' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Grievance of the petitioner is that while making appointments for the posts of SSE (Arts) in district Nankana Sahib the respondents/recruitment committee has not followed the merit policy and appointed the candidates including respondent No,4 at their own whims.
2. Learned counsel for the petitioner submits that the respondent No,1 invited applications for various categories of Educators in District Nankana Sahib vide publication dated 30-1-2009 published in Daily Nawa-i-Waqat; states that being eligible the petitioner applied for the post of SSE (Arts) at Government Girls Elementary School, Chak No,23 Barnala; contends that according to the terms and conditions of the advertisement two marks were allocated for computer literate (M.S. Office); asserts that neither any test nor any diploma was required for a candidate for award of these marks; further states that the petitioner appeared in the interview and the selection committee has not awarded her full two marks for Computer Literacy; argues that if these two full marks are awarded to her she would come on merit; finally submits that the respondent No,4 has been appointed by violating the merit policy.
3. Conversely, learned Law Officer submits that all the appointments were made in accordance with the merit policy; explains that award of two marks for computer literacy was the discretion of Selection/Recruitment, Committee and while using this discretionary power 0.90 marks were awarded to the petitioner; states that even though no mark for computer literacy was awarded to the respondent No,4 she was still at Sr.No,2 of the merit list whereas the present petitioner falls at Sr.No,3 of the said list; assures that all the appointments were made in a fair manner and in accordance with the terms and conditions of the advertisement; finally contends that the petitioner has been appointed as ESE at Govt. Girls High School Chak No,24 Kalan on merit and she has joined her services at that station.
4. Learned counsel for respondent No,4 submits that according to merit list one Mst. Sobia Noreen was at Sr.No,1, respondent No,4 at Sr.No,2 and the petitioner was at Sr.No,3; that said Mst. Sobia Noreen has not joined as such the respondent No,4 was appointed; that despite the fact that respondent No,4 does not claim these two marks of Computer Literacy due to lack of this ability, she is higher on the merit list as compared to the petitioner.
5. Arguments heard. Record perused.
6. Perusal of the record shows that according to merit list prepared by the Selection/Recruitment committee the present petitioner is sighted at Sr.No,3 of the merit list, whereas, respondent No,2 is at Sr.No,2 of the said list. The candidate who was top of the merit list did not join the service. It is also an admitted fact that the petitioner claimed two marks allocated for Computer Literacy, whereas, respondent No,4 has not claimed these marks due to lack of this ability.
7. According to clause-iv of the terms and conditions of the advertisement for the post of SSE there shall be three marks for teaching experience and two marks for computer literate (M.S. Office).
Perusal of the merit list shows that these two marks have not been awarded to each of the candidates who possessed this qualification rather the marks have been awarded arbitrarily ranging from 0.00 to 2.00. Neither the advertisement nor the policy for the recruitment of the Educators for the year 2008-2009 speaks about this discretion given to the appointing authority. In order to clarify this position query was made to the competent authority, in response to which Additional Secretary Education personally appeared in the Court and submitted that according to the Notification No,SO(SE.IV)2- 34/2008 dated 30-7-2009 Selection/ Recruitment Committee was authorized to adopt a strategy at its own level regarding award of 02 marks for computer literacy (Knowledge about MS Office) to the candidates who have applied for the posts of SSE (Science) and SSE (Arts/English).
8. No doubt by virtue of the above said notification Selection/ Recruitment Committee was authorized to exercise their discretion but there is no cavil with the proposition that the Selection/Recruitment Committee is expected to exercise this discretion judiciously, honestly, objectively and in accordance with law. Reliance is placed' on Abdul Wahab and another v.
Secretary, Government of Balochistan and another (2009 SCM R 1354) wherein it has been held as under:--- "No one could be allowed irrespective of the fact who is who to act in an arbitrary, fanciful and whimsical manner and they had got to be judicious, fair and just in taking such decision, 'We are not persuaded to agree with the learned Additional Advocate General that the question of retention and dispensation squarely falls within discretion of department for the reason that the "Discretionary power conferred on government should be exercised reasonably and subject to' existence of essential conditions, required for exercise of such powers within the scope of law. All judicial, quasi judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the- rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power of exercise of discretion would not authorize such Authorities to act arbitrarily, discriminately and .Mala fide.
They have to act without any ulterior motive. Where the Article 58(2)(b) of the Constitution were found to be violative of terms and spirit of that Article, the orders were struck down."
9 Nothing was laid down in the advertisement nor in the recruitment policy Is to how the two marks set out in the policy be awarded to 'a computer literate candidate. The only requirement for the award of these two marks as laid down in the advertisement and the policy was "Computer Literate (M.S. Office)" . While reading the advertisement every candidate possessing this qualification expected to obtain those was marks but while giving discretion for grant of these two marks to the Selection/Recruitment Committee at its own level through a corrigendum referred supra would promote misuse of discretion which may result in nepotism, corruption feeling of despondency and hatred against the State and would be detrimental and discriminatory to the candidates who expected to be treated on merit . Furthermore, last date for submission of applications was 16-2- 2009, whereas, the corrigendum was issued on 30-7-2009 which has no legal sanctity in the eyes of law as the same was not even publicized by the respondents/department in any newspaper and remained an internal document. In case reported as Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others (1986 CLC 1056 (Karachi) it has been held as follows:--- "The determination of such date is necessary as once a vested right is created any amendment in the admission Rules affecting such vested right cannot be allowed. The admission policy is announced by publication of the prospectus. On the basis of such prospectus the applications are invited upto a particular date. These applications are considered and scrutinized immediately on the expiry of the last date for their submission. The applicants are then interviewed and selected for admission. In this process for admission the moment date for submission of application expires the applicant becomes entitled to be considered for admission. This seems to be reasonable and proper approach to the problem. After the expiry of last date no one can apply for admission. The applicants are to be considered on the basis of conditions, categories and criteria laid down in the prospectus or rules of admission. If the concerned authorities are allowed to amend the rules or policy after the last date and at any time before the admission process is completed then it is likely to result in serious abuses, malpractice, manipulation and favoritism. Even if the authority honestly and bona fide amends during this period it is likely to be viewed with suspicion and will injure the reputation and prestige of the august bodies like Syndicate. Amendment after expiry of the ''date before submission of application is fraught with serious consequences and likely to cause mistrust."
In this view of the matter the candidates acquired a vested right to be considered for the award of the two marks for computer literacy as laid down in the advertisement and Recruitment Policy for the year 2008-09 after the expiry of the last date of receipt of application, there was no justification for the department to deviate from the conditions as laid down in the advertisement and recruitment policy, supra. Any amendment made after the last date of submission of applications is clearly illegal and unfair. Resultantly, corrigendum notification bearing No,SO(SEIV)2-34/2008 dated 30-7-2009 being mala fide and made in colourable exercise of authority in order to oblige the candidates of their own choice is declared void, ab initio, having no effect on the rights of the candidates and is set-aside.
10. In the present case admittedly if two full marks of Computer Literacy were awarded to the petitioner she would fall on merit for the post of SSE (Arts) in Government Girls Elementary School Chak No,23 Barnala which were not granted to her by the Recruitment/Selection Committee in an arbitrary and capricious manner apparently under the pretext of discretion. Resultantly, this writ petition stands accepted. Respondents are directed to issue appointment order to the petitioner for the post of SSE (Arts) in Government Girls Elementary School Chak No,23 Barnala .
11. Before parting with the judgment, it is clarified that the respondent No,4 shall not be affected by this order as the illegality and irregularity while making appointments has been committed by the respondents/department and she should not suffer due to the act of the respondents/department.
If no seat of SSE (Arts) falls vacant in the above said school after adjustment of the present petitioner, the respondents/department shall adjust respondent No,4 in some other school nearest to her residence.