HAJI AHMAD Versus PUNJAB PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN
This judgment shall dispose of Writ Petitions Nos.9580/91 and 10351/91, which arise under similar circumstances and involve same questions of law.
2. Through an advertisement appearing in the Press, respondent No.1 on the requisition made by respondent No.2 invited applications for selection to the posts of 22 Civil Judges through a competitive examination to be held by it. The petitioners in both these writ petitions participated in the examination and were declared successful.
3. Out of 22 vacancies, one was reserved for disabled persons while the remaining 21 seats were distributed as under: ‑‑
"On all Punjab basis on merits 4 seats.
Reserved for Zone‑I comprising districts of Lahore, Gujaranwala, Multan and districts of Faisalabad, Toba Tek Singh, Sargodha, Khushab and Rawalpindi. 12 Seats.
Zone‑II comprising Divisions of Bahawalpur, D.G. Khan, and districts of Attock, Jhelum, Chakwal, Jhang, Bhakkar and Mianwali. 5.
Against 22 vacancies, the Punjab Public Service Commission recommended 19 candidates for selection, as no suitable candidate was available against the vacancy for disabled persons and for 2 out of 5 seats reserved for Zone‑II.
4. Both these petitioners have now com to this Court by filing these constitutional petitions, praying that the respondents be directed to fill in the vacant seats allocated to Zone‑II on all Punjab basis, and as in any case, the zonal allocation was not correctly worked out, the respondents be directed to re allocate the seats to the zones in accordance with law.
5. Ch. Mushtaq Ahmad Khan, Advocate, has contended that the formula adopted by the respondents for zonal allocation is not in accordance with the policy of the Government, according to which 20% vacant seats were to be allocated to the merit quota and remaining 80% were to be divided between Zones I and II in accordance with their population as a consideration of which 69.66% seats should have been allocated to Zone‑I and 30.34 per cent to Zone‑II. According to the learned counsel, if this formula had been followed, 5 vacancies should have gone to merits, 12 to Zone, and 4 to Zone‑II.
Another grievance raised by the petitioners is that out of the 5 vacancies for Zone‑II, only 3 candidates were available, whose names were recommended and 2 seats still remain unfulfilled and these vacancies should be filled in on all Punjab basis. The same arguments have been reiterated by Mr. M.A. Aziz, appearing for Muhammad Saleem petitioner.
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6. Mr. Maqbool Elahi Malik, learned Advocate‑General, Punjab, has, on the other hand, defended the action of the respondents and has argued that the allocation of seats was in accordance with the policy and that there is no requirement that the unfilled seats reserved for one Zone should be allocated to the candidates from other Zones.
7. From the respective contentions of the parties, two questions which emerge for determination are, whether zonal allocation made by the Punjab Public Service Commission is correct and secondly, whether the vacant seats, against which no candidate is available from Zone‑II should be filled on all Punjab basis.
8. After hearing the learned counsel for the parties and perusing the available record, the answer to both these questions has to be in the affirmative. As regards the first aspect, ‑it is specifically provided in the Memorandum No.SOR‑III‑10‑2/84 dated 11‑6‑1991, that the basis of allocation shall be: ‑‑
(a) 20% of vancancies shall be allocated to merit quota, and
(b) remaining 80% shall be allocated to Zone‑I and Zone‑II in accordance with the ratio of their population.
Para2 of the same memorandum, which appears to be of great relevance may be reproduced. It reads as under: ‑‑
"Considering the ratio of population of both the zones, i.e. 69.66% of Zone‑I and 30.34% of Zone‑II, a block of 10 vacancies shall be rotated as under:‑‑
On all Punjab basis. 1
Zone‑II 1
Zone‑I 3
On all Punjab basis 1
Zone‑II 1
Zone‑I 3
Total: 10
There is no dispute that in the present case, requisition was made by the Punjab Public Service Commission for appointment of 22 Civil Judges, out of which one vacancy was reserved for disabled persons. With regard to remaining
21 seats, the allocation, according to the formula prescribed in the memorandum referred to above, would be as under: ‑‑
On all Punjab basis 5 seats
Zone‑II 4
Zone‑I 12
Unfortunately, the Punjab Public Service Commission has worked out the allocation as 4 seats on all Punjab basis, 5 seats for Zone‑II, and 12 seats for Zone‑I, which appears to be against the policy of the Government itself as reflected in the aforesaid memorandum. There was no occasion to take away one seat reserved for selection on merits on all Punjab basis and allocate it to Zone‑II.
9. The stand taken up by the respondents, however, is that as in the present case the applications for selection were invited and the requisition was received by the Punjab Public Service Commission prior to issuance of the aforesaid memorandum, it has no application. Even if it be so, it would hardly improve the case of the respondents inasmuch as the earlier instructions dated 13‑7‑1973, also provide the same rules for allocation. It is also to be noted that while rejecting the representation of the petitioners, the respondents themselves had in their memorandum dated 17‑10‑1991, addressed to the Registrar of this Court, observed that para.1 of the memorandum dated 11‑6‑1990 is reiteration of the policy already being followed.
10. The other contention of the learned counsel for the petitioners is equally well founded. According to the policy letter dated 13‑7‑1973, if a suitable qualified candidate is not available from the zone to which a vacancy is allocated, it should be added to merit quota and filled by suitable candidate irrespective of the domicile. Admittedly, in the present case, out of the 5 vacancies which the respondents had allocated to Zone‑11, 2 seats could not be filled in for lack of availability of suitable candidate from that zone. That being so, the respondents were under an obligation to have added these 2 seats to the merit quota and filled it by suitable candidate on all Punjab basis. The respondents have, however, relied upon two subsequent memorandums dated 4‑11‑1985 and 24‑4‑1989, to contend that the instructions contained in the letter dated 13‑7‑1973 stand amended‑ and, therefore, the respondents are under no obligation to fill in the t vacant seats of Zone‑1I, on all Punjab basis on merits. This stand of the PA respondents is without any basis. Neither the memorandum dated 4‑11‑1985, nor that of 24‑4‑1989 is applicable to the present case for these two memorandums evisage a case where a vacancy reserved for one zone only is advertised. It has obviously no application to a case where the selection is to be made for both zones also as on merits. This aspect of the case need not be dilated upon any further in view of the judgment of this Court in Writ Petition No.4966/89 decided on 5‑12‑1990 in which the same question was considered by my learned brother Tanvir Ahmad Khan, J. who was pleased to hold that the two memorandums in question are not applicable in such a case, the respondents are bound by their policy as reflected in the memorandum dated 13‑7‑1973 and are, therefore, bound to fill the vacant seats on all Punjab basis. I am not pursuaded to take a different view.
For the reasons aforesaid, both these petitions are allowed and the respondents are directed to fill in the vacant seats on all Punjab basis on merit; from amongst the successful candidates. No orders as to costs.
A.A./H‑13/L Petitions accepted