RASAAL HASAN SYED, J- The petitioner in this Constitutional petition has impugned order dated 26.3.2018 of respondent No. 3, claiming that the same is illegal, unreasonable, void ab initio and without lawful authority as also against the Recruitment Policy 2016-17. A direction is solicited against the respond ent No. 3 for the issuance of an appointment letter on the vacant seat/post for ESE (Science-Math) as per merit list.
2. Necessary facts briefly are that the Government of Punjab, School Education Department pursuant to policy No.SO (SE- IV) 2-50/2015, dated 09.9.20 16 titled "Recruitment Policy (2016-17) for School Specific Educators and SEE-(Assistant Education Officers) " (the "recruitment policy ") issued press advertisement for recru itment of educators in schools at District Hafizabad. Petitioner applied for the post of ESE (Science-Math). After necessary formalities including taking prescribed written/NTS test, the petitioner claims to have been placed at serial No. 419 in the merit list with other successful candidates. It was further claimed that the District Recruitment Committee issued appointment letters against 418 posts of ESE (Science-Math) and, as such. petitioner being next in merit was entitled to be issued an appointment letter as further seats became available pursuant to operation of sub-clauses "g", "h" and "i" of Clause 16 of the recruitment policy that respectively prescribed merger of the following seats into open merit seats, namely , unutilized seats in disabled quota, unutilized seats in minority' quota and seats vacated within 190 days of joining as under: "16. PLACEMENT OF SELECTED CANDIDA TES
(a) The selected candidates will be placed according to the inter-se merit of the School in respective category of post;
(b) In case of dispute between male and female candidate having same merit marks for the place of posting, the female candidates will be given preference;
(c) In case of dispute between candidate of village/union council and candidate belongs to outside of union council of the school having same merit marks for the place of posting, the local candidate will be given preference.
(d) Only female Educators shall be placed in Consolidated Model Primary Schools.
(e) If a candidate will be on merit for two or more different posts, the Letter of Agreement shall be issued against higher post.
(f) If a candidate will be on merit against same post of Educators in two or more different schools, the Letter of Agreement shall be issued in his/her favour as per his/her request, against one post in one school;
(g) Number of school specific posts of each category of educators mentioned in the advertisement for disable quota shall be filled through Disable candidates on merits. If disabled candidate is not available then this post shall be filled through other candidates available in the merit list for provision of teachers in the schools.
(h) Number of school specific post of each category of Educators mentioned in the advertisement for minority quota shall be filled through minority candidates on merit. If minority candidate is not available then this post shall be filled through other candidates available in the merit list for provision of teachers in the schools.
(i) In case a person joins the job and leaves the same within the period of 190 days , then the appointing authority will offer the job to the next candidate on merit list subject to the approval of Chairman, District Recruitment Committee."
(emphasis supplied)
3. It is alleged that despite availability of seats as per clauses "g", "h" and "i" cited supra. the petitioner was not considered while his representation purportedly moved was ignored which constrained filing of W.P. No. 150145/2018 titled "Asif Ali v. Government of the Punjab, etc. "wherein the following direction was issued vide Order dated 23.1.2018: "At the outset, learned counsel submits that he would be satisfied if a direction is issued to respondent No. 3 to decide the petitioner's application (which is available at page 26 of this writ petition) in an expeditious manner .
2. The request of the learned counsel for the petitioner is tenable and learned Law Officer has also no objection to this course of action. This writ petition is, therefore, disposed of with a direction to respondent No. 3 to decide the aforesaid pending application of the petitioner in accordance with relevant rules/policies of the Department, after hearing the petitioner , through a speaking order , within fifteen days of receipt of certified copy of this order under intimation to Deputy Registrar (Judicial) of this Court"
4. Pursuant thereto, the petitioner was statedly heard and his representation was rejected vide order dated 26.3.2018; impugned herein; the relevant portion whereof reads as below: "...Therefore, keeping in view the said policy , he applied for appointment/adjustment against one of the said vacant posts but the DEO (EE-M) Hafizabad/App ointing Authority is not accommodating him. He requested to appoint him as ESE (Science-Math) BS-09 because he is entitled for appointment according to provisions of the Recruitment Policy , 2016-17: The District Education Officer (EE-M) Hafizabad/respondent No. 5, rebutted the contention of the petitioner contending that the petitioner was entitled under Recruitment Policy 2016-17 but he is not entitled for appointment as new Recruitment Policy 2017-18 has been issued by the Govt. of the Punjab, School Education Department and leftover vacancies are to be filled under the new policy . The case was also discussed with the Chief Executive Officer (District Education Authority) Hafizabad/Member of the District Recruitment Committee/Respondent No. 4 and Assistant Commissioner (HR&C) Hafizabad on 21.3.2018. The Chief Executive Officer (District Education Authority) Hafizabad was also directed to seek guidanc e/advice in the matter from the office of the Secretary , School Education Department, who further deputed the District Education Officer (EE-M)
Hafizabad/Respondent No. 5 to visit the office of the Secretary , School Education Department and furnish report after discussing the case. In compliance, the DEO (EE-M) Hafizabad visited the office of the Secretary , School Education Department and submitted report on 26.3.2018 that he has discussed the case with the Deputy Secretary (Litigation) o/o the Secretary , School Education Department, Lahore who has opined that petitioner is not entitled for his appointment in 2nd phase because new Recruitment Policy 2017-18 has been issued by the Govt.
The relevant record of the case available on file was also examined.
And Therefore , I, Saleha Saeed, Deputy Commissioner , Hafizabad/Chairman District Recruitment Committee, after carefully examining the view-points of the petitioner as well as respondent department and report & comments/record available on file/presen ted by the District Education Officer (EE-M) Hafizabad/Respondent No. 5, do hereby reject the representation of the petitioner . The concerned parties be informed accordingly ."
5. Learned counsel for the petitioner argued that the order dated 26.3.2018 was passed without considering the rules settled by the Superior Courts in number of judicial pronouncements. Reference was made to "Government of N.W.F.P. through Secretwy , Education Department, Peshawar and others v. Qasim Shah" (2009 SCMR 382) wherein it was held as follow: "...when some of the selected candidates do not join the service, such posts rema in vacant and it was imperative for the department to have considered the remaining candidates for appointment against said posts. Such posts cannot be kept vacant till the next process of recruitment, if some of the selected candidates were still available on the waiting list. In this view of the matter i.e. four posts were not filled in, the remaining four persons were entitled to be considered for appointment. The failure of the department to appoint the respondent and others in the earlier process was not in accordance with the fair practice of recruitment." ii. It was argued that the issue as to whether on account of change of policy the persons, who were next in merit list in the process of recruitment under the previous policy could be ignored or their cases were needed to be taken care of under the previous policy , was considered in certain cases wherein it was observed that any change in the policy could neither be given retrospecti ve effect nor could deprive the rights of person on the merit, list in the recruitment process of previous policy . In support of the proposition reliance was placed on the observation in "Shabana Akhtar v. District Coordination Officer, Bhakkar and 2 others" (2012 PLC.(C.S.) 366) the operative part whereof reads as follows:-- "22. Other advantages of a merit list-cum-waiting list are that vacancy can be filled immediately without re-coursing to a full-fledged recruitment process starting with a fresh public advertisement. Waiting List mechanism saves public money , human resource and time spent on carrying out a full course recruitment process. In case only one or two vacancies occur , they can be imme diately filled without waiting for a fresh recruitment process to be initiated and without keeping several posts vacan t for a considerable period of time. As vacancy can arise at any time, the contingency plan in the shape of an operational Waiting List must also be availabl e as long as the post continues.
Hence, there can be no timeframe or a cut-of f date for the expiry of the Waiting List. It is surely not binding on the candidates to remain on the Waiting List and are free to search for other and better employment prospects, but till they do so, their names continue to be retained on the Waiting List. As and when vacancy arises the said candidates can be contacted and if they are available the vacancy can be duly filled. The only time Waiting List might lose its utility and efficacy is when the eligibility criteria to the post in questio n is altered or if the post itself is abolished or restructured or reorganized." iii. Reference was made to the case of "Muhammad Saeed Zafar v. District Co-ordination Officer, Mianwali and 2 others" (2017 PLC (C.S.) Note 5) in which it was observed: "...appointing authority was bound to offer the job to the next person on merit list if the post. became vacant within 190 days---Person who was next on the merit list was not required to himself approach or to file any application for appointment against the vacant seat---Government functionaries tried to deprive the petitioner from his secured and guaranteed Constitutional promises of impartial, fair and just treatment to all the citizens--Department was directed by High Court to consider the. case of petitioner for the post of Elementa ry School Educator on the basis of merit list in question within a specifi ed period---Secretary Education (Schoo ls) and Chief Secretary of the Province were directed to take action against the delinquent---Constitutional petition was accepted in circumstances." iv. Learned counsel also relied on "Rafaqat All v. Executive District Officer (Health) and others" (2011 PLC
(CS) 1615) in support of his case where it was observed that: "...Once the appellant has been placed on the Waiting List, he develops legitimate expectations to be considered for appointment as soon as vacancy arises. Denying appointment to the petitioner on the ground of lapse of waiting list by mere efflux of time (especially without informing the appellant of such a policy) offends legitimate expectations of the appellant. "If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it... The doctrine of legitimate expectation is rooted in fairness." Thus when a person invokes 'legitimate expectation' he does not rely upon an enforceable common law or statutory right; he is merely asking to be dealt with fairly" v. Finally , reliance was also been placed on Order dated 07.6.2018 in W.P. No. 75904/2017 titled "Aamina Abbas v. Deputy Commissioner , Pakpatton, etc." as also Order dated 15.2.2018 passed in W.P No 15565/2018 titled "Huma Saleem, etc. v . Deputy Commissioner . etc." wherein it was observed as follows: "The new policy 2017-18 dated 13.10.2017 cannot be given retrospective effect to the process already initiated which was almost finalized and the appointment letter to the left-out candidates was required to be issued. Keeping in view this fact, this Court has no option but to allow this petition directing the respondents to issue appointment letters to the petitioners accordingly ."
Learned counsel argued that the respondent No. 3 disposed of the representation of the petitioner in oblivion to the principles laid down in those cases and therefore, it could not be deemed to be a lawful disposal of the petitioner's representation or a due compliance of the Order of this Court.
6. Learned Law. Officer, in response, opposed the submissions of learned counsel for the petitioner and argued that departmental stance was just and reasonable, to which no exception could be taken and that as per Recruitment Policy 2017-18 any seat left over in the earlier recruitment policy was liable to be filled through fresh recruitment. Confronted as to how the impugned order could be classified as either well-reasoned or speaking as it was passed without taking the law on the subject into account, no convincing response could be made by the learned Law Of ficer.
7. It is manifest from the facts noted above that earlier the petitioner filed W.P. No. 150145 of 2018, wherein, a direction was issued by the learned Single Judge of this Court on 23.1.2018, requiring respondent No. 3 to decide the pending application of the petitioner in accordance with relevant rules/policies of the department, after hearing the petitioner , through a speaking order . The perusal of the impugned order reveals, that the respondent No. 3 instead of attending to the points raised before her in the representation of the petitioner or herself examining the rule applicable on the subject in the light of the various pronouncements of Superior Courts or seeking guidance from the observations therein, opted to involve other officials in the matter , moved from one desk to the other and, finally , by submitting to the alleged instructions of her superior declined the representation by a sketchy and non- speaking order . The impugned order does not give even a remote impression of independent application of mind or of being cognizant of the rule applicable on the subject instead, it appears that the respondent No. 3 simply attempted to get over with the representation instead of passing a well-reasoned and appropriate order in accordance with law after taking care of the parameters given in the rule applica ble on the subject. In the cases where similar issues were raised and decided by the Court, relied upon by the petitioner's counsel, certain parameters were prescribed for taking the decision in the matter of recruitment and adjustment of persons next appearing in the merit list if some posts are or fall vacant under the policy pursuant to which the process of recruitment was started. The competent authority is required to sincerely consider , keeping in view the parameters and the guiding principles laid in the judicial pronouncements, that as to whether a person seeking relief meets the requisite conditions and parameters and whether any posts were or had fallen vacant to adjust the next candidate on merit list. The competent authority , for such purposes, is expected to look into the matter with all responsibility and thereafter to decide as to whether the seats were vacant or had fallen vacant to adjust left-over candidates. Of course, an exercise of factual investigatio n is required to verify the existence or otherwise of the parameters under which a request could be pressed. The impugned order does not give the impressi on of independent application of mind by respondent No. 3 nor does it show that respondent No. 3 was cogniza nt of the rule applicable on the subject. The order passed by respondent No. 3 is perfunctory , non-speaking and gives an impression of being issued under the influence or command of superiors. Being so it cannot be deeme d to be a lawful disposal of the representation.
8. This petition is allowed , the impugned order dated 26.3.2018 is accordingly declared to be inoperative. In result the representation of petitioner shall be deemed to be pending which respondent No. 3 is required to decide after hearing the petitioner , and in the light of the directions/observations in Order dated 23.1.2018 in W.P. No. 150145 of 2018 and also the parameters and guidelines prescribed in the judicial pronouncements referred above.
Respondent No. 3 shall now decide the representation afresh within six weeks of receipt of certified copy of this Order .