MUHAMMAD YOUNIS THAHEEM, J-.
Petitioner , Sheema Akhtar has invoked the constitutional jurisdiction of this Court by way of filing instant writ petition with the following prayer: "On acceptance of this writ petition an appropriate writ may be issued by setting aside letter No PSC/SR- VII/004646 dated 22.01.2016 issued by respondent No.3 and 4 and the petitioner may be allowed to continue her service as lecturer in Higher Education Department."
2. Brief facts of the case are that respondent No.3/Chairman Khyber Pakhtunkhwa Public Service Commission, Peshawar vide advertisement No.01/2015 dated 01.01.2015, advertised the posts of female lecturer of Urdu appearing at serial No.55 and so many candidates deeming themselves fit, having requisite qualification, applied for the same posts. Similarly, petitioner as well as respondent No.6, Mst. Bibi Hamida also applied for the same posts. After test and interview, petitioner was declared as successful candidate and was recommended for appointment vide letter dated 10.11.2015. Petitioner afterward fulfilled other requisite codal formalities by appearing before the Standing Medical Board and was found fit by the said Board and was appointed vide Notification No. SO(C-III) HE/1-2/15 against the post of female lecturer in Urdu dated 04.01.2016. The petitioner afterward in compliance of the aforesaid notification, submitted her arrival report to the Principal Government Girls Degree College Zaryab Colony, Peshawar on 05.01.2016 and assumed the charge and started performing her duties. During performing her duties she was served with letter No.PSC/SR-VII/004646 dated 22.01.2016 by the respondents No.3 & 4 vide which her recommendation for appointment was withdrawn and the name of respondent No.6 was recommended. She further contended that she was informed vide letter No. KPK-PSC-SR- VIII/004875 dated 27.01.2016 about the withdrawal of her recommendation for the post of female lecturer . So feeling aggrieved from said withdrawal letter dated 22.01.2016 filed instant petition.
3. Comments were called from respondents No.3 & 4. In response whereof they submitted their comments, the relevant Para Nos.3 & 7 of their comments are reproduced as below:
3. Correct to the extent that on the basis of academic record i.e. marks obtained during the last three examinations, higher qualification, relevant qualification, distinction and Hafiz-e Quran etc, she was entitled for 16 marks. Unfortunately the dealing section wrongly awarded her 18 marks instead of 16 marks. After adding 47 marks obtained in the interview she stood at the top of the merit list and was as such recommended for appointment. Subsequently the dealing section noticed their mistake and got rectified the same at their own. On the basis of revised merit list she came down to merit order number three in the merit list. In order to give chance to deserving candidate the Public Service Commission recommended Mst. Bibi Hameeda d/o Ghulam Muhammad r/o District Chitral (Zone-3) and withdrew its earlier recommendation in respect of the Petitioner as there was only one vacancy for Zone-3. The Petitioner was informed accordingly.
7. As stated above, the Public Service Commission reserves the right to re-examine and revise its recommendations at any stage. While re-examining the instant recommendations, an inadvertent mistake was noticed wherein the academic marks of the petitioner were incorrectly recorded as 15.57 = 18 instead of 15.57 = 16 i.e. correct marks. The incorrect marks were recorded in merit list also. The matter was brought into the notice of Commission. After approval by the Commission, the said mistake was timely rectif ied and correct academic marks were recorded as (15.57=16 academic marks) + (interview marks 47) = total 65. On the other hand explanations from Assistant Director , Superintendent and Assistant concerned had been called for their negligence. After receipt of their replies the competent authority will decide further proceeding against the said employees. The relevant provision of Regulation No. 29 (C) of Regulations 2003 of the PSC is reproduced as below;
29. (C) Academic scoring in respect of professional posts shall be based on the last three or four professional examinations, as the case may be, on the basis of percentage to 30 marks reserved for academic record and not on division wise basis. For example, if a candidate obtains 2150 marks out of 3650 marks out of a total three or four professional examination his credit will come to 17.67 marks out of 30. So in such cases, the candidate will be entitled to 18 marks.
After correction, the merit list was revised and as a result the petitioner stood at merit order No.3. Due to revision of merit list, candidates namely M/s Bibi Hameeda of district Chitral and Robeena Syed of district Swat, who were initially at merit order Nos. 2 and 3, stood at merit order Nos. 1 and 2, respectively i.e. they attained better merit position than the petitioner .
Since there was only one post reserved for Zone-3 quota, therefore, according to revised merit list the candidate who was at better/top in the merit list from Zone-3 has a right to be recommended against the said one post.
Hence, Mst. Bibi Hameeda was recommended to Government vide letter No. PSC/SR-VII/004646 dated 22.01.2016. In the said letter , earlier recommendation of Mst. Sheema Akhtar (the petitioner) was also withdrawn.
After issuance of letter to Secretary , Higher Education Department on 22.01.2016 petitioner has also been informed vide letter No. 004875 dated 27.01.2016.
4. Learned counsel for the petitioner argued that after observations of all legal and codal formalities, her appointment was made and she assumed the charge of female lecturer and started performing her duties, so valuable rights accrued to her which could not be taken back from her.
5. Conversely , learned counsel of official respondents vehemently rebutted arguments of learned counsel for the petitioner and submitted that due to wrong calculation, respondent No.6 was deprived of her legal right who was higher in marks and merits so on her application, the same mistake was corrected as the petitioner's marks were inadvertently calculated as 18 marks by rounding off 15.57 and by summing 18+47 equal to 65 marks, while actually 15.57 by rounding off becomes 16 and not 18 so her merit came 16+47=63 and it was not 65. Learned counsel for respondent No.6 argued that calculation in the office of Public Service Commission was malafidely and collusively done as the husband of petitioner was working as Secretary in the Public Service Commission and on his instance marks were willfully increased from 16 to 18 to benefit petitioner wrongly and illegally. Upon knowledge, the respondent No.6 moved an application for correction of above mistake which has been lawfully corrected and as recommendation was based on wrong footing so was withdrawn.
6. Arguments heard, record perused.
7. From the perusal of record it is an admitted position that petitioner obtained 15.57 marks and after rounding of figure it actually were to be calculated as 16 marks but were wrongly calculated as 15.57=18 so calculation was either mistakenly or inadvertently made as 18 instead of 16 which was subsequently corrected by the Public Service Commission after having notice of this mistake, and on the basis of revise merit list petitioner came down in merit order less than respondent No.6 Mst. Bibi Hameeda who has been recommended for the post of female lecturer in Urdu from Chitral falling in Zone-3.
8. So far as contention of the petitioner that after her recommendation by the Public Service Commission and thereafter appointment order she joined her duty so valuable rights had been accrued to her which cannot be taken back is concerned, suffice it to say that any order which is wrong on the face of it and has no legal force even if it is acted upon, can be recalled, rescinded and withdrawn by any subsequent order by the concerned authority. In this respect wisdom is derived from the judgment of Honourable Supreme Court of Pakistan in case titled Shahid Masood Nadeem Vs DY. C.A.F. Lahore Cantt: and 03 others, the relevant principal enunciated in the cited judgment is reproduced as below: "It is settled proposition of law that no right can be claimed on the basis an illegal order and such an order despite having taken effect, neither would change its status, nor create any right enforceable in law and in the light of principle that the authority which possess the power of passing an order is also empowered to vary, amend or rescined, the said order can be undone with no legal bar. However , in case of a legal order , this power can only be exercised till a deceive step is taken to give effect to the order and once the order is giving effect, the authority would loose the power to retrace its steps. The result is that a legal order which creates some right in favour of a person, on taking effect cannot be withdrawn, rescinded or varied to the disadvantage of the said person but an order which has no legal force even if is acted upon can be recalled, rescinded and withdrawn at any subsequent stage and thus principle embodied in Section 21 of the General Classes Act, 1956 cannot be made applicable equally to all legal and illegal orders. There is a distinction in the benefit derived under a legal order which is recognized in law as a legal right whereas the benefit arising out of an illegal order cannot be given such recognition."
9. In view of above discussion, the Public Service Commission was left with no option but to correct the mistake in calculation while rounding of 15.57 and her recommendation and appointment order was correctly withdrawn.
So respondent No.6 being higher in merit than petitioner was rightly recommended by respondents No.3 & 4 vide impugned letter No. PSC/SR-VII/004646 dated 22.01.2016. Hence, the instant petition being bereft of merit is dismissed.