FARHAT SHAHEEN Versus GOVERNMENT OF KHYBER PAKHTUNKHWA PUBLIC SERVICE COMMISSION

1. SHAKEEL AHMAD, J.--- Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner Farhat Shaheen seeks the following relief:-

2. "In wake of above submission it is respectfully prayed that on acceptance of instant writ petition, appropriate orders/instructions may kindly be issued to respondents for recommendation and appointment of petitioner against the vacant post of S.S.T/S.E.T and issue the order accordingly with such other relief as may be deemed proper."

2. Facts necessary for the disposal of the instant petition are that by means of an advertisement bearing No.1/2009 the Secretary Khyber Pakhtunkhwa Public Service Commission (not arrayed as respondent) invited applications for appointment to 973 posts of female S.E.Ts/S.S.Ts. (Both Science and Arts) on the terms and conditions mentioned therein. The petitioner having requisite qualifications applied for the same. She appeared in test and interview, consequently, she was declared successful, her name appears at Serial No.163 of the tentative list issued by the Khyber Pakhtunkhwa Public Service Commission. She belongs to Zone 04, but when the final merit list (Arts Group) was displayed her name was missing, which necessitated to file the present writ petition.

3. In pursuance of order dated 06.06.2012 the respondents submitted their para-wise comments.

4. It is, inter alia, contended by the learned counsel for the petitioner that she belongs to Zone 04; that initial merit list issued by the respondents reflects her name appears at Serial No.163, the total number of seats were 973, therefore, she qualified on merit; that non-inclusion of the name of the petitioner in the final merit list is illegal, without lawful authority, mala fide and void ab-initio; that the respondents adopted pick and choose policy by selecting candidates of low merit.

5. On the other hand, the learned Addl: A.G. assisted by Muhammad Saeed Assistant Director Khyber Pakhtunkhwa Public Service Commission argued that all appointments were made in consonance with the provision of the S&GAD Notification No.SORI (S&GAD) 3-39/70 dated 03.02.1990. He further contended that the toppers securing highest marks were not required to be adjusted against merit seats. He further contended that the notification has been issued to give proportionate representation to all zones including tribal areas by rotating the merit. He further contended that the tentative merit list, wherein name of the petitioner appears at Serial No.163 is based on alphabetical arrangement of names; that no illegality or irregularity was committed in the process of appointment and all appointments were made strictly in accordance with law.

6. We have given our anxious consideration to the arguments made by the learned counsel for the parties and perused the record with their valuable assistance.

7. Perusal of the record reflects that 973 posts of female S.E.Ts (Arts and Science) were advertised through advertisement No.01 dated 26.01.2009 to be filled through initial recruitment (the posts of female S.E.Ts appeared at Serial No.55) with the following qualifications:-

3. (S.No.55) Nine hundred and Seventy Three (973) Posts of Female SETs/S.S.Ts (Both Science and Arts) (without graduaty and pension).

4. QUALIFICATION : For Secondary School Teacher (General) (i) B.A. Second Division from a recognized University and (ii) B.Ed or Equivalent Qualification from a recognized University.

5. For secondary School Teacher (Science) (i) B.Sc. Second Division with at least Two of the Subjects of Physic, Chemistry, Zoology, Botany, and Mathematics A or Mathematics B and (ii) B.Ed. or equivalent Qualification from a recognized University.

6. AGE LIMIT: 21 to 40 years PAY SCALE: BPS-16 ELIGIBILITY: Female.

7. ALLOCATION:

8. Merit

9. Zone-1

10. Zone-2

11. Zone-3

12. Zone-4

13. Zone-5

14. 243

15. 162

16. 162

17. 162

18. 122

19. 122

8. Again through advertisement No.2 dated 14.02.2009 a corrigendum was issued wherein earlier allocation of seats was done away. The corrigendum reads as under:-

20. The Zonal allocation for the pots of Female SETs at S.No.55 of the Advt: may be read as follow:-

21. Science Group

22. Merit

23. Zone-1

24. Zone-2

25. Zone-3

26. Zone-4

27. Zone-5

28. Total

29. 48

30. 32

31. 32

32. 32

33. 24

34. 23

35. 191

36. Arts Group

37. Merit

38. Zone-1

39. Zone-2

40. Zone-3

41. Zone-4

42. Zone-5

43. Total

44. 196

45. 130

46. 130

47. 130

48. 98

49. 98

50. 782

9. In response to the advertisement referred to hereinabove 8011 candidates applied, out of 8011 candidates 4978 were screened out. Eligibility of the candidates was determined on the basis of academic marks for each zone in the following manner:-

51. Allocation

52. No. of Posts

53. Qualifying academics Marks for each zone

54. No. of Candidate applied

55. No.of Candidates called for interview

56. Merit

57. 196

58. 30

59. 1096

60. Merit-I

61. 130

62. 13

63. 326

64. 307

65. Merit-II

66. 130

67. 24

68. 2531

69. 442

70. Merit-III

71. 130

72. 22

73. 1099

74. 428

75. Merit-IV

76. 98

77. 24

78. 2074

79. 344

80. Merit-V

81. 98

82. 24

83. 1981

84. 416

85. Total

86. 782

87. 8011

88. 3033

10. Out of 4978 candidates, 918 candidates including petitioner, qualified the interview. The tentative merit list of qualified candidates issued by the Khyber Pakhtunkhwa Public Service Commission was in alphabetical order. The name of the petitioner started from "F" (Farhat Shaheen) therefore, placed at Serial No.163, in alphabetical order, which was neither her merit position nor recommendation list. The petitioner misconceived the list of qualified candidates with that of merit list. Finally, when the merit list was issued the name of the petitioner appeared at Serial No.763 in order of merit and the last candidate whose name was recommended for appointment from Zone-IV (Zone of the petitioner) appears at Serial No.625 of the merit list.

11. The Notification dated 03.02.1990 issued by the S&GAD provides the formula for allocation of seats on zonal basis and according to this formula, there shall be a block of 24 vacancies for the posts carrying BPS-16 and 17 for the purpose of zonal allocation, which is dependent on rotational cycle rotating the adjustment of seats against merit quota. Of these six shall from merit quota and the remaining 18 shall be reserved for bona fide residents of Zone-1, 2, 3, 4 and 5, which shall be carried out in the following manner:-

89. Vacancy Zonal Allocation

90. 1st Merit

91. 2nd Zone 1

92. 3rd Zone 2

93. 4th Zone 3

94. 5th Merit

95. 6th Zone 4

96. 7th Zone 5

97. 8th Zone 1

98. 9th Merit

99. 10th Zone 2

100. 11th Zone 3

101. 12th Zone 4

102. 13th Merit

103. 14th Zone 5

104. 15th Zone 1

105. 16th Zone 2

106. 17th Merit

107. 18th Zone 3

108. 19th Zone 4

109. 20th Zone 5

110. 21st Merit

111. 22nd Zone 1

112. 23rd Zone 2

113. 24th Zone 3

12. Following the formula quoted above, the commission allocated/adjusted all the vacancies started from the first vacancy of first block of the formula. The logic behind the formula notified by S&GAD on the face of it, seems to be that all the areas (backward areas including tribal areas and advanced settled areas) get their due share in the limited pool of vacancies. The formula is based on intelligible differentiate and, in no way infringes the right of the petitioner and provides equitable distribution of vacancies.

13. A plain reading of the formula discloses that merit seats are not allocated to the toppers, but each 4th vacancy goes to the merit seat in the block of 24 vacancies, ensuring equitable distribution of vacancies throughout the Province.

14. 72 vacancies falling in the share of Zone-I were left vacant as none could qualify in interview. Thus out of 782 only 710 candidates were recommended by the Commission for appointment. Subsequently, all remaining posts were withdrawn from Public Service Commission by E&SE Department, and the Commission was left with no post. The following table makes the position of Zonal allocation of seats more clear on the basis of which seats were filled.

114. Merit

115. Merit 1

116. Merit 2

117. Merit 3

118. Merit 4

119. Merit 5

120. Total

121. Share

122. 196

123. 130

124. 130

125. 130

126. 98

127. 98

128. 782

129. Adjustment

130. 196

131. 58

132. 130

133. 130

134. 98

135. 98

136. 710

137. Balance

138. Nil

139. 72

140. --

141. --

142. --

143. --

144. 72

15. The Commission recommended the candidates for appointment in terms of notification referred to hereinabove, which has not been impugned before Court.

16. In view of the above, we hold that the petitioner neither qualified on merit nor in her zone (Zone-IV), therefore, not recommended by the Commission for appointment as S.E.T, we find no illegality or irregularity in the process of selection. The petition being bereft of merit is dismissed in limine.

145. ZC/199/P Petition dismissed.