' MUHAMMAD QASIM KHAN, J.--- Pursuant to advertisement about nine vacancies of Patwaries (six on open merit, 2 on concessional quota for government employees' children, and one on disabled quota), the petitioner being son of a retired government servant submitted his candidatures and after completing the requisite formalities, the name of the petitioner fell at serial No,4 of the contesting candidates against concessional quota, as there were only two vacancies, therefore, he could not be appointed in said concessional quota. Through this writ petition the grievance of the petitioner is that two other candidates namely Shaukat Ali Javaid and Saeed Khan had obtained 67 and 60 marks respectively, therefore, they could be conveniently adjusted on open merit, but they both were included and selected against concessional quota, thus the petitioner was deprived. According to the learned counsel, concessional quota was meant to accommodate deserving candidates who otherwise could not qualify on open merit. It is further argued by learned counsel that a similarly placed candidate namely Muhammad Ramzan whose name figured at Serial No,3 of the merit list against concession quota, filed Writ Petition No,2959/2007 and ultimately he was, appointed on open merit.
2. The learned Additional Advocate-General assisted by departmental authorities opposed this writ petition.
3. The whole controversy in this case boils down to the point that whether a candidate belonging to the reserved category/quota even if he is entitled to be selected for appointment on open competition on the basis of his own merit yet can he be counted against the quota meant for reserved category or will he be treated as an open competition candidate? To answer this question, one must understand the logic behind formation of policy especially the element of concessional quota. It is quite obvious that concessional quotas are maintained in order to accommodate those candidates who otherwise for any reason could not compete on open merit, therefore, in order to provide them yet another opportunity of appointment, such concessional quota is created. But here in this case, there is no denial to the fact that Shaukat Ali Javaid and Saeed Khan (both could be appointed on open merit) had secured 67 and 60 marks respectively in the final merit, but they have been selected against concessional quota, whereas, the persons who had secured 58 and even 57 marks have been selected on open merit. This mode of selection is against the spirit of recruitment policy and spirit for special quota, as if a candidate although entitled for reserved quota, achieves the target of selection on open merit, but is not selected, on the post against open merit, rather is considered on reserved quota alone, then wisdom for creating quota for any area or group of people will be frustrated, as the purpose behind creation of such quota is to up-built persons of backward areas or belonging to deprived class of people, who otherwise could not compete on open merit.
4. Furthermore, on scrutiny of the documents, it has been observed that one Muhammad Ramzan had filed his application for appointment against one of abovementioned vacant posts, in the body of said application he mentioned the particulars of his deceased father that he had served as Naib Qasid in Tehsil Office Kasur but he had not specified in the prayer clause that in which category either on open merit or on concessional quota, he was applying. The department considered his application against concessional quota and as he stood at serial No,3 of the said quota, he could not be appointed. However, subsequently he (Muhammad Ramzan) agitated the matter that his application must be considered against open merit. Accordingly, the department reconsidered his matter and he fell on merit, therefore, now said Muhammad Ramzan has been appointed on open merit. Exactly same is the position with Saeed Khan, whose application also disclosed that his father was working as Patwari but in prayer clause of his application he had not specified that in which category he had applied for appointment. The department considered his application against concessional quota and appointed him accordingly. Thus, the discrimination meted out by the department is quite apparent from the record itself and this writ petition merits acceptance on this ground alone.
5. As a normal course, the department had to first fill the vacancies on open merit and then the cases of persons, who could not compete on open merit, must have been considered against concessional quota if they applied for the same. In a situation like the one in the instant case, if the department is allowed to import the successful candidates from open merit, into concessional quota, then the whole scheme of policy of creating quotas would be frustrated and the main purpose of keeping A concessional quota would end to be just eyewash. While holding so, reliance is placed on the case "Nergis Shazia Chaudhry v. Federal Public Service Commission and others"
(2010 PLC (CS) 1035), "Ritesh R. Sah v. Dr. Y.L. Yamul and others" (1996) 3 Supreme Court Cases 253, also reported in AIR 1996 Supreme Court 1378.
6. Consequently, this writ petition is allowed, the respondent authorities are directed to adjust the successful persons whose name have been mentioned against concessional quota, on open merit and the petitioner shall be appointed against concessional quota, if otherwise, he stands on merit and meets with the appointment criteria.
7. It is clarified here that during arguments, the Court was informed that certain seats are still vacant; therefore, it is held that as earlier candidates who have been appointed on open merit shall not be disturbed as their selection is not under question and even otherwise, they have earned a legitimate right of expectancy.