Dr. Hazrat Hussain Vs Rector COMSATS University Islamabad and others.

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Judgment Sheet

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JUDICIAL DE,PARTMENT

Writ Petition No.1 7 6- N2022 Dr.Hazrat Hussain... (Petitioner) Versus Rector COMSATS University, Islamabad and others...

(Respondents)

Present: M/S Muhammad Mushtaq Khan and Mujeeb llllah, Advocates for petitioner.

Mr.Muhammad Ali Khan Jadoon Advocate for respondents.

Date of hearing: 01.0 023.

JUDGMENT

MUHAMMAD IJAZ KHAN. J.- Through the instant petition filed under Article 199 of The Constitution of Islamic Republic of Pakistan, 1973, petitioner has prayed as under:

"On acceptance of this petition, the impugned order dated 12.04.2022 of V the respondents may kindly be declared as illegal, unwarranted, against iaw, arbitrary, colorable exercise of power and unconstitutional and may graciously be set aside.

(Jamil) (DB) Hon'ble Mr.Justice Kamran IIayat Miankhel, I{on'ble lVlr.Justice Muhammad I.laz Khan.

Furthermore petitioner may kindly be reinstated in service alongwith all back benefits and cost thoroughly.

Any other relief which this Hon'ble Court deems just and proper may kindly be granted for ends of justice."

2.It is the case of the petitioner that he is holding a Ph.D degree in Biotechnology from university of South Korea and he is also having more than seven years' experience in the field of teaching as well as administration at university level. It is further pleaded that various positions including the posts of Assistant Professor (OG-II) in the department of Biotechnology of the respondents' University at Abbottabad Campus were advertised and the petitioner considering himself to be fully eligible and qualified applied for the same and thereafter he appeared before the q.

t/ scrutiny and shortlisting committee and then before the final selection board and ultimately on the recommendation of the selection board, petitioner was offered the post of Assistant Professor (OG-II) (Jamil) (DB) IIon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

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on 07.04.2022. The petitioner accepted the offer and also signed the terms and conditions by submitting report to the respondents Management on 11 .04.2A22. However, it was to his utter surprise that just after five days of the aforesaid offer letter, respondents issued the impugned letter dated 12.04.2022 whereby the earlier order dated 07.04.2022 was withheld/cancelled, hence, the petitioner having no other alternative remedy has approached to this court for the aforesaid relief.

3.When this case was taken up for hearing, respondents were put to notice and they were also directed to file their para-wise comments which they have accordingly filed.

4.Detail arguments of the learned counsel for the parties were heard and record perused with their able assistance.

5.The record appended by the respondents ^,Iy with their comments would show that as against the five vacant posts of Assistant Professor (OG-II) they have initially recommended the following five candidates:

(Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice ltfuhammad Ijaz Khan.

1.Dr.Muhammad Tahir.

2.Dr.Khadim Shah.

3.Dr.TariqAziz.

4.Dr.Muhammad Wajid Ullah

5.Dr.Imran Hussain.

Whereas the following four candidates were recommended as alternate candidates in order of their merit:

1 Dr.Asim Ali.

2 Dr.Suliman Khan.

J Dr.Abdul Basit.

4 Dr.Hazrat Hussain (petitioner herein) It was admitted by the learned counsel representing the respondents' university that out of the five appointees, three candidates namely Dr.Muhammad Tahir, Dr.Tariq Aziz and Dr.Imran Hussain have joined their posts, whereas two candidates namely Dr.Khadim Shah and Dr.Muhammad Wajid Ullah did not join their posts, therefore, thereafter they issued offer letter to the alternate candidates at Serial No.l namely a

V Dr.Asim Ali and Serial No.2 Dr.Suliman Khan but again Dr.Asim Ali though joined the post but Dr.Suliman Khan did not join the service, (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan.

therefore, in the third round they issued the offer letter to Dr.Abdul Basit but he, too, did not join the service and as the next merit position was of the petitioner but as per the record, the respondents have not offered any appointment to him which has offended his vested rights

6.In view of the above admitted factual position, we understand that respondents have meted the petitioner with highly injustice as when admittedly the above-said factual position is not controverted then respondents were bound to offer the petitioner his appointment when he was next on the waiting list and when admittedly Dr.Abdul Basit did not join the post. By now it is settled law that in case of non-joining of the post, the next on the merit-list is to be considered but this established principle has been violated by the respondents' university and thus we have no other il option but to issue the desired writ in favour of the petitioner and against the respondents. In the case titled 6'Government of Puniab through Secretarv Cooqerative Societies Departrnent. Lahore and (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice MuhammaC Iiaz Khan.

others vs. Asad Abbas" reported as 2022 SCMR 739,the Apex Court has held that when some of the selected candidates did not join service, and such posts remained vacant, it was imperative for the department to consider the remaining candidates (on the waiting list) for appointment against the said posts because these posts could not be kept vacant till the next process of recruitment, if some selected candidates were still available on the waiting list. Similarly, in the case titled "Government of N.W.F.P through Secretary, Education Department, Peshawar and others vs.

Qasim Shah" reported as 2009 SCMR 382, the Apex Court has held that having consider the matter from all angles, 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 r7 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.

(Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

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. In addition to above, the Apex Court while delivering judgment dated 05.10.2010 in Civil Petition No.L697 of 2010 titled "@ v. N.W.F.P (Now K.P.K)

Public Service Peshawar and others"

has slightly modified the dictum laid down in case h .tt' / titled "Musa Yazir v. N.W.F.P Public Service Commission" (1993 SCMR ll24) in which it was laid down that waiting lists are not to be maintained, however, in the Naimatullah's case, the (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan.

Apex Court has observed that a balance is to be struck so that a fair chance is provided to a candidate, who has passed a competitive examination but has failed to be selected on merits and at the same prevent the adverse fall out of maintaining a waiting list for long period. It would be, in our view, just and fair to allow filling up of vacancies created on account of non-joinder of selectee. In the case titled "Dr.Sumera Tabassum vs. F.P.S.C. and others" reported as 2016 SCMR !,25, the Apex Court has also held that the candidate who was on top of the merit list namely Dr.Urooj Aqeel did not report for duty, however, the Health Department delayed the requisition of the next candidate of the waiting list for 10 months.

The candidate u,ho was next on the waiting list was directed to be appointed on the vacant post of Dr.Urooj Aqeel who has neither reported for his duty nor joined his post. In the case titled "SaifuI r7 Haq vs. Government of Khvber Pakhtunkhwa through Secretarv and 4 others" reported as 2020- PLC (C.S.) 276, this court has already held in (Jamil) (DB) Hon'ble Mr.Justice Kamrqn Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan.

Paragraph No.8 of the judgment that fact that the present petitioner was the next available candidate top on waiting list has not been controverted by the respondents in their comments, rather the same is established from the decision of the appellate forum whereby it was recommended that the request of the present petitioner was valid against the said post, but subject to the withdrawal of appointment of the candidate (Shams-u1-Qamar) who has not joined the post. 'fherefore, when the said Shams-ul-Qamar appointment was withdrawn on 18.07.2017 then the present petitioner was eligible for the said post in view of the law laid down by the August Supreme Court of Pakistan and Cre subsequent policy of the Provincial Govemment stated above. Same view was reiterated by the august Supreme Court in the case titled "Government of Pun b throush Secretarv Co_qpera[lye Societies Department. Lahore and -a7 others vs. Asad.-Abbas," reported as 2022 SCMR

739.Similar view was followed by this court in the case titleci tt@ vs. Chancellor

(Jamil) (DB) Hon'ble Mr.,Iuslice Kamran lloyat Miankhel, Hon'ble Mr.Justice Muhammad Iidz Khan.

Gomal Universtiv. D.I.Khan and other" reported as 2014 PLC (C.S.) 526 as well as in the case titled "Nafees Ullah vs. Government pf I(hyber Pakhtunkhwa throush of ElementarY and " reported as 2019 PLC (C.S) 13s4.

7.During the course of arguments, the learned counsel for the respondents laid much stress that when Dr.Abdul Basit did not join the post then they thereafter has advertised the said post and the petitioner, too, has applied for the said post but in the second recruitment process petitioner was not recommended by the selection board, therefore, as long as the findings of the selection board remained in the field, the petitioner could not be considered for appointment, however, we do not agree with this submission of learned counsel for the respondents for the reason that as -0 7 per their stance they have advertised the vacant post in July 2023, however, they themselves have offered the said post to Dr.Abdul Basit in August 2023 then one fails to understand that if that post (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Iiaz Khan.

had already been advertised in July 2023 then how the same could be offered to Dr.Abdul Basit in August 2023 and thus when it remained vacant due to non-joining of Dr.Abdul Basit then petitioner was having every right for his appointment as against the aforesaid vacant post.

8.As far as the objection of leamed counsel for respondents that finding of the selection board in the subsequent recruitment process, is a hurdle in the way of the petitioner is concerned, we may clarify that the petitioner for his desired appointment is contesting before this court from May 2022 and he remained so vigilant that on one hand he is contesting his right before this court due to refusal of the respondents in the earlier recruitment process and on the other, when respondents made an advertisement of a post, he has also applied for the same but was not recommended by the selection board, therefore, it/ his participation in the subsequent rectuitment process rn ould in no way amount to an estoppel on his part and his right of appointment will (jamil) (DB) Hon'ble Mr..Juslice Kamran llayat Miankhel, IIon'ble Mr.Justice L{uhammad Iiaz Khan.

remain alive in the earlier recruitment process especially when this court has also passed an interim relief in his favour to keep one post of Assistant Professor as vacant vide order dated 04.08.2022, therefore, this ground of the learned counsel for respondents, too, is highly misconceived and could not be appreciated.

9.It is also relevant to mention here that though petitioner has challenged the legality and propriety of the order of respondent No.4 dated 12.04.2022, whereby offer letter of appointment of the petitioner dated 07.04.2022 was withheld/ cancelled, however, the learned counsel for the respondents' university submitted that the aforesaid offer letter dated 07.04.2022 was inadvertently issued to him and rightly so as there were five posts and the petitioner was at Serial No.9 of the merit-list, however, four candidates (y namely Dr.Khadim Shah, Dr.Wajid Ullah, Dr.Suliman and Dr.Abdul Basit did not join their posts and thus due to their non-joining of their posts, the petitioner succeeded to relegate to (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhamntad Ijaz Khan.

Serial No.5 of the merit-list and therefore, due to this development, respondents were bound to offer him an appointment letter at the time when Dr.Abdul Basit (the last recommendee) did not join the post.

10.It is also relevant to mention here that by now it is well settled that public functionaries are bound to obey and adhere to the law and the constitution and in case of failure, the incumbent of public office has to bear consequences thereof. In the case titled "Sami Ullah Khan Marwat v. Govt: of Pakistan reported as 2003 SCMR 1140, the Apex Court has observed that the exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey the command of law and the Constitution. The concept of administration of I justice is not confined only to the judicial system rather every person discharging the functions in relation to the rights of people is bound to act fairly, justly and in accordance with law and if a (Jamil) (DB) Hon'ble Mr.Justice Kamran Hayat Miankhel, Hon'ble Mr.Justice Muhammad Ijaz Khan.

person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse his official authority, he should be rnade answerabie to law and should be proceeded against for an appropriate action by his supenors.

11.In view of the above discussions and expositions of law on the subject, we allow this petition by directing the respondents to issue an offer letter to the petitioner of his appointment as against the post of Assistant Professor (OG-II) rvhich has fallen vacant due to the non-joining of Dr.Abdul Basit. Order accordingly.

ANNoUNCED.

(Jamil)

D

t 6,

JU-DGtr

(DB)Hon'ble Mr..luslice Kamran Hayat lVliankhel, Hon'ble Mr.Justice Mtthammad Iiaz Khan'