' AZIZ-UR-REHMAN, J.--- Through the captioned Constitutional Petition filed on 26-10-2010 by the Petitioner viz: Dr. Sumera Tabassum, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner is seeking the following reliefs:---
(a) Declare that the Respondent No.1 FPSC has shown indifferent and negligent attitude towards its duties and therefore also responsible for delay in recommending waiting list candidate.
(b) Honourable Court may be pleased to direct respondent No.I FPSC to send its recommendation in favour of top most waiting list candidate for the post of Lecturer 'Pharmacology' JPMC in Case No. F4 144/2008.
(c) Direct the respondents Nos.2 to 4 to follow the recommendation of FPSC in above stated case.
(d) Direct the respondents Nos.] to 3 to make appropriate rules which make sure that there would not be repetition of the same process of 2-3 years in case of a candidate do not join his/her duties and therefore avoiding of delay in recruitment and wastage of public time and money.
(e) Meanwhile, restrain the respondents Nos.1 to 4 from requesting advertising selecting or posting any other person against the post of Lecturer 'Pharmacology' JPMC which is before the Court.
(f) May take all the records of Federal Public Service Commission [FPSC] regarding case F4 174/2008 and keep it under its kind control, as Petitioner fears that her name at number 1 of the waiting list of 'Pharmacology' post may be altered to fail Petitioner to get her right. This alternation may deprive the Petitioner's right even after getting her point agreed by the Honourable Court.
(g) Grant any other relief this Honourable Court may deem proper and fit under the circumstances of the petition/case.
2. The brief facts necessary for adjudication of the 'lie in the background are as follows:---
3. Per bereavements, the petitioner got her MBBS Degree from Karachi University, Karachi which indeed is a duly recognized University of Pakistan. The respondent No.1 i.e. Secretary Federal Public Service Commission [In short FPSC], Islamabad in the year, 2008, had got published advertisements in 'Daily News' of 17-7-2008 and 18-7-2008 whereby applications from the suitable candidates for the 4 posts of Lecturers in 'BPS-17' [i.e. Two for 'Pathology', one for 'Pharmacology' and one for 'Physiotherapy'] at Jinnah Postgraduate Medical Center [In short JPMC], Karachi, Ministry of Health were invited by FPSC under Case No.F-4-174/2008 in the consolidated advertisement Nos.14/2008 and 16/2008 respectively.
4. The petitioner as being a fit and qualified person, per assertion, also applied for the post of lecturer 'Pharmacology' at JPMC. The petitioner, in response received a letter, however, after a period of almost 5 months for appearing in a 'written test' stated to be held on 24.1.09 at F.G. Boys Inter College Karachi Cantt. In compliance thereof, the petitioner did appear in the 'written test' and later on also called through letter dated 24-8-2009 for 'interview' held by FPSC on 3.09.2009, at FPSC Branch Office Karachi.
4. The petitioner as a candidate for the post of 'Pharmacology' and some other candidates for 'Pathology' and 'Physiotherapy', did appear for interview on 03.09.2009 in the FPSC's office at Karachi. Though the petitioner's interview was gone excellent but the petitioner, nonetheless, was not selected as informed by the FPSC. Instead, on the post of 'Pharmacology' some other candidate was selected. Per petitioner's version, she was at Sr. No.2 of the 'waiting list'. The petitioner accepted the result as being an obedient and faithful candidate. Later on through the source of 'Internet' and vide Ministry of Health's letter dated 14.11.2009, the Petitioner came to know that four candidates were actually selected on the advertised posts. The selected candidates were Dr. Urooj Aqeel [for'
Pharmacology' on merit], Dr. Ali Hussain [for 'Pathology' on Punjab domicile], Dr. Samina Ghulam [Lecturer 'Physiotherapy' on Sindh [U] and Dr. Ayesha Iftikhar [for 'Pathology' on Punjab domicile].
Per information, out of the four selected candidates, Dr. Urooj Aqeel [for 'Pharmacology' on merit] and Dr. Ali Hussain [for 'Pathology' on Punjab domicile], did not join their duty[ies] nor otherwise, had sent any intimation.
6. Later on, the petitioner also came to know that Dr. Ali Hussain's selection for the post of 'Pathology' was cancelled due to his failure to join on 02.04.2009, by Ministry of Health [in short MoH]. As far as Dr. Urooj Aqeel, who was selected for the post of 'Pharmacology' is concerned, she was given 15 more days from 1-4-2010 for joining [i.e. In all 4 and 1/2 months after 1st offer] through letter dated 1-4-2010 of MoH. Howlver, without any plausible explanation and/or reason therefor, even after such extension, Dr. Urooj Aqeel did not join the 'Pharmacology' post of lecturer. In the case of Dr. Ali Hussain an alternate candidate viz. Ayesha Khalid from the 'waiting list' was given posting offer by MOH on 6-7-2010 i.e. Pursuant to letter of Commission dated 1-6-2010.
7. The petitioner, thus sensing 'clear discrimination' and 'wrong doing' on the part of MOH, took up the matter through writing letters to MOH on 22-7-2010 as well as to FPSC as being the controlling authority of recruiting process about the discriminative behavior of Moll. Despite the above, the concerned officials of FPCS's nonetheless, shown totally indifferent attitude in the case of Petitioner and also regarding it's 2 years efforts. On the contrary, OFFER OF APPOINTMENT of Dr. Urooj Aqeel was cancelled due to her non-joining and thereafter a letter to FPSC for alternate candidate was also sent by MoH. The FPSC's concerned officials, however, in the case of petitioner and obviously in their own wisdom refused and/or avoided to issue nomination letter to the petitioner as an alternate/waiting candidate, mainly on the plea that with effect from offer letter dated 14-11-2009, the 6 months' time for providing alternate candidate from waiting list has expired 13-5-2010.
Further, the petitioner also came to know through FPSC that the available seat of 'Pharmacology' now will be re-advertised and the entire process shall thus be repeated afresh. Per petitioner's stand, such act of respondents Nos.1 and 3 is not only 'indiscriminately' but also against the prevailing practice as having been adopted in the case of Dr. Ali Hussain [for 'Pathology' on Punjab domicile] as well as in the case of Dr. Ayesha Khalid who was appointed on the post of Pathology in the place of Dr. Ali Hussain from the waiting list.
8. Further, the case of the petitioner is that FPSC, did not take any step for reminding the MoH for doing necessary action regarding the 'alternate'/'waiting list' of the candidates. Ministry of Health [MoH], though had later on asked for the alternate candidate of 'Pathology' but the post of 'Pharmacology' lecturer gone un-noticed by the Ministry of Health as well as by FPSC till the end of expiry date of 'waiting list' [i.e. 13-5-2010]. As per Petitioner's version, due to such 'discriminating inaction' of MoH and of FPSC and also on account of their negligence, different and lethargic attitude, the Petitioner has thus compelled to approach this Court by way of the instant petition for redressal of her grievances.
9. On 02.12.2010, when above Petition came-up before the Court, then this honourable Court, while, issuing notice to the respondents passed the following order:--- "1. FOR ORDERS ON OFFICE OBJECTION NO.4
2. FOR ORDERS ON MISC. NO.12369/10 (Exemption)
3. FOR KATCHA PESHI
4. FOR ORDERS ON MISC. NO.12370/10 (stay) 02.12.2010 Petitioner present in person.
1. Petitioner is directed to comply office objections within two weeks.
2. Granted subject to all just exceptions.
3. The petitioner submits that she, in response to an advertisement for the post of Lecturer in J.P.M.C. Applied to the Federal Public Service Commission. Four doctors were selected. Petitioner was not among st those four but she was in place No.1 in the waiting list of her specific discipline i.e. Pherma cology. Two of four selected persons joined and other two did not. Therefore, she had a right to be called and appointed. Let readmission notice be issued to the Respondents as well as Deputy Attorney General,
4. Notice for 21-12-2010."
10. Upon service, on behalf of respondents Nos.3 and 4, 'common comments' have been filed wherein, inter alia, it was asserted as follows:- ' Paras 7 and 8. Admitted that Dr. Urooj Aqeel selected [for the post of Lecturer 'Pharmacology BS- 17] and Dr. Ali Hussain [for the post of Lecturer 'Pathology' BS-17]. Both failed to join their duties within the specified period as mentioned in their offer letter No.F.1-6/99/Pr-II (Vol-III) dated 14.11.2009 [Annex-A]. Dr. Urooj Aqeel, failed to report for duty within the specified period as mentioned in her offer letter. Accordingly, she was asked to report for duty within 15 days with the clear understanding that failing which, her offer letter shall stand cancelled, without further notice vide Ministry of Health letter No.F.1-25/95/Per-II dated 1st April, 2010 [Annex-B].
Para-9. Admitted that in the case of Dr. Ali Hussain no extension time in joining time was given and it was an act of inadvertently overlook on the part of respondents 3 and 4.
GROUNDS: F. Not admitted. The referred letter of Ministry of Health to FPSC regarding nomination of an alternate candidate due to failing in joining report of the principal candidate i.e. [Dr. Urooj Aqeel] was of dated 14.11.2009 and not 14.09.2010. However, the reminder letter was dated 01.04.2010.
11. Respondent No.1 has also filed Reply/Submissions along with several supporting documents vide Statement of Deputy Attorney General dated 15th April, 2014. In answer thereto, the petitioner has also filed her detailed reply wherein the bereavements/assertions made in the 'reply' of respondent No.1 have been denied i.e. Para by para.
12. On 02.03.2012, when the above matter came-up before another Division Bench of this Court, then Mr. M. M.Aqil Awan Advocate and Dr. Muhammad Farogh Naseem Advocate, were appointed as 'Amicus Curiae' for assistance of the Court. For convenience and ready reference Order of 2nd March, 2012 is reproduced as under:- 02.03.2012 ' petitioner in person ' Mr. Ashique Raza learned DAG ' The brief facts of the case are that the Petitioner participated in the selection process for the post of the Lecturer for 'Pharmacology'. Along with the above post, several other posts were also advertised, one being Lecturer for 'Pathology'. The Petitioner, however, stood at No.2 and, therefore, was not selected. In the case of 'Pathology', the candidate, who succeeded, did not join within the prescribed time and, therefore, the department sent a request to the Public Service Commission for nomination of another successful candidate. Such was done. However, in the case of the Petitioner though the successful candidate did not join within the ' The petitioner now submits that she has been discriminated and now the saprescribed time, however, no request was made by the department for nomination to the Public Service Commission or the next successful candidate for joining. Underlining is ours].me post is being re-advertised. In order to pass appropriate orders, we would appoint Mr. M.M. Aqil Awan, advocate and Dr. Muhammad Farough, Naseem, advocate as Amicus Curiae to assist this Court.
' To come up on 5-4-2012 at 11.00 a.m.
13. Finally, on 28.10.2014, when the above petition came-up before us, we heard Dr. Sumera Tabassum in person, Mr. M. M. Aqil Awan, learned 'Amicus Curiae' and Mr. Abdul Sadiq Tanoli, learned Standing Counsel and with their valuable assistance also gone minutely through the available record. Dr. Muhammad Farogh Naseem, learned 'Amicus Curiae', however, could not appear perhaps on account of his 'preoccupation' in some important cases at Islamabad.
14. The petitioner while, arguing her case in person, vehemently contended that she besides being discriminated, has also been deprived of her vested right by respondents Nos.1 and 3, ex facie in a calculated manner. It goes without saying from selecting her on the post of 'Pharmacology' [BPS- 17] in JPMC, on which Dr. Urooj Aqeel, was originally selected. The Petitioner also contended that in the case of Dr. Urooj Aqeel, who was initially selected on the post of 'Pharmacology' on merits, was given 15 days' more time from 1st April, 2010 through MoH's letter of 1st April, 2010. The total time so given/consumed w.e.f. 1st offer is 4-1/2 months. In contra, per Petitioner's stand, the same concession was not allowed in the case of Dr. Ali Hussain. According to petitioner, even in the extended time period Dr. Urooj Aqeel failed and/or avoided to join the post as such the Petitioner being on the top of the 'waiting list' under circumstances ought to have been given the offer letter as was done in the case of Dr. Ali Hussain who was initially selected on the post of 'Pathology' and on his non-joining the 'alternate candidate' on the 'waiting list viz Ayesha Khalid was given posting offer on the said post by MoH on the recommendation of FPSC. In this regard, the Petitioner made reference to the letters of Commission and MoH dated 1st April, 2010 and 6th July, 2010 respectively.
Per petitioner, the behavior of both the MoH and FPSC is not only discriminatory but also against the law and procedure in vogue.
15. The petitioner in support of her contentions and with reference to the alleged discriminatory attitude of both MoH and FPSC, focused our attention towards' her two letters of 20th July, 2010 and 22nd July, 2010 and argued in vehemence that despite such letters FPSC did not respond positively, however, MoH, indeed had much earlier got cancelled the offer of appointment of Dr. Urooj Aqeel obviously due to her non-joining of the post of 'Pharmacology' and had also sent letter dated 3rd August, 2010 to FPSC for providing the name of the 'alternate candidate' if, available for filling-up of the post of Lecturer of Pharmacology [BPS-17] in JPMC, Karachi which remained vacant on account of non-joining of Dr. Urooj Aqeel.
16. The petitioner in view of the aforesaid scenario though was also expecting offer letter for the post of 'Pharmacology' so remained vacant but surprisingly the FPSC's officials perhaps in their 'own wisdom' refused to issue offer letter for appointment on the post of 'Pharmacology' mainly on the plea that with effect from issuing the offer letter of 14th November, 2009, the requisite time of 6 months for providing 'alternate candidate' had already expired on 13th May, 2010. The time limit of 6 months, if any, and expiry thereof, without making any request by MoH to FPSC for forwarding/nominating the name of the Petitioner as 'alternate candidate' for the post of 'Pharmacology' [PBS-17] in JPMC, Karachi according to the Petitioner is the absolute fault of MoH and FPSC and as such for the same reason much-less, the Petitioner could not be penalized/deprived of her appointment on the post of 'Pharmacology' [PBS-17] got advertised in the month of July, 2008.
17. The petitioner also argued that re-advertising/advertising of the posts 'Pharmacology' at JPMC, Karachi by the FPSC as now intended by FPSC is nothing but an absolute act of discrimination in respect of the petitioner's case. Lastly, the petitioner prayed for allowing the petition as prayed otherwise, the petitioner shall be seriously prejudiced if, she is not selected on the post of lecturer of Pharmacology lying vacant in JMPC, Karachi.
18. Mr. M.M. Aqil Awan, learned 'Amicus Curiae' appointed vide order dated 02.03.2012 was kind enough to appear and assist the Court. The submissions made by learned 'Amicus Curiae' in brief run as follows:--- ' The admitted position of the fact is that the Petitioner applied for the post of lecturer 'Pharmacology' [BS-17], in JPMC in the year, 2008 as reflected by a letter dated 7-11-2009.
Seemingly the Petitioner could not qualify on 'merit' and instead one Dr. Urooj Aqeel was qualified and recommended for appointment on the post of Lecturer 'Pharmacology' [PBS-17]. b. Pursuant to the same consolidated Advertisement[s], it appears, that on the post of Lecturer for 'Pathology' one Dr. Ali Hussain was recommended for appointment but as demonstrated vide Memorandum dated 29.04.2010 his recommendation was later on cancelled due to his non-joining.
The Memorandum dated 01.04.2010, shows that Dr. Urooj Aqeel's recommendation for appointment as Lecturer 'Pharmacology' was also cancelled. c. Upon such cancellation and obviously on the request of Moll against the vacancy of Dr. Ali Hussain, Dr. Ayesha Ali was recommended by the FPSC for appointment as lecturer on the post of 'Pathology', as is evident from the letter of 01.06.2010. d. A similar request was also made to the FPSC by the Ministry of Health [MoH] vide letter dated 3- 4-2010 that Dr. Urooj Aqeel has neither reported for duty nor otherwise, has made any request for extension in joining time/period, therefore, an 'alternate candidate' be nominated, if available, to fill-up the post of 'Pharmacology' [PBS-17].
E. There are two letters of the petitioner on record, one to the Ministry of Health [MoH] and the other to the FPSC wherein inter alia an issue has been raised to the effect that since, Dr. Ayesha Ali has been appointed at the place of Dr. Ali Hussain, then why the petitioner is being discriminated and not substituted against the post of Dr. Urooj Aqeel [selected on Urban quota].
19. Learned 'Islamic Curiae', keeping in view the situation in hand, submitted that the moot question before this honourable Court is, whether, the petitioner was got discriminated and if yes, then whether, the petitioner deserves to be meted out the same treatment as was given in the case of Dr. Ayesha Ali.
20. Mr. M. M. Aqil Awan, learned 'Amicus Curiae' on the points raised and issue involved made reference to a latest judgment of June, 2011, passed in the case of Raffaqat Ali v. Executive District Officer [Health] and others [2011 PLC (C.S.) 1615]. The relevant facts of the said case referred to by the learned 'Islamic Curiae' in brief read as follows:--- ... "Executive District Officer (EDO), Health, Narowal advertised, inter alia, 56 seats for initial recruitment to the post of School Health and Nutrition Supervisor in BS-17. The appellant applied for the said post and went through the recruitment process as prescribed under the Recruitment Policy, 2004 dated 17-9-2004. Thereafter, merit list of 56 candidates was prepared on 26-1-2010 and furthermore, a Waiting List of 14 candidates from among st the successful candidates was also prepared by the District Recruitment Committee, The appellant was placed at Sr. No.10 of the Waiting List on the basis of seniority. Later on, only 47 out of 56 candidates joined and, therefore, nine seats fell vacant which were filled out of the Waiting List. As a result, the appellant moved up to Sr. No.1 of the Waiting List and waited for the next vacancy. Subsequently, a post fell vacant due to termination of the officer holding the said post but the appellant was not considered for the said post on the ground that the Waiting List was valid for 90 days from the date of appointment i.e., from 26-1-2010 till 26-4-2010. This time frame was fixed by the District Recruitment Committee, Health Department, Narowal on 7-1-2010. As the vacancy had occurred on 17-6-2010, the Waiting List had since lapsed."
21. The Hon'ble Division Bench of Lahore High Court in the aforesaid case of Raffaqat Ali v. Executive District Officer [Health] and others [2011 PLC (C.S.) 1615] upon appreciating the facts and circumstance of the case, while, setting aside the Judgment under Appeal, observed/held as follows:-- "9. Waiting List is also advantageous because the recruitment process may not be initiated for a few posts that fall vacant and as a contingency, the candidates shortlisted in the waiting list can fill these posts. Waiting List, is actually a list of selected eligible candidates, who have successfully filtered through the recruitment process. They are a valuable human resource available in case any vacancy arises. As vacancy can arise at any time, the contingency plan in the shape of an operational Waiting List must also be available as long as the post continues. Hence, there can be no time frame or a cut off date or the expiry of the waiting list.It is surely not binding on the candidates to remain on the waiting list, they are free to search for other and better employment prospects, but till they do so, their names continue to be retained on the Waiting List. The only time Waiting List might lose its utility is when the eligibility criteria to the post in question is altered or if the post itself is abolished or restructured or reorganized. In this situation, the candidates on the waiting list are no more eligible and, therefore, fresh recruitment will be called for. [Underlining is ours].
13. Once the appellant has been placed on the Waiting List, he develops legitimate expectations to be considered for appointment as soon as vacancy arises. Denying appointment to the petitioner on the ground of lapse of waiting list by mere efflux of time (especially without informing the appellant of such a policy) offends legitimate expectations of the appellant. "If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. .... The doctrine of legitimate expectations is rooted in fairness. "3 Thus when a person invokes 'legitimate expectation' he does not rely upon an enforceable common law or statutory right; he is merely asking to be dealt with fairly. [Underlining is ours].
14. We hold that the appellant could not have been deprived appointment to the vacant post on the ground that the Waiting List lapsed after 90 days. The period of 90 days fixed by the District Recruitment Committee, Health Department, Narowal dated 7-1-2010 is unreasonable and irrational and is, therefore, not sustainable. [Underlining is ours]
15. We also beg to differ with the reasoning of the learned single Judge who diminished the importance of a Waiting List and harboured under an impression that there was no vacancy amongst the 56 seats and therefore no writ in favour of the appellant could be issued."
22. Under the following scenario, the duration of 'waiting list' for a period of 90 days was declared as un-reasonable and irrational. The 'waiting list' was thus held as valid. The Petitioner's case in the instant Petition, per learned 'Amicus Curiae' is somewhat on same footings.
23. Mr. M. M. Aqil Awan, learned 'Islamic Curiae' on the question whether it is legal for the Public Service Commission [Provincial or Federal] to prepare 'waiting list' and thereafter in case of 'non- joiner' of any selected candidate, the candidate on 'waiting list' [if any] can also be recommended by Public Service Commission [Provincial or Federal] for appointment. On this aspect of the matter, learned 'Amicus Curiae', focused our attention towards the case of Musa Wazir and 2 others v. N.- W.F.P. PSC [1993 SCMR 1124]. The relevant paras therefrom read as follows:--- "8. In the case of posts vacated by non-joinder of selected candidates or subsequent requisitions received the ordinary course for the Commission and the Government should be to readvertise it.
The only exception and the most unusual would be as pointed in the same instructions referred to in paragraph 7, instruction 2.12 which reads as here under:-- [Underlining is ours]. ... The Department, while sending a requisition, may mention the number of vacancies at the time and any additional number of vacancies that are likely to occur in the near future so that the Commission may take the opportunity to select more candidates than the number of actual vacancies at the time of reference and recommend them later when a reference is made for filling additional new vacancies."
11. 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 reproduce 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 the 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.
[Underlining is ours]
14. As for the receipt of subsequent requisitions from the Govern 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 alignment, the options open to the Commission are two. Firstly, it can keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment. Considering the extent of frustration and uncertainty prevailing in the qualified ; youths of the country, the latter course may be beneficial in the long run and help in evolving a system of regularly holding the competitive examinations each year, or once in two years or once in three years. When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case." [Underlining is ours]
24. The question arose and dilated upon is as to how the vacancies available, i.e. Due to non- joining of the selected candidates or availability of new posts otherwise, are to be filled up. The Hon'ble Supreme Court of Pakistan after an elaborate debate viz-a-viz such aspect of the matter has held that in the case of posts vacated by non-joining of selected candidates or in the case of subsequent requisitions in the ordinary course of time, the Commission/Government, must re- advertise/advertise the same. Moreover, the practice of keeping a 'waiting list' in a 'competitive examination system' is nothing but in actual fact seems in an attempt to introduce a contradictory concept. The 'waiting list', it is needless to say, is maintained in a 'qualifying examination' while, in a 'competitive examination' all vacancies are filled-up in one go. Besides, when the selection is made out of one 'competitive examination', then, of course, it cannot be bifurcated into two or more. The 'competitive examination' if, being one, the selection has to be one and in no event it can be said that any number of selections can be made out of the same 'competitive examination'.
25. Like-wise, in the case of Dr. Fawad Anwar v. Government of N.-W.F.P through Secretary, Services and General Administration Department, Peshawar and 3 others [PLD 1995 Pesh. 1], a relief was sought for appointment to the respective posts in the Service of Province against the incoming requisitioned vacancies i.e. From the 'waiting list' maintained by the Commission. Significantly in that case, Rules 2.12 and 2.13 which allow the Commission to prepare the 'waiting list' were held to be in conflict of fundamental rights [Article 18 of the Constitution of Islamic Republic of Pakistan, 1973], ultra vires of N.-W.F.P. Public Service Commission Ordinance, 1978 as well as in view of the ratio of Musa Wazir's case [1993 SCMR 1124]. In view of the legal position the petitioner on the 'waiting list' was not found fit to be appointed on the incoming/requiscedure per instructions, Standing Orders, as framed and made, probably prior to the Constitution of Islamic Republic of Pakistan, 1973. The relevant Rules 2.12 and 2.13 are reproduced as under:- 7.
'2.12. The 'principle underlying instruction 2.11 is that the advice' of the Commission should be sought regarding the filling of specified post and that there should be definite recommendation on each occasion when the advice is sought. The idea of asking for additional names is to appoint the next candidate recommended in order, of merit if the candidate recommended for the post fails to pass the medical examination or does not join within the time petitioned vacancies. The writ petition thus filed by the petitioner therein was consequently dismissed.
26. The N.-W.F.P. (Now Khyber Pukhtunkhwal, apparently was following the specified by the Department, such list of additional names will be valid for six months only from the date of the Commission's recommendations. It will be against the spirit of Article 189 of the Constitution to maintain a waiting list from among the candidates recommended in reserve and to fill from it vacancies falling afterwards or which has not been reported to the Commission for advice at all.
The proper course when any subsequent vacancy occurs is for the Department concerned to make a fresh reference to the Commission though there would be no objection to the Commission taking into consideration persons who may have been previously recommended but were not actually selected. The Department, while sending a requisition, may mention the number of vacancies at the time and any additional number of vacancies, that are likely to occur in the near future so that, the Commission may take the opportunity to select more candidates than the number of actual vacancies at the time of reference and recommend them later when a reference is made for filling additional new vacancies.
2.13. Ordinarily, every post to be filled by direct recruitment should be advertised, but some modification may be necessary in the case of technical posts: The number of suitable candidates available for these posts is sometimes less than the number required and little purpose is served by advertising the unfilled post afresh. In such cases the Commission may not re-advertise the vacancies but may consider any application from an eligible candidate received after the selection has been completed on its merits. Such candidate may be interviewed, and if found suitable, recommended for appointment against the unfilled post. The recruitment should, in no case be kept pending indefinitely, and the unfilled posts should be re-advertised after an appropriate interval, which may in no case exceed twelve months." [Underlining is ours].
27. Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 being relevant reads as under:- -- "18. Freedom of trade; business or profession.--- Subject to such qualifications, if any, as may be prescribed by law, every citizen 'shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons."
28. The above rules, nonetheless, were found in conflict with Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 by Hon'ble Division Bench of Peshawar High Court on ratio legis of Musa Wazir's case [1993 SCMR 1124].
29. Mr. M. M. Aqil Awan, learned 'Amicus Curiae' also made reference to the case of Dr. Faiz-ur- Rehman and others v. N.-W.F.P. Public Service Commission, Peshawar [1996 SCMR 589] and argued that in the aforesaid case un-successful candidates filed the Writ Petition wherein the contention of the petitioner was inter alia to the effect that the Commission per its' policy/decision, use'to maintain a 'waiting list' of candidates who stood qualified in the interview/test but initially some of the candidates are left as 'not recommended' for appointment because of their low position in the 'merit list'. Such waiting list, it was contended, however, shall remain valid for a period of six months from the date of its' preparation. The Hon'ble Supreme Court of Pakistan on the ground of discrimination, as some of the persons were recommended for appointment out of the merit list but not the petitioner, granted leave to appeal to the petitioner of that case. However, later on, the aforesaid case on its' own merits as well as on the ratio of Musa Wazir's case was dismissed by holding that after announcement of judgment in the Moosa Wazir's case no further recommendations can validly be made by the Commission on the basis of an existing 'waiting list' of candidates. Further, on the point of discrimination the Hon'ble Supreme Court of Pakistan held that the contention so raised, cannot be appropriately gone through as the persons who were allegedly appointed on the basis of 'waiting list' after decision of Musa Wazir's case [1993 SCMR 1124] are not party to the proceedings. The relevant part of the Judgment from the case of Faiz-ur- Rehman v. N.-W.F.P. Public Service Commission [1996 SCMR 589] as follows:- "14. As for the receipt of subsequent requisitions from the Government, the options open to the Commission are two. Firstly, it can keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment. Considering the extent of frustration and uncertainty prevailing in the qualified youths of the country, the latter course may be beneficial, in the long run and held in evolving a system of regularly holding the competitive examinations each year, or once in two years or once in three years. When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case."
' The first contention of the appellants is that they were interviewed by the Commission for specific posts/jobs and they were declared successful in the test/interview and as such they should be deemed to have appeared in a qualifying test before the Commission. It is, accordingly, contended by the appellants that as the decision of this Court in Musa Wazir's case, supra did not disapprove the practice of maintenance of waiting list of candidates by the Commission in the case of qualifying test, the appellants were not only entitled to have their names entered in a waiting list to be prepared according to the practice in vogue in the Commission at that time but were also entitled to be nominated against the future vacancies occurring within a period of six months from the date of preparation of the waiting list. It is true that in Musa Wazir's case, supra, this Court while discussing the validity of waiting list maintained by the Commission in respect of competitive test did observe that a waiting list is maintained in a qualifying examination but this observation did not mean that the practice of maintenance of waiting list by the Commission in the case of qualifying examination was approved by this Court. It is, however, not necessary in these cases to go any further in this regard as in our view the appellants had not appeared in any qualifying test held by the Commission. In the present cases, the appellants had appeared before the Commission for interview in response to advertisement for specific job/post. Therefore, by their very nature of the interviews, the appellants will be deemed to have participated in a competitive test as they along with several other candidates competed for appointment to a particular post/job. We may also mention here that in Musa Wazir's case, supra, this Court not only held that keeping of waiting list in a competitive examination amounted to introducing a contradictory concept but it was also held that such practice was violative of Fundamental Rights (Article 18 of the Constitution) guaranteed under the Constitution in view of the decision of this Court in the case of Abdul Jabbar Memon (Human Rights Case No.104/1992). Therefore, the contention of appellants that the rule laid down by this Court in Musa Wazir's case, supra, was not attracted in the cases of appellants and they were entitled to have their names entered in a waiting list of candidates to be prepared according to prevailing practice, is devoid of any merit.
' The next contention of the appellants is that they were interviewed by the Commission before the decision of this Court in Musa Wazir's case, supra, which applied prospectively, and therefore, they should have been nominated against the future vacancies according to the practice in vogue in Commission, at the time of their interview. This contention equally has no merit. The decision in Musa Wazir's case, supra, no doubt, did not affect the past and closed transactions namely, the cases where appointments were already finalised before the decision in Musa Wazir's case, supra, was given by this Court on basis of the then prevailing practice of maintenance of waiting' list of candidates. However, after the date of the decision in Musa Wazir's case, supra, no further recommendation could be made by the Commission on the basis of the waiting list of candidates. The admitted position in the above appeals is that none of the appellants were either recommended by the Commission or appointed against any post on the basis of waiting list of candidates on the date the decision was given by this Court in Musa Wazir's case, supra. The appellants, therefore, could not claim any benefit on the basis of the old practice of Commission of maintaining a waiting list of candidates.
' The last contention of the appellants is that some persons were recommended by the Commission out of the waiting list maintained by it even after the date of the decision of this Court in Musa Wazir's case, supra, which amounted to discriminatory treatment of the appellants cases. This contention cannot be appropriately gone into in these cases, as the persons who were allegedly appointed on the basis of the waiting list after the decision of this Court in Musa Wazir's case, supra, are not parties to these proceedings."
30. It is significant to note that in the present case that the petitioner is alleging discrimination on account of the appointment of Dr. Ayesha Ali on place of Dr. Ali Hussain i.e. On the post of 'Pathology' but Dr. Ayesha Ali has not been made party to instant Petition. In view of this position the point of discriminatory treatment cannot be gone through appropriately in the present case as well.
31. Mr. M.M. Aqil Awan, learned "Amicus Curiae" while assisting the Court, also attracted our attention to the case of Ejaz Majeed Bhatti and 5 others v. Punjab Public Service Commission [2011 PLC (C. S.) 1049] and submitted that in the cited case, a 'Merit List' was prepared by Commission for appointment of Assistant District Attorneys but Petitioners were not recommended for appointments as their names fell below the requisitioned number of posts. Later on, the Petitioners sought direction in Writ Petition for recommending their names for appointment against the vacancies remained vacant because of non-joining of the selected candidates. The Writ Petition, so filed, nonetheless, was dismissed. The observations from the case of Ejaz Majeed Bhatti V. Punjab Public Service Commission [2011 PLC (C.S.) 1049] read as follows:- "13. As a general Principle of law, in case recommended candidates fail to join, ordinarily the vacant posts need not necessarily or automatically be filled though the successful candidates from the same merit list who were not recommended due to lack of posts. Regulation 66 quoted (ibid), permits the department concerned to request for a substitute from the same merit list but does not enjoin the department or the Government to do so nor makes it mandatory for the Commission to issue further recommendations. Whether in the facts and circumstances of an individual case, such request should or should not be made, is obviously justifiable. One possible reason making it imperative for the Department concerned to make the request to the Commission in terms of Regulation 66 would be to avid keeping advertised posts vacant to the detriment of smooth and efficient running of the department concerned. Needless to say that pre conditions of validity of such merit list must also exist. Furthermore, nothing in Regulations 66 to 68 can be interpreted to resurrect the old deprecated practice of maintaining the waiting list, which appears to have been prohibited also by Regulation 69 (ibid).[Underlining is ours].
14. In pith and substance through the captioned Writ Petition, the petitioners have sought a direction to be issued to respondent No.2 for making a request to respondent No.1 Commission to provide substitute from the same merit list in lieu of the selected candidates who have not joined their posts. Ordinarily, the department concerned, i.e., respondent No.2 is not required by law to make such a request in the light of the dictum laid down in Musa Wazir's case, (excerpt reproduced above). No special circumstances exist nor has been pleaded by the parties to the effect that in absence of such substitute candidates, working of the department would adversely be affected. To the contrary, it is the case of the respondent No.2 that due to subsequent reorganization, said posts are not required to be filled and the department does not need more Assistant District Attorneys for fulfilling its responsibilities." [Underlining is ours].
32. Moreover, it would also be appropriate and just to cite herein the case of Shamsuddin Qazi v.
Federation of Pakistan [2006 PLC [C.S] 1701, wherein the grievance of the Petitioner was somewhat to the effect that despite vacancy in the Income Tax group, he was declined the reallocation against the persistent practice which according to the petitioner was against the law and discriminatory. Per petitioner's contention on factual plan, the Departmental Authority could not deviate the consistent practice of reallocation of groups, muchless on occurrence of the vacancies. The Petition under the facts and circumstances of the aforesaid case was nonetheless allowed on the ground of discrimination. In the same case, it was also held that reallocation of Service Group did not fall within the ambit of jurisdiction of Service Tribunal and the same being not pertains to the terms and conditions of Service. The petition thus was consequently allowed. The relevant portions from the case of Shamsuddin Qazi v. Federation of Pakistan through Secretary Establishment Division, Islamabad and 2 others [2006 PLC (C.S.) 170] reads as follows:- "In view of the fact that the respondents have not been able to controvert the factual position that there was a consistent practice of re-allocation of groups to the different candidates after the vacancies were caused, we are persuaded to hold that the petitioner was not treated at par with other incumbents and was discriminated upon on account of bureaucratic wrangling.
' We may observed that during the arguments issued with regard to the jurisdiction of this Court was not raised on behalf of the respondents. Even otherwise we are of the firm view that/the matter which is subjudice before us does not fall within the ambit of Service Tribunal as re- allocation to a specific service group is not covered by the terms and conditions of service.
Consequently, the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan is not attracted in the instant case."
33. Mr. M. M. Aqil Awan, learned 'Amicus Curiae' regarding advantages of merit 'list-cum-waiting list' has drawn our attention towards' the case of Shabana Akhtar v. District Coordination Officer Bhakkar and 2 others [2012 PLC (C.S.) 366] wherein the Hon'ble Division Bench of Lahore High Court after dilating upon the facts and circumstances of that case was held as under:- "2. The appellant admittedly being next on Merit List for the said school requested to be appointed to the said post, however, the request of the appellant was turned down by respondent No.1 vide order dated 14-3-2011. The said order placgd reliance on Contract Appointment Policy ("Policy- 2004") dated 29-12-2004 (as amended till 14-3-2009) which provides that Merit List shall be valid for a period of only 190 days. The writ petition of the appellant against order dated 14-3-2011 of respondent No.1 was dismissed vide impugned order dated 13-7-2011 passed by the learned Single Judge on the basis of the said Policy.
22. Other advantages of a merit list-cum-waiting list are that vacancy, can be filled immediately without re-coursing to a full-fledged recruitment process starting with a fresh public advertisement. Waiting List mechanism saves public money, human resource and time spent on carrying out a full course recruitment process. In case only one or two vacancies occur they can be immediately filled without waiting for a fresh recruitment process to be initiated and without keeping several posts vacant for a considerable period of time. As vacancy can arise at any time, the contingency plan in the shape of an operational Waiting List must also be available as long as the post continues. Hence, there can be no timeframe or a cut off date for the expiry of the Waiting List. It is surely not binding on the candidates to remain on the Waiting List and are free to search for other and better employment prospects, but till they do so, their names continue to be retained on the Waiting List. As and when vacancy arises the said candidates can be contacted and if they are available the vacancy can be duly filled. The only time Waiting List might lose its utility and efficacy is when the eligibility criteria, to the post in question is altered or if the post itself is abolished or restructured or reorganized. [Underlining is ours]
23. On a socio-economic level, the students at the school are deprived of S.E.S.E. And have to wait till the next recruitment, takes place. This affects the education of the students as it unnecessarily deprives them of a teacher, which is without any rational justification when the Merit/Waiting List has a number of duly selected teachers who can be immediately appointed to the post, thereby providing uninterrupted education to the students. The policy makers have given little thought to the above mentioned considerations.
24. For the above reasons we first hold that the Contract Policy, 2004 has no application to the present case and has been over-rigidly applied to the case of the appellant without evaluating the facts and circumstances of the case. Subject to the qualification, hereunder, we also hold that the validity period of 190 days for the expiry of Merit List is unreasonable and therefore cannot be sustained in law. However, rule of 190 days can still have a limited application to the extent that where no candidate in the Merit List/Waiting List comes forward to be appointed to the post inspite of the offer made by the department, in such eventuality the merit list can come to an end after a period of 190 days and the department can initiate fresh recruitment process." [Underlining is ours].
34. Mr. Abdul Sadiq Tanoli, Standing Counsel, besides strenuously opposing the contentions raised by the Petitioner in the instant petition prayed for dismissal of petition as being devoid of any merits. Per learned Standing Counsel, the petition as framed and filed besides misconceived is mis-leading as such is liable to be dismissed. According to Mr. Tanoli, neither the petitioner as alleged has been discriminated nor otherwise, any vested right of the petitioner has been violated by the respondent No. 1 . According to learned Standing Counsel, since the petitioner has no vested right in her favour as such, the question of any violation of alleged right does not arise. Per learned Standing Counsel, the letter of FPSC dated 7th November, 2009 clearly shows that the petitioner's name for the purpose of recommendations was regretted in the month of November, 2009.
35. Being relevant the FPSC's letter of 7th November, 2009 is reproduced as under:--- "FPSC-6(B) BY POST F.4-174/2008-R(FS-II)
No. Roll No.0081/19 FEDERAL PUBLIC SERVICE COMMISSION, Sector F-5/1, Aga Khan Road Telephone: (051)9205075 Ext. 218 and 226 FAX (051)9213386 (051)9203410 E-mail : fpsc@fpsc.Gov.Pk Website : Www.Fpsc.Gov.Pk Islamabad, the 7th November, 2009 Sumera Tabassum ..............................................
Subject:- Recruitment to the Post(s) of FOUR LECTURERS, JPMC, KARACHI, MINISTRY OF HEALTH. (BS- 17)
Dear Sir/Madam, ' With reference to your Application for the post(s) mentioned above, and your interview with the Commission. I am directed to say that the Federal Public Service Commission regrets that it has not been possible to recommend you for appointment to the above post(s). [Underlining is ours]
2. You are reminded that the Commission recommends candidates strictly in accordance with the Merit position of qualified candidates, and in conformity with the Provincial/Regional quotas subject/trade as advertised. Yours Truly, Sd/- Assistant Director Federal Public Service Commission"
36. From perusal of the above letter of 7th November, 2009 it is crystal clear that petitioner's name was never placed on the alleged 'waiting list'. Rather the petitioner was informed that her name could not be possibly ' recommended for appointment. Despite the above position the petitioner kept herself busy and tangled in writing of letters to Moll and FPSC. The two letters written by the petitioner to MoH and FPSC respectively read as follows:--- A. "To Secretary Ministry of Health, Islamabad.
Subject:- Kindly URGENT consideration of 'Pharmacology Lecturer Post('Physiotherapy')
Sir, ' With all due respect, it is to be submitted that 1 Dr. Sumera Tabasum applied in 2008 for I 'Pharmacology' seat and appeared in test and interview.
' It is submitted Dr. Urooj Aqeel (for pharma post) and Dr. Ali Hussain (for 'Pathology') has not joined in specified time. In place of Dr. Ali Hussain orders of Dr. Ayesha Ali has been issued (6th July 2010) but surprisingly no such action for 'Pharmacology'. As the principal candidate for 'Pharmacology' has not joined like that of 'Pathology' its alternative candidate (for which I am most likely potential applicant) may kindly be called (as done for 'Pathology' seat). [Underlining is ours] ' Kindly look into the matter as special case, and I may kindly be selected for the 'Pharmacology'
Lecturer post.
' Kindly decide the matter on urgent basis as after certain period all previous efforts of Ministry of Health and FPSC for the seat would be waisted and all the procedure would have to be repealed and suffering of Pharma Department JPMC and its trainees would continue for more than 3 years as it is already lingering before 2007.
Your Obediently Sd/- 20-7-10 Dr. Sumera Tabassum Candidl. III] Government of Pakistanate for 'Pharmacology' Seat Case No.F-4-174/2008-R(FS-11)
Four Lecturers, JPMC Karachi.
(I 'Pharmacology' Lecturer, 2 'Pathology' and 1 'Physiotherapy')
Flat No. 6 Block IV A Doctors Colony JPMC Karachi Cantt.
B.
No. F. 1-25/95/Per-II [VOL III] Ministry of Health Islamabad, the 3rd Aug 2010 ' The Secretary ' Federal Public Service Commission (FPSC) , Islamabad.
' Subject. RECRUITMENT TO THE FOUR POST(S) OF LECTURERS (BS-17) JINNAH POSTGRADUATE MEDICAL CENTRE, KARACHI MINISTRY OF HEALTH.
' Dear Sir, ' Jam directed to refer to FPSC's letter No,F.4-174/2008-R(FS-II) dated 7-11-2009 on the subject noted above and to state that Dr. Urooj Aqeel was issued offer of appointment for the post of Lecturer of 'Pharmacology' (BS-17) against Sindh-U quota vide this Ministry's memorandum of even number dated 14-11-2009. A reminder in this regard was also issued on 1-4-2010. She has still neither reported for duty nor requested for extension in joining period.
2. You are requested to nominate an alternate candidate if available to fill up the post of Lecturer of 'Pharmacology' (BS-17) in JPMC, Karachi. [Underlining is ours] Yours faithfully Sd/- (Sakhi Muhammad)
Section Officer (Per-II)"
37. From bare perusal of the above letters as well, it is quite evident that the Petitioner was never nominated/recommended or otherwise placed on the so-called 'waiting list'. The Petitioner on the face of record, has also failed to establish any vested right in her favour. It is worth to mention that Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is only meant for protection of the vested right against its' infringement and not otherwise for establishing the same under the Constitutional Jurisdiction of this Court. With regard to this aspect of the matter reliance is placed on the case of Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others [2006 SCMR 219] wherein it was held as under:--- "11. ... "We are mindful of the fact that under constitutional jurisdiction the High Court is fully empowered for enforcement of the fundamental rights but it must be satisfied with such allegations which are well-founded, without any bias and based on concrete evidence. It may be kept in view that the main object of the provisions as contained in Article 199 of the Constitution is the enforcement of the rights and not the establishment of the legal rights and in such view of the matter the petitioners who seeks to enforce such legal rights must be specific, precise, clear and unambiguous and besides that there must be an actual infringement of the rights so asserted.
State of Bombay v. United Motors Ltd. AIR 1953 SC 252, State of Orissa v. Ram Chandra AIR 1964 SC 685." [Underlining is ours].
38. The stand taken by the Petitioner that she is entitled to be nominated by FPSC at the request of MoH as an 'alternate candidate' because Dr. Urooj Aqeel who was initially issued letter of appointment on the post of 'Pharmacology' [PBS-17] failed, even in the extended time, to join the same post. According to the petitioner since, in the case of Dr. Ali Hussain, who was substituted later on, due to his non-jointing of the post of 'Pharmacology' [PBS-17] by Dr. Ayesha Ali, the petitioner as well deserves to be treated alike. The situation as being faced in the case in hand, is almost similar and identical to the situation had arisen in the years, 1988-89 when few of the recommended candidates then failed to join the respective posts. The question thus arisen as to how the vacancies remained UN-filled due to non-joining of those selected or availability of new posts, were to be fillet-up. Then guidance was sought from Establishment Division of Federal Government. A number of meetings were held and ultimately the commission dis-closed its' practice and procedure in the matter involved through their letter dated 8th January, 1989. Being relevant, the same is reproduced in extenso as under:- "I am directed to refer to your letter No.SORI(S&GAD) 1-23/85 dated 24-12-1988 on the subject noted above and to state that the system as in vogue in the Federal Public Service Commission is somewhat different to the procedure followed in this Commission. The Federal Public Service Commission makes reallocation only in the cases where the original nominees fail to join the post.
Therefore, this readjustment is only in limited cases and the new requisitions which are received thereafter are carried over to the next year examination which is their yearly feature. In our case, we do not hold yearly examinations but instead maintain a waiting list of the qualified candidates, out of which recommendations are made against any new requisition received from the Government. The waiting list is normally valid or six months a er the communication o the orignal recommendations, but can be revalidated by the Government, if additional requisitions are received after six months. Any requisition received after the earlier recommendations have been sent is treated as a separate requisition and is dealt with as such. This has been a consistent policy of the Commission. Any changes from this will create innumerable administrative and legal anomalies. To illustrate, in the instant case the Commission received six new demands with the following communications and it was not practically possible for the Commission to alter their recommendations on six occasions in all the cadres i.e. EAC, DSP and Section Officer keeping the zonal allocations in each cadre:-
(1) SO(P. 1)3-13 83/3439 dated 13-7-1988 for 7 posts of DSP.
(2) SOS-11 (S&GAD)2(9)73 dated 10-8-1988 for substitute of Mr. Fakhri Alam.
(3) SOS-II(S&GAD)2(9)73 dated 29-8-1988 for 3 posts of EAC.
(4) SOS-II(S&GAD)2(9)73 dated 29-8-1988 for 3 posts of SOs.
(5) SOS-H(S&GAD)2(9)73 dated 19-10-1988 for substitute of one SO and one EAC (Dr. Tashfeen).
(6) SO(P-I)HD/3-13/83/15767 dated 27-11-1988 for substitute of 2 DSPs.
' Every selection, which is made subsequently, is in fact a later selection and such selectees are considered junior to the original selectness as prescribed in the Service Rules for different cadres.
Therefore, reallocation at a subsequent date would have interfered with the original order and given birth to intractable seniority problems.
3. Regardless of the Commission's established policy in this respect the respective administrative Departments will face practical difficulties in withdrawing candidates from Specialized training institutions (and in some cases after their training is over) and substituting them with fresh candidates. This will be further complicated by legal implications where the Government's earlier notification had established the right of individuals in certain cadres, making a revision of this policy at this stage well-nigh impossible.
' In view of the foregoing, the Commission considers that reallocation of the selectness is not only inadvisable but unsuited to the recruitment policy in the Province." [Underlining is ours]
39. Inter alia the aforesaid policy of the commission regarding recruitment was challenged in Constitution Petitions before Peshawar High Court. The learned High Court after thorough examination of the 'recruitment policy' in the case of Musa Nazir etc. v. N.-W.F.P. Public Service Commission reached the following conclusion:- .... "Such being the case, we feel that the learned counsel for the petitioners' apprehension that requisition of piecemeal posts and absorption of candidates from the waiting list on the newly- created posts, apart from being an unhealthy practice, would create serious doubts in the minds of those who though superior on merit in the examination have not been accommodated on post according to their preference. For example, Khawaja Wajihuddin, petitioner herein, at Serial No.14 of the merit list was brought to his third choice while those at Serial Nos.28, 54, 67 and 91 were given first and second preference of service on the creation and requisition of new posts on the basis of the same competitive examination. In the instant case, piecemeal requisitions of posts were made on three different occasions within six months of the competitive examination, which were filled, from the impugned waiting list without re-allocation. No urgency was shown by the respondent Government nor any pointed out by the learned counsel for the respondent for such an exercise and even if there was any urgency, that could have been met by appointment of suitable persons on contract basis for a period of six months or less pending selection of candidates on the basis of examination to be conducted by the Commission. Furthermore, there could have been made ad ho appointment or the post could be filled by transfer of officers already holding posts on regular basis on equated grade under Provincial or the Federal Government till such time when the competitive examination was to be held as provided under Rule 4 of the N.-W.F.P. Public Service Commission Function Rules, 1974."
40. Besides in the case of Musa Nair etc. v. N.-W-F-P- Public Service Commission 1993 SCMR 1124=1993 PLC (C.S.) 1188 the Writ Petitions were also non-suited on the doctrine of past and closed transaction. The relevant observations read as under:- "6. It was also held by the High Court for denying relief to the appellants/writ petitioners that the matter of their selection was a past and closed transaction, the learned Judge observing as here under:- "It was not denied by the learned counsel for the petitioner that no grievance was raised by the petitioner to the allocation of posts in accordance with merit in the first selection and the petitioner joined service without any reservation, it, therefore, can be safely held that their selection is a past and closed transaction."
41. The FPSC, it is significant to note, through its letter dated 27th September, 2010, did refuse the Petitioner's request for recruitment on the post of Lecturer of 'Pharmacology' [PBS-17]. The FPSC letter No.F.4-174/2008-FS-IV dated 27th September, 2010 reads as follows:--- "F. 4-174/2008-FS-IV FEDERAL PUBLIC SERVICE COMMISSION Aga Khan Road, Sector F-5/I Islamabad, the 27th September, 2010 9205075-354 ' Dr, Sumera Tabassum, Flat No.6 Block IV.A, Doctors Colony JPMC, Karachi.
Subject:- RECRUITMENT TO FOUR POSTS OF LECTURERS (BS-17) JPMC, KARACHI, MINISTRY OF HEALTH Dear Candidate, ' Reference your application dated 19-8-2010 on the above subject I am to inform you that the Commission has considered your request but the same cannot be acceded to due to the reason that the waiting list in the subject case has expired, therefore, alternate nomination cannot be made. [Underlining is ours].
Yours truly Sd/- (ABDUL RAZZAQ)
Assistant Director (FS-IV)"
42. Despite such refusal, the petitioner, however, failed to avail the appropriate remedy available to her under Clauses (a) to (d) of Subsection (3) of section 7 of FPSC Ordinance, 1977 [No.XLV of 19771.
For convenience purpose and being relevant the same are reproduced as under:--- "7. Functions of the Commission:- (3)(a) A candidate aggrieved by any decision of the Federal Public Service Commission may, within thirty days of such decision, make a representation to the Commission and the Commission shall decide the representation within fifteen days after giving the candidate a reasonable opportunity of hearing. The decision of the Commission, subject to the result of review petition, shall be final.
(b) A candidate aggrieved by the decision of the Commission made under paragraph (a) may, within fifteen days of the decision, submit a review petition to the Commission and the Commission shall decide the review petition within thirty days under intimation to the petitioner.
(c) Save as provided in this Ordinance, no order made or proceeding taken under this Ordinance, or rules made hereunder, by the Commission shall be called in question in any Court and no injunction shall be granted by any Court in respect of any decision made or taken in pursuance of any power conferred by, or under, this Ordinance.
(d) Any candidate aggrieved by a decision of the Commission under paragraph (b) may, within thirty days of the decision, prefer an appeal to the High Court."
43. In view of this position as well, the Petitioner is barred from invoking the extraordinary jurisdiction of this Court, much-less in presence of the availability of the alternate remedy. On this ground also the instant Petition is liable be dismissed. Reliance in this regard can be placed on the case of The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others [PLD 1958 SC 437] wherein it was held as follows:-
6. "The first point raised in the appeal is that the respondent not having exhausted the remedies available to him under the law, his prayer for a writ should not have been entertained by the High Court. It is admitted by Mr. Muhammad Iqbal, learned counsel for the respondent, that under section 64 of the Motor Vehicles Act, 1939, read with rule 4.37 of the Punjab Motor Rules an appeal from the order of the Regional Transport Authority lay to the Board of Revenue, which has replaced the Financial Commissioner, the original Appellate Authority under the rule. That rule not only constitutes an Appellate Authority but also details the manner in which an appeal may be made and the documents that may be relied on and provides that the appellant, either in person or through an agent or representative, shall be heard in support of the appeal. The respondent did not avail himself of this statutory right and preferred to invoke the very extraordinary jurisdiction of the High Court by alleging that no remedy "equally speedy, effective and efficacious other than through the writ jurisdiction of 'this Honourable Court is available to the petitioners against the illegal and wrongful action of respondent No. 1". That this bereavement was wholly unfounded I have no doubt whatever. The respondent could have adopted precisely the same procedure as he did before the High Court and I am quite sure that if he had alleged that a copy of the order against which he was preferring the appeal was not being given to him, the Appellate Authority would have sent for the record exactly as the High Court did and would have given a full consideration to the points raised in the appeal. In the reply to the petition, it was alleged by the appellant that the respondent could not invoke the writ jurisdiction of the High Court because another remedy, namely, an appeal, was available to him, and this legal position was present to the mind of the learned Judges who heard the petitions because they state that "Orders granting or refusing all kinds of permits by the Authority are appeal able". In their judgment, however, the contention that the respondent should appeal before asking for a writ from the High Court has received no consideration, and I consider it to be wrong on principle for the High Court to entertain petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent. And in a case of the present kind where the right, which the petitioner for a writ claims to vest in him is entirely the creation of a statute, it is all the more imperative on him to exhaust the remedies provided by the statute before he comes to the High Court. He cannot be permitted to say that while he will have one or all the benefits of the statute, he will comply with none of its remedial processes. In the English cases cited at the Bar none is to be found where the High Court, without stating the reasons for its interference before the aggrieved party had availed himself of the right to appeal, ever issued a writ. In the United States of America, premature of the action is a well-recognized barrier to judicial review of administrative orders see Columbia System v. U: S. (316 U S 407). That position is thus stated by Ferris in para. 158 at page 179, of his "Extraordinary Legal Remedies":- "The purpose of the common law writ is not to take the place of a writ of error or appeal, but to cause the entire record of the inferior Court to be brought up by certified copy for inspection, in order that the reviewing Court may determine from the face of the record whether the inferior Court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law * * * When used in the nature of a writ of error, it was granted only in those instances in which the inferior Court had acted without jurisdiction or in disregard of statutory provisions. The writ ran to those bodies whose orders, though erroneous, had the force of final and conclusive judgments, and there being no right of appeal or other method of review, the extraordinary writ of certification was resorted to from necessity".
' And in paragraph 163 at page 185, the learned author has the following on the same subject: "The common law rule is that certification will not lie when there is another adequate remedy by appeal, writ of error or otherwise, where the inferior Court has jurisdiction. If this were not true, then the writ might be used to withdraw any case at any intermediate stage from the consideration of the trial Court and submit it to the final determination of the superior Court issuing the writ. This would in effect render the writ substitute for an appeal or writ of error".
In the case of mandamus, it has been uniformly held in England that the Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, where there is an alternative specific remedy at law which is not less convenient, beneficial and effective, and such remedy includes an appeal to an appellate tribunal (Halsbury, 3rd Edidition, Volume 11, p. 107, paragraph 200 and Note (b) at p. 108). A similar position obtains in U. S. A. Where a statutory remedy by way of appeal or writ of error ordinarily bars the right to mandamus on the principle that the writ may not be substituted as a means of review to take the place of express remedial process as created by statute for such purposes, whatever may be the Court's conviction as to the clear error of the lower Court, Ex parte Riddle (255 U S 450); Matter of Tiffany (254, US 32); Ex parte Park Square Automobile Station (244 U S 412) and Ex parte Roe (4). Mr. Muhammad lqbal relies on the judgment of a Division Bench of the High Court of West Pakistan in Muhammad Hussain Khan v. The Federation of Pakistan (PLD 1956 Kar. 538) where Kaikaus, J. Relying on King v.
North (6) seems to have held that if the proceedings are illegal or in excess of jurisdiction, the mere fact that the person has a right of appeal' against the order cannot bar an application for certiorari. Cases of absence or excess of jurisdiction, however, stand on a different footing and are an exception to the general rule just stated. An appeal, while adequate to correct mere errors in the exercise of jurisdiction, is often inadequate to redress or prevent a wrong done in the absence or excess of jurisdiction. If a tribunal has no jurisdiction either in respect of the subject-matter of litigation or the parties before it or the territory to which the dispute relates or because of its own defective constitution or the illegality of the order, the proceedings are void ab initiation, and an appeal in such a case is an unnecessary step and mere prolongation of the proceedings which eventually the Court must hold to be void for lack of jurisdiction. In such cases certification acts as would a Court of Equity. Thus there have been several cases in England where certification was granted - if the Tribunal had acted without jurisdiction, though a right of appeal existed, R. v. North ((1927) 1 K B 491) White v. Steel (12 C B (N S) 383), Martin v. Mackonochie (4 Q B D 697, 732), Ex pane Smyth (3 Ad. & E. 719). But where appeal does lie, in order to quash a proceeding by certification, it is necessary that the lack of jurisdiction should appear on the face of the record. Another case where a petition for certiorari may be entertained without waiting for the result of the appeal is where an appeal being competent a party is deprived of that right without any fault or negligence on his part or where the appellate tribunal refuses to or does not determine the appeal.
Having given careful consideration to this aspect of the matter, I am of the view that the present case was governed by the general rule that where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ. Since in the present case the statute under which the respondent had a grievance provides art appeal in which that grievance can be set right, no writ of certiorari or mandamus or any other discretionary order of that nature should have been issued by the High Court." [Underlining is ours]
44. From the record, it is evident that the petitioner was a low merit candidate for the post of lecturer in 'Pharmacology', JPMC Karachi and as such was not recommended by the Commission for the advertised post. Such communication through letter dated 7th November, 2009 besides self-speaking, in no manner can be said as having caused any infringement of her right, if any.
Further the Commission had never conveyed the Petitioner that she was the next candidate in the 'merit list'/'waiting list for alternate nomination and/or she will be recommended, if the principal nominee [Dr. Urooj Aqeel in the case in hand] did not join the post of 'Pharmacology'. Under such scenario, the petitioner has no 'locus standi' to invoke the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for seeking her recommendation to the advertised post.
45. Moreover, until and unless, the Ministry of Health [MoH/respondent No.3] did cancel the offer of appointment, issued to Dr. Urooj Aqeel and thereafter a request is made to the FPSC for 'alternate nomination', till then the offer of appointment of the recommended candidate remain in field.
Nevertheless in the instant case then Petitioner did not have any right or otherwise claim her recommendation against the subject post. The Ministry of Health [MoH] knowingly to the petitioner cancelled the offer of appointment of Dr. Urooj Aqeel on 3-8-2010 and thereafter though MoH had requested for 'alternate nomination' [in place of Dr. Urooj Aqeel] through its letter of even number dated 3-8-2010 but the same was not acceded to by the Commission obviously due to expiry of the requisite time i.e. Up to 13.05.2010 [period of six months commences, from the date of issuance of offer of appointment on 14th September, 2009] to Dr. Urooj Aqeel by the Ministry of Health.
46. Per Mr. Abdul Sadiq Tanoli, Standing Counsel urged that the Government can make rules under section 10 of the FPSC Ordinance 1977 [No.XLV of 1977]. Indeed in exercise of such powers, the Federal Government (Establishment Division) had already issued Office Memorandum dated 06.04.1980 whereby all the Ministries and Divisions were directed in the following manner:- "Ministries, Divisions and the Departments should complete the formalities at the earliest for issuance of offer of appointment to the Commission's nominees to avoid any complication since the Commission can not nominate alternate candidates from the waiting/reserve list of qualified candidates, which become out of date by the time such request from Ministries/Divisions are received by the Commission."
47. The aforesaid OM, per Mr. Abdul Sadiq Tanoli, learned Standing Counsel, bears the status of law in terms of Article 268 (7) of the Constitution of Islamic Republic of Pakistan, 1973 and validate the maintenance of 'reserve merit list' for a specific period. The Commission as being custodian of the 'reserve merit list' has already decided during full commission meeting held on 22nd August, 2008 the validity period of the 'reserve list' under sections 7 and 7-A of FPSC Ordinance, 1977 [No.XLV of 1977] as 6 months' time from the date of issue of offer of appointment by the Ministry/Division. The decision so taken has already been conveyed to the Government (Establishment Division) vide FPSC's letter of 23rd August, 2008 with direction to strictly follow the decision of the Commission [FPSC].
48. The Commission, per Mr. Abdul Sadiq Tanoli, is performing its functions strictly in accordance with the law/rules and no discrimination as alleged has been made to the petitioner. No blue eyed person, as alleged was ever recommended to fill the post of Lecturer of 'Pharmacology' and the said post is still vacant. As soon as, it is requisitioned by the administrative Ministry/CADD [Ministry of Health] to the Commission under section 7(1)(a) of FPSC Ordinance, 1977 as well as FPSC (Function) Rules, 1978 and under Rule 10 of Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973 thereafter it will be advertised by the Commission for recruitment. The petitioner in such eventuality, indeed, would have an equal chance to compete in the open competition for the desired post.
49. As far as the practice of preparation and maintenance of 'waiting list'/'merit list' and recruitment therefrom is concerned, the same aspect of the matter has been elaborately dilated upon, in the case of Faiz-urRehman v. N.-W.F.P. Public Service Commission [1996 SCMR 589] by the Hon'ble Supreme Court of Pakistan. The relevant observation therefrom read in the following words:--- "13. So far as the Commission's policy and practice spelt out in the letter dated 8th January, 1989 reproduced in the judgment is concerned, there are certain legal objections to it. In the first place, the examination being competitive, there could be no practice of maintaining a list of qualified candidates for six months or its re validation by the Government for a longer period. Requisitions made cannot be adjusted out of such lists without proper advertisement. As held by this Court in the case of Abdul Jabbar Memon (Human Rights Case No.104/1992) it would otherwise be a violation of the Fundamental Rights of the citizens and not consolable on any ground of expediency or administrative convenience. [Underlining is ours]
14. As for the receipt of subsequent requisitions from the Government, the options ()Pen to the Commission are two. Firstly, it can keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment. Considering the extent of frustration and uncertainty prevailing in the qualified youths of the country, the latter course may be beneficial, in the long run and held in evolving a system of regularly holding the competitive examinations each year, or once in two years or once in three years. When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case." [Underlining is ours].
50. At this juncture, we would like to refer to Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as follows:--- "189. Decisions of Supreme Court binding on other Courts.
' Any decision of the Supreme Court shall, to the extent tha following dictum:- "30. The learned Division Bench of Lahore High Court has it it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan"
51. In the case of Mirza Shaukat Baig and others v. Shahid Jamil and others [PLD 2005 SC 530], the august Supreme Court of Pakistan examined the implication of Article 189 of Constitution of Islamic Republic of Pakistan, 1973 and laid down thegored the case law enunciated in different judgments pronounced by this Court on the grounds which are not tenable and by ignoring the fact that the judgments of this Court being apex Court are binding upon the learned High Court in the view of the provisions as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan which, inter alia, provides that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law shall be binding on all other Courts in Pakistan and the learned Lahore High Court is no exception to it. It is well- entrenched legal proposition that "the ultimate responsibility of interpreting the law of thee land is that of the Supreme Court. Therefore any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all other Courts in Pakistan. A decision in suo motu Shari at review petition followed by Supreme Court would be binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government." (PLD 1971 SC 324, PLD 1985 SC 228). It is worth mentioning here that "where a judgment of Supreme Court has become effective as from a specified date, it would be binding not only on High Court's and Courts subordinate to it but also on all other Courts of Pakistan from that date. Therefore, High Court rightly preferred Supreme Court decision over decision of Full Bench of High Court. The decision of Supreme Court cannot be ignored on the ground that certain grounds were not urged before Supreme Court." (PLD 1987 Lah. 71, 1981 SCMR 520, PLD 1973 Lah. 1).
"Apart from the Constitutional obligation imposed upon the Courts even the propriety demands that the Courts must follow such a law without any hesitation. Unless the law so declared is altered or overruled by the Supreme Court itself the High Court has no option but to follow it." (PLD 1975 Lah. 65, PLD 1961 Peshawar 250)."
52. In view of the above, discussion, we have reached the conclusion that the petitioner was never discriminated as alleged by the petitioner. In view of this position as well, the petitioner, is not entitled to claim an equal treatment under the given facts and the law laid down by the Hon'ble Supreme Court of Pakistan in the cases referred to herein above.
53. Even if, it is supposed that the petitioner viz Dr. Sumera Tabassum was on the 'waiting list' or was supposed to be on the 'waiting list', then too, the petitioner cannot be selected and appointed on post of Lecturer of 'Pharmacology' [PBS-17] which had admittedly fallen vacant on account of non- joining of Dr. Urooj Aqeel, as the vacant posts I including incoming/requisitioned posts per dicta laid down by the Hon'ble Supreme Court of Pakistan in the cases supra, are to be readvertised/advertised. Manifestly, in the case in hand no special circumstances exists that is to say that on account of non-substitution of the petitioner on the post of 'Pharmacology' the working of JPMC was effected in any manner.
54. Before parting with Judgment we must record our appreciation of the valuable assistance rendered by Mr. M. M. Aqil Awan, learned 'Amicus Curiae' in the case in hand and for sparing his precious time.
55. For the foregoing reasons, the petition in hand fails and is hereby dismissed as having no force in law along with pending application, however, with no order as to costs.