Grievance of the petitioner is that while making appointments for the posts of Lecturer in Islamic Studies the respondents/university has not followed the merit policy and appointed Respondents No, 5 & 6 on their own whim.
2. Facts of the case in brief are that vide proclamation dated 07.08.2009 published in "Daily Khabrain" respondents/university invited applications for various vacancies including two posts of Lecturer in Islamic Studies. Being an eligible candidate, petitioner applied for the said post. After scrutiny respondents/university issued call letters to various candidates for interview but no call letter was issued to the petitioner. On query, the petitioner was informed that her degree for M.Phil was not considered as she did not qualify the comprehensive examination and after shortlisting she stood at Sr.No, 34, whereas, only the candidates upto Sr.No, 20 were called for interview. Being aggrieved the petitioner moved an application dated 07.05.2010 before Respondent No, 2 but no action was taken thereon despite elapse of reasonable period of time. Hence, this Constitutional petition.
3. Learned counsel for the petitioner submits that action of respondents/university for not calling the petitioner for interview is illegal and result of mala fide; that the petitioner is M. Phil Gold Medalist in Islamic Studies for the session 2005-07; that the respondents/university while shortlisting the candidates did not consider the M.Phil degree of the petitioner, whereas, candidates cited at Sr.No, 1 & 2 of the short listed candidates are class fellows of the petitioner; that the academic career and the final result of the petitioner is much better then the candidates who were appointed for the said posts (Respondents No, 5 & 6); that in order to accommodate the persons of their own choice the respondents/university, has adopted a criteria contrary to the terms and conditions as laid down, in the advertisement which deprived the eligible candidates to compete for the said post; that no condition was laid down in the advertisement that only the candidates who have qualified the comprehensive examination of M. Phil can be given weightage of 30%; that the comprehensive examination neither requires credit hours nor add any marks in the result as such the respondent/ university was not justified. to deprive the petitioner 'of award of 30% weightage of M,Phil degree; that respondents/ university in order to accommodate the Respondents No 5 and 6 gave 20% weightage with 4 marks per year which is contrary to the terms and conditions of the advertisement; that the act of respondents/university is based on mala fide as the brother of the petitioner filed a writ of quowarranto Bearing No, 156/10 before this Court against Respondent No 1 which was accepted; that Respondent No, 1 nurtured grudge against the petitioner and in order to deprive her of the post applied for did not shortlist her in a capricious manner; that the Respondents No, 5 & 6 who were appointed by the respondents/university have no distinction throughout their career whereas, the petitioner has obtained two gold medals; that the formula applied for shortlisting the candidates is contrary to the terms and conditions of the advertisement and subsequent appointments being without merit are liable to be set-aside.
4. According to the report and parawise comments of the respondents/university criteria for- shortlisting the candidates is as under:--
(i) Academic record: Metric 10% FA/F.Sc. 15% B.A./B.Sc. 20% M.A.M,SC. 25% M.Phil 30% Total 100% Weightage 80%
(ii) Experience in the relevant field: 4 marks per year upto maximum of 20 marks= Weightage 20% (iii)Ten top candidates against one vacancy will be called for interview, after shortlisting.
5. Learned counsel for the respondents/university submits that while adopting the aforesaid formula interview letters were issued to the shortlisted candidates; that the petitioner did not fall amongst the top 20 candidates as such she was not issued a call letter for interview; that the petitioner did not qualify the comprehensive examination of M.Phil as such weightage of 30% allocated for M. Phil candidates was not awarded to her; that the Selection Board after taking into consideration academic qualifications, teaching/research experience and interview performance appointed Respondents No, 5 & 6 on merit; that no vested right of the petitioner was infringed by the respondents/university warranting interference by this Court in its Constitutional jurisdiction.
6. Learned counsel for Respondents No, 5 & 6 submits that Respondents No, 5 & 6 duly fulfill the requisite criteria and they were selected by the Selection Board on merit; that appointment orders of said respondents have been implemented as such valuable rights have accrued in their favour and their appointments could not be recalled on the principle of locus poenitentiae.
7. I have heard the arguments advanced by the learned counsel for the parties at length and gone through the record.
8. Admittedly, the respondents/university invited applications for various vacancies including two posts of lecturers in Islamic Studies vide proclamation dated 07.08.2009 published in "Daily Khabrain". The requisite qualification for the said posts is as under:-- {{TABLE}} Sr.No,Name of postNo /nature of postMinimum qualification 30 Lecturer in Islamic Studies (for the Department of Islamic Studies)2- PermanentFirst Class Master's Degree OR equivalent degree awarded after 16 years of Education in the relevant field with no 3rd Divis.ion in the academic career from an HEC recognized University/institution. No experience required.
OR 2nd Class Master's degree with higher qualifications (Master's degree)
(foreign)/M. Phil (Pakistan) OR equivalent degrees awarded after 18 years of education as determined by the HEC in the relevant field with no 3rd division in the academic career from an HEC 'recognized University/institution)
NOTE: The candidates holding a higher degree viz. M.Phil/Ph.D or equivalent degree but with only one third division in the entire academic career are eligible to apply. {{TABLE}} No where in the said advertisement a criteria was laid down for shortlisting candidates as adopted by the respondent/university. It is very astonishing to observe that in the advertisement it was specifically laid down that no experience is required but while adopting the criteria 4 marks per year for experience upto a maximum of 20 marks were awarded to experienced candidates. Also same is entirely contrary to the conditions laid down in the advertisement and apparently smacks mala fide on the part of respondent/university. The similar is the situation with regard to grant of 30% weightage to the candidates possessing M. Phil degree. No where in the advertisement it was laid down that only the candidates who passed the comprehensive examination are eligible to get 30% weightage of M. Phil degree. It is an admitted fact that comprehensive examination adds nothing to the final marks and the result cards were issued to the candidates without conducting comprehensive examination. When the respondent/university had issued result cards to the candidates on the basis of which the present petitioner obtained admission in Ph.D (Shariah and Law) at International Islamic University, Islamabad then there should be no hurdle in considering the same result card and giving 30 % weightage allocated for M. Phil candidates in particular when the comprehensive examination adds nothing to the final tally of marks. Even otherwise criteria adopted by the respondent/ university while shortlisting the candidates is beyond the terms and conditions as laid down in the advertisement as such has no sanctity in the eyes of law. It is now a settled principle of law that an advertisement, inter-alia, in relation to filling up of vacancies is a promise stating all the rules which the authority undertakes to observe in consideration for giving employment to the most suitable candidate and there should not be any deviation from the said advertisement and if at all any deviation was necessary in order to overcome some shortfall/legal lacunas then such changes should be advertised in the same manner as the original advertisement and also to be notified to each and every applicant if the process of filling up the posts commenced in the meanwhile. Reliance is placed on case reported as Muhammad Intizar- ul-Hassan vs. University of Agriculture, Faisalabad and 2 others (1997 PLC (C.S) 855) wherein it has been held as under:-- "The purpose of making advertisements for the purpose of recruitment against various posts in the government and public institution is that fair opportunity should be granted to all eligible persons who may apply and contest for appointment. While on the one hand, it gives an opportunity to the eligible persons to contest for a particular post, on the other hand it gives opportunity to the employer to select the best person for the job in question. The requirement of due publicity of the post in the press is relatable to the constitutional guarantee provided by Article 25 of the Constitution, which enjoins that all citizens are equal before law and are entitled to equal protection of law. This means that in the 'matter of appointments in the Government or Government controlled agencies all eligible citizens should have equal opportunity to contest for the appointments against posts in the public sector."
9.The petitioner has not only passed her M. Phil and M.A. (Islamic studies) examinations with distinction and obtained gold medals in both these degrees but also throughout her educational career the petitioner has maintained a distinguished record. If such a shining student is deprived of her fundamental right of being considered for a job merely on the liking and disliking of the university administration it would cause a sense of disappointment amongst the students and they would prefer to leave the country which of course would be detrimental for the future of our country. The respondents/university competent to make appointments are expected to exercise their authority honestly and objectively. In case reported as Dr. Naveeda Tufail and 72 others Vs. Government of Punjab and others (2003 SCMR 291) the Hon'ble Apex Court has observed as follows:-- "The appointments in the public sector is a trust in the hands of public authorities and it is their legal and moral duty to discharge their function as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such posts is excluded from the process of selection and is deprived of his right of appointment in service."
10.In the present case the respondent/university has not exercised its authority for appointment in a just, fair and transparent manner thus transgressing and breaching the trust vested in it. The criteria for shortlisting candidates is contrary to the terms and conditions of the advertisement as such the same is declared illegal and without lawful authority.
11. So far as the contention of the Respondents No, 5 & 6 that after implementation on their appointment orders valuable rights have accrued in their favour and their appointments could not be recalled on the principle of locus poenitentiae is concerned the Hoz'ble Apex Court in case reported as Abdul Hague Indhar and others Vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and three others (2000 SCMR 907) has categorically pronounced that concept of locus poenitentiae is the power to recede till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and a past and closed transaction. It was also laid down that if the order was illegal then perpetual rights could not be gained on the basis of such an illegal order.
12.For what has been stated above, this writ petition stands accepted as a result whereof criteria adopted by the respondents/ university for shortlisting the candidates for the posts of Lecturers in Islamic Studies is declared illegal, without lawful authority and contrary to the terms and conditions as laid down in the advertisement and consequent appointments of Respondents No, 5 & 6 are also declared illegal, void and the same are hereby set-aside. Respondent/ university is directed to prepare a fresh list of eligible candidates after giving 30% weightage to the petitioner as well as other candidates possessing M. Phil degree who were declined these marks on the pretext of not passing the comprehensive examination and after excluding marks of experience and then make appointments for the said posts strictly on merit.
13.Before parting with this judgment, it is observed that the respondent/university while making recruitments for the posts of Lecturers in Islamic Studies have acted in utter disregard to its lawful authority. Despite the fact that the Deputy Registrar of the said university made a recommendation to seek legal advice for grant of weightage of 30% for M.Phil to all candidates who aid not pass comprehensive examination, the Respondent No, 1 declined the said request with a single stroke which shows mala fide on his part thus preventing the eligible candidates to be considered for the said posts resulting in gross injustice and forcing the petitioner to seek remedy before this forum.
This act on the part of Respondent No, 1 requires that he be burdened in his personal capacity. It is, therefore, ordered that the Respondent No, 1 will pay a sum of Rs, 50,000/- to the petitioner as compensatory cost for the mental torture and agony she suffered during the entire process. The cost is to be paid to the petitioner by 28.09.2012 by Respondent No, 1 from his own pocket and compliance report shall be submitted to the Deputy Registrar (J) of this Bench failing which the Office shall place the matter on 11.10.2012 before this Bench and in case of non-availability of this Bench before the Hon'ble Senior Judge for further proceedings.