' AMIR HANI MUSLIM, J.---This Petition for leave to Appeal is directed against the judgment dated 22.01.2015 passed by the learned High Court of Sindh, at Karachi, whereby the petition filed by the Petitioner was dismissed.
2. The facts necessary for the purpose of the present proceedings are that Respondent No,1 advertised four vacancies of Lecturer (BS-17) JPMC, Karachi on 13.08.2008 on a reference received from the Ministry of Health. The petitioner who belongs to Sindh (urban) applied for the post of Lecturer in Pharmacology. After completion of recruitment process, recommendations/nominations were issued merit wise by the Respondent No,1 for all the four posts of Lecturer. The petitioner was not recommended for any of the post and she was accordingly informed. However, she later on came to know that she was at S.No,2 in the merit list of lecturers of Pharmacology. Dr. Urooj Aqeel who was on the merit list of Pharmacology and Dr. Ali Hussain on the merit list of Pathology were on top, did not join. Dr. Ali Hussain's selection was for the post of Lecturer in Pathology was cancelled whereas, Dr. Urooj Aqeel was given 15 days more time on 1st April 2010 (after 4-1/2 months after 1st offer). It was further submitted that even after the lapse of the extended time, Dr. Urooj Aqeel did not report to her new assignment. According to the Petitioner, that in case of Dr. Ali Hussain alternate candidate Ayesha Khalid was given posting offer by Ministry of Health on the recommendation of the Respondent No, 1.
3. It is further pleaded that petitioner pursued the matter and addressed letter to the Ministry of Health Division on 22.07.2010 as well as to Respondent No,1, but instead of dealing the case of the Petitioner in the manner as that of Ayesha Khalid, she was declined nomination inter alia on the ground that the stipulated period of six months has lapsed, therefore, she cannot be recommended as alternate candidate for nomination. Consequently, the petitioner filed the petition before the learned Sindh High Court, which was dismissed by the impugned judgment.
4. It is contended by the petitioner appearing in person that the impugned judgment of the learned High Court is not in conformity with the criteria notified in the Office Memorandum dated 5th May 2010 issued by the Cabinet Secretariat, Establishment Division. According to the Petitioner, Respondent No,1 advertised four vacancies of lecturer for Respondent No,4 JPMC somewhere in August 2008 on a reference received from the Respondent No,3.
5. The petitioner applied for the post of lecturer in Pharmacology from Sindh Province. The petitioner was not selected, however, the petitioner learnt that she was at S.No,2 in reserve list of subject of Pharmacology. Dr. Urooj and Dr. Ali Hussain who were toppers on merit in Pharmacology and Pathology respectively did not join their duties nor did they send any intimation declining the offer. However, Dr. Ali Hussain's nomination was cancelled and Dr. Ayesha Khalid as alternate candidate was nominated on 01.06.2010 and posted as Lecturer on 06.07.2010, which she joined in JPMC whereas the petitioner who was the alternate nominee of Dr. Urooj Aqeel, who failed to join was not recommended by the Respondent No, 2 inter alia on the ground that stipulated time of six months for the validity of reserved list has expired.
6. The learned DAG and the representative of the F.P.S.C. On the other hand had contended that since the Health Ministry failed to intimate alternate nomination within 06 months, therefore, the post requires re-advertisement.
7. We have heard the Petitioner and the learned DAG and have perused the record in their presence.
8. The entire controversy revolves on the office memorandum of the Establishment Division issued on 5th May 2010. For the convenience, the relevant clauses of the Office Memorandum are reproduced here under:-
(a) The above referred Establishment Division's 0.M. Binds the Ministries/Division/Departments to issue offer of appointment to FPSC nominees within two months which must be strictly observed.
In case of expected delay reasons thereof should be intimated to the Commission for considering extension in the period of making offer of appointment.
(b) Reserved list will remain valid for a maximum period of six (6) months from the date of issuance of offer of appointment as per FPSC's Circular No, F.6/1/97-R-1V, dated 28.9.1999 or maximum two months after FPSC has nominated in case the department delays in issuing the offer without forwarding any reason.
(C) For purposes of making first alternate nomination, the reserve list shall be maintained for a period of six (6) months from the date of issuance of offer of appointment to the principal nominee by the department: Maximum period shall be eight months from the date FPSC issues its nomination, in case of delay by the department.
(d) In case of non-joining of first alternate nominee, the reserve list shall be valid for additional two months.
(e) In the following exceptional circumstance, i.e,:-
(I) Extension granted by FPSC in joining time beyond three (3) months of the order of appointment or
(ii) Non-acceptance of FPSC's nomination by the concerned Ministry due to dispute on eligibility etc. Of the nominee or
(iii) Court's Stay Order.
9. According to clause (b) of the office memorandum a reserved list prepared by Federal Public Service Commission shall remain valid for a period of six months from the date of issuance of the offer of appointment or maximum two months after FPSC has nominated in case the department delays in issuance of the offer letter without forwarding any reason. Clause (c) provides that while making first alternate nomination, the reserved list shall be maintained for a period of six months from the date of issuance of the offer letter or appointment letter to the Principal nominee by the Health Department. If it is calculated together, the maximum period shall be eight months from the date FPSC issues its nomination in case of delay by the department. 'Clause (d) provides that in case of non-joining of the first alternate nominee, the reserve list shall be valid for additional two months. Clause (e) provides exception to the aforesaid time period given under Clauses (a), (b),
(c) and (d).
10. In the case in hand, admittedly the offer letter was issued to Dr.Urooj Aqeel on 14.11.2009 and its reminder was issued on 01.04.2010 and subsequent thereto a request was made apparently in April 2010 to the Respondent No,2 by Respondent No,3 to provide an alternate nominee to fill up the post of Pharmacology BS-17 in JPMC. Additionally on 20.07.2010 the petitioner also addressed a letter to the Respondent No,3 requesting them to select her for the post of Lecturer (Pharmacology) as she was the potential candidate from Karachi. The petitioner also addressed a letter to the FPSC in which she has stated that she deserved to be nominated as alternate candidate for the post of lecturer Pharmacology she was next to Dr. Urooj Aqeel on merit list of the subject.
11. The learned High Court after hearing the parties has dismissed the petition by relying upon the judgment of this Court in the case of Musa Wazir and 2 others v. N.W.F.P Public Service Commission through its Chairman and others reported in (1993 SCM R 1124). The said judgment of this Court is distinguishable on facts as the issue before this Court in the said case was examination before the NWFP Public Service Commission which was combined competitive examination, whereas, in the case in hand, the Federal Public Service Commission was dealing with the qualifying examination.
Even otherwise, Musa Wazir's case does not hold that in the combined competitive examination if the selected candidate does not join, the post must be re-advertised in all circumstances. In fact it says that it is advisable to re-advertise the post, but other factors could be taken into consideration while allowing alternate nomination from the reserve list which could only be in exceptional circumstances without encroaching upon the rights of the contesting candidates. In a recent judgment of this Court in the case of -Province of Sindh and others v. Ghulam Hassan Bughio reported as (2014 SCM R 643) allowed the alternate nomination of a candidate next on the merit list to join on non-occupation of the candidate, who was at S. No,01 on the merit list. The learned High Court in fact has failed to further notice the principle enunciated in judgment in the case of Musa Wazir, which provides that the waiting list is maintained in qualifying examination while in competitive examination all vacancies are filled up in one go. This part of the findings in the judgment has completely been overlooked by the learned High Court while dismissing the petition of the petitioner.
12. When confronted with the representative of FPSC as to whether the exams which the FPSC undertook for the post of lecturers were competitive exam or qualifying exam. He fairly conceded that these exams were qualifying exams as in these exams after requisite test there is no interview, whereas in the competitive examination, after written tests, the candidates are interviewed.
Therefore, the facts of the case of Musa Wazir are not applicable to the case in hand. Besides there is a procedure notified by the Establishment Division in the shape of Office Memorandum, where, in case of non-joining of a candidate selected on merit, the time frame is provided and in exceptional cases such time frame would not come in the way of FPSC to nominate alternate candidate in terms of the said Office Memorandum.
13. In the case in hand, computing the time from 14.11.2009, which was the date of offer letter to Dr. Urooj Aqeel, who failed to report to duty and ultimately on 01.06.2010 the Health Department for the first time realized the need for alternate nomination and in August 2010 letters were written to the FPSC in the intervening period on 20.07.2010 and 22.07.2010, the Petitioner had addressed letters to consider her being potential candidate for the said post and all these letters have been addressed within 10 months. Besides such time could be extended on the justifiable grounds provided in clause (e). There is no dispute in regard to the eligibility or qualification of the Petitioner except lapse of time for approaching the FPSC by the Health Department as stipulated in the Office Memorandum. We are not persuaded that this expiry of time which is not attributed to the petitioner, in any way could be counted against the petitioner to deprive her from the said post, when she was otherwise found qualified by the FPSC and more so till date the post is vacant and has not been re-advertised.
14. For the aforesaid reasons, we convert this petition into Appeal and allow with direction to Respondents and the Sindh Government to allow the petitioner to join the said post forthwith.