SAVED ZAHID HUSSAIN, J.--- On 6.4.2004 an advertisement appeared in the daily 'Jang', Lahore for filling up certain vacancies in Technical E ucation and Vocational Training Authority (TEVTA), inviting applications from the candidates possessing requisite qualifications. At serial No. 2 of the advertisement was the post of Principal (BS-17) at Government Vocational Institute of Women, Nankana. Pursuant to that the petitioner applied for the said post of Principal alongwith others. She was called for interview to be held on 16.6.2004 vide letter dated 7.6.2004, which however, as stated by the Departmental representative, could not be held. She was again called for interview vide letter dated 10.7.2004 to be held on 17.7.2004. She appeared therein alongwith others and according to her was successful and recommended for appointment by the Selection Committee. While she was awaiting the appointment letter another advertisement appeared on 3.9.2004 in the newspaper for the same post. Flabbergasted and prompted by which, W.P. No. 14981/04 was filed by her seeking direction to be appointed and that the subsequent advertisement for applications.
Against the same post be declared as illegal. The said petition was disposed of on 16.9.2004 with the observation that she should approach the Departmental Authority. It was observed that "the grievance of the petitioner that having appeared twice for interview as per call letter issued to her why she has not been selected will be duly attended to by him and disposed of within a fortnight in accordance with law. The process it undertaken pursuant to the later advertisement will be subject to the outcome of the representation to be decided by the Secretary of he Administrative Department". She then filed a representation which was disposed of vide order dated 21.10.2004 by respondent No. 2 rejecting the same that "The petitioner was not selected according to SOP for recruitment. 2 recommendations are required i.e. Principal candidate and alternate candidate for each post. Petitioner was standing on merit but was not appointed on account of above condition of SOP i.e. She did not have a covering candidate". This petition has been filed in this context for the redressal of her grievance.
2. Since in the later process Miss Fouzia Bano was appointed in the meanwhile vide order dated 21.12.2004, amended petition was then filed impleading her as party and assailing her appointment.
3. The learned counsel for the parties have been heard in the matter.
4. In the reply filed by the official respondents a preliminary objection as to the maintainability of the present petition invoking the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 has been raised. It has, however, been admitted in the reply that "The petitioner was standing on merit but was not appointed on account of above condition of SOP as she did not have a covering candidate". The learned Additional Advocate General, Punjab has endeavored to support and defend the impugned order on the ground that the Standing Operating Procedure (SOP) was laid down by the Authority C.L.R. under Punjab Technical Education and Vocational Training Authority Ordinance, 1999 (Ordinance XXIV of 1999). He has sought support from the provisions of Section 10 of the Ordinance that the manner of employment and conditions of service can be laid down by the Authority and having done so the action is lawful and cannot be assailed. According to him the petitioner has no vested right and that it is such a policy matter in which the Court should not interfere. The learned counsel for respondent No. 9 while supporting the learned Additional Advocate General, Punja. Contends that in the second process of selection, respondent No 9 had topped the merit list who had been validly selected and appointed.
5. Insofar as the objection resting upon the provisions of Article 212 of the Constitution of islami c Republic of Pakistan, 1973 as to the maintainability of the petition is concerned, the same has no merit as it was a case of direct recruitment/appointment. The petitioner had yet not been blessed with the status of a civil servant. Reference in this context may be made to Dr Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others (PLD 1997 S.C.
382) wherein it was observed that in order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civi servant as defined under the Act, ... ...". It was further observed that "The appellant having applied but not selected for the post could not acquire the status of a civil servant 4iithin the meaning of the Act. He was, therefore, in our view, not entitled to file an appeal before the Tribunal". The bar of jurisdiction as envisaged by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 cannot, therefore, be pressed into service by the respondents. .
6. Having dealt with the preliminary objection as to the maintainability of the petition that bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not attracted to the instant case and petition before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable. The pivotal point that emerges for consideration is as to how for the Authority was justified to decline appointment of the petitioner by invoking a procedure laid down by it known as Standing Operating Procedure (SOP). For this purpose brief survey of the provisions of Ordinance may be appropriate. The Punjab Technical Education. And Vocational Training Authority Ordinance, 1999 (Ordinance XXIV of 1999), which statedly has remained as it is and is in force, was promulgated on 7.6.1999. Under Section 2 thereof the Government was empowered to establish an Authority to be called the Techical Education and Vocational Training Authority of the Punjab (TF"T,,). Such Authority is a body corporate, having perpetual succession and common seal. S. 3 deals with the coast t' tion of the Authority whereas S. 4 with its functions. It is Section 10 of the Ordinance, in particular its sub-section (1), which has been the mainstay of the Authority. It may be reproduced which reads as follows:-- "(1) The Authority may employ such officers, advisors, consultants and employees in its service as may be necessary for the efficient performance of its functions in such manner and on such terms and conditions as may be prescribed by the Authority." (underlined due to relevance).
Section 13 of the Ordinance enables the Government to make rules for carrying out the purposes of this Ordinance whereas Section 14 empowers the Authority to make regulations for carrying out the purpose of the Ordinance "subject to this Ordinance and the rules framed thereunder".
Minutes of 11th meeting of the Authority held on 19.2.2004 have been cited to show that Standing Operating Procedure was approved by the Authority as item No. 9 in that meeting. Thus Standing Operating Procedure dated 3.3.2004 is said to have been enforced. It is clause "h" of Selection Procedure, which has been invoked against the petitioner to deprive her the appointment. It reads like this "In all the cases mentioned above the Selection Board will propose two names in order of merit for each post for final approval by the respective Appointing Authority who may wish to interview them". Now the perusal of the scheme of law i.e. Punjab Technical Education and Vocational Training Authority Ordinance, 1999 leaves no manner of doubt that whereas the Authority could employ officers and employees in such manner and on such terms and conditions as may be prescribed by the Authority, no regulations are shown to have been framed, as required by S. 14 of the Ordinance. Since the expression as may be "prescribed" used in S. 10 has not been defined in the Ordinance it can possibly be construed as having reference to the Regulations laying down procedure for recruitment. It cannot be assumed that the legislature intended to vest the Authority, beyond Rules/Regulations, with such arbitrary power of confer such unguided and unbridled discretion to lay down such a procedure or conditions, which could militate against the principles of fairness, rationally and reasonableness. No such intention, that is likely to produce unjust consequences can be imputed to the law-maker. A candidate like the petitioner who had competed with others and had admittedly stood on top of merit had every legitimate expectancy to be appointed to the post she had applied for. Nevertheless for the reason that there was no covering candidate recommended by the Selection Committee, she was not appointed. She certainly could not be penalized or made to suffer for that, nor clause "h" of Standing Operating Procedure be invoked to deprive her the appointment. Suffice it to state that it was open and transparent competition amongst those who had applied and taken part in the selection process pursuant to public advertisement dated 6.4.2004 published in a widely circulated newspaper. One is left wondering that having made public advertisement for the post and holding interviews of the candidates in which process the petitioner had met the eligibility criteria and topped the merit list why another advertisement was issued. I refrain from making any comment as to the assertion of the petitioner that such an exercise was undertaken merely for enabling someone else to apply and be selected for the post, by ignoring the petitioner. There is reasonable apprehension that non-availability of a covering candidate was made as a mere subterfuge to ignore the petitioner, as such a condition was not even part of the advertisement dated 6.4.2004. This whole exercise smacks of arbitrariness and unjust manner she was dealt with. It may be observed that to maintain a practical and humane system of statutory law, at occasions, meeting of certain strict requirements have many times been excused, overlooked or condoned. For, often to enforce a law to its letter produces a manifest injustice.' Needless to state that the prime object of all systems where rule of law and justice is to prevail, is to ensure justice based on fairness, reasonableness and justness, without any taint. In The Pakistan Barbers' Association (Regd.), Lahore v. Province of Punjab through Directorate of Labour Welfare, Punjab, Lahore and another (PLD 1976 Lah. 769) it was observed that if the provision of a law was being administered in an arbitrary, oppressive, partial or unjust manner, the action taken thereunder could be struck down and declared as unlawful.
7. The contention of the learned Additional Advocate General, Punjab that the petitioner did not acquire any vested right to the appointment, has not impressed me as it negates the most cherished objective of meritocracy. The petitioner had in the selection topped the merit list and thus earned the right to be appointed. That selection process could not be shelve,d to deny her the right so acquired, nor C.L.R. new process could be launched. Suffice it to observe that a person cannot be deprived of the right acquired, simply for the reason that some policy will be infringed. It is the duty of the Court to remedy the wrong by redressing the grievance.
Thus examining the matter from any angle I am led to the conclusion that the petitioner has been deprived of the appointment to the post applied for by her on untenable grounds and having topped the merit list she was entitled to be appointed. The action of the Authority refusing her the appointment as Principal, Government Vocational Institute (W), Nankana is of no legal effect and the later selection in which respondent No. 9 is purported to have been appointed is held to be unwarranted by law. I am informed that another post of same status is lying vacant in the same District. It is left open for the Authority to consider the adjustment of respondent No. 9 as against the same, if deemed proper.
The petition is accepted accordingly. Since costs have not been claimed I make no orde as to costs. .