GOVERNMENT OF N.-W.F.P. through Secretary, Education Department, Peshawar Versus QASIM SHAH

ORDER

IJAZ-UL-HASSAN KHAN, J.--- Leave to appeal is sought against the judgment of the Peshawar High Court, Abbottabad Bench, Abbottabad, dated 14-2-2007 whereby Writ Petition No.369 of 2006, filed by Qasim Shah-respondent herein, was accepted and petitioner-department was directed to consider him for appointment against first available vacancy.

2. Facts of the case need not be reiterated, as the same have been comprehensively mentioned in the impugned judgment.

3. Learned Advocate-General, N.-W.F.P., appearing on behalf of petitioner-department, contended that judgment of the learned High Court suffers from legal and factual infirmities; that once the selection is finally made from the merit list stands exhausted and for fresh appointments for fresh vacancies fresh advertisement shall have to be made; that there was no waiting list and no vacancy at that time and, therefore, the respondent could not have been considered and appointed in the last limb of arguments, it was reiterated that in the case of posts vacated by non-joinder of selected candidates or subsequent requisitions received the ordinary course for the Government should be to re-advertise it. The waiting list is maintained in a qualifying examination all vacancies are filled up in one go. To augment the contentions, reliance was placed on Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223, Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 and Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through its Chairman and others 1993 SCMR 1124.

4. Having consider the matter from all angles, we are of the view that when some of the selected candidates do not join the service, such posts remain vacant and it was imperative for the department to have considered the remaining candidates for appointment against said posts. Such posts cannot be kept vacant till the next process of recruitment, if some of the selected candidates were still available on the waiting list. In this view of the matter i.e. four posts were not filled in, the remaining four persons were entitled to be considered for appointment. The failure of the department to appoint the respondent and others in the earlier process was not in accordance with the fair practice of recruitment. It is not denied that respondent was one of the candidates who was selected during the earlier recruitment process whereby twenty persons qualified the test and interview but only sixteen persons were appointed' and the remaining selected candidates, including the respondent, were ignored despite the availability of seats.

5. The authorities referred by learned Advocate-General, are beyond the controversial issue and have nothing common to the facts of the present case.

6. The petition is bereft of merit. The same is dismissed and leave refused.

M.H./G-4/SC Petition dismissed.