SYED MANSOOR ALI SHAH, J.-----Brief facts are that Executive District Officer (EDO), Health, Narowal advertised, inter alia, 56 seats for initial recruitment to the post of School Health and Nutrition Supervisor in BS-17. The appellant applied for the said post and went through the recruitment process as prescribed under the Recruitment Policy, 2004 dated 17-9-2004. Thereafter, merit list of 56 candidates was prepared on 26-1-2010 and furthermore, a Waiting List of 14 candidates from amongst the successful candidates was also prepared by the District Recruitment Committee. The appellant was placed at Sr. No,10 of the Waiting List on the basis of seniority. Later on, only 47 out of 56 candidates joined and, therefore, nine seats fell vacant which were filled out of the Waiting List.
As a result, the appellant moved up to Sr. No,1 of the Waiting List and waited for the next vacancy.
Subsequently, a post fell vacant due to termination of the officer holding the said post but the appellant was not considered for the said post on the ground that the Waiting List was valid for 90 days from the date of appointment i.e,, from 26-1-2010 till 26-4-2010. This time frame was fixed by the District Recruitment Committee, Health department, Narowal on 7-1-2010. As the vacancy had occurred on 17-6-2010, the Waiting List had since lapsed.
2. Counsel for the appellant argued that the appellant has a right to be considered for the said post as the appellant is at No,1 of the Waiting List and has successfully passed through the recruitment process. He also argued that mere passage of time cannot deprive the appellant of his right to appointment.
3. Learned Law Officer, as well as, Litigation Officer representing the department, failed to give any reason or logic behind the fixation of 90 days. The only submission made by the learned Law Officer was, the recruitment process has to come to an end and, therefore, a cut off date had been given.
4. Arguments heard. Record perused.
5. In all 650 candidates' applied for the post of School Health and Nutrition Supervisor in BS-17, out of which 450 candidates qualified to sit the interview and from amongst them candidates were selected against 56 posts. Next 14 candidates on merit were put on the Waiting List (1/4th of the total number of seats).
6. Pre fatory paragraph to the Recruitment Policy, 2004 mandate dates: "One of the major objectives of the government is to provide maximum job opportunities to the unemployed youth. However, in the government sector, posts have to be filled essentially in accordance with requirement to achieve the objectives of good governance and efficient service delivery." (emphasis supplied) {{FOOT NOTE}} Comments of the Respondents. {{FOOT NOTE}} ' As per Policy, the District Recruitment Committee was under an obligation to ensure that the recruitment process reflects good governance and efficient service delivery. Learned law Officer giving the rationale behind 90 days submitted that the recruitment process has to be brought to an end, hence the time frame. EDO (Health) in his comments dated 28-2-2011 submitted the following reasons for having a cut off date:--- "If the petitioner is adjusted at any vacant seat, then remaining 5 candidates (from 11-15 of waiting list) will claim for their adjustment. This will create huge problems/complications for department."
(emphasis supplied)
7. Both the reasons lack logic and are unsatisfactory. No additional plausible explanation has been given for fixing 90 Days as the life span of the Waiting List.
8. The purpose of preparing a Waiting List from amongst the successful candidates is to have a contingency reserve. A pool of successful candidates who can immediately fill vacancies as they arise. Instead of initiating the recruitment process afresh (which surely involves time and cost), it is convenient to fall back on the Waiting List of successful candidates and fill the vacancies immediately.
9. Waiting List is also advantageous because the recruitment process may not be initiated for a few posts that fall vacant and as a contingency, the candidates shortlisted in the waiting list can fill these posts. Waiting List, is actually a list of selected eligible candidates, who have successfully filtered through the recruitment process. They are a valuable human resource available in case any vacancy arises. As vacancy can arise at any time, the contingency plan in the shape of an operational Waiting List must also be available as long as the post continues. Hence, there can be no time frame 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, they are free to search for other and better employment prospects, but till they do so, their names continue to be retained on the Waiting List. The only time Waiting List might lose its utility is when the eligibility criteria to the post in question is altered or if the post itself is abolished or restructured or reorganized. In this situation, the candidates on the waiting list are no more eligible and, therefore, fresh recruitment will be called for.
10. In the present case no plausible reason has been furnished to this court why the Waiting List lapses after 90 days and why not after 180 days or after 300 days or remains open ended with no time frame? {{FOOT NOTE}} Corrigendum No, 3282/EDO(H)NWL dated 28-2-2011. {{FOOT NOTE}} ' Discretion exercised by the District Recruitment Committee in fixing the above period has no logical foundation, is unstructured, unreasonable, irrational and unfair.
11. The meaning and scope of discretion have come up before the courts earlier. In Sharp v.
Wakefield (1891 AC 173), Lord Halsbury observed:--- " 'Discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion...According to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself...."
In Judicial Review of Administrative Action, by De Smith (1995) it is observed:--- "The term itself implies vigilance, care, caution and circumspection. When the legislature confers discretion on a court of law or on an administrative authority, it also imposes responsibility that such discretion is exercised honestly, properly and reasonably."
In Union of India v. Kuldeep Singh ((2004) 2 SCC 590). The word 'discretion' standing single and unsupported by circumstances signifies the exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently, therefore, a discretion cannot be arbitrary but must be a judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion, it also imposes a heavy responsibility.
12. We rely with advantage on Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), relevant para therefrom reads as under:--- "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means .Regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure.
Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times". (emphasis supplied).
' Further reliance with advantage is placed on Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), Director Food, N.-W.F.P.
And another v. Messrs Madina Flour General and Mills (Pvt.) Ltd. And 18 others (PLD 2001 SC 1), Chief Secretary Punjab and others v. Abdul Raoof Dasti (2006 SCM R 1876), Abdul Wahab and another v.
Secretary, Government of Balochistan and another (2009 SCM R 1354) and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101).
13. Once the appellant has been placed on the Waiting List, he develops legitimate expectations to be considered for appointment as soon as vacancy arises. Denying appointment to the petitioner on the ground of lapse of waiting list by mere efflux of time (especially without informing the appellant of such a policy) offends legitimate expectations of the appellant. "If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. .... The doctrine of legitimate expectations is rooted in fairness.' Thus when a person invokes 'legitimate expectation' he does not rely upon an enforceable common law or statutory right; he is merely asking to be dealt with fairly``.
14. We hold that the appellant could not have been deprived appointment to the vacant post on the ground that the Waiting List lapsed after 90 days. The period of 90 days fixed by the District Recruitment Committee, Health Department, Narowal dated 7-1-2010 is unreasonable and irrational and is, therefore, not sustainable.
15. We also beg to differ with the reasoning of the learned single Judge who diminished the importance of a Waiting List and harboured {{FOOT NOTE}} 3 Bingham U in R v, IRC exp 1MK (1990) 1 WLR 1545 -- reference: Judicial review of Public Actions- Justice (R) Fazal Karim- page 1366 4 Judicial Review of Public Actions- Justice (R) Fazal Karim- page 1367 {{FOOT NOTE}} ' under an impression that there was no vacancy amongst the 56 seats and therefore no writ in favour of the appellant could be issued.
16. For the above reasons we declare the duration of Waiting List for a period of 90 days as unreasonable and irrational as a result the Waiting List is held valid. Therefore, this appeal and the writ petition are allowed and the order of the learned Single Judge dated 4-5-2011 is set aside.
Respondents are directed to appoint the appellant (at Serial No,1 of the Waiting List) against the vacant post of School Health and Nutrition Supervisor (B.S.17) with immediate effect.