' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Grievance of the petitioner is that while making appointments for the posts of SESE (Arts) in the Elementary Middle School Chak No,55/EB Arifwala the respondents/recruitment/ committee has not followed the merit policy and appointed the candidates including respondents Nos.7 and 8 on their own whim.
2. Facts of the case in brief are that the respondents/department invited applications for various vacancies of Educators and according to the advertisement four posts of S.E.S.E. (Arts) fell vacant at Elementary Middle School Chak No,55/EB, Arifwala. The petitioner along with respondents Nos.5 to 8 submitted applications for the posts of S.E.S.E. In the aforementioned school. According to the Recruitment Policy ten additional marks were to be granted to the candidates belonging to the same. Chak and if no candidate of the some Chak was available to the candidate of the same Union Council. The petitioner belonged to the same. Union Council, however, ten marks were not awarded to her but the respondents/Recruitment Committee appointed respondents Nos.6 and 7 by ignoring the merit list. Being aggrieved the petitioner filed a complaint before the learned Provincial Ombudsman which was decided on 4-9-2007 and direction was issued to respondent No,3 to prepare fresh merit list for the 3rd and 4th seat in the aforesaid school. Not being satisfied the respondent No,3 filed an appeal before the Governor of the Province which was dismissed on 26-11-2009 but despite this fact the order of the learned Provincial Ombudsman is not being complied with by the respondents Nos.1 to 3. According to the petitioner, appointments of respondents Nos.6 and 7 are illegal and against the merit policy.
3., On the other hand, stance of the respondents Nos.2 to 4 in their report and parawise comments was that all the appointments were made in accordance with the Recruitment Policy; that four posts of SESE (Arts) at Government Girls Middle School 55/EB were advertised and according to the recruitment policy 10 additional marks were awarded to the candidates belonging to the same village and these marks were awarded to three candidates who belonged to the same village; that the petitioner including seven candidates belonged to the same union council but in the presence of candidates belonging to the same village these 10 additional marks were not granted to her; that being aggrieved the petitioner filed a complaint before the learned Provincial Ombudsman and pursuant to the direction of learned Ombudsman dated 4-9-2007 fresh merit list for the 3rd and 4th seat in the aforesaid school was prepared; that despite granting ten additional marks specified for the residents of same union council the petitioner did not fall on merit; that respondents Nos.6 and 7 were appointed in the first phase on merit according to the first merit list; that the petitioner does not fall on merit as such does not deserve to be appointed for the post applied for.
4. According to the reply of respondent No,7, she was appointed at Govt. Middle School Chak No,55.E.B. On refusal of one Noshaba Gull on merit and now her services have been regularized w,e,f, 10-9-2010; that her appointment order has been implemented and valuable rights have accrued in her favor and her appointment could not be recalled on the principle of locus penitential.
5. I have heard the arguments advanced by the learned counsel for the parties at length and gone through the record;
6. It is an admitted fact that .Four seats of SESE (Arts) were lying vacant at Government Girls Middle School 55/EB. According to the report and paradise comments of respondents Nos.2 to 4 three candidates belonging to the same village and seven candidates including present petitioner belonging to the same Union Council applied for the said posts. Para No,11(iii) of the Recruitment Policy for the year 200506 provides as under:--- "To ensure retention of teachers in schools a candidate, interested in employment as Educator belonging to the same Village will be awarded Ten Extra Marks as compared to other candidates. If no candidate is available in the Village where the school is situated then this award will be extended to the candidates belonging to the same Ward, Union Council, Markaz/Police Station and Tehsil respectively where the school is situated."
7. It is also an admitted fact that one of the candidates belonging to the same village was adjusted at some other school and ten additional marks were awarded only to two candidates belonging to the same village and the merit list was prepared without extending benefit of 10 additional marks to the candidates belonging to the same union council and pursuant to that merit list respondent No,6. Uzma Jillani and respondent No,7 Rashida Ghaffar who admittedly neither belonged to the same village nor the same union council were appointed. Being aggrieved the petitioner approached learned Provincial Ombudsman who vide order dated 4-9-2007 after investigation came to the conclusion that maladministration was' established to the extent of appointment of two SESEs, Government Girls Middle School, 55/EB and the respondent No,3 EDO (Education)
Pakpatton was directed to prepare a fresh merit list by giving ten marks to the residents of same Union Council and make appointments against the third and fourth post on the basis of this merit list. EDO (Education) preferred appeal against the said order before the Governor Of the Province about the same was rejected vide order dated 26-112009.
8. Pursuant to the direction of the learned Provincial Ombudsman fresh merit list after awarding ten additional marks 'to the residents of same Union Council was prepared and according to that list total points/marks scored by present petitioner were, 38.7 whereas, those of respondents Nos.6 and 7 who have been appointed were 38.7 and 37.6 respectively. In this view of the matter, total score of present petitioner was equivalent to respondent No,6 Uzma Mani and more than respondent No,7 Rashida Ghaffar., Respondents Nos.2 to 4 without adverting to this fact once again denied appointment to the petitioner on the plea that these two respondents have already been adjusted in the 1st Phase. This state of affairs is highly deplorable. The present petitioner is running from pillar to post for getting an appointment which she deserves on merit. She pointed out the maladministration on the part of Recruitment/Selection Committee and the learned Ombudsman also held that there is some maladministration on the part of the Selection Committee despite this fact the respondents Nos.2 to 4 have not taken any action against the recruitment of respondents Nos.,6 and 7 merely on the basis that 'they have been selected in the 1st Phase. The petitioner has been agitating right from the very beginning. The respondents Nos.2 to 4 did not, prepare the 1st merit list in accordance with the Recruitment Policy for the year 2005-06 as the selection has been done in derogation of said policy, therefore, candidates so selected have no legal and vested right to renin appointed on the basis of illegal and arbitrary 1st merit list. If the 1st merit list was to be prepared in accordance with the spirit of the recruitment policy for the year 2005-06 then no occasion would have arisen for the appointments of candidates who did not fall on merit The departmental authorities competent to make appointments are expected to exercise their authority honestly and objectively. In case reported as Dr. Naveeda Tufail and 72 others v.
Government of Punjab and others (2003 SCM R 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."
9. In the present case, firstly the petitioner was not granted 10 additional marks allocated to the residents of the same Union Council in accordance with the Recruitment Policy which were later on granted by the intervention of the learned Ombudsman and after grant of these marks the petitioner came on merit for the post applied for but even then the respondents Nos.2 to 4 did not consider this fact and tried to mislead the Court by stating that even after grant of these ten additional marks the petitioner did not come on merit. This Court summoned the revised merit list according to which the petitioner's marks are more than the respondent No,7 Rashida Ghaffar and equivalent to respondent No,6 Uzma Jillani. This fact shows mala fide on the part of the respondents Nos.2 to 4 who made all out efforts to defeat the ends of justice. According to the revised merit list the petitioner is entitled to be appointed as SESE (Arts) Elementary Middle School Chak No,55/EB Arifwala.
9-A. So far as the contention of the respondent No,7 that after implementation on her appointment order valuable rights have accrued in her favor and her appointment could not be recalled on the principle of locus poenitentiae is concerned the Hon'ble Apex Court in case reported as Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCM R 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 bf 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.
10. For what has been stated above, this writ petition stands accepted as a result whereof respondent No,2 is directed to issue appointment order to the petitioner for the post of SESE (Arts) in the Elementary Middle School Chak No,55/EB Arifwala within -40 days from the date hereof under intimation to the Deputy Registrar (J) of this Court. If while doing so any already selected candidate including respondent No,7 is effected, due opportunity of personal hearing be provided to the affected person (s).
11. Before parting with this judgment, it is observed that the respondents Nos.2 to 4 while making recruitments in the aforementioned school have acted in utter disregard to their lawful authority.
Despite the fact that the learned Ombudsman pointed out maladministration to these appointments the respondents Nos.2 to 4 have not bothered to rectify the said mistakes and once again involved the petitioner in another round of litigation before this Court and during the course of hearing deliberately did not apprise the Court about the true facts and tried to mislead the Court. This act on the part of respondents Nos.2 to 4 requires that they be burdened in their personal capacity. It is, therefore, ordered that the respondents Nos.2 to 4 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 30-6-2012 by respondent No,1, however, the same shell be recovered by respondent No,1 from the personal salaries of respondents Nos.2 to 4 on monthly basis within a period of six months.