Rooh-ul-Amin Khan, J.--This constitutional petition has been filed by the petitioner Muhammad Irshad Khan, with the prayer that respondents be directed to consider him for appointment against the vacant post of primary school teacher in union council, Kot Qalandar, Bannu.
2. Brief but relevant facts of the case as averred in the petition are that the petitioner in pursuance of an advertisement published in local daily "Mashraq" dated 02.03.2008 and corrigendum dated 10.10.2008 submitted an application for appointment against the vacant post of PST/PTC under 75% quota reserved for appointment on union council basis. The petitioner being inhabitant of village Hassan Khel belongs to union council Kot Qalander. He qualified the test and interview and the selection committee after fulfilling all the legal and codal formalities placed his name at S. No, 2 of the merit list, while one Ehsanullah by securing 51.14%, marks was placed at the top of the merit list of union council, Kot Qalander. The respondents/ department issued order dated 18.04.2009, whereby the above said Ehsanullah was appointed, against the sole vacant post of PST at Government Primary School Alam Machin Khel, union council Kot Qalandar. The appointee could not join the duty, thus the post remained vacant. According to the claim of petitioner, being at S.No, 2, of the merit list, his recognized legal vested right of appointment against the same post has been invaded and denied by the respondents. Hence, this petition. Comments of the respondents were called for, wherein they frankly conceded the facts and admitted it correct that the petitioner had applied for appointment against the post of primary school teacher and his name has been placed at S.No, 2 of the merit list of union council Kot Qalandar, Bannu, but urged that only one post was lying vacant in the above said union council, against which the selectee at S. No, 1 of the merit list, i,e, Ehsanullah was recommended by the selection committee and appointed vide order dated 18.04.2009. It was also admitted that Ehsanullah did not resume his duties against the vacant post.
3. The learned AAG, present in the Court was put on notice who while accepting notice vividly argued that the only vacant post available in union council has already been filled by appointment of Ihasanullah, whose name was existing on the top of the merit list of union council Kot Qalandar.
The appointee could not join the post, which again fall vacant and it is settled law that in case any post vacated by non-joinder of selected candidate, the ordinary course for the department and government should be to re-advertise it. He argued that there is no concept of maintaining waiting list, therefore, the petitioner could not be appointed against the post remained vacant by non- joiner of Ehsanullah. In support of his contention he placed reliance on Musa Wazir's case, SCMR 1993 SC 1124.
4. We have heard the arguments of learned counsel for the parties and have gone through the record with their valuable assistance.
In Musa Wazir's case, (Supra) the controversy resolved by the Hon'ble Supreme Court, was pertaining to absorption of candidates from the waiting list being made from one combined competitive examination for the post of EACs, DSPs, SOs and ETOs. At that time, it was consistent policy of the Public Service Commission to maintain a waiting list of the qualified candidates, which was normally valid for six months after the communication of original recommendation. In pursuance of the above said policy the Public Service Commission frequently use to recommend the selectee from the waiting list, even after requisition of fresh vacancies in piecemeal manner. By this type of practice, those who were lower in merit were recommended against the first preference i,e, EACs and DSPs, while those who were superior in merits were selected for third and fourth option. For instance in the case (ibid) the selectee at S.No, 14 of the then merit list was recommended for his third option, while those at S.No, 28, 54, 67 and 91 of the same merit list were given first and second preference. Meaning thereby that, the waiting list was proving more advantageous and beneficial for the candidates low in merit and discriminatory for the candidates high in merit (i,e, recommended candidates from the merit list against the first requisition), Due to the discriminative policy of Public Service Commission a number of persons higher on the merit list were relegated to third option, while those far lower in the merit list to them upgraded in the matter of allocation of service. In the case supra the Hon'ble Supreme Court fixed the anomaly and observed as under: The practice of keeping a waiting list in a competitive examination system is actually introducing a contradictory concept. The waiting list is maintained in a qualifying examination while in a competitive examination all vacancies are filled up in one go. Even if the filling up is staggered the competitive examination is one and has to be treated as one selection for the purposes of recruitment and it cannot be divided into subsequent selection and prior selection the competitive examination remaining one and the same. Besides, the system which has prevailed in the Province is highly manipulative and unfair. Observation of the High Court on merits reproduced above shows that it came to the conclusion that the practice of the Commission was unfair, created apprehension in the minds of the candidates, was manipulative in the hands of those dealing with the candidates and was the cause of heart burning, the persons affected and working in the Government service. The practice in the matter of recruitment, promotion etc. has always to be such so as to foster competence, discipline and efficiency in public service. Not only these objects should be advanced but they must appear manifestly to be advanced. If the system is arbitrary, capricious, unfair, leads to abiding heart burning and litigation then it is derogatory of the laudable objects for which the public service is required to be established."
The above referred precedent and guideline has shaped the contours of the law relating to selection of successful candidates made from one combined competitive examination. It was in this spirit, i,e, providing meaningful legal guarantee for entrance into civil service, particularly of management and superior services group and doing away with arbitrariness and to bring the practice of Public Service commission in accord with the constitutional requirement.
6. In the instant case the petitioner has qualified the interview and has been placed at S.No, 2 of the merit list of Union Council Kot Qalandar. The post remained vacant due to non-joinder of selectee from S.No, 1 of the merit list. The other appointed candidates against the post of PST/PTC belong to one and the same cadre and grade and absorption of the petitioner from the waiting list shall cause no harm or prejudice to the previous selectees from the merit list. The similar controversy was settled by the Hon'ble Supreme Court in case titled' Government of NWFP, through Secretary, Education Department Peshawar and others Vs. Qasim Shah" (2009 SCMR 382). The relevant portion of which is reproduced as under: "Having consider the matter from all angles, we are of the view that when some of the selected candidates do not join the service, such posts remain vacant and it was imperative for the department to have considered the remaining candidates for appointment against said posts.
Such posts cannot be kept vacant till the next process of recruitment, if some of the selected candidates were still available on the waiting list. In this view of the matter i,e, four posts were not filled in, the remaining four persons were entitled to be considered for appointment. The failure of the department to appoint the respondent and others in the earlier process was not in accordance with the fair practice of recruitment. It is not denied that respondent was one of the candidates who was selected during the earlier recruitment process whereby twenty persons qualified the test and interview but only sixteen persons were appointed and the remaining selected candidates, including the respondent, were ignored despite the availability of seats."
7. In light of the law laid down by the Hon'ble Supreme Court, in Qasim Shah's case (supra) the respondents/department instead of advertising the post, should have considered the next suitable and eligible candidate from the waiting list. The respondent disclosed that the post of PST/PTC at Government Primary School Alam Machin Khel, is still lying vacant. It is an admitted fact that the name of the petitioner exists at S.No, 2, of the merit list and the only selected candidate from the merit list has not accepted the offer of the department, thus it was imperatives for the department to have considered the petitioner against the same vacant post, being next in the merit list, because the post in question cannot be kept vacant till the next process of recruitment in the circumstances when the next selected candidate was still available on the waiting list.
8. The appointing authority i,e, Respondent No, 1 has also acknowledge the right of petitioner, but instead of issuing the appointment order, recommended him for appointment against the post in question, vide letter dated 26.11.2012, addressed to District Coordination Officer, Bannu. We deem it appropriate to reproduce the above said letter, which is as under:-- "Your kind attention is invited to your Memo. No, 4472/DCO/ AE/Rec;, dated 16.11.2012, on the subject quoted' above and to inform your good self that whereas the judgment of august Supreme Court of Pakistan received in 2009 SCMR (Page 382) in Civil Petition No, 248-P of 2007 in titled Government of NWFP through Secretary Education Department petitioner versus Qasim Shah respondent which was decided on 18.11.2008 (copy of judgment attached).
Sir, when once order of August Supreme Court of Pakistan received then other views has lost its weightage. Submitted for your kind perusal and further necessary action please."
We have noted with great concern that despite the fact that the Respondent No, 1 being the appointing authority of PST/PTC, as evident from the impugned order dated 18.04.2009, and Well aware of the judgment of Hon'ble Supreme Court in Qasim Shah's case, wrote a letter to the District Co-ordination Officer instead of observing the dictum of apex Court and applying his independent mind. The purity of administration and good governance demanded that the appointing authority i,e, Executive district Officer instead of writing a letter to the District Co-ordination Officer, should have boldly issued an appointment order of the petitioner. The cowered and hesitant or deliberate and tricky act of the authority has unnecessarily forced the petitioner to enter into litigation. The Hon'ble Supreme Court in number of cases has clarified that the duty of public officer is to independently discharge their function and not be influence by illegal, wrong and dictatorial directions and orders of their superior and political figures. The appointment against a civil post must be on merit and the compliance of illegal orders of superior's would not be justifiable on the basis of having been issued by the higher authority. Reference in this regard may be made to the cases of Syed Nazar Abbas Jafri vs. Secretary Govt. of Punjab and another (2006 SCMR 606) and Iqbal Hussain Vs. Province of Sindh (2008 SCMR, 105).
9. It is also a matter of concern that functionaries of the government are not discharging the statutory function in public interest. The government and public authorities have adopted the practice of relying upon the technicalities for defeating the legitimate claim of the citizen. Such act in a callous and highhanded manner of the authorities not only compel the eligible and qualified candidate to knock the door of the Court, but also violative of fundamental rights as enshrined in the Constitution of Pakistan. Here it would be relevant to cite the judgment of Hon'ble Supreme Court in case titled "Samiullah Khan Marwat Vs. Govt. of Pakistan through Secretary Establishment, Islamabad and another" (2003 SCMR 1140), wherein it was held that exercise of powers by the public functionaries in derogation to the discretion of law would amount to disobeying the command of law and the Constitution.
10. In view of above and deriving wisdom from the dictum laid down by the apex Court in judgment referred above, this petition is admitted for regular hearing and allowed with the direction to Respondent No, 1 to consider the petitioner for appointment against the vacant post in union council Kot Qalander.