ZAFARAN KHAN Versus NIZAM ULLAH

SHAHID WAHEED, J.--- This is a petition for leave to appeal and it excites a question if the Mingora Bench (Dar-u1-Qaza) of the Peshawar High Court at Swat, in the circumstances placed before it, should have exercised its discretionary jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, by its judgment dated 19th of January 2021, to annul an appointment to a public office on the ground that the authorities concerned in making it had committed some procedural irregularity.

2. Since the question, posed to us for our consideration, brings into its fold the infringement of the fundamental right and calls upon us to examine whether the suers have been rightly deprived of the means whereby they did live, and also for the order to be proposed in this case, we are poised to grant leave and hereby convert this petition into an appeal. The record is complete, and the lawyers for both sides, except for the private respondents (that is, respondents Nos. I and 2, who, despite being duly served, have not appeared to join the proceedings and are thus proceeded against ex-parte), are ready to present their final arguments, we proceed to decide the matter forthwith.

3. In this case, it is undisputed that in the year 2013 the District Health Officer (DHO), Lower Dir, realizing the growing need of the Health Department and acute shortage of technical staff, as a result of the uncertainty created by the insurgency across the District, decided to fill BS-09 posts of Junior Clinical Technician (Dental) and Junior PHC Technician (MP). Although the advertisement for these vacancies was not published in the newspaper, it was pasted at all conspicuous places throughout the District. Upon this advertisement, various persons, including the present appellants, submitted their applications, which the concerned department processed in accordance with law, and after complying with other codal formalities, appointed the appellants along with other persons on contract basis. A perusal of the record suggests that when the appellants and all others were made permanent, one year after their satisfactory service, the private respondents only challenged the appointment of the present appellants in the Peshawar High Court on the ground that the vacancies were not advertised in the newspaper. Countering the challenge, the appellants argued that they could not be blamed for non-publication of advertisement by the department as it was not their duty to see to it, whereas the department pleaded that since there was an urgent need for the posts in the hospital, the vacancies were not advertised in the newspaper, but advertisement was pasted at prominent places in the District, and that the appellants along with other eligible candidates appeared in the recruitment process and were selected on the basis of merit.

4. After examining the strength of the arguments of each side, the High Court came to hold that the appointment of the appellants was illegal, and to set them aside, it relied on sub-rule (2) of Rule 10 of the Khyber Pakhtunkhwa Civil Servants (Appointments, Promotions and Transfer) Rules, 1989, and the two judgments made by this Court in the case of Munawar Khan v. Niaz Muhammad and 7 others 1 and Muhammad Ali and 11 others v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar and others. 2

5. We considered the matter seriously but could not find ourselves convinced by the reasoning furnished by the High Court. The ground on which the High Court declared the appellants' appointments illegal is that the posts to which they were appointed were not advertised in the newspaper and thus in flagrant violation of Rule 10(2) of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, which provides that initial recruitment to posts shall be made after vacancies have been advertised in newspapers. This ground, to our mind, in the given circumstances of the case, is not cogent and therefore could not be allowed to form a basis for challenging the appointment of the appellants. Before explaining its rationale, it is important to note that the reference to the above rule was not appropriate, as it relates to regular appointments, whereas, in the instant case, the appointments were made on a contract basis; however, this is not something serious, and can easily be ignored treating it as a misquote, even so, the position of law will remain same, and it postulates advertisement of vacancies in the newspaper as the-first step in every kind of initial recruitment by the Government to attract talent to work within it. It is admitted on all sides that the advertisement was issued and pasted at all conspicuous places of the District but was not published in the newspaper. This brings us to consider the justification offered by the concerned authorities for not publishing the advertisement in the newspaper. The Department in its report (C.M.A.169 of 2023) has explained that during the year 2013 there was insurgency and rebellion in the District Lower Dir, the Human Resource in terms of Dental Technicians and PHC Technicians (Multi-Purpose) was urgently required in order to meet the acute shortage of the technical staff in the hospitals of District Lower Dir, and thus, the posts were advertised locally and the advertisement was placed/affixed at conspicuous places of District Lower Dir. Since/nothing has been brought on record to deny that the entire District Lower Dir was in the grip of insurgency at the relevant time, and also to establish malice or willful misuse of power or willful misuse of discretion by the authorities to substantially benefit the appellants, we are of the view that such atypical circumstance provides us a sufficient cause to condone the irregularity of non-publication of advertisement of vacancies construing it a bona fide lapse on the part of the department/authority, and resultantly, for the same, the appellants cannot be blamed, 3 nor on its basis, a challenge to their appointment could be allowed to be thrown.

6. Be it noted that employment is one of the greatest, if not the greatest, benefits that the government offers in modern day life. It is our view that every citizen who applies for a government job is entitled to it unless the government can establish some reasons for denying the employment. This is the "liberty" right - liberty to work - which is the very essence of Articles 9, 18, 27 and 38(c) of the Constitution. 4 Denial of a government job is a serious blow to any citizen. In the present case, the valuable right of the appellants, to wit, opportunity to work was at stake, the High Court ought to have seen whether it was the outcome of the fault of the government/authority. While evaluating this, it should have also taken into account:

(i) whether the appellants had met the eligibility criteria for the post, (ii) whether their performance during the service was satisfactory, (iii) whether their appointments had been made by the competent authority, and (iv) whether upon termination, they will stand disqualified to reapply for a government job. Since all these factors have not been reviewed by the High Court, we are obliged to look at them, and our scrutiny provides us the answer to all of them in the affirmative, and thus, we declare that the High Court was extremely unfair to deprive the appellants of their livelihood due to the fault of the authority in not advertising the vacancies in the newspapers 5

7. Now we have to consider whether the precedents of this Court, relied upon by the High Court in its judgment, are relevant to the moot question. To answer this point it is necessary to read all those precedents, and upon their reading, we found that in all of them the appointments were declared illegal on the ground that they were made through backdoor, as neither the vacancies were advertised, applications were not invited, nor the formalities of the rules were fulfilled, but here we are not confronted with such a situation, and thus to provide an answer to the main question under consideration, reliance on precedents was inappropriate. Lest anyone misunderstand this, we make it clear that the appointment to any post under the government can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. Any appointment made on a post under the government without issuing advertisement, inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Articles 18 and 27 of the Constitution. 6 In the light of above, it is to be seen if the appellants had obtained their appointments through backdoor? We have noted that in the present case it is not alleged that the appointment of the appellants was the result of political influence or any kind of favoritism or jobbery, rather the department admits that the appellants had the requisite qualification and experience and they were not over-age at the time of their appointment. We also note that although vacancies were not advertised in the newspaper, undeniably information about the same was communicated to the public at large by putting up advertisement at conspicuous places in the District, and in response, several persons including the appellants had applied for recruitment, and the department appointed the appellants after completing the codal formalities. Given the scenario, it cannot be held that the appellants obtained their appointments through the backdoor, nor can the appellants be penalized for not publishing the advertisement in the newspaper, particularly when they have served more than ten years without any complaint and thereby have lost all their chances to get fresh appointment elsewhere as they have become over age, and in case they are to be removed now, it will tantamount to hitting them hard which will create massive problems for the society as each appellant is a bread earner for his family. 7 This entails that in the peculiar facts, the High Court should not have exercised its discretionary powers, notwithstanding that there was a procedural impropriety in the advertisement of the vacancies.

8. We, accordingly, allow this appeal, set aside the judgment dated 19th of January, 2021 of the Peshawar High Court and in consequence thereof the petition filed by the private respondents, that is, Writ Petition No.272-M of 2015 is dismissed.

MH/Z-2/SC Appeal allowed.