' WAQAR AHMAD SETH, J.--- Through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Muhammad Waseem Ullah Awan petitioner sought for the issuance of direction/order to the respondents to appoint him as Civil Judge-cum- Judicial Magistrate/Allaqa Qazi.
2. Facts, giving rise to this petition, in brief, are that vide Advertisement No.05 dated 24/07/2008 Khyber Pakhtunkhwa Public Service Commission (respondent No.1) advertised 59 posts of Civil Judges-cum-Judicial Magistrates/Alaqa Qazis, the petitioner being qualified has also applied for one of the post and appeared in the examination and declared successful and vide letter No.40189 dated 25/08/2009 he was called for interview in the office of respondent No.1 on 07/09/2009; that after completion of all the process respondent No.1 had prepared a combined merit list on which the petitioner was at serial No.63; that in the meanwhile all contract Civil Judges-cum-Judicial Magistrates/Allaqa Qazis were regularized through Notification No.P(a)31-C-08-J dated 12/01/2010.
That respondent No.1 declared top 59 candidates as successful but respondent No.2 withdrawn the recommendations of respondent No.1 and eleven Civil Judges-cum Judicial Magistrates/Alaqa Qazis have been excluded from the final merit list and ordered to revise the merit list which was revised by respondent No.1 and issued a revision merit list in which eleven candidates have been shown excluded from the combined merit list. That vide corundum dated 15/09/2010 issued by respondent No.6, the name of one Syed Israr Ali Shah from the list of newly appointed Civil Judges cum-Judicial Magistrates/Alaqa Qazis because he was already serving as Civil Judge on contract basis and after deletion of his name, the petitioner was placed at serial No.63, top of Zone 4 according to the combined merit list and righteous candidate for appointment. It is further averred in the petition that the petitioner being successful candidate remained awaited for his appointment of Civil Judge-cum-Judicial Magistrate/Alaqa Qazis but all in vain and finally preferred an appeal dated 15/06/2011 before respondent No.6 for seeking his appointment on the said post which was forwarded by him to respondent No.1 vide letter No.9973/Admin dated 07/09/2011; that the petitioner time and again visited the office of respondent No.6 and also sent a Fax letter for personal audience but his request was turned down. That after a lapse of about more than a year vide letter No.14201/Admn dated 10/11/2012 respondent No.6 informed the petitioner to seek legal remedy against the forum aggrieved from. The petition again submitted written application dated 28/08/2013 to the Hon'ble the Chief Justice and also the Members of Administration Committee of Peshawar High Court, Peshawar for the redress of his grievance but with no reply. That the petitioner came to know that a similar Writ Petition No.4182 of 2010 decided on 21/11/2013 one Asif Raza has been appointed as Civil Judge-cum Judicial Magistrate/Alaqa Qazi by Peshawar High Court, Peshawar and in the said writ petition respondent No.6 in paras 8 and 9 of his comments replied that in place of Syed lsrar Ali Shah someone from Zone 4 will be recommended for appointment as Civil Judge-cum-Judicial Magistrate/Alaqa Qazi, hence the petitioner having no other adequate remedy available to him, has knocked the door of this Court.
3. Respondents Nos.1 and 2 in their joint paradise comments besides raising other preliminary objections also stated that respondent No.1 initially recommended 57 candidates to Peshawar High Court, Peshawar for appointment of Civil Judges-cum-Judicial Magistrates/Alaqa Qazis and revised its recommendations by excluding eleven contract Civil Judges (who were regularized under KPK Regularization of Service Act, 2009 and were not recommended by the Commission) on the order of Governor vide letter No.SOR-VI(ED)5- 1/2010 dated 16/07/2010 and the Commission did not revise its merit list. That Registrar, High Court, Peshawar through corundum dated 15/09/2010 had deleted the name of lsrar Ali Shah who was at merit order No.46 and was recommended against merit seat and if his name is excluded then the next person to be selected against would be Syed ljlal Hussain (placed on merit order No.47), however, he has been recommended in the revised list for selection against Zone-II and as such another person eligible to be recommended should be from Zone-II and not from Zone-IV as stated in Writ Petition No.4182 of 2010 titled "Asif Raza v. Chairman PSC and others", the said Asif Raza was at merit order No.58 while the petitioner was at Merit Order No.63. That the petitioner though qualified viva but due to low merit position in the merit list he could not come in the orbit of selection and that in between Syed lsrar All Shah and the petitioner, there lies a few candidates who have far better merit positions than the petitioner, therefore, he by no means could be considered for the vacant post and that all the candidates were treated alike keeping in view their merit position and Zonal allocation and no violation of rules and discrimination has been done with the petitioner and thus prayed for dismissal of the writ petition.
4. Registrar, Peshawar High Court, Peshawar (respondent No.6) in his paradise comments has stated that Syed Israr Ali Shah from Zone-IV being a contract employee was not recommended by the Public Service Commission in initial list dated 18/11/2009, however, he was recommended in the revised list dated 02/08/2010. That Peshawar High Court was not authorized to recommended the petitioner for appointment as Civil Judge and competent authority was KPK Public Service Commission, therefore, the petitioner was advised to seek legal remedy against the forum aggrieved from. It is further submitted that initially Syed lsrar Ali Shah from Zone-IV was included in the revised merit list but as his services were already regularized , therefore, his name was deleted from the revised merit list by Public Service Commission and Asif Raza filed writ petition for his appointment against the seat vacated by Syed Israr Ali Shah which was allowed through judgment dated 21/11/2013 and in the light of the aforesaid judgment he was appointed as Civil Judge and that the petitioner wants his appointment against the seat vacated by Syed Israr Ali Shah but the said seat has already been filled by the appointment of Asif Raza and two persons cannot be appointed against a single seat and that the petitioner has been dealt with as per law and has neither been discriminated nor any injustice has been done to him, therefore, prayed for dismissal of the instant writ petition.
5. Arguments heard and record perused.
6. Before dilating upon the instant case merit wise there are few facts admitted on record and that are:-
(1) That 38 posts of Civil Judges/Judicial Magistrates/Alaqa Qazes were advertised and as per "Zonal allocation formula", ten posts were allocated on merit, Six to Zone-I, Seven each to Zone-II and III and four each to Zone-IV and V.
(ii) Petitioner qualified written test from Zone-IV and was called for interview, which he qualified.
(iii) Combined merit list was issued with petitioner name at serial No.63.
(iv) Certain qualified candidates names were deleted vide notification dated 12th January 2010, as those candidates stood regularized under section 3 of the Khyber Pakhtunkhwa, Employees (Regularization of Services) Act, 2009, and subsequently one corrigendum dated 15th September 2010, was issued whereby one Syed Israr Ali Shah, selected in Zone-IV was deleted from the merit list.
7. There is one another aspect of the case, that one Asif Raza, instituted Writ Petition No.4182/2010, which was allowed on 21.11.2013 and one post of Zone-IV was given to Zone-II as Syed Israr Ali Shah, from Zone-IV when deleted from the combined seniority list of the Public Service Commission, against the said post Asif Raza, from Zone-II was directed to be appointed, with utmost respect to the said judgment, not in line with Regulations, 2003 of KPK Public Service Commission. Since the petitioner has not grudged that post therefore, there is no need of discussing the decision in that writ petition.
8. In the instant case admittedly, petitioner belongs to Zone-IV and for Zone-IV four posts are allocated. This zonal allocation is made in accordance with the Zonal Allocation Formula which is worked out strictly in accordance with the zonal allocation formula, notified by the S&GAD, under regulation 3-(a) which reads as under-- "Zonal Allocation worked out strictly in accordance with the Zonal Allocation Formula notified by the S&GAD vide No. SORI (S&GAD)3-39/70 dated 03.021990 and Zonal rotation cycle circulated by the Commission vide No.3-89-DS/3241 dated 19.03.1990 or in accordance with the other instructions of the Government as issued from time to time".
Once the Zonal Allocation is made then the advertisement is issued and thereafter no Zonal quota/seat/post can be reallocated except when suitable and qualified candidates is not available in the said zone and that too, with the approval of the Government/ requisitioning Department, which are missing in this case. Regulation 34(2) of the KPK Public Service Commission, Regulations, 2003 reads as under:-- "Subject to Government Policy on zonal substitution, it is to be made, with prior approval of the Govt. due to deficiency of qualified candidates from particular area(s). Such vacancies shall be filed in accordance with the proportionate ratio of the zones given in zonal allocation formula as contained in Regulatiou 3(a) from among the qualified candidates of other zones appearing on the merit list. (The under line is by us to show emphasis)
9. The above referred regulation clearly shows that in case of deficiency of qualified candidates from the particular areas the zonal allocation could be altered, whereas in the instant case there is no such situation. Respondents Nos.1 and 2 circulated block wise rotation of vacancies vide notification dated 18.11.2009, which was addressed to respondent No.6. According to which against Zone-IV, four candidates were selected namely Umar Azmat Khan, Hamid Kamal, Aurangzeb and Muhammad Haroon, as per the correct vacancies rotation formula i.e. 19 vacancies in block-11, sixth, twelfth and I,nineteen vacancies in block-12 respectively. Record is suggestive that one Hamid Kamal against the sixth vacancy in block-12 was dropped subsequently as he stood regularized vide notification dated 12th January 2010 under the Act, 2009 and as such the fourth post in Zone-IV became vacant. Petitioner is the next candidate on merit in Zone-IV and there is no allegation of any deficiency regarding his qualification or otherwise.
10. The arguments of the respondents seems to be funny in view of referred regulation 34(2) especially in the circumstances when there is a qualified, eligible and fit candidate available. There exists no reason to appoint some one from another zone in the presence of qualified candidate within the zone, as per merit list. In between petitioner and the last third candidate from Zone-IV there is no one in the said zone except one Taimur Khan who was selected against merits seat which are ten in number and as such petitioner has the preferential right to be recommended for the fourth allocated seat of Zone-IV.
11. The record is suggestive that there is already ambiguity and anomaly in the selection process when Zone-II was given one additional post by slashing the same from Zone-IV. In fact Zone-II under the Zonal Allocation formula and vacancies rotation was allocated 7 seats but 8 candidates have been recommended, which under no law is permissible, unless and until it is shown that any deficiency in Zone-IV was there. In the recommendation notification one Tanveer Khan, has been recommended against the 19th rotation vacancy but the said Tanveer Khan, was initially selected as per merit list on "merit" and not in the own quota, whereas merit post were 10 in number. It appears that all these reallocation were made in order to give advantage to some one. The law and regulations on the subject are very much clear that against the 10 merit post same formula would apply and would avail the merit seats without any option of zonal allocation in their case and thereafter merit of the each zone would be made/prepared and the vacancies in rotation allocated to the zones would be filled in from among st the merit in the respective zones. The formation and allocation of vacancies as per referred formula could not be changed in any circumstances.
12. In view of the above, this writ petition is allowed and respondents are directed to recommend the name of petitioner against the fourth seat of Zone-IV within fifteen days and petitioner be appointed as Civil Judge/Judicial Magistrate without back benefits and seniority, as neither the petitioner has worked against the post nor has gained any experience.