Abdul Hameed Baloch, J.--This Constitutional Petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") with the following prayers:-- a) To declare that the impugned act of the respondents denying the appointment orders to the petitioners, despite recommendations from CRC, is illegal and of no legal effect. b) To declare that the impugned act of respondent department of non-consideration of the petitioners against their applied posts and considering number of aspirants/candidates whose cases are at part with the petitioners, is discrimination and contrary to Article 25 of the Constitution. c) To further declare that since the petitioners duly qualified the recruitment process of their respective posts, the right has been created in favour of petitioners which cannot be taken away. d) To direct the respondents to treat the petitioners at par with other aspirants/candidates whose, cases were identical to the petitioners i.e., on departure of principal candidate, the next candidate was considered for appointment. e) To direct the respondents to issue appointment orders/letters to the petitioners against their concerned post, in accordance with law and applicable rules. f) Any other relief deemed fit by this Hon'ble Court, in the interest of equity, fair play and justice.
2. According to petitioners the Education Department Balochistan through Advertisement in daily newspaper invited applications for various posts of teaching staff from eligible candidates of different districts of the province; that pursuant to the said advertisement the petitioners applied for different category of posts and appeared in the test and interview and qualified the same but the petitioners were not considered for appointments for the reasons that under Recruitment Policy 2019, the Secondary Education Department prohibited to consider for appointment the candidates whose name was subsequent to the principle candidate, that was selected for more than one post and that principle candidate opts one of the post.
3. Learned counsel for the petitioners stated that the petitioners successfully qualified the recruitment process for their concerned posts, due to which vested right have been created in their favour, cannot be taken away; subsequently the respondents issued appointments orders of different candidates whose case were identical to the cases of petitioners. The petitioners are to be treated on same manner.
4. Heard., Perused the record. The record transpires that only petitioner Nos.1, 2, 4, 18, 19 and 20 have assailed the decisions of District Recruitment Committee (DRC) to Complaint Redressal Cell (CRC).
It appeared that the Respondent No. 1 in pursuance of approval of the Provincial Cabinet issued Notification No. 50(5-111)2-22/2019, dated May, 2019 notified the "Revise Teaching Staff (BPS-09 to 15) Recruitment Policy, 2019 Secondary Education". The Para No. 12(111) of the Recruitment Policy reads as Under: "12(111), If a person stands principle candidates for more than one post and decides have one posts of his/her choice and withdrawn her/his name from other post(s) the other post(s) will remain vacant and will be re-advertised.
5. The record reveals that the petitioner No. 1 being resident of District Jaffar Abad applied for the post of JET. The DRC has not recommended the petitioner on the ground that as per Para 12(111) of the Recruitment Policy 2019 no candidate shall be considered as covering candidates while CRC in appeal recommended the petitioners for appointment. The relevant portion of decision of the CRC dated 30.11.2020, reads as under: "Re-advertise the post would be exhaustive process and will take lengthy time. Para-12 (III) (a) of the recruitment' policy 2019 is not comprehensive. And this clause had created hurdles in filing vacant posts during recruitment process"
6. The petitioner No. 2 applied for the post of JAT in Union Council Daak and due to non-joining by the principal candidates Agha Muhammad the post became vacant. The CRC recommendations read as under: "The case of the appellant was placed before the CRC for scrutiny and decision. The complainant appeared in defend his position who was heard in detail. The CRC perused the records and all aspects of the case including the statement of DEO regarding the vacation of the said post. As the post of JAT is already lying vacant in the said UC and the appellant is also qualified for Tehsil merit, it is therefore, suggested that he may be considered for appointment against the said vacant post keeping in view a large number of schools deprived of teaching staff and a large number of unemployment of qualified and educated individuals.
The CRC feels that if the said post is re-advertised, it will be further loss of time as the recruitment process is a time-consuming exercise as well as additional burden on the public exchequer.
7. The Petitioner No. 4 applied for the post of JET for District Sibi. The DRC recommended the petitioner for appointment on the ground that the petitioner stood at S. No. 5 on merit list of (UC Talli) Sibi while there are four vacancies of JET, for which four candidates were shortlisted, out of which one candidate was also shortlisted for the post of EST, and one post of JET left vacant. Due to non-issuance of appointments order, the petitioner filed complaint before the CRC. The decision of the CRC reads as under: "According to "The Revised Teaching Staff (BPS-09 to 15) Recruitment Policy (2019)" a complainant could not be considered against the post that became vacant due to withdrawal of principle candidate, therefore, the appeal of complainant is rejected."
8. The petitioner No. 18 applied for the post of JAT (B-14) in UC Baghak Mall District Noshki. The principal candidate has not joined the post. The DRC recommended the petitioner for appointment.
Due to non-issuance of the appointment order the petitioner filed complaint before the CRC. The decision of the CRC reads as under "The CRC feels that if the said post is re-advertised, it will be further loss of time as the recruitment process is a time-consuming exercise as well as additional burden on the public exchequer.
"Hence, the appeal is disposed of accordingly.
9. The petitioner No. 19 applied for the post of JAT District Duki and stood at S.No. 2 in District Level.
As per DRC one post is lying vacant in UC Viyala District Duki. The petitioner was not applied for the post of UC Viyala. The CRC decision reads as under: "More than fifty (50) candidates are qualified for different categories but not shortlisted. Except the said candidate none of them has appeared to DRC. There are so may vacant posts available, especially the post of JAT for which the said applicant has applied and is lying vacant in the UC, where the applicant belongs to. Hence, the DRC recommends his appointment on just humanitarian basis keeping in view to decrease the increased ratio of un-employment."
10. The petitioner No. 20 applied for the post of MQ UC Jamak. The principal candidate has not joined the post and opted to join the post of JAT. The petitioner being subsequent candidate has not been recommended by DRC. On appeal the CRC accepted the same. The decision of CRC reads as under: "The CRC feels that if the said post is re-advertised, it will be further loss of time as the recruitment process is a time consuming exercise as well as additional burden on the public exchequer.
Hence the appeal is disposed of accordingly.
11. It appeared form the record that only above referred six petitioners have filed appeal before the CRC, whereas in respect of rest of the petitioners no decision of the CRC is annexed.
12. As far as the eligibility of the subsequent/waiting candidate is concerned, the para-12 (III) of the Recruitment Policy, 2019 is clear that where the principal candidate has not opted to join the respective post, the post will be re-advertised rather than to be filled from the waiting list. The DRC and CRC are constituted by the Government and the Recruitment Policy 2019 has been approved by the Cabinet. Astonishingly the CRC flagrantly violated the policy. Even in the case of petitioner No. 1 the CRC in their decision stated that Para-12(111) of Policy 2019 is not comprehensive, meaning thereby the CRC sit its judgment over the policy which is not the domain of the CRC. The DRC or CRC cannot question the suitability or non-suitability of the Recruitment Policy, 2019. The CRC is under obligation to implement the policy of Government. The CRC is not policy making body rather it has to implement the approved policy of the Government. It is well established principle that the executing agency is duty bond to implement the policy. The policy can only be reverted by the Cabinet or by the Court.
13. It is settled proposition of law that framing of rules, regulation and policy is policy decision. The policy decision is domain of executive, the Court will not ordinarily interfere with policy decision unless the policy is inconsistent with constitution and law. This Court in constitutional jurisdiction cannot interfere in transparent policy decision of executive. The executive has the power to frame policy and implement it in transparent manner for smooth running the affairs of Government.
Framing of policy for recruitment falls in the exclusive domain of executive. In this regard reliance is placed on the case of Akmal Nazeer versus Government of The Punjab through Secretary School Education Department, Lahore 2021 PLC (CS) 1553, whereby it has been held as under:
8. In view of law settled in above judgments, the policy being prerogative of concerned Authority cannot be challenged in the constitutional petition, unless same is found to be irrational, mala fide, perverse or arbitrary. However, no such defect has been highlighted in the impugned policy which is otherwise seems to be based on reasons, to redress the grievance of the residents of the under-developed localities, which is also the demand of Article 37 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). It is also relevant to note that impugned policy was even otherwise for year 2016-2017 and is no more in the field. In this regard, reliance is also placed on Abdul Wahab and others v. Habib Bank Limited and others (2014 PLC (C.S) 393), Asaf Fasihuddin Khan v. Government of Pakistan and others (2014 SCMR 676), Cutting of Trees for Canal Widening Project, Lahore (2011 SCMR 1743). Messrs Alzair Travel and others v. Federation of Pakistan and others (2014 CLC 1766), Ministry of Inter Provincial Coordination v. Major R. Ahmad Nadeem and others (2014 CLC 600), Junaid and others v. Federation of Pakistan and others (2012 CLC 1962), Safdar Jamil and others v. Vice Chancellor and others (2011 CLC 116), Azad Government and others v. Dr. Syed Abadain Haider and others (2000 PLC (C.S) 9) and Government of Khyber Pakhtunkhwa and others v. Hayat Hussain and others (2016 SCMR 1021).
14. As far as the contention of learned counsel for the petitioners that many other candidates' appointment orders were issued by the authority and the petitioners' case stands on similar posting has no substance. Mere appearance in the test and interview does not confer the right upon the petitioners to be issued offer letter for appointment against the vacant post. As per Recruitment Policy 2019 the vacant post will be re-advertised rather than issuance of appointment orders to the waiting candidate(s). Where due to resignation or non-joining by the appointed/selected candidate (s) the post became vacated, the government should re-advertise the said post. The candidate(s) who stood next in serial number, cannot claim to be appointed on the post lying vacant due to resignation of appointed candidates. Reliance is placed on the case of Munir Hussain and others v. Province of Sindh 2022 SCMR 650, whereby it has been held as under:
10. As far as the judgment of this Court reported as Government of NWFP (ibid) is concerned, it is a leave refusing order and does not constitute precedent. Even otherwise, the finding of the Court in the leave refusing order to the effect that when some of the selected candidates did not join service, such posts remain vacant, it is imperative for the department to have considered the remaining candidates for appointment against the other posts proceeds on the premise that there are some candidates who are still available on the "waiting list". In the said case, apparently, there was a waiting list maintained by the concerned department and failure of the department to appoint candidates who had qualified and their names existed on the waiting list was found to be unfair. It is clear and obvious that there was no waiting list in the instant case. Besides being distinguishable on facts as well as the relevant law insofar as it did not relate to nor examine the regulations of KPK Public Service Commission. It is apparent that the department was required its internal rules to maintain a waiting list and the names of the petitioners before the High Court, appeared in the waiting list, there were vacant posts available, they qualified for the same, yet they were denied appointment by the departmental authorities. The issues in the precedent case and the case before us, the facts involved and the legal questions addressed are totally different. "
Reliance may also be placed on the case of Musa Wazir v. NWFP Public Service Commission 1993 SCMR 1124, whereby it has been observed as under:
13. So far as the Commission's policy and practice spelt out in the letter dated 8th January, 1989 reproduced in the judgment is concerned, there are certain legal objections to it. In the first place, the examination being competitive, there could be no practice of maintaining a list of qualified candidates for six months or its revalidation by the Government for a longer period. Requisitions made cannot be adjusted out of such lists without proper advertisement. As held by this Court in the case of Abdul Jabbar Memon (Human Rights Case No. 104/1992) it would otherwise be a violation of the Fundamental- Rights of the citizens and not condonable on any ground of expediency or administrative convenience.
14. As for the receipt of subsequent requisitions from the Government, the options open to the Commission are two. Firstly, it can keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment. Considering the extent of frustration and uncertainty prevailing in the qualified; youths of the country, the latter course may be beneficial in the long run and help in evolving a system of regularly holding the competitive examinations each year, or once in two years or once in three years. When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case.
In view of above, the petition being devoid of merit is dismissed in limine.