Ahmad Yar vs Govt. of KPK etc

2012 P L C (C.S.) 693 [Peshawar High Court]

Before Miftah-ud-Din Khan and Waqar Ahmad Seth, JJ

AHMED YAR Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Khyber Pakhtunkhwa and 5 others

Writ Petition No.1665 of 2011, decided on 25th January, 2012.

Educational and Training Institution Ordinance (III of 1971)---

---S. 20---Fazal-e-Haq College, Mardan (Terms and Conditions of Service) Regulation, 2010--- Constitution of Pakistan Art. 199---Constitutional petition--- Non-statutory establishment--- College (respondent) had advertised a post for a master and petitioner considering himself eligible for the same, applied for the post and was called for an interview before the Selection Committee, where despite scoring highest marks, he was not appointed to the post---Petitioner approached Education Department, which formed an inquiry committee---Inquiry committee directed the College administration to appoint the petitioner against the post but nothing was done in that regard---Petitioner had previously filed a Constitutional petition concerning the same cause of action, which was dismissed as being non-maintainable with the finding that the College was not a statutory body---Contention of petitioner that there were changed circumstances in which present Constitutional petition was filed and another Constitutional petition filed by a different petitioner against the College was entertained and allowed and as such present petition was maintainable---Validity---Constitutional petition filed by the petitioner previously had been held to be non-maintainable and against that order a review petition was still pending in the High Court---Fresh constitutional petition could not be filed when petition on the same cause of action had been held to be non-maintainable and review against it was pending--- Constitutional petition filed by another petitioner against the College, did not discuss the maintainability of the petition nor it was pointed out therein that the College was a non-statutory establishment---Whether the notification issued by Provincial Government under S.20 Educational and Training Institution Ordinance, 1971, Fazal-e-Haq College, Mardan (Terms and Conditions of Service) Regulation, 2010, was a statutory or non-statutory notification was not clear because neither the notification mentioned that same was published in the official gazette nor there was any approval of the Board of Directors of the College, in that respect, which was a pre-requisite for the statutory status---Constitutional petition was non-maintainable and accordingly was dismissed.

Ghulam Mohyuddin Malik for Petitioner.

Obaid Razaq, A.A.-G. for Respondents Nos.1 and 2.

Amjad Ali for Respondents Nos.3 to 6.

Date of hearing: 23rd January, 2012.

JUDGMENT

WAQAR AHMAD SETH, J.--- Petitioner is aggrieved of impugned decision reflected in the 32nd meeting of the Board of Governor regarding re-advertisement of the post and seeks his appointment against the said post on the strength of letter dated 7-3-2011, through this writ petition.

2.Precise facts of the writ petition are that respondents Nos.3 to 6 advertised a post of Master in Pakistan Studies or History with the qualification of M.A. Pakistan Studies/History with Geography as a subject in B.A., B.Sc. and petitioner considering himself eligible and competent for the said post applied for the same, he was short listed and was called for interview before the College Selection Committee, where he scored highest position by obtaining 128 marks and was finally selected but was not appointed despite appointing other candidates against the other advertised post. Petitioner approached respondent No.5 and inquired about the withholding of his appointment, he was informed that one Professor Mrs. Naheed Shah, who has reached the age of

superannuation, has been given extension against the post by the Board of Governor.

3.According to the petitioner, he approached competent authority and subsequently the Education Department probe into the matter and found that the petitioner is a deserving case for the advertised lecturer Master post, subsequently an inquiry committee was constituted who directed the College Administration to appoint the petitioner against the subject post but till today nothing has been done.

4.Learned counsel for respondents Nos.1 to 6 submitted comments, in terms that petitioner is not duly qualified as he secured second division in Master and is not having the subject of Geography in B.A./B.Sc, and as such he was not qualified for the said post. Moreover, it was objected that the present writ petition is not maintainable because petitioner filed Writ Petition No.1817 of 2010 which was held as non-maintainable on the ground/plea that the respondents establishment is not a statutory body, vide order dated 1-2-2011.

5.Learned counsel for the petitioner was reminded the said position but it was stated, firstly, that there are changed circumstances in which the fresh writ petition is maintainable and secondly, that a Writ Petition No.537 of 2007 titled Bakht Zaman v. Principal Fazal-e-Haq College was entertained and allowed vide judgment dated 6-4-2010 and as such the writ petition against the same institution is maintainable, it was argued.

6.Arguments heard and record perused.

7.Without going into the merits of the case, it is on record that the petitioner filed a Writ Petition No.1817 of 2010 which was held non-maintainable on 1-2-2011, on the same cause of action and against that order a review petition is still pending in this Court. (Pages-43 to 46 of the writ petition referred). In the presence of said review petition and decision dated 1-2-2011 can a fresh writ petition be issued, is a moot point in the instant writ petition.

8.We are afraid, that in the present circumstances, a fresh writ cannot be issued because firstly, it was held that on the same cause of action a writ was declared not maintainable and the review is pending, secondly, the judgment in W.P.No.537 of 2007 dated 6-4-2010 is concerned, in that writ petition nowhere the maintainability of a writ petition against the respondents i.e. Fazal-e- Haq College was discussed nor it was pointed out that the Fazal-e-Haq College is a non-statutory establishment.

9.Lastly, even the learned counsel for the petitioner is not sure/certain that the notification July, 2010 issued by KPK Government under section 20 of Educational and Training Institution Ordinance, 1971, "Fazal-e-Haq College, Mardan (Terms and Conditions of Service) Regulation, 2010 is a statutory or non-statutory notification because neither in the notification it is mentioned that the same is published in the official gazette nor there is any approval of the Board, in this respect, which are pre-requisite for the statutory status.

10.Resultantly, while holding that the writ petition is not maintainable at this stage, without commenting on the merits of the case, in the interest of petitioner, the instant writ petition is dismissed as non maintainable, with no order as to costs.

M.W.A./A-25/P Constitutional petition dismissed.