1. SYED ARSHAD ALI, J. Petitioner Muhammad Riaz Swati seeks the constitutional jurisdiction of this Court praying that:- "It is, therefore, very humbly prayed that this Honorable Court may graciously be pleased to declare that respondent No. 1 or its official was having no lawful authority to award two additional marks to respondent No. 3 on the basis of a degree which as per rules and regulation of respondent No. 1 was minimum prescribed qualification, thus, the same two additional marks will be non-est in the merit position of respondent No.3."
2. Chronology of the facts are as following:- 04.06.2009 Respondents issued advertisement No. 05 of 2009, inter alia inviting applications for 26 posts of Executive District Of ficer/ Additional Director BPS-19. The required qualification for the post was as following:- "QUALIFICA TION: (1) Ph.D in Education and Seven years teaching/administrative experience in Government recognized education institutions/of fice ; or
(ii) M. Phil in Education and Nine years teaching/administrative experience in Government recognized educational institutions Of fice; or
(iii) MA/MSc in 2nd Div with MEd/MA (Education)/MA (Education Planning and Management) or equivalent qualification with at least twelve years teaching/administrative experience in Government recognized educational institutions/of fice.
2. Age Limit 35 to 50 years. Pay Scale : BPS-19. Eligibility : Both Sexes. Allocation : Merit.
3. Note: Experience wherever prescribed shall be counted after the minimum qualifications for the post(s), if not specifically provided otherwise against the advertised post(s). "
4. 18.06.2010 The Public Service Commission sent recommendations to the government of the candidates who qualified the test and interview. According to this list, Muhammad Riaz, the petitioner was placed at Serial No.09 whereas Gohar Ali, respondent No. 3 was placed at serial No. 12 of the said list. It is also provided in the said recommendation that the inter-se seniority of the recommendees would be sent later.
5. 23.06.2010 Respondent Gohar Ali filed an application to the Chairman, Public Service Commission for awarding him additional marks for his additional qualification i.e. Masters in Management Studies from the University of Essex U.K.
6. 26.07.2010 Deputy Secretary-II wrote a letter to Gohar Ali wherein it was stated that the contention of allowing additional marks against additional qualification of M.A Management Studies was considerable, however , since the result has already been declared as such, at the belated stage, the request cannot be entertained.
7. 29.07.2010 Respondent Gohar Ali Khan wrote a letter to the Chairman Public Service Commission with the same request.
8. 30.09.2010 Once again, the respondent Gohar Ali filed a representation before the Chairman Public Service Commission wherein the same request for additional marks was reiterated.
9. 24.06.201 1 02 Marks were added in the marking sheet/quantification sheet of respondent Gohar Ali Khan.
10. 30.06.201 1 It was communicated to respondent No. 3 Gohar Ali Khan that his request for additional 02 marks for his additional qualification of M.A Management Studies was approved.
11. 12.02.2012 Respondent Gohar Ali Khan requested the Director Recruitment, Khyber Pakhtunkhwa Public Service Commission, for issuance of revised merit list for the post of Executive District Officers, BPS-19 08.05.2012 The worthy Chief Secretary , Government of Khyber Pakhtunkhwa had issued a final seniority list of officers in BPS-19, i.e. Executive District Officers/ Additional Directors, wherein respondent Gohar Ali Khan was placed at Serial No. 08 whereas the present petitioner was placed at Serial No. 10 of the said seniority list.
12. W.P No. 362 of 2013 titled Qasim Khan Executive District Officer v . Chief Secretary :- The aforesaid seniority List of Executive District Officers as on 20.02.2012, remained subject matter of the writ petition.
13. W.P No. 2049 of 2014 titled Ghulam Qasim Khan v . Government .
14. Once again the said seniority list remained subject matter of the writ petition.
15. 31.01.2014 Two incumbents Basheer Hussain Shah and Muhammad Rafique, who were at Serial Nos.1 and 2 of the seniority list, were promoted to BPS-20 on regular basis.
16. 28.01.2016 The petitioner filed an application to the Chairman Public Service Commission requesting for release of inter-se seniority list of the 27 Executive District Officers BPS-19.
17. 22.02.2016 The said list was provided to the petitioner by the Public Service Commission.
18. 19.05.2016 The petitioner once again filed an application to provide the detailed list with their scoring position.
19. 28.07.2016 The record relating to the enhancement of two additional marks was asked by the petitioner.
20. 31.08.2016 Said request was repeated.
21. 27.09.2016 Again the said request was repeated.
22. 26.10.2016 Certain record was provided to the petitioner .
3. In essence, the petitioner has two fold grievances, firstly that the Public Service Commission had recommended to the Provincial Government, the merit list of the Executive District Officers against which appointments were issued and thereafter the Public Service Commission had no mandate to recalculate/award additional marks to the respondent No. 3 and secondly that against the decree of M.A. Management Studies, respondent No. 3 could not have been granted additional marks as essentially , the same is basic qualification for the post and under relevant rules, the additional marks for basic/minimum required qualification could not be granted to the respondent No.3.
4. Against that, the defense of the respondents is that in the application filed by the respondent No. 3 against the post of Executive District Officer, he had disclosed his degree of M.A Management Studies, however , in the quantification chart, inadvertently no marks were given to the respondent for his M.A Management Studies. They have further asserted that indeed the petitioner was granted additional marks for his LLB degree, therefore, respondent No. 3 was also entitled for additional marks which was rightly granted by the competent authority .
5. Arguments of the parties were heard at length and the record was perused with their valuable assistance.
6. Respondent No. 3 while applying against the post, in his application had introduc ed himself to have obtained the following qualification:- Certificate / Diploma / degree / Postgraduate degreeSchool /college / institutionBoard / University Year of Passing as whole or in parts M.A Management StudiesAccounting, Finance and Management Deptt:University of Essex U.K2007 (as whole)
23. M.Ed I.F.R University of PeshawarPeshawar University Peshawar1993 (As whole)
24. M.Sc (Chemistry) G.P.G.T College Saidu Sharif Swat.-do- 1990 (as whole)
25. B.Ed Government College of Education LahoreUniversity of the Punjab Lahore1988 -do- B.Sc Government Superior Science College PeshawarPeshawar University Peshawar1987 -do- F.Sc F.G Degree College for Boys Peshawar Cantt:F.BISE Islamabad 1984 -do- SSC/Matric GHs Torkha NowshehraBISE Peshawar 1981 -do- Marks obtained and total Marks.Division and position in Board/ University . If 1st, 2nd or 3rdSubject.
26. 70 % with Distinction1st 1. Management in organization 2) perspective on management 3) production and performance 4) psychology 5) Research methodology and management 6) Business accountability 7) Dissertation 470/700 1st 1) Advance educational psychology .
27. 2) Educational measurement.
28. 3) Physical education.
29. 4) Guidance and counseling.
30. 5) Planning 6) H. Education.
31. 7) Science.
32. 640/1200 2nd Inorganic chemistry .
33. 660/1 100 1st 1) Philosophy and History of Education.
34. 2) Educational Psychology .
35. 3) Sch.
36. 4) Islamiyat 5) Pak Studies 6) ........
37. 7) biology .
38. 260/550 2nd 1) Chemistry 2) Statistics 3) ....
39. 4) Islamiyat 5) Pak Studies.
40. 471/1 100 -do- Pre-medical 505/850 -do- Science.
41. The quantification chart of both the candidates reflects their position as under:- Petitioner Respondent No.3 Qualification: B.Sc 260/550 M.Sc (Chemistry) 587/1 100Qualification: B.A(312/600) 286/550 M.A (Pol: Science) 512/1 100 (640/1200)
42. M.Ed (470/700) 671/1000 1518/2650= 17.18=17+5=22+30=52+2=54 Adl:/Higher Qual: Nil.(465/1000)
43. (640/1200) M.Ed 560/1000 1358/2650= 15.37=15+2+6+30=53 Distinction/Hifz: Nil (On 24.06.201 1, 2 marks for additional qualification were granted to respondent No.3 whereby his score was enhanced from 52 to 54.)Adl:/Higher Qual: L.L.B in 1,984. Distinction/Hifz: Nil.
7. The careful examination of the record reveals that there is no specific order of the Public Service Commission whereby 02 additional marks were granted to respondent No. 3 with application of mind. It also transpires from the record that the said 02 marks were added after the recommendations were issued by the Public Service Commission to the Provincial Government and prima-facie it appears that the Public Service Commission at the relevant time had no jurisdiction to add 02 additional marks to the respondent No. 3 which too when a similar request was earlier declined by them. However , under Part-VII (Regulation No. 29 of the Public Service Regulations, 2003) the person possessing additional relevant qualification is entitled to the award of further 02 marks and in this regard the petitioner was also granted 02 additional marks for his LLB degree. Whether M.A.
44. Management Studies is an additional qualification for the post of Executive District Officer, has neither been provided in the advertisement nor in the relevant regulations. However , certain instances which are relevant to the present controversy of additional relevant subject, which can be considered for award of additional marks has been provided in the Regulations, for instance:- Subject of advertised post Additional relevant subjects.
45. Arabic Islamic Culture/Islamiyat.
46. Arabic-cum-Islamiyat Islamic Culture/ Islamic History Biology Botany or Zoology , provided the candidate holds Master's Degree in both of them.
47. Botany Zoology/Biology .
48. Chemistry Applied Chemistry / Agriculture Chemistry / Chemical Engineering / Physical Chemistry .
49. Education Psychology .
50. Islamiyat Arabic/ Islamic History/ Islamic Culture.
8. It is one of the assertion of the petition er that M.A. Management studies is the one of the minimum qualification for the post, therefore under Regulations, the said qualification cannot be considered for the purpose of additional marks. However , the learned counsel could not refer to any rule in support of his above mentioned assertions. The only rule which bars the consideration of additional qualification for additional marks is regulation 29 (k) which reads as under:- "29. (k) The marks reserved for additional relevant qualification shall be awarded at the rate of one mark for each additional relevant Diploma or Degree. Similarly , the marks reserved for higher relevant qualification, shall be awarded at the rate of one mark for each higher relevant Diploma or Degree. Howe ver, for Doctorate of Philosophy (Ph.D) and equivalent qualifications, three marks shall be awarded. If the additional qualification is only a repetition of the original qualifications, no additional marks will be given.
51. Explanation . A candidate having MA English from Peshawar University will not be given additional marks for MA English from Punjab University . "
52. The aforesaid explanation clearly envisages that only that qualification which cannot be considered for additional marks is the same qualification from another university . In the case of respondent, his minimum qualification which was considered for the post of Executive District Officer, was M.Ed and MSc and despite the fact that he had provided his qualification of M.A managem ent Studies from the University of Essex, U.K no marks were awarded to him in the quantification chart. Therefor e, despite the fact that prima-facie it appears that respondents Public Service Commission had awarded the additional 02 marks to respondent No.3, at the time when it was functus officio, however , it also appears from the record that respondent Public Servic e Commission had granted to respondent No. 3, what he was legally entitled. Therefore, when the respondent has not caused any injustice to the parties, rather has cured/rectified its manifest irregularity and in such circumstance s, we can legitimately refuse to issue any writ for setting aside the impugned conduct of respondent. In this regard, reliance can be placed on "Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner (PLD 1973 SC 236)", whereby it was held that:- "An order in the nature of a writ of certiorari or mandamus is a discretionary order . Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any, party , rather it cures a manifest illegality , then the extraordinary jurisdiction ought not to be allowed to be invoked"
53. The said view was re-affirmed by the apex Court in "Messrs Best Buy Computers, Lahore v. Director , Intelligence and Investigation (Customs and Excise), Lahore and others (2009 SCMR 19 )".
9. Even otherwise the additional marks were allowed to respondent No.3 on 30.06.201 1 on the basis of which a final seniority list of all the Executive District Officers was issued on 08.05.2012. On the basis of the said seniority list, in the year 2014 two incumbents were promoted to BPS-20 and the said seniority list also remained subject of litigation before this Court. Therefore, assertion of the petitioner that he had no knowledge of the seniority list, does not appear to be correct and thus the present petition is also hit by the principle of laches.
10. No doubt, delay in filing a constitutional petition per se is no ground for dismissal of the petitioner , if the petitioner can establish before the Court that the impugned action of the respondent/public functionary is based on mala fide and against law. However , in the present case, the impugned action of the respondent is not based on mala fide, rather was passed to grant a person what was his due. In this view of the matter , we are not inclined to interfere in the matter end thus dismiss the present petition.