Ahmad Ali, J. The petitioner through this writ petition is seeking the following relief against respondents: it is therefore, prayed on acceptance of this writ petition the appointment of private respondents No. 4 & 5 may graciously be declared illegal, unlawful, and without lawful authority .
Secondly petitioner being eligible for both the posts may graciously be appointed on above mentioned posts (District Emergency Officer BPS-18 or Emergency Officer BPS-17 immediate with all back benefits.
2. A brief account of the facts of present writ petition is that some posts of District Emergency Officer (DEO) BPS- 18 and Emergency Officer (EO) BPS-17 in the Rescue 1122, Khyber Pakhtunkhwa, were advertised through the Open Testing Service, the respondent No.3. Petitioner applied for both the posts and secured 36 out of 100 marks in the physical & screening test for DEO while 43/100 marks in the said test for EO, and thereafter , he was shortlisted for interview . The respondent No.4 also applied for the post of DEO but he failed in the test, of DEO by securing 29 out of 100 marks; whereas, respondent No.5 had only applied for the post of E.O. and thereby secured 49 out of 100 marks. Previously the petitioner filed a writ petition No.4071-P of 2019 seeking his appointment, however , owing to the appointment of respondents No.4 & 5, the said writ petition stood withdrawn vide order dated 09.08.2019 and petitioner filed this petition with the above quoted prayer .
3. This Court directed respondents to file their comments.Respondents No.2 & 3 filed their separate comments wherein they opposed the issuance of desired writ.
4. Learned counsel for the petitioner argued that the appointment of responde nts No. 4 & 5 was based on favouritism and personal choice and the same was violative of the merit and transparency . Respondent No.4 did not qualify the test for the post of District Emergency Office whereas, the respondent No.5 had never applied for the said post even then, being blue-eyed-cherish they were appointed as District Emergency Officer BPS-18, whereas, rights of the petitioner for appointment on the said post were infringed. Thus, the appointment of respondents No.4 & 5 is illegal and liable to be cancelled whereas, petitioner is entitled to be appointed.
5. Learned counsel, appearing on behalf of respondent No.2, controverted the arguments of learned counsel for petitioner and argued that it was in the competence of official respondents to make appointment of any shortlisted candidate on any suitable post subject to requisite qualification at any place and this condition was avaialble in clause 'e' of the advertisement. Both the respondents No.4 & 5 being shortlist and having requisite qualification were appointed. He maintained that the petitioner had no locus standi to file writ petition which is liable to be dismissed with heavy cost.
6. We have given anxious consideration to the arguments of the learned counsel for the parties and have gone through the record with their valuable assistance.
7. The record reflects that the respondent No.2 advertised vacancies of District Emergency Officer (DEO) BPS-18 and Emergency Officer (EO) BPS-17 through the respondent No.3, a testing agency . Separate tests were held for both the above said posts. The comments of respondent No.3 reflect that petitioner and respondent No.4 applied for both the posts of DEO and EO whereas, respondent No.5 applied only for the post of E.O. The test result as announced by respondent No.3 is tabulated hereunder: S# Name Marks Obtained in the test (out of total 100 marks)
D.E.O. E.O.
1. Petitioner 36 43
2. Respondent No.4 29 (Failed) 49
3. Respondent No.5 Not applied 49
8. It is an admitted position that the respondent No.4 was failed in the test of DEO (BPS-18) whereas, the respondent No.5 had never applied for the said post; nevertheless, both the respondent No.4 & 5 qualified the test for the post of E.O.
(BPS-17) and accordingly shortlisted for the said post. But the Selection Committee recommended both the private respondents for the post of D.E.O. BPS-18, and accordingly , they were appointed as DEO. As against this, all the shortlisted candidates for the post of D.E.O. BPS-18 including present petitioner were ignored.
9. It is clear from perusal of the minutes of the meeting of Departmental Selection Committee that there was no criteria for the selection against the post of DEO BPS-17; and only thing for the recommendation of private respondents was the clause `e' of advertisement which reads as under: "e. The Selection Committee has the right to appoint any suitable shortlisted candidate at any suitable post subject to requisite qualification at any place." (emphasise supplied)
10. The term 'suitable shortlisted candidate' clearly refers to successful candidates shortlisted for the post of DEO and EO and it does not empower the authority or anyone else to travel beyond the merit and amalgamate the shortlisted candidates of E.O. in the list of those who were shortlisted for the post of DEO. There is no cavil with the proposition that private respondents were shortlisted for the post of E.O. BPS-17 only and not for the post D.E.O.
BPS-18. Both of them were not eligible and suitable for the post of DEO because of the fact that respondent No.4 was failed in the test of DEO and respondent No.5 had not applied for the said post. For this sole reason, both the respondents No.4 & 5 were no doubt not suitable for the post of DEO even then they were recommended by the Selection Committee and then appointed by the Appointing Authority against the post of DEO.
11. We are clear in our mind that the Selection Committee and Appointing Authority have violated the merit and transparency and appointed respondents No. 4 & 5 without any lawful justification. Mala-fide on the part of Selection Committee is further apparent through the fact that in the working paper for the post of DEO, they had not mentioned the interview marks of other candidates including the petitioner . The recommendation and appointment of private respondents for the post of DEO BPS-18 is malfeasance, misuse of authority and based on corrupt practices, for which all the members of the Selection Committee and Appointment Authority are equally responsible. Therefore, we declare the appointments of respondents No. 4 & 5 on the post of D.E.O. BPS-18 as illegal, unlawful, null and void. We also recommend the initiation of stem departmental action against all the members of the Selection Committee and Appointment Authority for making of illegal appointments, and in this regard the copy of this order be sent to the Chief Secretary Khyber Pakhtunkhwa for compliance with the intimation to the Registrar of this Court.
12. Now adverting to the merit position of the petitioner . The working paper meant for the post of DEO BPS-18 shows the name of petitioner at serial No.4 and the reason for his non appointment was mentioned as 'not eligible due to less experience'. However , none of the shortlisted candidates, except at serial No.6, was awarded experience marks even then two of them were recommended for appointment. It clearly means that experience was not a sine-qua-none for appointment as DEO BPS-18, otherwise respondent No.4 would not recommended for appointment as DEO.
13. Yet working paper meant for the post of EO BPS-17 reflect 4.5 experience mark s of the petitioner in the column of experience. Likewise, Shah Wali Khan and Muhammad Kashif Salam (respondents No. 4 & 5) also secured 4.5 experience marks each in the list of E.O. BPS-17. It means that the private respondents and the petitioner were having equal experience that's why they were awarded equal marks of experience. Then on the basis of same experience respondents No.4 & 5 were appointed as DEO but the petitioner having same experience and higher merit position was discriminated and deprived of the right of appointment. The Petitioner has therefore, made out a Ease of his appointment 'against post of D.E.O. BPS-18, accordingly official respondents are directed to issue the appointment letter to petitioner against the post of DEO BPS-18 not later than 30 days after receiving the copy of this judgment.
14. W rit petition decided in the above terms with no order as to cost.