ROOH-UL-AMIN KHAN, J:- By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Muhammad Sadiq, the petitioner, seeks issuance of a writ to the effect that appointment order of respondent No.4 against the vacant post of Ward Orderly in District Headquarter (DHQ) hospital, District Hangu, be declared as illegal, unlawful and without lawful authority and that the respondents be directed to appoint the petitioner against the said post on the ground that he is matriculate and permanent domicile of District Hangu.
2. Petitioner in the writ petition has averred that in response to an advertisement of respondents with regard to appointments against twenty-four vacant posts of Ward Orderly in District Headquarter (DHQ) Hospital Hangu, petitioner along with others applied for appointment against the said posts. As per advertisement, the requisite criteria for appointment were that the candidates must have domicile of District Hangu having qualification of middle/metric. After interview, twenty-four candidates were appointed including respondent No.4, whereas, petitioner was rejected. Grievance of the petitioner is that he possesses the prescribed qualification was eligible and deserving to be appointed against one of the said post, but the respondents in utter violation of the criteria appointed respondent No.4 who is permanent resident/domicile of District Kohat, hence, this writ petition.
3. Comments of the respondents were called which were filed accordingly, wherein the respondents have asserted that there was no criteria of education qualification for appointment against the said post, however, in the corrigendum it was clarified by the respondents that preference shall be given to those candidates who have domicile of District Hangu. However, during appointment process, this Court rendered judgment to the effect that all class-IV employees shall be appointed through "Bowl policy", in compliance whereof, the then Medical Superintendent was called by the Deputy Commissioner Hangu on 16.02.2018 and online draw was conducted in presence of media personals, local MPA, District Health Officer Hangu, Medical Superintendent Shaheed Farid Khan DHQ Hospital Hangu and elders of District Hangu under the chairmanship of Deputy Commissioner Hangu. The petitioner was not selected in draw bowel policy. The candidates whose names were picked up in the draw including respondent No.4 were appointed. Since, respondent No.4 was having domicile of District Kohat, therefore, his arrival report was refused and against his post another candidate from District Hangu was appointed. The respondents have further asserted that all appointments have been made strictly in accordance with the judgment of this Court, hence, this petition is liable to be dismissed.
4. Arguments of learned counsel for the parties heard and record perused.
5. It appears from record that against twenty-four vacant posts of Ward-Orderly, applications were invited through an advertisement from eligible candidates, preferably domiciled at District Hangu. The petitioner, amongst others, applied for his appointment against one of the said posts, however, the petitioner was not lucky enough to get the job, as the appointments were made through "Lucky draw". The criteria adopted for appointment of Ward-orderly on the basis of "Lucky draw" was neither decided by the Appointing Authority nor had chosen by the Selection Committee. Even the factum of appointment through "Lucky draw" system is neither requirement of any Law, Rules or Policy nor it was given publicity in the conditions, enumerated in the advertisement. Any appointment made in violation of the prescribed Rules and Procedure, anywhere, in any department shall be void and nullity. It is not disputed that the appointment of Class-IV employees shall be made in accordance with the procedure provided by the Statutory Rules, called as the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotions and Transfer Rules), 1989. Rule 10 (2) of the Rules (ibid), prescribed the method of recruitment from basic pay scale 3 to 5, which for the sake of convenience and ready reference is reproduced below:- Initial recruitment to the post which does not fall within the purview of the Commission shall be made on the recommendation of the Departmental Selection Committee, after vacancies have been advertised in newspapers.
Provided further that the appointment in Basic Pay Scale 3 to 5 shall be made on the recommendations of the Departmental Selection Committee through the District Employment Exchange concerned, or, where in a district the office of the employment Exchange does not exist, after advertising the post in the leading newspaper".
6. The above quoted Rules provides the method and procedure for recruitment/appointment against the post falling in BSP-3 to 5, according to which the action for filling the vacant post in the mentioned pay scales, shall be initiated on intimation of the Employment Exchange in a District and where the office of Employment Exchange does not exist, recourse shall be made to the advertisement in a leading newspaper of the District or Division concerned. We are constrained to observe that deviation from statutory provisions of law in the appointment of civil servants by introducing an alien procedure of choice would not only be an attempt to de- shape the Statutory Rules and an attempt to interfere in the process of selection on merit, but shall also amount to express lack of confidence by an Authority on the performance and sanctity of the statutory constituted Selection Committee. Rule 10 (3) of the Rules (ibid), provides that the candidate for initial appointment to a post must possess the requisite educational qualification, experience and be within the required age limit. Rules 4 to 7 of the Rules (ibid), provide quota for different categories of candidates viz retired or deceased employees children, disable, minorities and affectees of Earth-quake areas etc. The said Rules, therefore, laid down in a great detail as to how and in what manner the selection process are to be initiated, the qualification and experience for a post, distribution of different posts for different categories of candidates. Likewise, rule 11 describes the eligibility criteria for initial appointment of a candidate in to civil service of the province. The study and reading of the entire scheme of the Rules (ibid) leave no room for making any Policy for appointment of any category of employees. Needless to mention that before promulgation of Rules 1989 (ibid), no procedure or Rules were envisaged for appointment of Grad-1 to 4 employees, therefore, a circular letter No.SORI (S&GAD)45-1/75 dated 11.02.1987, was issued for guidelines of Selection Committee for initial recruitment from Grades 1 to 4 which is reproduced below:- "Criteria of section for recruitment: For post in Grades 1 to 4:-No special criteria has been laid down and the committee concerned shall adopt its own method and procedure for selection".
However , on promulgation of Khyber Pakhtunkhwa Appointment, Promotion & Transfer Rules, 1989, the above quoted letter dated 11.02.1987 lost its applicability . It is well settled that if the law requires a particular thing to be done in a particular manner , then the same must be done in the prescribed manner only .
7. The learned AAG tried to justify the process of appointment on the ground that this Court vide judgment dated 07.12.2017, rendered in Writ Petition No.3005 P/2014, directed the Government of Khyber Pakhtunkhwa that appointments of class-IV in the departments of entire Province shall be made through a "Bowl Policy". To answer the above contention, we, for the sake of convenience and ready reference, would like to reproduce the relevant parts of the judgment (supra ) which read as below:- "Since we are witnessing these type of violations every day in the shape of writ petitions, therefore, we feel it appropriate to direct the Provincial Government to implement the police of Peshawar High Court, Peshawar for the appointment of Class-IV employees in the entire Province, in all the Departments, which has been practiced successfully by the Hon'ble Chief Justice Mr. Justice Yahya Afridi. This policy is commonly known as "Bowl Policy" in the judicial circle, being implemented successfully and at least the class-IV employees are satisfied with it.
The policy, so introduced by the Hon'ble Chief Justice, Peshawar High Court, Peshawar, after taking oath of the office is that all the names of the eligible candidates are put in a bowl, who are otherwise physically fit and duly qualified/eligible for the Class-IV, 1 to 4 post, if so prescribed, and in their presence, their names are picked up in reference to the vacant post, after appointing 25% from Retired employees son quota. The selection against Retired employee son quota shall be on seniority basis i.e. from the date of retirement. The selection/appointment through Employment Exchange is always on the basis of seniority assigned from the date of registration and age, and selection on open merit through "Bowl Policy" as explained above.
Since in the recent past we have decided number of cases of Class-IV employees and in each and every selection/appointment it is noticed that in our Province all the Departments are appointing Class-IV employees by adjusting their near and dear ones/blue eyes, just in the garb of interview etc, we, therefore, circulate this judgment to all the Departmental Heads of each and every Department of the Khyber Pakhtu nkhwa, to circulate the same for compliance implementation for the appointment of Class-IV employees in accordance with the said policy to be named as "Bowl Policy" failing which the candidates of Class-IV post are directed to file COC/Contempt petition against the concerned Department as any appointment made under the garb of interview/selection process would be an illegal act and violation of this judgment. We are implementing the Bowl Policy for Class-IV appointment, after giving due thought to all circumstances including the fact that there can be no interview for Class-IV employees and nor can be the selection criteria, but just a pick and choose."
8. The judgment (supra) of this Court was assailed by the Government of Khyber Pakhtunkhwa through Secretary Elementary & Secondary Education Department etc in CPLA Nos. 105-P & 179 of 2018, which was partially allowed vide judgment dated 10.04.2018, resultantly, the judgment dated 07.12.2017 of this Court was set aside to the extent of prescribing "Bowl Policy" whereas, remaining part of the judgment (supra) was affirmed. The relevant part of the judgment of the Hon'ble Supreme Court is reproduced below:- "In light of the above statement made by the learned Law Officer, the impugned judgment of the learned High Court dated 07.12.2017 is set aside to the extent of prescribing "Bowl Policy" only. However , the remaining part of the impugned judgment is affirmed and the assurance and the undertaking given by the petitioner-department before this Court shall be duly complied with expeditiously . Disposed of."
9. In light of judgment (supra) of the Hon'ble Supreme Court, the "Bowl Policy" is no more in the field. The worthy AAG along with representative of the respondents Department stated at the bar that respondent No.4 had submitted his arrival report but the same has not been accepted on the ground that he was appointed from outside District. In this view of the matter, one post of class-iv/ward orderly is still lying vacant and the petitioner was eligible to be appointed against the same but was dropped only in pursuance of the suggestion of this Court with regard to "bowl policy". Accordingly, this petition is allowed and the respondents are directed to consider the petitioner for appointment against the aforesaid post, if otherwise, qualified and eligible.