SHAKIL-UR-REHMAN KHAN, J.---Through the instant intra court appeal , the appellant has challenged the order dated 01.1 1.2018 passed by the learned Single Judge in chambers in W .P. No.16609 of 2017.
2. The brief facts leading to the filing of the instant intra court appeal are that the appellant in response to the advertisement published in daily Nawa-i-W aqt, Multan dated 29.9.2009 issued by the District Coordination Officer, Dera Ghazi Khan submitted her application for appointment as Senior School Educator ("SSE") at Government Girls Elementary School, Dadey Wala, Tehsil and District Dera Ghazi Khan, however , the Selection Committee did not award her two marks for being computer literate. She submitted an application to District Monitoring Officer, D.G. Khan, but received no response. She then approached this court through Writ Petition No.9667 of 2009 seeking a direction to be appointed as SSE at the above noted school according to the merit list. The said writ petition was disposed of vide order dated 05.12.2016 whereby a direction was issued to the respondents Nos. 1 and 2 therein to look into the matter qua the grievances of the appellant and decide the application in accordance with law. As luck would have it, no action was taken and she was compelled to file Crl. Org No.340-W of 2017 and the respondents submitted a copy of order dated 12.5.2017 before the Court, whereby the application of the appellant was dismissed.
3. In this view of the matter , she again approached this Court through the constitutional petition challenging the order dated 12.5.2017 on the grounds that the same was illegal, unlawful and result of colorful exercise of powers; that she had passed M.Sc. (Geography) from Islamia University , Bahawalpur , where complete knowledge of computer science is imparted to the students (copies of result card of M.Sc., consolidated result sheet and its verification letter dated 22.5.2017 were placed on record); that she had applied for the post of SSE in BPS-16 and that the selection committee had ignored to award two additional marks for being computer literate to her as per Recruitment Policy , simply to induct the respondent No.3 in the list of successful candidates; that by getting these two additional marks the score of the appellant comes to 58.65 while the score of respondent No.3 was 58.38; that a complaint was also submitted to the Chief Minister's Complaint Cell, which had been marked to the Deputy Commissioner , Dera Ghazi Khan, who admitted that the grievance of the appellant was genuine and needed to be redressed but the District Monitoring Officer, Dera Ghazi Khan did not pay any heed; that the appellant is resident of Mauza Dadey Wala, Tehsil D.G. Khan while respondent No.3 being resident of Tehsil Taunsa Sharif, therefore was not a local resident and hence not entitled to be appointed as such.
4. The respondents Nos. 1 and 2 submitted report and parawise comments to the said writ petition wherein it was stated that the appellant was appointed as ESE in Government Primary School Basti Khosa-2, in the year 2009 and she applied for the post of SSE (Arts) in Government Girls Elementary School, Dadey Wala, Tehsil and District Dera Ghazi Khan. She obtained 56.46 marks while respondent No.3 had obtained 58.38 marks and therefore, the appellant could not be selected against the said post due to lower marks in merit. While supporting the impugned order dated 12.5.2017, it was stated that the same was in accordance with law and that it was a speaking order .
Furthermore, the respondent No.3 had already joined the said school on 10.8.2009 and had now been regularized as SST (Gen.). It was further stated that the result sheet/transcript of the appellant was issued on 21.11.2008 after the closing date for submission of application, i.e., 15.10.2008. It was further stated that the appellant had not submitted any document, on the basis of which she could have been granted two marks for being computer literate, till the last date of submission of applicati on; hence no discrimination was meted out to her. As far as the domicile certificates are concerned, it was stated that the appellant as well as respondent No.3, both are residents of Dera Ghazi Khan. In view of above it was prayed that the petition being devoid of merit, be dismissed.
5. It is noted that respondent No.3 did not file any reply to the said writ petition, despite the fact that she was duly represented by her learned counsel before the learned Single Bench. The learned Single Judge after hearing the arguments through the impugned order dated 01.11.2018 was pleased to dismiss the petition filed by the appellant, in the following terms:- "Respondents have submitted that at the time of submitting application, petitioner 's degree/result/transcript were not issued by the concerned university , her result was declared and displayed on internet on 15.08.2008 and result card/transcript was issued on 21.11.2008 whereas closing date for submission of application was 15.10.2008. In these circumstances, there is factual controversy involved in the instant matter , which can only be resolved after thorough probe and recording evidence and such exercise cannot be undertaken in constitutional jurisdiction."
6. Through the instant intra court appeal, the appellant has now challenged the order dated 01.11.2018 passed by the learned Single Bench on the ground that same being against the facts and record of the case is liable to be interfered with; that result of the appellant was admittedly displayed on internet on 15.8.2008 and the result card/transcript of being a computer literate was issued on 21.11.2008, whereas the closing date for submission of application for the said post was 15.10.2008 and due to this reason, the appellant did not attach the result card with her application; that the result card was correct according to the verification letter issued by the concerned University , therefore, the impugned order is liable to be set aside. The appellant reiterated her stance as noted above, in detail.
7. On the other hand, learned Assistant Advocate General supported the impugned order on the ground that the proof of requite documents showing the appellant to be a computer literate were not attached with her application, therefore, the said impugned order is not liable to be interfered with. He further stated that in this view of the factual matrix of the case at hand, the order dated 12.5.2017 challenged before the learned Single Bench was rightly upheld, keeping in view the terms and conditions specified in the advertisement dated 29.9.2008.
8. Learned counsel for respondent No.3 while adopting the arguments of the learned Assistant Advocate General, Punjab stated that appellant had come to the Court in the year 2017 wherea s the matter of selection was completed in the year 2009. Therefore, the writ petition was rightly dismissed by the learned Single Bench. He further stated that the matter should be considered as a past and closed transaction and as the writ petition suffered from laches, therefore, this Division Bench should not interfere with the impugned order dated 01.11.2018 passed by the learned Single Bench.
9. Arguments heard. Record perused.
10. It transpires from the record that the School Education Department, Government of the Punjab, issued the Policy for Recruitment of Educators in Government Schools (2008-09) through Notification dated 23.8.2008. It is evident from the said notification that Government of the Punjab approved recruitment for 34054 vacancies of teaching staff in government schools of the Province during the year 2008-09. Under this policy the appointments were to be made for appointing school specific educators in contract mode. The policy was stated to be guided by the principles of merit, transparency , fool proof selection process and fair competition. It was stated therein that uniform recruitment procedure shall be followed regarding advertisement for recru itment of educators, application forms, merit calculation, allocation of marks to tehsil residents, interview procedu re and timelines of recruitment process. The terms and conditions of recruitment for Elementary School Educa tors (ESE), Senior Elementary School Educators (SESE) Science/Arts; Secondary School Educators (SSE Arts/ Science/English/Math/Computer Science) were laid down. Allocation of posts was stated to be district wise and the District Coordination Officer
(DCO) was nominated as Chairperson of the District Recruitment Committee. While laying down the eligibility criteria, it was, inter alia, stated as follows: "C (ii) For SSE (Science and Arts), there shall be three marks for teaching experience and two marks for being Computer literate .
(xiii) To reduce chances of error in merit calculation, school specific and category wise computer generated Pre- Interview Merit Lists shall be conspicuously displayed on the notice board in the offices of EDD (Education) and DMO. Objections received by the EDOs (Edu) will be disposed of giving personal hearing in three days and corrected pre-interview merit list will be displayed in three days.
(xiv) Members of Recruitment Committee shall assess the eligible candidates and evaluate their abilities as per Evaluation Form given at Annexure-I.
(xvi) A candidate shall appear only once for interview and shall be assessed for all posts for which he/she has applied (as per School Priority Form filled in by the applicant).
(xvii) Verification of certificates/degrees with Gazette of Educational Boards/Universities shall be done by the DDO concerned within three months after joining of the selected candidates . (emphasis supplied)"
In view of above policy , the advertisement for the said posts was published in daily "Khabrain " on 29.9.2008 and amongst other conditions, it was laid down that for Secondary School Educators (Science and Arts) 3 marks will be awarded for experience and 2 marks will be awarded for being computer literate, particularly for Microsoft office. It was also specified that for this purpose a certificate/degree issued by any governmental or recognized institute will be essential. It was also stated therein that the cut-of f date for submission of application will be 15.10.2008 and that a criminal case will be registered against the applicant who submits forged/fabricated documents. It was also stated that all original documents shall be provided by the applicants on the date of interview . The schedule of interview noted the date for interview for candidates of Secondary School Educators (male/female) as 01.1 1.2008.
10. It further transpires from the record that as the appellant was not awarded two marks for being computer literate she submitted an application to respond ent No.2 and when no action was taken thereon, she filed Writ Petition No.9667 of 2009. The said writ petition was disposed of vide order dated 05.12.2016 with the direction to respondents Nos. 1 and 2 therein, to decide the application of the appellant. It is noted that despite the said direction the aforesaid respondents did not comply with the direction of this Court. The appellant filed Criminal Original No.340-W of 2017 and respondents Nos. 1 and 2 presented a copy of order dated 12.5.2017 whereby the application filed by the appellant was dismissed and in this view of the matter the contempt petition was disposed of on 31.10.2017. The order dated 12.5.2017 was then challenged by the appellant through the writ petition (W.P.
No.16609 of 2017) on the above noted grounds. The said writ petition was eventually dismissed through impugned order dated 01.11.2018 by the learned Single Bench and the same has now been challenged by the appellant through the instant intra court appeal.
11. It transpires from the record that the appellant submitted an application before the learned Single Bench (C.M.
No.2599 of 2018) through which the following documents were placed on record:-
(i) Consolidated Result Sheet, M. Sc. (Geography) 3rd Semester Session 2006-08, declaration of result dated 28.03.2008, depicting that she had taken the course under Code No.604, subject name computer and was granted 84 marks;
(ii) Consolidated Result Sheet, M. Sc. (Geography) 4th Semester Session 2006-08, declaration of result dated 15.08.2008, depicting that she had taken the course under Code No.610, subject name GIS/CPS and had scored 80 marks in the said subject; (the above two results were declared by the Islamia University of Bahawalpur . Department of Geography and were countersigned by Incharge Examinations, Chairman, Nominee of Chairman, Nominee of Controller Examinations and Controller Examinations. The above two documents were also attested by the Chairman of the Department of Geography of the said University on 10.9.2018);
(iii) The letter dated 05.12.2009 issued by the then District Monitoring Officer , D. G. Khan (respondent No.2) to the DCO/ Chairman Selection Committee, Dera Ghazi Khan (respondent No.1) wherein it was noted as follows:-- "The applicant Miss Sanober Bibi is M.Sc. (Geography). At the time of submitting application her Degree and Result Sheet/transcript were not issued by the University but she attached internet generated result card with application form that is attested and countersigned by head of the Geography Department, Islamia University Bahawalpur . Her result was declared and displayed on internet on 15-08-2008. Her result sheet/transcript was issued on 21.11.2008, while the closing date of submitting application was 15.10.2008. Her internet generated result sheet do not show that she is computer literate, however , she has written by hand in a table that she achieved 82% marks in computer subject s. At the time of scrutiny of applications, the decision of her hand written computer marks was referred to the selection committee. She submitted objection to the EDO (Edu) on 06-6-2009 for correction of local residence marks and awarded of being computer literate marks. Her objection regarding local residence marks was rectified at that time and computer literate marks refer to selection committee. The Selection Committee discussed her case on 20-10-2009 and rejected.
Her merit position without 2 marks of Com puter at the school GGES/Dadey Wala and that of selected candidates is described below:- Sr.
No.Name of Schools Sanober- Merit Selected Candidate Merit
1. GGES DADEY WALA56.64 58.38 Now the status is Miss Sanober Bibi daug hter of Nasrullah Khan has been selected ESE at GGPS Basti Khosa No. 2 on the basis of same internet generated result sheet/transcript. The case is submitted for the decision of 2 points: --
1. Can she be selected on the basis of internet generated result sheet?
2. Can she be awarded 2 marks of being computer literate on the basis of hand written table on internet generated result sheet and actual result sheet / transcript issued on 21-1 1-2008 after closing date of submitting application?
If her request for award of 2 marks for being computer literate is accepted than selection of Tabinda Yasmin Lalwani daughter of Karim Dad Lalwani having CNIC No. 32102-850900370 as SSE (A) at GGES Dadey Wala will have to be cancelled to accommodate Miss Sanober Bibi daughter of Nasrullah Khan. Moreover Tabinda Yasmin Lalwani will stand on merit nowhere in the present recruitment process as she has not applied for SESE or ESE category ."
12. In view of the above noted facts, evident from the record, it transpires that the appellant had applied not only for the post of SSE but also for the post of ESE under the same process. The appellant was selected for the post of ESE on the basis of the same internet generated result/transcript. However , she was not awarded 2 marks when she was being considered for the selection as SSE. It is interesting to note that in response to ground (d) of the writ petition wherein it has been specifically stated by the appellant that respondent No.1/Deputy Commissioner , Dera Ghazi Khan had admitted that the grievance of the petitioner was genuine and needed to be redressed, it was stated in reply against ground (d) that "it is a matter of record". However , the respondents have not brought the relevant documents on record but had clearly admitted that respondent No.1/Deputy Commissioner , Dera Ghazi Khan had admitted that the grievance of the appellant was genuine and needed to be redressed. The key question before the learned Single Bench, on the basis of which the Constitution petition was dismissed, was that the application of the appellant was incomple te on the cut-of f date, i.e., 15.10.2008 and in this view of the matter the learned Single Bench concluded that since factual controversy is involved which required thorough probe and recording of evidence and accordingly the Constitution petition was dismissed. The record further shows that the appellant was issued her degree of M.Sc. (Geography) showing that her CGP A was 3.32 out of 4. This document is dated 15.10.2008. We, after taking into consideration all the above-mentioned record, are of the view that these documents were not brought to the knowledge of the learned Single Bench at the relevant time, which resulted into dismissal of the Constitution petition.
13. Now turning to the arguments of the learned counsel for the respondents, we note that the impugned order dated 12.5.2017 was passed while ignoring the facts of the case of the appellant, hence the same was liable to be interfered with under the Constitutional jurisdiction. The argument of the learned counsel for respondent No.3 that the appellant had approached the Court in the year 2017 whereas the selection process was completed in the year 2009, is clearly against the record. The appellant had earlier filed W.P. No.9667/2009, which was disposed of vide order dated 05.12.2016 with the direction to respondents Nos. 1 and 2 to decide the application filed by the appellant Subsequently the appellant was constrained to file a contempt petition being Crl. Org No.340-W/2017, during the pendency of which, the official respondents submitted a copy of the order dated 12.5.2017. In these circumstances the petition did not suf fer from laches.
14. The purpose of the policy for recruitment of teachers throughout the Province of Punjab during the year 2008- 09 specifically noted that the same was to be guided for the principle of merit, transparency , foolproof selection process and fair competition. It was further provided that 2 marks for being computer literate were to be awarded to all candidates and for this reason a certificate/ degree issued by any Government or recognized institution was essential. The policy further provided that the objections were to be disposed of by giving personal hearing in 3 days and thereafter the corrected pre-in terview merit list was to be displayed in 3 days. The members of the recruitment committee were to assess the eligible candidates and evaluate their ability . More importantly , every candidate was to appear only once for interview and assessed by the committee for all posts for which he/she had applied. It had further been provided that the certificates/degrees issued by the Boards/Universities was to be done by the DDO concerned within 3 months of joining of the selected candidates. It is in view of the above-noted considerations that we have concluded that the appellant had every right to be awarded 2 additional marks for being a computer literate. It was unlawful on the part of the official respondents to have deprived her from the said marks when she was being considered for the post of SSE, whereas she had been granted those marks when she was considered for the post of ESE. In this regard reliance can safely be placed on the case reported as Parks and Horticulture Authority v. Muhammad Saleem (2018 PLC (C.S.) 12) wherein the learned Division Bench of this Court decided an identical matter of an incomplete form submitted by the respondent for his appointment at the said Authority . The learned Single Bench had allowed the writ petition of the respondent, however , the learned Division Bench after having noted the facts of the case concluded that there is no apparent mala fide on the part of the respondent No.1 and his right of livelihood being involved, doctrine of substantial compliance was attracted. It further explained that the doctrine of substantial compliance/performance is a legal principle which states that if a good faith attempt is made to perform the requirements of the agreement even if it does not precisely meet the terms of the agreement or statutory requirements, the performance will still be considered complete if the essential purpose is accomplished.
15. The other aspect of the matter being that her application being incomplete on the cut-of f date for submission of the application, i.e., 15.10.2008, also becomes irrelevant in the above-noted circumstances. In any case, the Hon'ble Supreme Court of Pakistan in the case reported as Jahanzaib Malik v. Balochistan Public Procurement Regulatory Authority through Chairman Board of Directors and others (2018 SCMR 414) while dealing with an identical matter held that the petitioner in that case had completed his degree in January , 2014 but the same was formally issued in March, 2015 for reasons beyond the control of the petitioner , therefore, the official respondents were justified in considering the petitioner as duly qualified on the basis of his MBA degree from IBA. Reference in this regard may also be placed on cases reported as Miss Breshna Haq Tareen v. Selection Committee, Bolan Medical College Quetta and others (2005 SCMR 351), M. Nazir Ahmed v. Muhammad Aslam and others (2013 SCMR 363), Mst. Mehmooda Arif v. District Coordination Officer (DC0)/ Chairman Recruitment Committee and 3 others (2013 PLC (C.S.) 492), and Mst. Nusrat Raft v. Executive District Officer (Education) Faisalabad and 3 others (2010 PLC (C.S.) 257 ).
16. It is pertinent to mention here that respondent No.3 shall not be affected by the direction being given through this judgment for the reason that the illegality in the process of making the appointments was committed by the official respondents and it is too late in the day to make the private respondent No.3 suffer due to the mistake of the official respondents. In any case, it is noted from the record that the private respondent No.3 has already been regularized as SST (Gen.).
17. Resultantly , this appeal is allowed , the impugned orders dated 01.11.2018 and 12.05.2017 are set aside and the respondent Nos. 1 and 2 are directed to reconsider the merit of the appellant , after awarding her 2 marks for being a computer literate and pass lawful order as per merit for her appointment against any vacant post in the District, preferably taking into consideration her choice, nearest to her home.