DISTRICT EDUCATION OFFICER (MEE), BAHAWALNAGAR and others- s vs Mst.

ORDER

' TASSADUQ HUSSAIN JILLANI, J.---This order shall dispose of Civil Appeals Nos. 111-L to 113-L of 2011 as they have nexus as the issue raised is similar.

2. The facts briefly stated are that in Civil Appeal No, 112-L of 2011, the respondent No, 1 applied for the post of Elementary School Educator (ESE) as also for the post of Senior Elementary School Teacher (SESE). After due process and in terms of the merit list prepared, she was declared successful and entitled to appointment against those posts. She opted for the post of SESE.

However, subsequently on an application made by respondent No, 2, the merit list was reviewed and the latter was found to have a better merit list than respondent No,1 and her appointment order therefore, was withdrawn. She filed the constitution petition, which was allowed vide the impugned judgment as the learned High Court was of the view as follows:-- "It is an admitted position that petitioner was selected against two posts upon intial recruitment list one for the post of ESE at Chak No, 126-Murad and second post for SESE Arts in Chak No, 126-Murad, Tehsil Ciiishthan' (sic.). The petitioner was issued appointment letter by the respondents for the post of SESE. She joined the post and continuously worked for the period of one and half year. Later on, on the application of some other appellants the department again scrutinized the list and fresh merit list was prepared in which petitioner was not on the top of merit list. Hence, the appointment letter issued to the petitioner was withdrawn and ultimately appointment letter was issued to one Shafqat Yaqoob who joined the post. It is admitted fact that in wrong calculation of the merit list there is no fault on the part of petitioner if there is any negligence the same is on the part of officials. Moreover, if the department prepared his list in accordance with law and policy the petitioner should not have to face the agony of litigation. Although the petitioner joined the post of SESE the respondents did not offer her for appointment against ESE even after the rectification of merit by the department. The respondents have to issue appointment letter to petitioner first against the post of ESE, and after her refusal the second position holder should be offered but department's officials have not acted so and after withdrawal of petitioner's order for the post of ESE respondents were bound to make offer to petitioner for the post of ESE which he did not joined only due to act and conduct of officials of department. At this stage, as respondent No,5 who joined the post where the petitioner was on top of merit I do not want to disturb him, as there is no fault on his part, it is the departmental officials who are responsible for wrong calculation/preparation of merit list."

3. In Civil Appeals Nos. 111-L and 113-L of 2011, respondent No,1 had applied for the post of ESE and they were selected on account of the merit list. However, subsequently on the application of respondent No, 2 in both the appeals, the merit list was reviewed, as a consequence of which, respondent No, 2 were selected and the appointment orders of the respondent No,1 in both the appeals, were recalled. They also challenged the order of withdrawal by way of constitution petitions and the learned High Court, allowed the same mainly on the ground that the appointments made earlier on, were pursuant to the merit list prepared by the department; that the department was responsible for the lapse and respondent No, 1 could not be made to suffer.

However, it was observed that respondent No, 2 should also not be disturbed. Leave was granted by this Court in all the appeals inter alia to consider as to whether the learned High Court could direct that notwithstanding the revised merit list, respondent No,1 in all these appeals should be accommodated. However, the learned Additional Advocate-General was directed to get in touch with the concerned authorities and examine the desirability of some departmental dispensation, which may satisfy the canons of equity. Learned Law Officer has appeared today and stated on instructions that in Civil Appeal No, 111-L of 2011, respondent No,1 Mst. Fouzia Nazir and in Civil Appeal No, 112-L of 2011, respondent No,1 Mst. Adila Muneer have been appointed and they shall not be disturbed. So far as respondent No,1 in Civil Appeal No, 113-L of 2011 Mst. Shakeela Yasmeen is concerned, he submits on instructions that she would also be given similar treatment. Learned Law Officer added that although the learned High Court travelled beyond its jurisdiction in granting relief to the respondent No, 1 in all these appeals, yet the Government at its own level has decided to accommodate these respondents as it found that there was a requirement of additional seats.

He has also placed on record a judgment of this Court reported in Government of Sindh through Secretary. Education and Literacy Department and others v. Nizakat Ali and others (2011 SCM R 592), wherein this Court notwithstanding the serious jurisdictional issue with the learned High Court, did not intervene.

4. In view of the fair stand taken by appellant Government and learned Law Officer, these appeals have practically become infructuous and they are being disposed of accordingly. Respondent No, 2 in all these appeals shall not be disturbed except through due process of law. Before parting with the order, we may like to observe that ex facie, there was some lapse on the part of some officials which led to the whole issue. This order shall not prevent the competent authority to proceed in this regard as mandated in law.