SYED ARSHAD ALI, J.----Muhammad Naveed, the petitioner through the instant writ petition has invoked the constitutional jurisdiction of this Court with the following prayer:- "It is, therefore, humbly prayed that on acceptance of this writ petition, impugned office order dated 29.03.2017 may kindly be set aside to the extent of appointment of Respondent No, 4 and Respondent No, 1 may kindly be directed to issue the appointment order of the petitioner against one vacant post shown in subsequent list of vacant post i,e, PST (BPS-12).
OR Any other relief which this august Court deems appropriate may kindly be awarded to meet the ends of justice.
2. It is averred in the petition, that the petitioner belongs to union council Kowga and as such is qualified for the post of PST (BPS-12) which was lying vacant within the territorial jurisdiction of the said union council. Pursuant to an advertisement appeared in daily newspaper Mashriq ' dated 02.09.2016, the petitioner applied against the 5 posts of PST at union council Kowga and no post in GPS Kowga was available in the initial advertisement, therefore, he could not apply against the same, however , the respondent No, 4 was appointed against the said post despite the fact that he is lower on merit from the present petitioner .
3. On being noticed, the respondent No.1 i,e, District Education Officer (Male) Buner and respondent No, 4 appeared and contested the petition. The respondent No, 1 has also filed his para-wise comments. It is averred in the said comments that the then District Education Officer had advertised different posts in daily newspaper including the posts of PST (BPS-12) which were lying vacant within the territorial jurisdiction of union council Kowga , however , the petitioner only applied against 5 schools i,e, GPS Ambela, GPS Jica Agarai, GPS Laloo, GPS Miana Kowga and GPS Ambela Dera, whereas he did not apply-against the 6th post which was available in GPS Kowga . Regarding the assertion of the petitioner that the said post was not initially availab le, the respondents have placed on file a corrigendum dated 02.09.2016 whereby the said post was subsequently added in the list of available vacant posts and number of the candidates applied against the said posts.
4. Arguments heard and record of the case was perused with able assistance of learned counsel for the parties.
5. It is evident from record that the respondent No, 1 had advertised various posts of CT, PAT, AT and PST which were lying vacant in District Buner . The present controversy relates to the appointment against the posts of Primary School Teacher (PST). As per advertisement, some of the relevant conditions for appointment against the posts of PST were that the candidate must belong to the same union council where the post is lying vacant, he has to appear in the NTS exam and one candida te can only apply against 5 schools in a particular union council, however , if eligible candidate is not available in a particular union council then the eligible candidate from the adjoining union council can also be considered for appointment against the said post. In line with the said policy , the present petitioner had applied against the 5 schools which were lying vacant in union council Kowga i,e, GPS Ambela, GPS Jica Agarai, GPS Laloo, GPS Miana Kowga and GPS Ambela Dera. However , according to the office order , relating to the appointment against the said advertisement, in union council Kowga 9 posts were filled in a different schools which includes union council GPS Kowga . In GPS Kowga, Yousaf Ghani, respondent No, 4 was appointed despite the fact that he is lower on merit as compared to the present petitioner . Accordin g to the record, the total marks obtained by the present petitioner Muham mad Naveed was 102.67, whereas Yousaf Ghani, respondent No, 4 had obtained 100.42 marks. However , the present petitioner could not be considered against the said post for the only reason that he did not apply against the post at GPS Kowga . The assertions of learned counsel for the petitioner that the said school was not available in the initial list showing the availability of the seats in union council Kowga are misconceived because through the corrigendum dated 02.09.2016 the said school was subsequently notified where the post of PST was available. The said corrigendum also contains two other posts but at different union councils. Even otherwise, according to the record 9 posts were available at union council Kowga but the petitioner had only applied against the 5 posts. Indeed, it is for this reason that the petitioner despite higher on merit could not be appointed against the post which was available in GPS Kowga .
6. We have come across number of writ petitions whereby due to this policy of the Provincial Government whereby a restriction has been imposed upon the candidates only to apply against 5 seats in a particular union council which had resulted into anomalies, irregu larities and discrimination in the process of appointment against the post of PST. The said policy of the respondents restricting the candidate to apply against not more than 5 seats even contradicts its own policy . In the same policy which is reflected in the impugned advertisement that if the required seats could not be filled owing to non-availability of eligible candidates, a candidate from adjoining union council can also be considered against the said post. If a candidate is not allowed to apply against more than 5 available posts then how can he be considered against the post which is available in the adjoining union council for which the candidate had never applied. Similar situation arose in W.P. No, 281-M of 2014 which was decided by us on 12.11.2018.
7. Appointments, Posting and Transfer of teachers serving in primary , middle , secondary , higher secondary schools, lecturers in colleges, instructors serving in technical institutions and doctors in health facilities are regulated through the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 ("Act"). Section 3 of Act deals with the appointment of school teachers, which reads as under:-
3. Appointment, posting and transfer of primary school teachers . (1) The vacancy of primary school teacher shall be filled in from the candidates belonging to the Union Council of their permanent residence mentioned in their Computerized National Identity Card and domicile, on merit and if no eligible candidate in that Union Council is available where the school is situate, such appointment shall be made from amongst eligible candidates belonging to the adjacent Union Councils."
Section 3 of the Act is very much clear and unambiguous in its language. According to section 3 of Act ibid, to fill a vacancy of primary school teacher the candidate must be a permanent resident of the union council concerned and he shall be considered against the post on merit and if no eligible candidate in that union council is available where the school is situate, such appointment shall be made on merit from amongst eligible candidates belonging to the adjacent union councils. The only exception to the aforesaid rule embodied in section 3 is provided in the proviso to the said section which envisages that if an existing employee holding the post of PST belongs to the said union council and who is not working in his union council, he shall be first transferred against the post where it is vacant.
The said provision of the law has imposed no restriction that a candidate can only apply against 5 seats in any union council. Therefore, the question arises when the parent statutes does not cast any restriction on the candidate to apply against a certain number of posts and categorically envisages that the appointment shall be made on `MERIT' then how can a subordinate authority , the executive can formulate any policy or rule, thereby restricting a candidate to apply only against limited number of schools. This policy of the respondents is not only against the merit but essentially of fends section 3 of the aforesaid Act.
8. The august Supreme Court of Pakistan in Tariq Aziz-ud-Din's case reported as 2011 PLC (C.S.) 1130 has held that:- All judicial, quasi-judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instrume nts that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure.
Indeed, it is settled law that any rule or policy made by any authority under a particular statute has no jurisdiction to either enlarge or restrict the scope of the section of law under which the said policy or rules have been framed. In this regard, reliance is placed on "Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petrol Chemical Industries (Pvt.) Ltd., Peshawar and others (2003 SCMR 370)", wherein it has been held:- Statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment. The rules framed under a statute, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid. The rule making authority cannot clothe itself with power which is not given to it under the statute and this the rules made under a statute, neither enlarge the scope of the Act nor can go beyond the Act and must not be in conflict with the provisions of statute or repugnant to any other law in force. In the recent judgment of the august Supreme Court of Pakistan titled "National Electric Power Regulatory Authority v. Faisalabad Electric Supply Company Limited (2016 SCMR 550)", wherein in Para. No, 11 of the judgment it was held:- It is settled proposition of law that the rules framed under a Statute are to remain within the precinct of the Statute itself and cannot transgress the limits and parameters of the parent Statute itself. All efforts are to be made to interpret the rules so as to bring it in conformity and without injuring the intent and spirit of the Statute, where it is not possible then the rules in as such as it is injuring the very intent and spirit which must yield to the Statute.
The aforesaid law also reflects in case law cited as "The United Industrial Bank Limited v. Mohan Bashi Saha and another " (PLD 1959 Supreme Court 296) and 1985 SCMR 369.
9. Thus, we are constrained to hold that the said policy restricting a candidate only to apply against 5 seats within a union council is discriminatory , irrational, unreasonable and contrary to section 3 of the D Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011, which is accordingly struck down.
10. Similarly , the candidate who belongs to union council under section 3 of the Act ibid is also eligible to apply against any post of PST teacher in adjoining union council, who shall be considered only against the said post in adjoining union council when no eligible candidate in the said union council is available. However; in the present case, we cannot extend any relief to the present petitioner because by now the said post has been filled under the aforesaid policy and the respondent No, 4 is also not at fault on any count, therefore, his appointment cannot be disturbed under the principles of Locus poenitentiae and legitimate expectation. In this. regard, reliance is placed on "Chairman Selection Committee-Principa l, King Edward Medical College Lahore and 2 others v. Wasif Zamir Ahmad and another (1997 SCMR 15)" wherein it was held by the august Supreme Court:- "We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No, 1 was presumably given admission on merits by the competent College Authorities after considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join 1st year class of M.B.B.S. It is admitted that the respondent is likely to complete the second year course of M.B.B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fault. It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily . In the case in hand, admission was given to respondent No,] by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities.
The learned High Court was eminently justified in accepting the plea of respondent No, 1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No,1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No, 2 had been accommodated by giving admission instead of respondent No, 1.
This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their negligence for which the respondent not be held responsible. The decision of the petitioners to give admission to the respondent No, 1 as implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on basis of act of the petitioners.
Similarly in "Mst. Attiya Bibi Khan and others v. Fede ration of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161)" the august Supreme Court, while dealing with the alike matter , held that:- "it is noted that, the phrase "till a decisive step is taken" is very important.
There is no doubt that relevant authority can receded before 'decisive step' is taken. In these cases, admissions were granted to the candidates, in accordance with the prospectus, and the results were communicated to them before the writs were filed. They had not committed any wrong. Thus, decisive steps in these matters were already taken and thereafter steps contrary to their interest could not be taken.
The principle of " locus poenitentiae " is attracted in these matters .
11. In view of the above we hold that:-
1. That the impugned policy of the provi ncial government restricting a candidate only to apply against 5 schools which are situated in a particular union council is ultra vires to the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and T ransfer of T eachers, Lecturers, Instructors and Doctors) Regulatory Act, 201 1.
2. The District Education Officer (EDO) of the District concerned after the process of appointment shall prepare a combined merit list of the candidates who had applied against the post of PST of all schools in a particular union council and shall fill 'all the posts on merit.
3. The said merit list will be also considered for appointment against the posts of PST in adjoining union council.
However , such merit for adjacent union council shall be prepared by considering all the candidates from other union councils, which are adjacent to the union council where the posts of PST could not be filled owing to the availability of the eligible candidates.
12. In view of the above, this writ petition is disposed of accordingly . Office is directed to circulate this judgment to all the District Education Of ficers of the Education Department of the Province Khyber Pakhtunkhwa.