MUZAMIL AKHTAR SHABIR, J. Through this constitutional petition, the petitioner has called in question order dated 28.07'.2021 passed by District Police Officer, Gujrat (Respondent No.3) whereby request of petitioner for his recruitment as Constable in the. Police Department, District Gujrat against vacant post on the basis of being at Serial No 1 of the waiting list has been declined.
2. Learned counsel for the petitioner states that petitioner was at serial No. 1 of the waiting list, however, his case for appointment has been declined for the reason that he has belatedly filed application for appointment against vacant post, which is not justified as despite the selected candidate did not join, the post was declared as vacant after quite some time, thus, giving right and cause of action to the petitioner to approach the authorities for appointment at the said stage for the first time and his application in said circumstances could not be declared to have been belatedly tiled.
3. Learned A.A.G, under instructions supports the impugned order passed by respondent No. 3 by controverting the stance taken by the petitioner. It is contended by him that the waiting list was valid only for 90-days from the date of issuance of list of selected candidates and the post had not been declared as vacant within 90-days thereof, therefore, the petitioner had not got any right to be considered for appointment at the said stage.
4. From the perusal of the record, it is observed that for the process for recruitment of constables 2018, appointments to 138 posts of Constables were made on 05.07.2019 and the waiting list was also prepared on the same date wherein the name of petitioner was at serial No. 1. One selected candidate did not appear for medical examination conducted on 23.10.2019 and the said post was declared as vacant on 25.10.2019, petitioner thereafter filed application to be considered for appointment on 06.11.2019 i.e. within next 11 days from the date of declaration of vacation of post, however, the said application has been dismissed through the impugned order by declaring the same to have been belatedly filed as it is claimed by respondent/department that the waiting list was to remain valid for 90 days only commencing from the date when the list of selected candidates was displayed i.e. on 05.07.2019 and it is claimed that the said list expired on 03.10.2019 before the petitioner filed application to be considered for appointment. Operative part of impugned order dated 28.07.2021 is reproduced as under: "The applicant Mr. Ehtisham Basharat son of Basharat Hussain resident of Dhola Tehsil Kharian, District Gujrat, filed an application before the then DPO Gujrat, wherein he requested for recruitment as Constable in Police Department District Gujrat against 01 vacant post during the recruitment of constables/lady constables 2018, as his name was on serial No. 01 in the waiting list.
2. As per Standing Order No. 06/2015 issued vide letter No. 2241/EXEC-111 /0S.E-111/2015-Recruitment dated 09.07.2015 by worthy Inspector General of Police Punjab, Lahore "A merit list will be prepared by the recruitment board on the basis of marks obtained by a particular candidate in written test, family claim and interview. Waiting list of 05% vacancies will be displayed along with result of successful candidates which will be valid for 30 days after display of final list"
The competent authority has amended the standing order 06/2015 to the extent of Para No 22.
Which may be read as under "Waiting list of 10% vacancies will be displayed along with result of successful candidates which will be valid for 90 days after display of final list".
3. In this regard on the application of Mr. Ehtisham Basharat, guidelines were solicited from the office of the worthy Inspector General of Police Punjab, Lahore. The guidelines have been received in this office vide IGP/Punjab, Lahore office letter No. AD/E-111/5279/XV dated 05.07.2021 and No. AD/E 111/4459/XV dated 03.06.2021, the operative part of which, is as under:- "7. A perusal of the amended Standing Order No. 06/2015 has revealed that an amendment was made in Para 22 of the said order which reads as under: "A merit list will be prepared by the recruitment board on the basis of marks obtained by a particular candidate in written test, family claim and interview. Waiting list of 10% vacancies will be displayed along with result of successful candidates which will be valid for 90 days after display of final list".
8. From perusal of the amendment prima facie it appears that the waiting list will remain valid for 90 days from the date when the final merit list prepared on the basis of marks obtained by a particular candidate in written test, family claim and interview is displayed.
4. The undersigned summoned the applicant and heard him in detail and recommendation of committee has also been perused, the final list of successful candidates as well as the waiting list were displayed on 05.07.2019. While the applicant Mr. Ehtisham Basharat, filed his application on 06.11.2019 after the lapse of 4 months. In view of above, facts and circumstances, the applicant Ehtisham Basharat submitted his application after the validity of waiting list (i.e. 90 days).
Therefore, his application cannot be entertained and is hereby filed."
5. It is an admitted fact that waiting list was valid for 90 days, the purpose of affixing the waiting list was that if any selected candidate does not join then the candidate next in line would be considered for appointment, however, in the instant case the appointment process was not completed within 90 days rather lingered on for various reasons including medical examination till 25.10.2019 when the said post was declared as vacant and in the meanwhile the period of 90-days had already expired, which was not within the control of the petitioner rather apparently the matter of medical examination of selected candidates had kept lingering on in the meanwhile and it is stated that one of the selected candidates did not appear to be medically examined on 23.10.2019 where after post was declared as vacant on 25:10.2019. It is not a case where one of the selected candidates had joined immediately after appointment and thereafter vacated the same after 90- days had expired in which case situation would have been different rather in the present case his post was declared as vacant as he could not appear in medical examination, hence, till the date of medical examination, which was beyond 90 days of display of list of selected candidates, the appointment process had not been finalized and in these circumstances, the objection that case of the petitioner could not be considered after 90-days of issuance of list of selected candidates loses its significance and cannot be used to curtail the right of the petitioner to be considered for appointment for the reason that once recruitment process was commenced then it had to be completed by the appointing authority within stipulated period, which was 90-days in this case, but same had not been done. Reliance in this regard is placed on principles laid down in 2022 PLC (C. S.) 759 (Muhammad Ramzan and others v. Chief Executive Officer and others), wherein this Court directed the respondents to complete appointment process despite lapse of expiry period of 190 days for which the list of selected candidates was to remain valid in the said case and it was held that once recruitment process commenced then it had to be completed by the appointing authority within statutory period and if the recruitment process was stopped due to transfer of the then CEO, as alleged, even then it was the duty of the authority to give the charge to some other officer to perform in a smooth manner but nothing was brought on the record by the authorities in that regard and in the said circumstances, the Court directed the authorities to issue appointment letter to the petitioner.
6. In somewhat similar circumstances, cases of candidates in waiting list were considered in some of the cases reproduced below, wherein respondent authorities in said cases were directed to consider their cases for appointment.
In case titled "Rafaqat Ali v. Executive District Officer (Health) and others" (2011 PLC (C.S.) 1615), a Division Bench of this Court while considering the object of waiting list in case of candidates on waiting list seeking appointment against vacant posts observed that once appellant had been placed on the waiting list, he had developed legitimate expectation to be considered for appointment as soon as vacancy would arise. In the said case, the Court directed the respondents to appoint the appellant even after expiry period of validity of waiting list i.e. 90-days. The operative part of the judgment is reproduced below:- "8. The purpose of preparing a Waiting List from amongst the successful candidates is to have a contingency reserve. A pool of successful candidates who can immediately fill vacancies as they arise. Instead of initiating the recruitment process afresh (which surely involves time and cost), it is convenient to fall back on the Waiting List of successful candidates and fill the vacancies immediately.
9. Waiting List is also advantageous, because the recruitment process may not be initiated for a few posts that fall vacant and as a contingency, the candidates shortlisted in the waiting list can fill these posts. Waiting List is actually a list of selected eligible candidates, who have successfully filtered through the recruitment process. They are a valuable human resource available in case any vacancy arises. As vacancy can arise at any time, the contingency plan in the, shape of an operational Waiting List must also be available as long as the post continues. Hence, there can be no time frame or a cut off date for the expiry of the Waiting List. It is surely not binding on the candidates to remain on the waiting list, they 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. The only time Waiting List might lose its utility is when the eligibility criteria to the post in question is altered or if the post itself is abolished or restructured or reorganized. In this situation, the candidates on the waiting list are no more eligible and, therefore, fresh recruitment will be called for."
7. In the case titled as "Government of N. W. F. P. through Secretary, Education Department, Peshawar and others v. Qasim Shah" (2009 SCMR 382), Hon'ble Supreme Court of Pakistan directed that the cases of candidates on waiting list be considered for appointment against vacant posts, the operative part of judgment is reproduced as under: "3. Learned Advocate General, N.W.F.P., appearing on behalf of petitioner-department, contended that judgment of the learned High Court suffers from legal and factual infirmities; that once the selection is finally made from the, merit list stands exhausted and for fresh appointments for fresh vacancies fresh advertisement shall have to be made; that there was no waiting list and no vacancy at that time and, therefore, the respondent could not have been considered and appointed. In the last limb of arguments, it was reiterated that in the case of posts vacated by non joinder of selected candidates or subsequent requisitions received the ordinary course for the Government should be to re-advertise it. The waiting list is maintained in a qualifying examination all vacancies are filled up in one go. To augment the contentions, reliance was placed on Mian Fazal Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223, Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144 and Musa Wazir and 2 others v. N. W. F. P. Public Service Commission through its Chairman and others 1993 SCMR 1124.
4. Having considered the matter from all angles, we are of the view that when some of the selected candidates do not join the service, such posts remain 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. It is not denied that respondent was one of the candidates who was selected during the earlier recruitment process whereby twenty persons qualified the test and interview but sixteen persons were appointed and the remaining selected candidates, including the respondent, were ignored despite the availability of posts."
8. In case titled "Dr. Sumera Tabassum v. F.P.S.C. and others" (2016 SCMR 196) Hon'ble Supreme Court of Pakistan observed that petitioner a waiting list candidate has a right to be considered if the appointed candidate either does not join or leaves the post within the time when the waiting list is valid. The relevant portion of the order is reproduced below: "13. In the case in hand, computing the time from 14.11.2009, which was the date of offer letter to Dr. Urooj Aqeel, who failed to report to duty and ultimately on 01.06.2010 the Health Department for the first time realized the need for alternate nomination and in August 2010 letters were written to the FPSC in the intervening period on 20.07.2010 and 22.07.2010. the Petitioner had addressed letters to consider her being potential candidate for the said post and all these letters have been addressed within 10 months. Besides such time could be extended on the justifiable grounds provided in clause (e). There is no dispute in regard to the eligibility or qualification of the Petitioner except lapse of time for approaching the FPSC by the Health Department as stipulated in the Office Memorandum. We are not persuaded that this expiry of time which is not attributed to the petitioner, in any way could be counted against the petitioner to deprive her from the said post, when she was otherwise found qualified by the FPSC and more so till date the post is vacant and has not been re-advertised.
14. For the aforesaid reasons, we convert this petition into Appeal and allow with direction to Respondents and the Sindh Government to allow the petitioner to join the said post forthwith."
9. In case titled "Province of Sindh and others v. Ghulam Hassan Bughio" (2014 SCMR 643) Hon'ble Supreme Court of Pakistan allowed alternate nomination of a candidate next on the merit list to join when candidate, who was at serial No. 1 on the merit list did not join.
10. In the case titled as "Government of Punjab through Secretary Cooperative Societies Department, Lahore and others v. Asad Abbas" (2022 SCMR 739) while considering the case of candidates on the waiting list for appointment against vacant posts as selected candidates had not joined, it was observed that the said post could not be kept vacant till the next process of recruitment if some selected candidates are available on the waiting list. It was further held that expiry of time, if any, was not attributable to the respondent and could not be counted against him to deprive him from the post in question for which he was fully qualified and till date the post was vacant and had not been re-advertised.
11. In case titled "Muhammad Saeed Zafar v. District Coordination Officer, Mianwali and 2 others"
(2017 PLC (C.S.) Note 5) this Court has already held that the appointing authority was bound to offer the job to the next person on merit list if the post became vacant within 190 days (i.e. the number of days for which the waiting list was valid in the said case) and the person who was next on the merits list was not required to himself approach or to file any application or appointment against the vacant post.
12. In the case titled "Rafaqat Ali v. Executive District Officer (Health) and others" (2011 PLC (C.S.)
1615) the question of appointment of candidate in waiting list was considered and by holding that he had legitimate expectation to be considered for appointment, the Court directed the respondent authorities to consider his case for appointment after expiry of period 90-days for which the waiting list was valid; the operative part is reproduced below:- "13. 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 expectations is rooted in fairness[1]". "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[2]."
14. We hold that the appellant could not have been deprived appointment to the vacant post on the ground that the Waiting List lapsed after 90 days. The period of 90 days fixed by the District Recruitment Committee, Health Department, Narowal dated 7-1-2010 is unreasonable and irrational and is, therefore, not sustainable."
13. In case titled "Province of Sindh and others v. Ghulam Hassan Bughio" (2014 SCMR 643) the Hon'ble Supreme Court of Pakistan while considering the case of reallocation of groups by the Sindh Public. Service Commission when a selected candidate had not joined observed as under"
"10. In the present case, the facts are very clear that admittedly the respondent had been placed at S.No.44 of the merit list and was allocated Section Officer group, however, due to non-joining of one of the original nominee Abdul Qudoos Sheikh son of Muhammad Siddique a vacancy had occurred and since apparently the respondent had the rural domicile like that of Abdul Qudoos Sheikh and was on the top of the list, therefore, there was no bar in re-allocating him to the DDO group, as he has already qualified competitive examination. The learned High Court had, allowed the petition in the following terms:-- "However, the case of the petitioner is different. In the present case the post did not fall vacant but was not occupied at all. Then such post had to be filled and should have been given to the candidate who was next on the merit list. The petitioner being the next in the line of the merit list should have been given the post of Deputy District Officer which was never occupied."
11. The learned A.A.G has failed to convince us that the above observations of the learned High Court are un-reasonable or against the regulations of the Sindh Public Service Commission. On the other hand, we are of the considered opinion that the judgment of the learned High Court is unexceptionable and no interference is called from this Court. This petition being meritless is therefore dismissed and leave to appeal refused"
14. The crux of the principles laid down in the aforementioned judgments is that, the purpose of preparing the waiting list at the time of affixing the list of selected candidates is to have a contingency reserve i.e. a pool of successful candidates who can immediately fill vacancies as they arise instead of initiating recruitment process afresh for a limited number of posts that may become available due to non-joining or vacancy of post after joining by selected candidates. The candidates on waiting list are to be considered for appointment (i) if selected candidates do not join at all or (ii) after joining leave the post before expiry period of waiting list. However, the authorities are required to complete the initial appointment process by appointing selected candidates within the stipulated time period i.e. the time period for which the waiting list is kept valid and not to delay the same unnecessarily beyond the said period. In both cases where a post is not occupied at all or a vacancy is created before expiry of waiting list it is for the authorities to themselves contact the candidates on waiting list to inform them that they can join the available post(s) and the department is not to wait for the candidate in waiting list to approach them himself to seek appointment. Delay in declaration of post as vacant due to non-joining by a successful candidate cannot be attributed to the candidates in waiting list as the said post was to be declared as vacant ab-initio (i.e. from the beginning) and in that case the expiry of period of validity of waiting list cannot be used as an excuse to not consider the case for appointment of candidates on waiting list.
15. In the present case, the list of selected candidates and waiting list were displayed on 05.07.2019 and waiting list was valid for 90-days. in which name of the petitioner is stated to have figured at Sr. No. 1, however, the initial appointment process was not completed within 90-days and one post was declared as vacant on 25.10.2019 after one candidate did not appear for medical examination conducted on 23.10.2019 where-after within 11-days for declaration of the vacancy i.e., on 06.11.2019, the petitioner applied for appointment against the vacant post but his application was dismissed having been filed after 4-months i.e., beyond 90-days for which the waiting list was valid. However, as the initial appointment process had not been completed within 90-days, therefore, delay could not be attributed to the petitioner, who had developed a legitimate expectation to be considered for appointment in case a selected candidate did not join, hence, the impugned order rejecting his application on account of delay in filing his application is not sustainable due to lapse on part of the department in completing the recruitment process within time.
16. In view of the above, the impugned order dated 28.07.2021 is not sustainable and is set aside with the direction to the respondents to process the case of the petitioner for appointment against the vacant post subject to his being otherwise qualified for the said post, which exercise shall be carried out expeditiously, preferably within 30 days of receipt of copy of this order. Disposed of.
1. Bingham LJ in R v. IRC exp IMK (1990) 1 WLR 1545--Reference: Judicial Review of Public Actions- Justice (R) Fazal Karim- page 1366.
2. Judicial Review of Public Actions- Justice (R) Fazal Karim-page 1367.