Mst.Najia Tehseen vs Govt of NWFP etc

2010 P L C (C.S.) 581

[Peshawar High Court]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan Miankhel, J

Mst. NAJIA TEHSEEN

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Services and General Administration Department, Peshawar and 7 others

Writ Petition No.392 of 2008, decided on 23rd February, 2010.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Appointment---Claim of the petitioner was that authorities in total disregard of the law, rules and regulations had recommended names of respondents for recruitment while one respondent belonged to Zone-I, but her name had been recommended from the quota of Zone-II wherefrom the petitioner hailed---Petitioner and said respondent secured equal marks and said respondent was recommended for appointment as petitioner was younger to her by 14 days (in the light of Regln.33(3) of Service Regulations)---Respondent again had edge over the petitioner as she was married prior to joining the government service and because of her ma r r i a g e , d o m i c i l e of her husband was considered for her recommendation---Husband of respondent being resident of Zone-II, her name was recommended from the said Zone-II---Recommendation of the authorities being in accordance with relevant Regulations, no unlawful act or exercise of jurisdiction by authorities existed which could be interfered with in constitutional jurisdiction of High Court.

Ibadur Rehman Qureshi for Petitioner.

Barrister Waqar Ali Kan, Dy.A.-G. for Respondents.

Waseemuddin Khattak.

Date of hearing: 23rd February, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.--- Through the instant Writ Petition, the petitioner herein has asked for issuance of appropriate writ against the appointment/recommendations of respondents Nos.5 to 8 by the N.-W.F.P. Public Service Commission, the respondents Nos.1 to 4, and having a better merit from the above said recommendees, she be considered for appointment as Female Lecturer Law.

2.Learned counsel for the petitioner submitted that respondents No.1 to 4 in total disregard of the law and the rules have recommended the names of respondents Nos.5 to 8. Respondent No.5 belonged to Zone-I and her name has been recommended from the quota of Zone-II wherefrom the petitioner hails. He further submitted that the respondents have misinterpreted the Regulations regarding merit, domicile Certificate and instructions for recruitment through Public Service Commission and submitted that the recommendation of respondent No.5 is in violation of the above said regulations.

3.As on the other hand, learned A.A.-G. for respondents Nos.1 to 4 and learned counsel for respondent No.5 submitted that the respondents Nos.1 to 4 while recommending the name of respondent No.5 have acted within the parameters of law and as such no discrimination was made against the petitioner. Further submitted that under Regulation 33(3), respondent No.5 had preference on the petitioner being elder in age and being married prior to joining government service, domicile of her husband was considered for her recommendation as per Regulation 20(e).

4.We have heard learned counsel for the parties and have gone through the record of the case.

5.Amongst others, th4 petitioner along with respondents Nos.5 to 8 had applied for recruitment as per advertisement of respondent No.2 and after completion of the whole exercise of recruitment, the petitioner and respondent No.5 secured equal marks i.e. 69 each in the merit list. The petitioner hails from Zone-II, whereas, the respondent No.5 was the resident of Khyber Agency Zone-I but she was recommended for appointment as Lecturer in Zone-II against the domicile of her husband as per regulations governing the recruitment criteria.

6.Before discussing the merits of the case, it would be appropriate to reproduce Regulation-33 (3):

(3)When two or more than two candidates have secured equal marks in aggregate the candidate who has secured higher marks in the interview shall be marked senior. In case the

marks in aggregate and also the marks in the interview are the same, the candidate who is older in age shall be placed senior to the one who is younger. In case all the above mentioned factors are the same, marks obtained in the final examination of the prescribed qualification for the post shall be the deciding factor.

Regulation-20(e)

(a)................................................................................

(b)................................................................................

(c)................................................................................

(d)................................................................................

(e)A female candidate if married before entry into government service shall acquire the domicile of her husband. If otherwise she will possess her own domicile.

(f).................................................................................

Instructions

11.Domicile of Female Candidates

(a)In the case of married female candidates their husbands' domicile will be required if they were married before entry into Government Service.

(b)In case they married after entry into Government Service or still unmarried their own domicile will be required.

7.Record of the case file reveals that in spite of the fact that the petitioner and respondent No.5 secured equal marks but the name of respondent No.5 was recommended as petitioner was younger than respondent No.5 by 14 days in the light of Regulation 33(3). Similarly, the respondent No.5 again had the edge on the petitioner as she was married prior to joining the

government service and because of her marriage, domicile of her husband was considered for her recommendation. As her husband was the resident of Zone-II, so her name was recommended from the said Zone wherefrom the petitioner hailed, as clause (e) of regulation-20 provides and the same is further explained by instruction No.11 of the recruitment policy of Public Service Commission appearing on pages 7 and 8 of the application form.

8.While scrutinizing the above situation, we are unable to find any unlawful act or exercise of jurisdiction by the authority which otherwise would have invited the indulgence of this Court in the exercise of its constitutional jurisdiction in the aid of an aggrieved person. Hence, this petition being meritless is dismissed as such.

H.B.T./55/P Petition dismissed.