SYED ARSHAD ALI, J:- Petitioner seeks the constitutional jurisdiction of this Court praying that: "It is, therefore, respectfully prayed that on acceptance of the instant writ petition, impugned office order Endst:No.4046- 48/F. No. 01/A 17/SST/Female/Appeal/Apptt :/ 2015/Vol-I dated 14.02.2017 issued by respondent No.3 rejecting appeal of the petitioner for appointment as SST in GGHS Kangra Colony District Haripur may graciously be declared as illegal, malafide, result of illegal exercise of powers by the respondent No.3 and having no legal effects on the rights of the petitioner to be appointed as SST(Maths/Physics) being qualified on merits, and the respondent No.3 may graciously be directed to appoint the petitioner as SST (Maths/Physics) on vacant post in GGHS Kangra Colony, Haripur being No.1 on merits due to non joining of the post by Mst. Sughra Bibi appointed for the said post and not appoint any other candidate on the aforesaid seat by violating the guaranteed constitutional rights of the petitioner. It is further prayed that if any appointment letter on the said post issued by the respondent No.3 the same may kindly be ordered to be cancelled and any other relief which this Honourable Court may deem fit may kindly be granted to the petitioner".
2. Brief but essential facts of the instan t case as narrated in the petition are that respondent No.3 advertised various posts including posts of SST (Maths/Physics). According to the advertise ment one candidate can apply against post lying vacant in 05 schools. Petitioner being qualified for the post also applied and appeared in NTS held on 3 and 4 January , 2015. The result was declared and the petitioner was placed at S.No.13 of the merit list. According to merit list Mst. Sughra Bibi being higher on merit, was offered appointment by the respondent No.3 and was appointed on 30.11.2015. The said Mst. Sughra Bibi did not join the post within the prescribed time, therefore, the petitioner applied to the respondents for her appointment but her request was illegally turned down.
The respondents were put on notice, who filed their comments, whereby they have contended that the petitioner being low on merit, was not considered for the aforesaid post.
3. Arguments heard and record perused.rd th
4. In the process of selection for the appointment against the post of SST (Maths/Physics), the petitioner qualified the written test by securing 1 19.03 marks and was placed at S.No.13 of the merit list.
Another candidate Mst. Sughra Bibi obtained 136.68 marks and thus was placed at S.No.2 of the merit list. The petitioner being low on merit could not be appointed against the said post whereas Mst. Sughra Bibi was appointed against the post of SST (Maths/Physics), which was lying vacant in Government Girls High School, Kangra Colony District Haripur vide appointment order dated 30.11.2015. The aforesaid Mst.Sughra Bibi, who was appointed against the post of SST (Maths/Physics) at Government Girls High School, Kangra Colony District Haripur opted not to take charge of the post, therefore, the post remained vacant. In this view of the matter, the petitioner filed an application on 18.02.2016 to respondent No.3 requesting that she being next on merit be appointed against the said post which was left vacant by non-joining of the post by Mst. Sughra Bibi.
On her said application, comments of the District Education Officer (Female) Haripur was solicited by Deputy Director (Estab), Elementary and Secondary Education, Khyber Pakhtunkhwa through letter dated 01.3.2016.
On 29.03.2016, the District Education Officer (Female), Haripur had submitted her comments stating that appointed candidate Mst. Sughra Bibi did not take charge of the post, therefore, the said post was lying vacant in Government Girls High School, Kangra Colony District Haripur. On merit the next candidate for the post was one Madhia Shafique. Since the said Madhia Shafique had not applied for the post, therefore, the petitioner would be considered as next candidate for the said post. However, the department did not finally decide the application of the petitioner, therefore, the present petitioner approached to Provincial Ombudsman. The Provincial Ombudsman on 02.1.2017 rendered his findings with direction to the respondents to consider the petitioner against the said post. Finally respondents vide order dated 14.02.2017, rejected the application of the petitioner on the plea that the said post was re-advertised. However, the said post is still vacant as the incumbent too did not join her duties against the said post.
5. Regarding offering post which remained vacant on account of non-joinder of the appointee, the Provincial Government has framed policy pursuant to the judgment of august Supreme Court of Pakistan, which reads as under:- "Government of Khyber Pakhtunkhwa Establishment department (Regulation wing)
No.SOR. VI (E&AD)1-10/2010 Dated Peshawar , 19 March, 2013.
To,
1. The Additional Chief Secretary , Planning & Development Department, Govern ment of Khyber Pakhtunkhwa, Peshawar .
2. The Additional Chief Secretary (F ATA), F ATA Secretariat, Peshawar .
3. All - Administrative Secretaries to Government of Khyber Pakhtunkhwa.
4. All Commissioners in Khyber Pakhtunkhwa.
Subject:- CHANGE IN THE RECRUITMENT POLICY REGARDING MAINTENANCE OF WAITING LIST OF THE ELIGIBLE CANDIDA TES-JUDGEMENT OF THE SUPREME COUR T OF P AKIST AN.
Dear Sir, I am directed to refer to this department circular letter No.SOR VI/E&AD/1-10/05/V ol:IV dated 31.12.2008 and to state that the maintenance of the waiting list of eligible candidates for a period of 06 months in initial recruitment were stopped in pursuance of judgment of the Supreme Court of Pakistan in case tilted MUSA WAZIR & OTHERS vs NWFP PUBLIC SER VICE COMMISSION AND OTHERS.
2. However in pursuance of a recent judgment of the Supreme Court of Pakistan in case titled NIAMATULLAH AND OTHERS vs NWFP PUBLIC SERVICE COMMISSION AND OTHERS dated 05.10.2010, the said policy has been reviewed and it has been decided by the competent authority that from now onwards, the Public Service Commission or Departmental Selection Committee as the case may be, may maintain a waiting list of eligible candidates in the respective zones upto the commencement of the pre-service training of the candidates of theth same selection or till expiry of 03 months, where no such pre-service training is prescribed. The Public Service Commission or the Departmental Selection Committee may in case of non joiners recommend the next eligible candidate on top of the merit list from the respective zones upto the commencement of the training of the appointees of the same selection or for three months where no such training is prescribed provided that the process does not in any way affect the right of any other selectee or appointee.
3. I am, therefore, directed to request that above policy decision may kindly be brought into the notice of all concerned for strict compliance.
Yours Faithfully, Sd/- (Muhammad T aufique)
Section Officer (Reg-VI)."
6. The said policy has been made pursuant to the judgment of august Supreme Court of Pakistan passed in Civil Petition No.1697 of 2010 titled Naimatullah & another Vs N.W.F.P (Now K.P.K) Public Service Commission, Peshawar and others dated 05.10.2010. In the said judgment a slight distinction has been drawn from ratio of the judgment of august Supreme Court of Pakistan in case titled Musa Wasir Vs. N.W.F.P Public Service Commission (1993 SCMR 1124). The law laid down in Musa Wazir case was that in future the Public Service Commission shall re-advertise vacancies created as a result of non-joinder of the selectees as well as of subsequent requisition sent by the Provincial Government for the appointment of the same category of post, which shall be treated as separate selection. Hence, in view of the law laid down in the Musa Wazir case the earlier practice of maintaining waiting list of the Candidates for their appointment, in case any of the selectee did not join the post or if during the said process Provincial Government sent for the requisition for appointment against the same category of post, was declared against the law. However , in Naimatullah case (supra), the august Supreme Court of Pakistan has slightly modified the law laid down in Musa Wazir supra case in the following words:- "We are also mindful of the fact that this Court in MUSA WAZIR 's case (Mid) had directed the Public Service Commission not to maintain waiting list for 6 months. Thus a line is to be drawn beyond which the Public Service Commission shall not fill up vacancies created as a result of non joinder of a selectee. A balance is to be struck so that a fair chance is provided to a candidate, who has passed a competitive examination but has failed to be selected on merits and at the same preve nt the adverse fall out of maintaining a waiting list for long period. It would be, in our view, just and fair to allow filling up of vacancies created on account of non joinder of selectee upto the commencement of the training of the appointees of the same selection, provided that the process does not in any way affect the rights of any other selectee or appointee. In the present case, the training of the appointees had yet to commence by the time the petitioners filed their constitution petition before the High Court. During the hearing of this petition, we were informed that due to the flood situation in the Province, the training had not yet started by the time the impugned judgment was passed. We had already directed by our short order that the petitioners be immediately allowed to join the training."
7. Since the questioned post left vacant by Mst. Sughra Bibi is still lying vacant for which the petitioner had applied within a period of three months and being higher on merit, the petitioner is entitled to be appointed against the said post. Therefore, on acceptance of this writ petition, the impugned order passed by the respondents is hereby declared illegal, as such is set aside with direction to the respondents to appoint the petitioner against the post of SST (Maths/Physics) in Government Girls High School, Kangra Colony District Haripur .