that the case of the petitioner is hit by the principle of approbation and reprobation, to be more specific, the maxim 'quod approbo non reprobo' fully applies to the case of the petitioner and as such, her willful surrender disentitles her of the claim she is claiming. Here, it would not be out of place to make reference to a judgment in the case of Mehmood and er Vs tion o

Pakistan and otherc" 0013 PLC (C.S-) il4 in which it was held that:

"The pelitioners however hud themselves, appeared in, the written

test and also in the inlerview, so after appearing in the interview, they hud

no right to challenge the same before

the Court. By their own conduct they

were eslopped, to chgllenge the

process in which they had themselves

participated."

14.While concluding his case, the leamed counsel for petitioner wanted the indulgence of this Court on the pretext that being gold medalist, she was treated harshly when she appeared in the interview and that keeping the academic background of the respondents, she was deserving higher score than them. We are afraid that the leamed counsel either ignored or forgot that the powers of this Court are limited to substitute its opinion to the one held by the panel. There is no cavil to the proposition that the marks, if awarded by a panel, which interviewed a candidate, cannot be assessed by the Court in its constitutional jurisdiction, as that is the subjective i' analysis of the interviewer, which, r by no stretch of imagination, can be interfered with by a Court of law,

what to say of a Court sitting in its limited jurisdiction.

The submission of the learned counsel for petitioner on this particular aspect of the case is lacking substance and we are not in a happy mood to take it into consideration, more particularly to determine the fate of all concemed.

Needless to mention that it was only the respondent university to determine the compqtency of all who applied for the posts, as it was the university to keep in view the conditions, requirements, importance of the post and suitability and competency ofa person to be selected & appointed. The Court should not step into the shoes of the respondent university, that too,. to determine the suitability and competency of a person for a particular post. In this respect, reliance could be placed on the judgment rendered by the Apex Court in case titled uMuh mad Ashra i Vs Federation o Pakistan and olhers" 011 ^sCMR '157) where it was held that:

"Essentially an inlemiew t's a

subjective test and it is not possible

for a Court of law to substitute its own opinionfor that ofthe Inlerview

Board in order to give the pelitioner

relief. l(hal lranspired at the interview and what persuaded one member of the Board to award him only 50 marks is something which a Court of law llr certainly not equipped to probe and to that ertent tte canno, substitute out ontn opinion with that of lhe Interview Board."

15.Similarly, in another case reported as 2.W! 960 Suoreme Court uDr. Mir Alam Jan Vs Dr, Muhammad Shahzad and others", the Apex Court was pleased to hold that:

"All the Selection Committees had correctly determined lhe merit of the candidates for the said post. In our view, the impugned judgment of the High Court l's not sustainable. Needless to observe that in exercise of constitutional jurisdiction, the High Court h,as not gxpected to perform lhe functions ofa Selection Aulhority in semice matters so as to

substitute its opinion for that of a competent aulhori$."

16.Likewise, in another judgment, reported as /US. PLC C.$ 393 'Miss Guln az Baloch Vs Registrar, Balochistan Hish Cour,t, Ouetta and otherc" , it was held that:

"She was interviewed by the Selection Committee, consisting upon four Judges of this Court and was given cerlain marks, but she could not secure enough marks to be selected. The aulhority of the Selection Committee cannot he challenged and questioned hecause of the fact lhal the Selection Committee is lhe best judge at lhe given time to form an opinion, take decision after judging the abilities and capabilities of the candidates and the Court shall not interfere and lhrust their opinion subsequently changing lhe verdict of the Selection Commiltee except when it has been

made other than the capability of the

petitioner or smacks of malaJide."

17.In cumulative effect ofwhathas been stated above, this Court holds that the process ofLappointment, right from the beginning till the end, was fair, transparent and without any mala /ide floating on surface. The claim of the petitioner is answered in negative. The instant writ petition being bereft of merit is hereby dismissed.

Announced

Ghafoor Zaman/Steno

JUDGE

JUI) E

(D.B) Eon'ble Mi Justice Sohlbzoda Asatullah Hon'ble ML tusrice Shahld Xhan

7v ow.,