WIQAR AHMAD, J.---- This order is directed to dispose of the petition filed by petitioner under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Petitioner has contended in her writ petition that she had applied for the post of Lab Assistant, participated in the test conducted by National Testing Service (hereinafter referred as "NTS") and got highest position in merit.
Petitioner had accordingly been waiting for issuance of her appointment order , but same could not be handed over to her and her request in this respect was totally ignored by the concerned authorities. She has invoked the constitutional jurisdiction of this Court with the following prayer; "It is, therefore, humbly prayed that on acceptance of this writ petition, the respondents may kindly be direct to issue appointment order of the petitioner against the subject post according to the relevant rules and merit list.
Or Any other relief which this august Court deems appropriate may kindly be awarded to meet the ends of justice."
3. Respondents were summoned, who filed their para-wise comments. They have contended in their comments that they had not at all advertised the seat of Lab Assistant, and the petitioner could not be appointed on the subject post.
4. Learned counsel for petitioner relied upon judgment of the Hon'ble Balochistan High Court given in the case of "Munawar Hassan v. Chief Secretary Government of Balochistan and 3 others " reported as "2017 PLC (C.S.)
81" and contended that once the petitioner had participated in process of recruitment and stood first in merit, she should have been appointed on the post.
5. The learned Ad11: A.G submitted in rebuttal that since the post had not at all been advertised, it was mistake of the petitioner , that she applied for the post and no premium could be paid to her on her own mistake.
6. We have heard arguments of learned counsel for the petitioner , learned Ad11: A.G. appearing on behalf of official respondents and perused the record.
7. Perusal of record reveals that petitioner has claimed in her writ petition that respondent No. 1 had invited applications for the post of Lab Assistant, for which the petitioner applied and stood highest hi merit, but was deprived of her appointment unlawfully . Respondents have stated in their comments they had never invited applications for the post of Lab Assistant and have also annexed the advertisement of the relevant period with their comments.
8. Perusal of the proclamation reveals that applications for the post of Lab Assistant had not been invited therein.
The petitioner could not produce any proof that the respondents had ever invited applications for the post of Lab Assistant through a public proclamation. Petitioner has mainly been relying on the tact that one post of Lab Assistant had been shown vacant in District Buner and she has accordingly applied for the same, wherein the NTS authorities had also prepared a merit list showing the petitioner on top of the list containing six (6) candidates, with a total score of 123.76 marks. In this respect, she had also filed a petition before the Director Elementary and Secondary Education, Khyber Pakhtunkhwa Peshawar , whereupon explanation had been called from District Education Of ficer (Female) Buner . She has accordingly submitted her explanation in the following words; "Reference to your of fice memo. No. 6414 dated 27.02.2017. It is submitted for your kind information that;
1. The vacant post of Lab: Assistant was submitted to Director E&SE Khyber Pakhtunkhwa on the prescribed proforma for uploading on NTS website as Director E&SE has authority to upload the said post to NTS. The undersigned has no authority for uploading the said post to NTS.
2. This office has been shown only the vacancies position for the post of Lab Assistant to Director E&SE Khyber Pakhtunkhwa Peshawar .
3. This office has not advertised the post of Lab Assistant in daily newspaper dated 19.08.2015 in daily Aaj newspaper and on 21.08.2015 in daily Mashriq newspaper .
Your good-self is requested that can we appoint the meritorious candidate or otherwise.
The petitioner may have been troubled due to a mistake of the NTS authoriti es or District Education Officer concerned, but a post cannot be allowed to be filled without a proper advertisement, inviting applications from members of general public, who may be having the minimum qualification and interest in the post.
9. Sub-rule (2) of Rule 10 of the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 (hereinafter referred as "APT Rules ") requires that appointment to a post not falling in purview of the Commission, shall be made on the recommendation of Departmental Selection Committee, after vacancies have been advertised in newspapers. Said rule is reproduced hereunder for ready reference;
(2) Initial recruitment to posts 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; Said requirement of the APT Rules is mandatory and violation thereof has always been considered fatal for process of recruitment. The Hon'ble Apex Court in the case of "Muhammad All and 11 others v. Province of Khyber Pakhtunkhwa through Secretary , Elementary and Secondary Education, Peshawar and others" reported as "2012 SCMR 673", had maintained the judgment of the Worthy Service Tribunal, whereby appointme nts made in violation of the relevant part of the APT rules had been held to be void and termination of those persons appointed in violation of such Rules had been upheld. Relevant part of observation of the Hon'ble Apex Court is reproduced hereunder for ready reference; The petitioners, who admittedly got their appointments from the backdo or without advertisement of vacancies, inviting, of applications and; completion of codal formalities, in the given facts and circumstances of the case, cannot challenge the principles of good governance adopted at the highest level, mandating each and every appointment in the government service to be made on merits as per relevant rules and completion of codal formalities or lawfully agitate any grievance on the pretext of lack of due opportunity of hearing. The original order of termination of petitioner's service dated 4-9-2009 is self- explanatory and cannot be termed as illegal on any hyper-technical ground, as also rightly concluded by the Tribunal in its impugned judgment , therefore, calling for no interference in exercise of jurisdiction by this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973. Besides, there is no question of law of public importance involved in these petitions, which is "sine qua non" for invoking such jurisdiction.
A five members Bench of the Hon'ble Apex Court while giving judgment in case of "Munawar Khan v. Niaz Muhammad and 7 others" reported as 1993 SCMR 1287 , has observed as follows; "What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisements, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitments had to take place. This wilt, however , not apply to short-term leave vacancies or to contingent employment."
Similarly , in the case of the "Muhammad Ali and 11 others v. Province of Khyber Pakhtunkhwa through Secretary , Elementary and Secondary Education, Peshawar and others reported as "2013 SCMR 673", the Hon'ble Apex Court had recorded the following observations; "As evident from the details of the facts recorded in the impugned judgment, the petitioners, who were amongst the category of Junior Clerk, Lab Assistant and Assistant Store Keeper (M), were admittedly appointed without due process of adve rtisement or following of the codal formalities, which were required to be observed for appointments against these vacancies. It was for this reason that vide order dated 4-9- 2009, passed by the District Coordination Officer (DCO), Dera Ismail Khan, their appointments were termed as illegal and their services were accordingly terminated, being void ab initio and without any legal right to hold such appointments in the government service."
It stands well settled that a post in public sector cannot be allowed to be filled without a public notice by issuing of proclamation in daily newspapers, and disseminating information regarding the same.
10. In the given situation, the petitioner failed to make out a case for intervention of this Court. The petition in hand was found to be meritless and same is accordingly dismissed.