MUHAMMAD SAEED ZAFAR Versus DISTRICT CO-ORDINATION OFFICER, MIANWALI
ORDER
ALI AKBAR QURESHI, J.--- The petitioner in response of an advertisement issued by the Education Department, Mianwali, for the post of Elementary School Educator (E.S.E.), applied for the said post. The respondent-department after completing the recruitment process issued merit list and the petitioner stood at Serial No.14. The candidate, who stood at serial No.1 namely Kashif Mehmood did not join and in result of that one post became vacant. The petitioner, who was next in the waiting list, filed an application stating therein, that the petitioner is entitled to be appointed against the vacant seat lying with the department. As usual no action was taken by the respondent-department and the petitioner had to file the instant Constitutional petition.
2. The respondent-department in compliance of the order passed by this Court submitted para-wise comments. In the para-wise comments respondent-department by referring Notification No.DS(O&M)5-3/2004/ Contract(MF), dated 14.03.2010, submitted, as under:--
(ix) "The merit list shall remain valid for a period of 190 days from the date of recommendations of the relevant Selection Committees and the appointing authority shall complete the process of appointment within the said period.
(x) No request for extension in the joining time as specified in the offer of appointment shall be entertained.
(xi) If a person to whom offer of appointment has been issued fails to join the post within the period of specified in the said offer of appointment or where a written refusal is received from a selectee, his/her selection shall stand cancelled and next person on the merit list may be offered the job.
(xii) In case a person joins the job and leaves the same within the period of 190 days, then the appointing authority may offer the job to the next person on the merit list."
3. According to the contents of the aforementioned Notification, the merit list is to be remained valid for a period of 190 days from the date of recommendations of the relevant Selection Committee and as the seat fell vacant on 27.04.2010 and the petitioner did not approach within the time stipulated mentioned in the aforesaid Notification i.e. 190 days, therefore, the petitioner cannot be held entitled for appointment against vacant seat.
4. Learned counsel for the petitioner has submitted, that the petitioner timely approached to the respondent-department as and when it came into the knowledge of the petitioner that seat has become vacant and he is entitled to be accommodated. Learned counsel also pointed out that as per the brief report submitted on behalf of the respondents Nos.1, 2 and 3, the post became vacant on 27.04.2010, whereas 190 days were to be completed on 03.05.2010, therefore, the respondent-department could have appoint the petitioner against the vacant post.
5. Learned Assistant Advocate-General supported the report and para-wise comments and submitted, that the merit list prepared by the department was not valid when the seat became vacant.
6. Heard. Record perused.
7. The respondent-department has filed the report and para-wise comments on the strength of a Notification No.DS(O&M)5-3/2004/ Contract(MF), dated 14.03.2010, issued by the Government of Punjab, Services and General Administration, Department, Lahore, wherein it is mentioned, that the merit list shall remain valid for a period of 190 days. The same notification which perhaps had not been perused and examined by the respondent-authority wherein, in clause XII, it is mandatory to the appointing authority to offer the job to the next person on the merit list if the post became vacant within 190 days. Meaning thereby it is the duty of the appointing authority to inform to the next person on the merit list and offered for the vacant post. In other words, the person who is next on the merit list is not required to himself approach or to file any application for the appointment of the post against the vacant seat. It appears from the record, that the respondents government functionaries as usual tried their level best to deprive the petitioner from his secured and guaranteed the Constitutional promises of impartial, fair and just treatment to all the citizens. In fact, the government functionaries always adopt these types of the devices with the intention to accommodate their own blue eyed persons.
8. On the identical issue, the learned Division Bench of this Court has observed in the judgment titled "Shabana Akhtar v. District Coordination Officer, Bhakkar and 2 others" (2012 PLC (C.S.) 366) and gone to the extent that the waiting list shall remain available as long as the post continues. The relevant para is reproduced as under:--
"22. Other advantages of a merit list-cum-waiting list are that vacancy can be filled immediately without re-coursing to a full-fledged recruitment process starting with a fresh public advertisement. Waiting List mechanism saves public money, human resource and time spent on carrying out a full course recruitment process. In case only one or two vacancies occur they can be immediately filled without waiting for a fresh recruitment process to be initiated and without keeping several posts vacant for a considerable period of time. As vacancy can arise at any time, the contingency plan in the shape of an operational Waiting List must be available as long as the post continues. Hence, there can be no timeframe or a cut off date for the expiry of the Waiting List. It is surely not binding on the candidates to remain on the Waiting List and are free to search for other and better employment prospectus, but till they do so, their names continue to be retained on the Waiting List. As and when vacancy arises the said candidates can be contacted and if they are available the vacancy can be dully filled: The only time Waiting List might lose its utility and efficacy is when the eligibility criteria, to the post in question is altered or if the post itself is abolished or restructured or reorganized."
"24. For the above reasons we first hold that the Contract Policy, 2004 has no application to the present case and has been over-rigidly applied to the case of the appellant without evaluating the facts and circumstances of the case. Subject to the qualification, hereunder, we also hold that the validity period of 190 days for the expiry of Merit List is unreasonable and therefore cannot be sustained in law. However, the rule of 190 days can still have a limited application to the extent that where no candidate in the Merit List/Waiting List comes forward to be appointed to the post in spite of the offer made by the department, in such eventuality the merit list can come to an end after a period of 190 days and the department can initiate fresh recruitment process."
9. In view of the above, the respondents are directed to consider the case of the petitioner for the post of Elementary School Educator (E.S.E.) on the basis of the merit list in question within a week from the receipt of this judgment.
10. Resultantly this Constitutional petition is allowed. No order as to cost.
11. Parting with the judgment office is directed to dispatch the copy of this order to Secretary Education (Schools) Govt. of Punjab and the Chief Secretary of the province to take action against the delinquent, because the petitioner suffered mental agony and torturer and remained job less for five years because of contumacious conduct of the respondent-functionaries.
ZC/M-304/L Petition allowed.