SYED ARSHAD ALI, J.---Petitioner seeks constitutional jurisdiction of this Court praying that:- "It is therefore very humbly prayed that, by the acceptance of this writ petition;
1. Appointment order No. 2117-22 dated 05.04.2017 to the extent of appointment of respondent No. 4 against the post of Drawing Master in GMS Bar Batkor, District Shangla, may please be declared illegal, unlawful and ineffective upon the right of petitioner.
2. Respondents Nos. 1 to 3 may please be directed to appoint petitioner against the vacant post of Drawing Master in Government Middle School, Bar Batkor, District Shangla.
3. Any other relief not specifically prayed but this august Court deems proper may also be granted."
2. Arguments of learned counsel for the petitioner and learned A.A.G appearing on behalf of the official respondents were heard and record of the case was thoroughly perused.
3. Through an advertisement dated 01.09.2016 the respondents solicited applications from eligible candidates against various posts including the post of Drawing Master (BPS-15). The petitioner among others applied against the said post and according to the merit list, the petitioner's name is appearing at Sr. No. 13 of the said list. Due to the limited number of seats, six (6) candidates were recommended for the aforesaid posts, out of which Shams ul Qamar who was at Sr. 5 of the merit list did not join the post as he was already serving against the post of PST. Regarding the non-joining of other candidates who were senior to him in the merit list, the petitioner in Para 5 of the petition has narrated that:-
5. That out of 12 persons, who were prior on merit list from petitioner. i. Mr. Muhammad Hanif (2nd Position) absent for interview. ii. Mr. Shams ul Qamar (5th Position) did not take charge because he was already serving on the post of PST. Moreover he gave affidavit to the petitioner for not joining the post of Drawing Master. iii. Mr. Zahoor-ul-Haq (6th Position) was rejected by respondents. iv. Mr. Iftikhar Ahmad (8th Position) was got selected because he had applied only for Daankol School while Mr. Najeebullah (3rd Position) had secured higher marks against the said post of Daonkool, therefore, Mr. Najeebullah was selected and Mr. Iftikhar Ahmad was dropped. v. Mr. Inamullah (9th position) joined the TT post and dropped the post of Drawing Master. vi. Mr. Rahman Uddin (11th Position) was already serving on PST post and did not join the vacant post of Drawing Master. Moreover he gave affidavit to petitioner for not joining the post of Drawing Master. vii. Mr. Farhan Ali (12th Position) remain absent.
4. The said facts were not controverted by the respondents in their comments. On eve of the non-joinder of Shams-ul-Qamar, the petitioner as well as Zahoor-ul-Haq had applied to the respondents for their appointment against the said post. An appellate committee was constituted for adjudication of claims/appeals against various appointments by the aggrieved candidates. The said committee while adjudicating the claim of petitioner and Zahoor-ul-Haq has recommended that Zahoor-ul-Haq is not meritorious, therefore, the appeal of Mr. Saiful Haq son of Abdul Qadeem is valid and subject to appointment after withdrawal of the order of Shams-ul-Qamar. The appointment of Shams-ul-Qamar was withdrawn on 18.07.2017, therefore, according to the recommendation of the appellate committee the petitioner was eligible for appointment against the vacant seat. Despite that, the petitioner was not offered appointment for the reason that the impugned appointment order was issued on 05.04.2017 and the appointment of non-joinder (Shams-ul-Qamar) was withdrawn on 18.07.2017, hence, it was held by the respondents that request of petitioner for appointment at belated stage could not be considered.
5. The aforesaid reason provided by the respondents in their comments does not appear to be legally correct. In this regard, the Provincial Government has laid down policy through letter No . SOR. yi (E&AD) 1-10/2010 dated 19.3.2013. The said policy reads as under: -- "Government of Khyber Pakhtunkhwa Establishment Department (Regulation Wing)
No. SOR. VI (E&AD)1-10/2010 Dated Peshawar, 19th March, 2013.
To,
1. The Additional Chief Secretary, Planning and Development Department, Government of Khyber Pakhtunkhwa, Peshawar.
2. The Additional Chief Secretary (FATA), FATA Secretariat, Peshawar.
3. All Administrative Secretaries to Government of Khyber Pakhtunkhwa.
4. All Commissioners in Khyber Pakhtunkhwa.
Subject:- CHANGE IN THE RECRUITMENT POLICY REGARD IN MAINTENANCE OF WAITING LIST OF THE ELIGIBLE CANDIDATES-JUDGEMENT OF THE SUPREME COURT OF PAKISTAN Dear Sir, I am directed to refer to this department circular letter No. SOR VI/E&AD/1-10/05/Vol.IV dated 31.12.2008 and to state that the maintenance of the waiting list of eligible candidates for a period of 06 months in initial recruitment were stopped in pursuance of judgment of the Supreme Court of Pakistan in case titled Musa Wazir and others v. N.W.F.P. Public Service Commission and others.
2. However in pursuance of a recent judgment of the Supreme Court of Pakistan in case titled Naimatullah and others v. N.W.F.P. Public Service Commission and others dated 05.10.2010, the said policy has been reviewed and it has been decided by the competent authority that from now onwards, the Public Service Commission or Departmental Selection Committee as the case may be, may maintain a waiting list of eligible candidates in the respective zones upto the commencement of the pre-service training of the candidates of the same selection or till expiry of 03 months, where no such pre-service training is prescribed. The Public Service Commission or the Departmental Selection Committee may in case of non joiners recommend the next eligible candidate on top of the merit list from the respective zones upto the commencement of the training of the appointees of the same selection or for three months where no such training is prescribed provided that the process does not in any way affect the right of any other selectee or appointee.
3. I am, therefore, directed to request that above policy decision may kindly be brought into the notice of all concerned for strict compliance.
Yours Faithfully, Sd/- (Muhammad Taufique)
Section Officer (Reg-VI)."
6. The said policy has been made pursuant to the judgment of august Supreme Court of Pakistan passed in Civil Petition No.1697 of 2010 titled Naimatullah and another v. N. W. F. P (Now K. P. K) Public Service Commission, Peshawar and others dated 05.10.2010. In the said judgment a slight distinction has been drawn from ratio of the judgment of august Supreme Court of Pakistan in case titled Musa Wazir v. N.W.F.P Public Service Commission (1993 SCMR 1124). The law laid down in Musa Wazir case was that in future the Public Service Commission shall re-advertise vacancies created as a result of non-joinder of the selectees as well as of subsequent requisition sent by the Provincial Government for the appointment of the same category of post, which shall be treated as separate selection. Hence, in view of the law laid down in the Musa Wazir case the earlier practice of maintaining waiting list of the candidates for their appointment, in case any of the selectee did not join the post or if during the said process Provincial Government sent for the requisition for appointment against the same category of post, was declared against the law. However, in Naimatullah case (supra), the august Supreme Court of Pakistan has slightly modified the law laid down in Musa Wazir case in the following words:- "We are also mindful of the fact that this Court in Musa Wazir's case (ibid) had directed the Public Service Commission not to maintain waiting list for 6 months. Thus a line is to be drawn beyond which the Public Service Commission shall not fill up vacancies created as a result of non joinder of a selectee. A balance is to be struck so that a fair chance is provided to a candidate, who has passed a competitive examination but has failed to be selected on merits and at the same prevent the adverse fall out of maintaining n waiting list for long period. It would be, in our view, just and fair to allow filling up of vacancies created on account of non joinder of selectee upto the commencement of the training of the appointees of the same selection, provided that the process does not in any way affect the rights of any other selectee or appointee. In the present case, the training of the appointees had yet to commence by the time the petitioners filed their constitution petition before the High Court. During the hearing of this petition, we were informed that due to the flood situation in the Province, the training had not yet started by the time the impugned judgment was passed. We had already directed by our short order that the petitioners be immediately allowed to join the training."
7. The aforesaid law laid down by the August Supreme Court of Pakistan has been persistently followed by this Court as well August Supreme Court in its judgments reported as Dr. Sumera Tabassum v. F.P.S.C. and others (2016 SCMR 196), "Sumara Umar Khan v. Chancellor Gomal University D.I. Khan and 4 others (2014 PCr.LJ 526 [Peshawar High Court) and "Muhammad Afzal v. Government of Khyber Pakhtunkhwa"
(2016 PLC (C. S.) 664 [Peshawar High Court).
8. "The fact that the present petitioner was the next available candidate top on waiting list has not been controverted by the respondents in their comments, rather the same is established from the decision of the appellate forum whereby it was recommended that the request of the present petitioner was valid against the said post, but subject to the withdrawal of appointment of the candidate (Shams-ul-Qamar) who has not joined the post. Therefore, when the said Shams-ur-Qamar appointment was withdrawn on 18.07.2017 then the present petitioner was eligible for the said post in view of the law laid down by the August Supreme Court of Pakistan and the subsequent policy of the Provincial Government stated above.
9. In view of the above, we allow the present petition and direct the respondent No. 3 to issue appointment order to the petitioner against the post of Drawing Master with immediate effect.