Israr Mehmood etc Vs The Govt. of KP through CS

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JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Department) W.P. No. 206-A12022

Israr Mehmood & others.

(Petitioner/s)

VS

The Governmenl of Khyber Pakhtunkhwa through Chief Secretary, Khyber Pakhtunkhwa, Peshawar.

(Respondents)

Present Mr. Mir Zaman Safi, Advocate, for the petitioner.

Mr. Wajahat Hussain Shah, AAG, for the State.

Date of hearing: 21.09.2023

JUDGMBNT

MUHAMMAD IJAZ KHAN. J.- Through the instant writ petition, the petitioners have prayed as under is, therefore, most humbly prayed that on acceptance of this writ petition the inaction of the respondents by not conducting interview for the successful candidates may be declared as illegal, unlawful, unconstitutional & inffictive upon the rights of petitioners. That the respondents may please be directed to conduct interview for the petitioners and as such be issued the appointment letters after success in the interview. Any other remedy which this Honorable Court deems fit that may also be awqrded infavour of the petitioner".

Tahir Saleem (D.8.) Hott'ble Mr. Juslice Kamran llayat Miukhel Hon'ble Mn Justice Muhammul Ijaz Khan

2.Precisely the facts of the case are that respondent No. 4 has made an advertisement in daily newspaper "Aaj" inviting applications to fill up various posts of Wildlife Watcher (BPS-07) and petitioners considering themselves, being eligible in terms of qualification and age limits applied for the same. It is further pleaded that thereafter the petitioners were subjected to screening/written test as well as to physical test and on the basis of the same a merit list was also prepared where the present petitioners are at the top, however, the grievance of the petitioners is the respondents are not calling them for the interview and as such they have challenged their this inaction to be declared as illegal, unlawful and thus ineffective upon their rights and that the respondent be directed to conduct the interview and process of appointment be completed.

3.When this case was taken up for hearing the respondents were asked to file their para wise

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comments which they have accordingly submitted'

4.Arguments of learned counsel for

petitioner and learned AAG were heard in considerable detail and the record perused with their able assistance.

Tahir Saleem (D.8.) Hon'ble Mr, Justice Kamrun Hayat Miankhel Hon'ble Mr. Justice Muhammad ljaz Khan

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5.It is an admitted fact on both ends that the advertisement was made by the respondents to fill up the five posts of Wildlife Watchers (BPS-07) and to which 93 candidates have applied and out of them, 78 candidates appeared in screening/written test in which only seven candidates i.e. the present petitioners have passed the same. It is also an admitted fact that after passing of the screening/written test petitioners were also subjected to physical endurance test which test was also qualified by all of them and in this regard complete merit list along with all the documents were forwarded by the testing agency to the respondents' department but thereafter the respondents' department has sit over the said merit list as they have neither called any qualified candidate for the interview nor the process of appointment has been taken to the logical conclusion for a considerable time, therefore, the petitioners have approached to this court for the aforesaid relief. As against this the only stance of respondents is that the test was not conducted by Khyber Pakhtunkhwa Educational Testing and Evaluation Agency (ETEA) though under the policy of provincial govemment, the same should have been conducted by the said agencY.

Tahir Saleem (D.8.) Hon'ble Mn Justice Kamran Hayat Miankhel Hon'ble Mr. Justice Muhammad ljaz Khan

6.In view of the above, we understand that a proper advertisement was made in the newspaper in which many desirous candidates applied and they were subjected to screening/written as well physical test, thereafter, the testing agency has sent the merit list to the respondent department where the petitioners are shown at the top, then in such state of affairs the plea of the respondents' department that the said screening lwritten/physical test was not conducted by the ETEA appears to be a lame excuse. It is part of the record that in the very advertisement the respondents have published that the test has to be conducted by the Examiner Testing and Evaluation Service Private Limited which was subsequently held and conducted by it through an open, fair and transparent manner as there are no allegations that there was any irregularity(ies) in the process of screening/written as well as physical test.

7.It may also be noted that when once the 0 respondents made a public notice which amounts to a promise with public at large and when many candidates applied for the same and out of them petitioners have been successful by qualiffing the screening/written test as well as the physical test then a Tahir Saleem (D.8.) Hon'ble Mn Justice Kamran Hayat Miankhel Hon'ble Mn Justice Muhammad ljaz Khan

legitimate expectancy arises in their favour and as such the same could not be denied to the petitioners by the respondent for any such arbitrary and uncalled for manner. It may also be noted that in the recent past the Hon'ble Apex Court has enlarged and widened the scope of legitimate expectancy and held that when once a process is initiated and candidates are subjected to test and interview then in such state of affairs such public functionaries could not revert the process and betray the promise made to the public at large.In case of "District Education Officer (Femalel, Chsrsadda und others vs. Sonia Begum and others" reported as 2023 SCMR 2tTwherein the Hon'ble Apex Court has held that one more crucial aspect cannot be lost sight of that all the respondents were allowed to compete in the aptitude tests for appointment on ad hoc/contract or permanent basis as per advertisement, they qualified the test, some of them secured top positions and collectively all of them were declared eligible but they o were dropped from the merit list. If the department had any doubt with regard to the address as mentioned in the domiciles and CNIC, then why due diligence was not done at the time of scrutiny of application forms or at the time of shortlisting the candidates which was an Tahir Saleem (D.8.) Hon'ble Mr. lustice Kamran Hayat Miankhel Hon'ble Ml Justice Muhammad liaz Khan

appropriate stage to vet all the credentials and antecedents of each candidate and, in case of any objection, the candidate could be confronted and asked to remove the objection before joining the recruitment process. Thus, the conduct of the department is not above board. Nothing was said regarding any vetting of documents made before allowing the candidates to appear in the aptitude test and despite qualiffing the test on the basis of documents submitted by them and securing marks on merits, they were denied the job opportunity at the eleventh hour which is also against the doctrine of legitimate expectation. According to the judgment in the case of (Izma Manzoor and others v. Chan Khushal Khan attak

Universitv, Karak and others (2022 SCMR 690, the apex court held while exploring and surveying the doctrine of legitimate expectation that this doctrine connotes that a person may have a reasonable expectation of being treated in a certain way by administrative authorities owing to some uniform ,l\ practice or an explicit promise made by the concerned authority. In fact, a legitimate expectation ascends in consequence of a promise, assurance, practice or policy made, adopted or announced by or on behalf of Tahir Suleem (D'8.) Hon'ble Ml Justice Kamran Hayal Mfunkhel Hon'ble Mr, Justice Muhammad ljaz Khan

government or a public authority. When such a legitimate expectation is obliterated, it affords locus standi to challenge the administrative action and even in the absence of a substantive right, a legitimate expectation may allow an individual to seek judicial review of a wrongdoing and in deciding whether the expectation was legitimate or not, the courts may consider that the decision of public authority has breached a legitimate expectation and if its proved then the court may annul the decision and direct the concerned authority/person to live up to the legitimate expectation. This doctrine is basically applied as a tool to watch over the actions of administrative authorities and in essence imposes obligations on all public authorities to act fair and square in all matters encompassing legitimate expectation. As per Halsbury's Laws of England, Volume 1(1), 4th Edition, paragraph 81, at pages l5l-152, it is prescribed that "A person may have a legitimate o expectation of being treated in certain way by an administrative authority even though he has no legal right in private law to receive such treatment' The expectation may arise from a representation or promise made by the authority including an implied Tahir Saleem (D.8.) Hon'ble Mr. Justice Kamrun Hayat Miankhel Hon'ble Mr. Justice Muhammad ljaz Khan

representation or from consistent past practice. "In the case of R. v. Secretarv of St' of Transoort Exporte Greater London Council (1985) 3 ALL ER 300, it is propounded that "Legitimate, or reasonable, expectation may arise from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue. The expectation may be based on some statement or undertaking by or on behalf of the public authority which has the duty of taking decision.". Similarly, in case of "Munawor Hassan vs Chief Secretarv, Government of Balochistan and 3 others" reported as 2017 PLC G.9 81 wherein it has been held that process of test and interview was fair and transparent and merit list did not suffer from any illegality, impropriety and invalidity while recommendations were based on merit and did not suffer from political inclination, motivation and ,rt consideration and the recommendation by the validly constituted Recruitment Committee deserved weight and regard. Fresh test and interview would cause financial loss to national exchequer and the candidates who had been recommended for appointment were justified to expect for the fruit of their labour. The Tahir Saleem (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr, Juslice Muhammad Iiaz Khan

undisputed rnerit list had created a vested right which required to siven due weieht and and the ln

discretion must be exercised carefully- cautiously.

fairly and justly.

8.In view of the above discussion, this write petition is allowed and respondents are directed to call the petitioners for interview and, thereafter, complete the process of appointment against the advertised posts in accordance with law and merits.

Announced 2t.09.2023

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JUDGE

Tahir Saleem (D.8.) Hon'ble Mr. Justice Kamran Hayat Miankhel Hon'ble Mr, Justice Muhammad ljaz Khan