IJAZ UL AHSAN, J.---For reasons stated in the application (C.M.A. No.392 of 2018), it is allowed as prayed for. The office is directed to number the main petition filed by the applicant/petitioner.
2. Main Case. The petitioner is aggrieved of a judgment dated 05.12.2017 passed by a learned Division Bench of the Lahore High Court, Bahawalpur Bench, Bahawalpur. Through the impugned judgment, while dismissing an Intra Court Appeal, filed by Respondent No.3, the Division Bench proceeded to refer the matter to the concerned Sessions Judge with direction to reconsider the same and issue appointment letter to a candidate who meets the merit.
3. The brief facts necessary for decision of this is are that pursuant to an advertisement published by Respondent No.2, the petitioner, Respondent No.3 and many others applied for appointment against a post of Driver (BS-4). After scrutiny of documents, the matter was processed and Respondent No.3 being on top of the merit list was selected for the said post. An appointment letter was accordingly issued in his favour on 11.07.2015. It stipulated that Respondent No.3 should join the post within a period of 10 days of its issuance, failing which the same shall be treated as withdrawn.
It appears that Respondent No.3 failed to do so. Consequently, the petitioner, who claims that his name had been placed on the waiting list, was appointed against said post.
4. Subsequently, Respondent No.3 filed a constitutional petition (Writ Petition No.6315 of 2015) against the appointment of the petitioner on various grounds which are not important for the purpose of the instant is. Such petition was dismissed by a learned Single Judge of the High Court, vide judgment dated 22.09.2015. The Intra Court Appeal filed by him was also rejected vide impugned judgment dated 05.12.2017. However, on the basis of the record coming before the learned Bench, the Bench found that even the petitioner was illegally appointed and that he could not have been placed in the waiting list and subsequently appointed against the post in question upon failure of Respondent No.3 to join duty. The learned High Court also came to the conclusion that apart from the petitioner, there were other candidates who had obtained better marks. Such candidates were deprived of a chance of appointment. Therefore, his appointment could not stand. The learned High Court therefore proceeded to send the case back to the concerned Sessions Judge with a direction to reconsider the same and appoint the candidate who fulfilled the requisite merit. Hence, this petition.
5. The main ground urged by the learned counsel for the petitioner is that merit list on the basis of which the petitioner was placed in the waiting list was never challenged by any of the applicants.
He maintains that such list had attained finality and therefore could not have been interfered with by the learned High Court. He has further argued that when the persons who had obtained more marks than the petitioner had not challenged his appointment, the learned High Court erred in law in interfering with the same. He has contended that the petitioner was condemned unheard, a vested right had accrued in his favour as he had been performing duties against the post in question. He also maintains that the merit list showing the petitioner at Sr.No.4 thereof was fictitious and not worthy of reliance.
6. We have heard the learned counsel for the petitioner and gone through the record. Perusal of the impugned judgment shows that record of the case was carefully examined by the learned Division Bench of the High Court. On scrutiny, it was discovered that name of the petitioner had been placed in the waiting list despite the fact that there were other applicants who were placed higher than the petitioner on the merit list. The learned Division Bench also came to the conclusion that petitioner's name was at Sr. No. 4 of the merit list having obtained 59 marks while three other candidates namely Daud Ahmed, Muhammad Hashim and Muhammad Javed who had secured 71, 67 and 63 marks, respectively, stood higher in the merit list. It was also observed that names of said three persons were not placed in the waiting list while that of the petitioner who had lesser marks was so placed without any lawful reason or justification.
7. The learned High Court also came to the conclusion that the Recruitment Committee committed a gross error while ignoring the merit and giving preference to the petitioner over other candidates who had secured more marks than the petitioner. The learned High Court also took serious view of this lapse and concluded that the Recruitment Committee acted in the matter negligently while conducting proceedings and overlooked merit by issuing letter of appointment in favour of the petitioner. The learned Division Bench considering the matter of serious concern had also proceeded to direct the office to bring the same to the notice of the Chief Justice of the High Court for appropriate actions.
8. We have also examined the record ourselves, gone through the merit list and found that the petitioner had indeed been granted an undue favour which was in violation of the merit policy. The argument of the learned counsel that since none of the candidates, who had secured higher marks, had challenged the merit list, the appointment of the petitioner had somehow attained legitimacy is ex facie misconceived. Where an apparent illegality or impropriety had come before the High Court it could not have shut its eyes and looked the other way. It ought to have, and rightly took cognizance of the matter and passed an appropriate order.
9. As far as the argument of the learned ASC that the petitioner has been condemned unheard is concerned, we have given him ample opportunity to present his point of view. The rule of natural justice has adequately been complied with. On the basis of the record, we are not convinced that sending the matter back to the High Court to afford an opportunity of hearing to the Petitioner would be a futile exercise and no useful purpose would be served other than prolonging and postponing the inevitable. Such an exercise would defeat the ends of justice. Even otherwise, in terms of Article 187 of the Constitution of Islamic Republic of Pakistan, 1973, this Court has the power to do complete justice. In addition, as per Justice Khurshid Anwar. Bhinder v. Federation of Pakistan (PLD 2010 SC 483), in appropriate cases the rule of audi alteram partem can be dispensed with, where adherence to the rule A would defeat the ends of justice and frustrate the legal process, as in the instant case.
10. The petitioner has not been able to convince us that his appointment was lawful and that he was appointed on merit. A last ditch effort has been made by the learned counsel for the Petitioner to challenge the award list by claiming that it is fictitious. However, we are not convinced nor any evidence has been placed on record that may even remotely suggest that judicial functionaries of the State have indulged in creating fictitious merit lists specially so, where no mala fide or bias is alleged or proved.
11. The learned High Court has remitted the matter to the Sessions Judge concerned with the direction to reconsider the same and issue appointment letter to the candidate who fulfills the requisite criteria. We do not see how any prejudice has been caused to the petitioner considering his claim that after Respondent No.3 he was on top of the merit list and had been appointed on merit
12. We find the impugned judgment to be well reasoned, based on the record and substantiated by credible and reliable material consisting of official records which have not been found by us to be tampered.
13. In view of what has been discussed above, we are not persuaded to interfere in the impugned judgment. Accordingly, this petition being without merit is dismissed and leave to appeal is refused.