' SALIM KHAN, J---Abdul Qadoos and five others, named as petitioners, alleged that certain posts were advertised in daily 'Mashriq' on 22-2-2004, that twenty five per cent of the posts were to be filled on district level merit and seventy five per cent of the same were to be filled on Union Council level merit, while two per cent out of the total were reserved for disabled candidates, that seven vacancies were available in the Union Council, Bara Bandai, against which only two persons were appointed, but the remaining five posts were filled by transfer, that the rules were violated and the petitioners were deprived of their rights of expected appointment, in spite of the fact that they had cleared the test and interview. They further contended that they were on the merit's list prepared by the official respondents and were entitled to appointment.
2. We heard the arguments of Mr. Azizur Rehman, Advocate, for the petitioners as well as Arbab Muhammad Usman, Addl. A.-G for the official respondents, and perused the available record.
3. The learned counsel for the petitioners referred to the merit list, on which the names of the petitioners appear at Serial Nos.3 to 8, but the petitioners at Serial Nos.3, 5, 7 and 8 belong to Bara Bandai while Muhammad Afzal Khan and Ali Rehman belong to Ghwaraja respectively. It was admitted by the respondents in their comments that some vacancies of Primary School Teachers
(PTC) occurred, but the same were filled through transfer. The learned Addl. A.-G. Referred to Rule 3 of the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, and submitted that vacant posts could be filled by transfer which was one of the methods of appointment to the posts. The overall effect of Rule 3, quoted below, is different from the viewpoint of the learned Addl.
A.-G.
"3. Method of appointment.---(1) Appointment to posts shall be made by any of the following methods, namely:-
(a) by promotion or transfer in accordance with the provisions contained in Part II of these rules; and
(b) by initial recruitment in accordance with the provisions contained in Part III
(2) The method of appointment, qualifications and other conditions applicable to a post shall be such as laid down by the Department concerned in consultation with the Services and General Administration Department and the Finance Department."
4. The Services and General Administration Department has already been divided into (i)
Establishment Department and (ii) Administration Department. For consultation with the Establishment Department and Finance Department by the concerned Department, a Committee by the name of Standing Service Rules Committee (S.S.R.C.) is constituted where proposal of the concerned Department for prescribing the method of appointment, qualifications and other conditions to a post is discussed by the representatives of the Establishment Department. Finance Department and the concerned Department with the authorized representative of the Law Department, and after deliberation and discussion, the relevant Rules are drafted avail recommended to the concerned Department by the said Committee, and, after acceptance of the recommendation by the concerned Department, the same are further processed for approval, and after approval of the competent authority, are notified. On such notification, the method of appointment to a post prescribed in the mentioned notification becomes the only method by which appointment to a concerned post can be made, and no other method, as mentioned in Rule 3 quoted above, can be applied for appointment to such post. There are three methods of appointment (a) by promotion, (b) by transfer and (c) by initial recruitment, but any of the above mentioned methods can be selected and C prescribed for a certain post. After that, no other method, except the one prescribed, is applied for the purposes of appointment to such a post.
5. The qualifications age limit, and method of recruitment for the post of Primary School Teacher
(PST) (Male) are shown in the School and Literacy Department circular letter No,SOG/S&L/1- 28/2003/SSRC dated 30-12-2003, as mentioned in the letter of even number dated 15-11-2003. The method of recruitment in the said circular has been prescribed as under:-- Primary School Teacher (PST)(Male).--By initial recruitment in the following manner 25% recruitment shall be made on district level merit and 75% on Union Council level merit: ' Provided that 2% of the vacancies shall be filled from such disabled candidate whose disability does not hinder in performance of their duty. Note:- In case eligible candidates in a certain Union Council are not available, the recruitment on vacant post will be filled from the adjacent Union Councils in the same district possessing the qualification as a stop-gap arrangement: Provided that their contract shall not be extended after a qualified candidate/s in the Union Council concerned become available.
6. The copy of advertisement shows that vacant posts of Primary School Teachers (P.T.C,) (existing and expected) were advertised on 22-2-2004. Para-3 of the necessary instructions in the said advertisement shows that seventy five per cent of the vacancies were to be filled on Union Council basis and twenty five per cent of them on district open merit basis. The copy of letter No,BOV/F.D/3- 12/2002-2003/ Rationalisation dated 20-12-2003 of the Finance Department is with regard to the creation/distribution of 4000 additional posts of Primary Teachers in N.-W.F.P.
7. As quoted earlier, the only method of appointment to the posts of Primary School Teacher (Male) was by initial recruitment and no person could be appointed to a post on transfer. The concerned Department was obliged to count all the posts available vacant on the date of appointment, reserve two per cent of those posts for disabled persons, and distribute the remaining ninety eight per cent into twenty five per cent for district level merit and seventy five per cent for Union Council level merit. It would be utter violation of the relevant notified Rule, if any person was appointed against the said posts by any other method, including promotion and transfer, other than by the method of initial recruitment. In their comments, respondents Nos .3 and 4 admitted that certain vacancies were or became available upto the date of order of appointment, but those were filled through transfer.
8. In the light of the above, we have come to the conclusion that the present writ petition merits acceptance, and we do the same. We direct the respondents to count all the relevant vacancies of the concerned Department in District Swat, which were or became vacant from the date of advertisement (22-2-2004) till the date of appointment of the candidates against some of the posts by initial appointment, to reserve two per cent of all the vacancies for disabled persons, to distribute the remaining ninety eight per cent of the vacancies into the ratio of twenty five per cent for district level merit and seventy five per cent for Local Council basis merit, and to remove the person appointed against the said posts by transfer or any other method, except by initial recruitment. In consequence of the above mentioned exercise, the petitioners, shall be considered and, if found entitled, shall be appointed against the respective posts in the District against the reserved quota at district level, or, as the case may be, in their respective Union Councils against the available vacancies in accordance with their respective merit. Anyone, more or of all the petitioners, as the case may be, shall have right to approach this Court again, if the above directions are not properly complied with by the respondents. We further direct the respondents to hold inquiry and fix responsibility on the persons who violated the above quoted Rules duly notified, and who ignored the above referred advertisement, and deprived the petitioners of their right of expected appointment till now.