ALI BAQAR NAJAFI, J.---Through this constitutional petition, a direction is sought by the petitioner to the respondents to recommend-him for appointment against the post of Sub-Inspector (BS.14) on open merit.
2. Brief facts giving rise to the filing of this writ petition are that in response to the advertisement published in the newspaper dated 01.11.2015 for 35 posts of Sub-Inspectors (BS.14), the petitioner applied and passed the written test held on 24.01.2016. In total 145 candidates including the petitioner were called for interview. He stood at No.32 in the merit list. As three candidates, namely, Muhammad Umar, Abdul Sattar and Hafiz Suboor-ul-Hassan did not join their service, it is submitted by the petitioner, these seats should fall to the next in line and as such the petitioner is required to be appointed as Sub-Inspector, as per rules of Punjab Public Service Commission.
3. In the report and parawise comments submitted by the respondent No.2, it is submitted that 35 posts of Sub-Inspectors of Faisalabad Region included 05 posts for women, 02 for minorities were advertised. In total 2763 applicants applied. It is admitted that petitioner stood at Sr. No.32 and one Mumtaz Hussain at Sr.No.31 (a petitioner who has already withdrawn petition to his extent). As no request was received from the respondent to the Commission, therefore, no recommendations were made against left out seats in open merit.
4. In the reply filed by respondent No.3 Regional Police Officer Faisalabad, it is stated that formal orders of appointment of 30 candidates for the post of Sub-Inspector were issued as 05 candidates could not pass the medical test.
5. In the report and parawise comments filed by IG/respondent No.2, it is submitted that 32 candidates were appointed whereas 03 candidates could not be appointed due to their personal and medical reasons. It was however stated that the department as a policy included the said unfilled three seats in the vacant posts of Faisalabad Region for which requisition have been moved to the respondent/Punjab Public Service Commission on 03.11.2016. Importantly, it was done within one year of the merit list dated 29.04.2016 and just after filing of the present writ petition on 05.10.2016 and 04 days before the filing of the comments dated 07.11.2016 by the Inspector General of Police.
6. Learned counsel for the petitioner submits that the petitioner, the next in the merit list, should be appointed as SI (BS.14) within one year and that requisition for recommendation from PPSC is after thought made during the pendency of the present writ petition.
7. Conversely, learned Additional Advocate General Punjab submits that the government is not bond to appoint the next candidate in line and can exercise its discretionary powers, therefore, places reliance on order dated 29.03.2016 passed in C.P.No.602-L/2016 titled "Muhammad Saeed Anwar v. Punjab Public Service Commission" and prays for the dismissal of the writ petition.
8. Arguments heard. File perused.
9. Admittedly, the facts are that under Sub-Inspector and Inspectors (Appointment and Conditions of Service) Rules, 2013, notified on 02.01.2014, 50% vacant posts in the rank of Sub-Inspectors were to be filled on merit by the initial recruitment through selection on the basis of police regions on the recommendations of the PPSC. Accordingly, a requisition for initial direct recruitment of 226 Sub- Inspectors including 35 from Faisalabad Region were forwarded to PPSC on 20.10.2015, which were advertised in the same year. On 29,04.2016, after following the due process, 35 candidates were forwarded by the office of I.G. to Faisalabad Region, but three candidates could not join due to medical/personal reasons. At this juncture, the present writ petition was filed on 05.10.2016 for the above said relief. However, on 03.11.2016 the posts including the said three posts were advertised, which fact was discussed in the comments filed by the respondent/I.G. Police on 07.11.2016.
10. Legally, under Regulation 59 of the Punjab Public Service Commission Regulations, 2016, a substitute can be provided from the merit list during its validity period if so requested by the department. Under Regulation 62 thereof, such merit list remains valid for twelve months. For convenience Regulations 59 and 62 thereof are reproduced as under:- "59. A substitute can be provided from the merit list during its validity period if so requested by the department concerned, in case a candidate: a. Fails to join the post. b. Tenders his/her resignation after joining. c. Is declared unfit on medical or other grounds. d. Requisitioned post has become vacant for any other reason."
"62. For recommending substitutes, the Merit List remains valid for twelve months from the date of issuance of first recommendation or till the date of receipt of next requisition in the commission for the same post, whichever is earlier, provided that where request for substitute is received within the validity period, the Chairman in his discretion may extend the validity period for the disposal of such request."
11. Here an analogy can also be drawn from case titled "Province of Sindh and others v. Ghulam Hassan Bughio" reported as 2014 SCM R 643, that a post can be advertised only if a suitable candidate is not available and that it is not mandatory that whenever the vacancy occurs, the post has to be re-advertised. Moreover, the view given in the order dated 29.03.2016 in C.P.No.602-L/2016 "Muhammad Saeed Anwar v. Punjab Public Service Commission" is not related to the Rule 62, but Rule; 66 and 69 of the Punjab Public Service Commission Rules, 2016. Besides, the petitioner had smartly and promptly approached this court within the said period of one year, therefore, the discretion exercised by the respondent was apparently afterthought and to frustrate the already completed process. The petitioner has a right to be dealt with in accordance with law under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973.
12. Keeping in view the above, this writ petition is allowed and the respondents are directed to adjust the petitioner and issue him the appointment letter for the post of Sub-Inspector (BS.14) on the basis of the list dated 29.4.2016.