SHAHID HABIB vs GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Elementary and Secondary Education Department Peshawar and 3 others

SYED MUHAMMAD ATTIQUE SHAH, J.---- Petitioner seeks the constitutional jurisdiction of this Court praying that: -- "on acceptance of instant writ petition, this Honourable Court may graciously be pleased to direct the Respondents to issue Posting/appointment order to the Petitioner in accordance with merit vide which the petitioner being meritorious and entitled for recruitment on the post of PST (Primary School Teacher)"

2. Brief but essential facts of the instan t case are that respondent No.2 advertised different posts of teachers including the post of PST in different schools of District Mansehra. Pursuant to the said advertisement, the petitioner along with others applied again st the "Posts" and petitioner qualified NTS examination by securing 88.88 marks and stood at S.No.5 of the merit list. Three that candidates were appointed against the post of PST, therefore, the petitioner could not be appointed on the said post. The candidates appearing on top three positions of the merit list were Zia-ur-Rehman, Muhammad Amjad and Muhammad Shoaib. Muhammad Amjad appearing on Serial No.2 of the merit list did not appear for interview as such Zia-ur-Rehman, Muhammad Shoaib as well as the candidate appearing on serial No. 4 of the merit list i.e. Haq Nawaz Shakir were appointed vide order dated 23.06.2017, while the petitioner was kept on waiting list. Later , the documents of appointee Muhammad Shoaib were found to be fake, therefore, vide order dated 06.11.2017, the subsequent order of his appointment was withdrawn. Hence, the petitioner appearing next on the merit list, is entitled to be appointed against the said post, however , when the petitioner approached the respondents, they refused to issue him appointment order .

3. On being put on notice, respondents filed their comments whereby they have controverted the assertions of the petitioner .

4. Arguments heard and record perused.

5. The case of the petitioner is that as a result of withdrawal of appointment order of Muhammad Shoaib, his seat became vacant, therefore, respondent No.2 should have appointed the candidate, who had qualified the examination and was senior on the waiting list. Hence, petitioner was entitled to be appointed for the aforesaid post being at 1st position in waiting list. Respondent No.2 filed his comments, wherein he stated that post of PST which became vacant on account of withdrawal of appointment order of Muhammad Shoaib, could not be offered to the candidates on the waiting list in view of the guideline policy of the provincial Government (No.SOR.VI (E&AD)1- 10/2010 dated 19.3.2013).

6. The said policy has been made pursua nt to the judgment of august Supreme Court of Pakistan passed in Civil Petition No.1697 of 2010 titled "Naimatullah and another v. N. W. F. P (Now K. P. K) Public Service Commission, Peshawar and others " dated 05.10.2010. In the said judgment a slight distinction has been drawn from ratio of the judgment of august Supreme Court of Pakistan in case titled Musa Wasir v. N. W. F. P Public Service Commission (1993 SCMR 1124). The law laid down in Musa Wazir's case was that in future the Public Service Commission shall re-advertise vacancies created as a result of non-joinder of the selectees as well as of subsequent requisition sent by the Provincial Government for the appointment of the same category of post, which shall be treated as separate selection. Hence, in view of the law laid down in the Musa Wazir's case the earlier practice of maintaining waiting list of the candidates for their appointment, in case any of the selectee did not join the post or if during the said process his appointment is withdrawn or the Provincial Government sent requisition for appointment against the same category of post, was declared against the law. However , in Naimatullah case (supra), the august Supreme Court of Pakistan has slightly modified the law laid down in Musa Wazir case in the following words:- "We are also mindful of the fact that this Court in Musa Wazir's case (ibid) had directed the Public Service Commission not to maintain waiting list for 6 months. Thus a line is to be drawn beyond which the Public Service Commission shall not fill up vacancies created as a result of non joinder of a selectee. 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 upto the commencement of the training of the appointees of the same selection, provided that the process does not in any way af fect the rights of any other selectee or appointee. "

7. The respondents could not bring on record that the selectees had already undergone the process of training prior to withdrawal of appointment order of Muhammad Shoaib, therefore, they were required to have appointed the petitioner on the post which fell vacant on account of withdrawal of appointment order of Muhammad Shoaib.

8. In the light of above, the petition in hand is allowed and respondents are directed to issue appointment order of the petitioner within 15 days of receipt of this judgment.