Muhammad Salman Vs Government of Khyber Pakhtunkhwa through Chief Secretary and others

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

WP No.732-Bl20l6

Muhammad Salman

Y.

Government of Khyber Pakhtunkhwa through Chief Secretary and others

JUDGMENT

Date of hearing: 05.10.2023

For petitioner(s): Mr. Masood Iqbal Khattak Advocate For respondents(s): Mr. Umer O m Khan. A.A.G.

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Dr. Khurshid lqbal, J.-

1.The genesis of this litigation is traceable as far back as the year 2010. The petitioner Mr. Muhammad Salam Khan and Mr. Muhammad Ibrahim Khan private respondent # 6, amongst others, participated in the recruitment process for ad hoc lecturers in Chemistry in Government Colleges across the province. They both belong to the erstwhile FATA which constitutes Zone-I for the purpose of recruitment. They both stood successful at the conclusion of the process for the recruitment. The respondent # 6 was offered appointment. The petitioner was refused appointment. He appealed to the Director of Higher Education (respondent # 5), asserting that, as per the policy, 01 mark has to be deducted from the total score of a candidate who was found to have improved his marks at the intermediate level. He admits having improved his marks in his

intermediate. But also states that the respondent # 6, too, had done so. The petitioner obtained total 59.4 and the respondent # 6, scored 58.53 marks. The case of the petitioner is that 0l mark was not deducted erroneously from the respondent # 6 which resulted in his deprivation by way of refusal of appointment to him.

2.During hearing of the petitioner's earlier writ petition (#246-812010), this Court was informed that his appeal was referred to a certain ad hoc lecturers' committee (Committee). The Court disposed of that petition on 2lll0l20l4, directing that his appeal be decided by u speaking order within 0l month. After about 06 months, his appeal was dismissed on 2010512015. He, then, filed the instant writ petition, praying for declaring the dismissal of his appeal as illegal and against the law and, consequent thereto, his appointment and regtLarization as lecturer with all back benefits in the best interest of substantial justice.

R 3. Amongst the respondents, the Chief Secretary, the Higher Education's Secretary, and the Director (respondents # 1, 3and 5) submitted their joint comments.

4.Argument heard. Record perused.

5.In their joint comments, the respondents simply stated that: firstly, the petitioner approached the officials concerned with unexplained delay, and secondly, the petitioner is lower on merit, so he was placed at serial # 4, and the private respondent # 6 at serial # 2, of the merit list. They remained silent on the Committee's favourable report reproduced by this court in its judgment dated

a 2lll0l20l4 rendered in the earlier writ petition # 246-B filed in 2010.

6.The record reflects that while considering the appeal, a member of the aforesaid Committee put the following comments which the chairperson forwarded to the respondent # 5, vide a letter bearing # 1796, dated

0710U2011.

The complaint of Mr. Muhammad Salman is valid. The respondent Mr. Muhammad Ibrahim Khan had improved his marks at the intermediate level. As per policy one mark was required to be deducted from his total score which was not deducted erroneously. His actual score is 57.53 and not 58.53. Hence, after correction, his position on merit tist will move down from 2"d to 6'h position while the complainant Mr. Salman will move up from 4'h to 3'd position.

7.An assiduous perusal of the ensued correspondence amongst the respondents would show that the comment of the member of the Committee was approvingly referred and discussed. The respondent # 3 opined that the petitioner was deprived of his appointment on the basis of his merit position. He, however, observed that the respondent # 6 was recommended by the Khyber Pakhtunkhwa (KP) Public Service Commission, pursuant whereof he has relinquished the charge of his ad hoc lectureship and that the position was vacant. The Law Department, on having been approached, expressed the view that pursuant to the KP Ad hoc Lecturers (Regularization of Services) Act, 2014, the services of all ad hoc lecturers from 0410912013 up to 3010612014 were regularized. It further advised that

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as the petitioner was not appointed by the afore-referred cut-off dates, therefore, he cannot be employed and regularized at this stage. The advice of the Law Department thus outplayed the favourable view of the respondent # 5.

8.As we have observed above, a member of the Committee returned a favourable report which was objected to by none in the colrespondence referred to above. The respondents have demonstrably ignored: firstly, the view on the record that 01 mark was erroneously not deducted from the total score of the respondent according to the policy. Secondly, the view of the respondent # 5 that the fault didn't lie with the petitioner when he stood elbowed out in the process of recruitment simply owing to a human effor. It needs no emphasis that to err is human! But, then, correction of an error as and when and by whosoever pinpointed is the bounden duty of those who are sitting at the helm of affairs. In the case in hand, it was obligatory on the respondent # 5, in the first instance, to correct the error which it has endorsed in its favourable comment referred to above. However, when in ultimate analysis, the error didn't stand corrected by the respondents from the executive limb, on solicitation through the instant constitutional petition, it becomes the duty of this court to indulge in the matter to do justice without further loss of time. And, again, it needs no emphasis to say that justice must be done even if heaven may fall; if it has not been done at one point of time, it doesn't mean it shall never be done; and above all, no hurdle whatsoever, the

2014 regularization law in the case in hand, for instance, shall not be considered to pervert the course ofjustice.

9.It hardly needs the authority of any judicial pronouncement that higher courts have jurisdiction to carry out judicial review of appointments to public office of high responsibility. For the sake of a more nuanced approach to the issue at hand, reference may be made to certain case law. ln a 2015 case, the Supreme Court held that in case of an illegality in the process of recruitment, the Supreme Court (constitution: article 184) and the High Court (constitution: article 199) have ample powers of judicial review (Ghulam Rasool v. Government of Pakistan through Secretary, Establishment Diviston, Islamabad and others, PLD 2015 Supreme Court 6). In Syed Mubashir Raza Jaffri, the Supreme Court accentuated integral link between good governance and a strong and honest bureaucracy (Syed Mubashir Raza Jaffri and others v. Employees Old Ag" Benefits Institutions (EOBI) through President of Board, Board of Trustees and others,2014 SCMR 949 [Supreme Court of Pakistan]. The nexus between good govemance and human rights is universally acknowledged. The UN's Office of High Commissioner for Human Rights (OHCHR) offers the following basic information in this regard:

Good governance and human rights are mutually reinforcing. Human rights standards and principles provide a set of values to guide the work of governments and other political and social actors. They also provide a set of performance standards against which these actors can be held

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accountable. Moreover, human rights principles inform the content of good governance efforts: they may inform the development of legislative frameworks, policies, programmes, budgetary allocations and other measures.

On the other hand, without good governance' human rights cannot be respected and protected in a sustainable manner. The implementation of human rights relies on a conducive and enabling environment. This includes appropriate legal frameworks and institutions as well as political, managerial and administrative processes responsible for responding to the rights and needs of the population (https://www.ohchr.org/en/good- governance/about-good-governance, accessed

10.The OHCHR adds that amongst the key areas in which the link between the two could be orgarized, relevant to the issue in the case in hand, are public service delivery and the rule of law. The former concerns with improved capacity of the State's institutions to fulfil its responsibility to deliver public goods. The latter relates to exercise of power strictly according to law and rules, in a just, transparent and accountable manner.

11.As a corollary to the above discussion, we allow the instant petition and keeping in view the particular nature of this petition, direct the respondents to appoint the petitioner and regularize his service from the date of his first appointment and pay him all his back benefits, including his seniority. We further direct that this be done without disturbing the service of the respondent # 6, who has already been rendering service. The reason is obvious. The process, as is clear from the background,

initiated in the year 2010 and kept lingered on under the red tape in the executive bureaucracy, but also emerged as a typical example of laws proverbial delay in two rounds of litigation before this Court. We feel no hesitation to say that by subscribing to a technicality used by the executive to deprive the petitioner, we would be failing in our obligation to protect the petitioner's fundamental rights to be treated according to law and employment, in particular, and the right to life, in general, which in broader perspective means a standard of living he dreamt for himself and his family.

12.A copy of this judgment be promptly dispatched to the respondents to ensure swift and meticulous compliance.

Announced

(Ghafoor Zaman) t"f :-

JUDGE

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(D.B)

Hon'ble Mr. Justice Fazal Subhan Hon'ble Mr. Justice Dr. Khurshid Iqbal