Muhammad Naeem Anwar,-J.- Respondent No.2 (District & Sessions Judge, Shangla) advertised 17 posts of Junior Clerk- (13PS-11) of his establishment, the cut-off date for filing of application was 25th of march 2021, in response to which, the petitioner and others, being qualified and eligible, submitted their applications. Working papers were prepared by the Departmental Selection Committee (DSC), though the petitioner was overage but he was allowed to appear in the written test and interview, in term of the direction of the Registrar of this Court inresponse to the guidance sough by the appointing authority, where the authority was directed to allow the petitioner to participate in recruitment process and if he succeeds in competition, his request for age relaxation shall be decided in accordance with law. After completion of the entire process, the authority has appointed 10 candidates from general merit and 3 from the female quota against vacant posts whereas, the petitioner was found to be overage by 04-years 01-month and 14-days as such, he was not selected, hence, this petition.
Respondents No.2 (the appointing authority) furnished parawise comments, whereby the issuance of writ was resisted on the ground that since rule 5 of the Khyber Pakhtunkhwa Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 (the Rules of 2008), provides that in case of availability of other eligible candidates the overage candidate cannot be appointed thus, the Departmental Selection Committee (DSC) did not consider the petitioner for his appointment.
3. Mr. Abdul Saboor, Advocate learned counsel for the petitioner contended that in accordance with the Rules of 2008, the petitioner was entitled for age relaxation under rule 3 serial No. ii column No.3 in juxtaposition with the proviso to rule 4 as the petitioners belongs to District Shangla, which in terms of rule 3 (ii) is a backward area as specified in the appendix of the rules at serial No. xvii.
'He' while referring to the letter of Establishment & Administration Department Government of Khyber Pakhtunkhwa dated 9th of June, 2016, contended tifat the case pertaining to age relaxation of overage candidate is entertained when the cLdidate succeeds in competition and his name is reflected in the merit list issued by the concerned authority, thus, the appointing authority was required to adhere to the releVant provisions of law for extending the benefit of rule 3 read with proviso to rule 4 of the Rules of 2008 in favour of the petitioner. Lastly, he submitted that th'e order of the appointment dated 09.03.2022 pertaining to the appointment of 10 candidates and the appointment against the female quota do not affect the right of the present petitioner, however, the action and omission on part of the official respondents has not only infringed fundamental right of the petitioner but the authority also acted in violation of the Rules of 2008.
4. On the other hand, Mr. Iriayat Ullah Khan, learned Assistant Advocate 'General contended that the petitioner was required to apply for age relaxation prior to initiation of the recruitment process and since there were other eligible candidates in accordance with rule 5 of the Rules of 2008 and in such an eventuality, a person who is overage could not be considered by the DSC, however, he admitted at the bar that the petitioner was at serial No.2 of the merit list, as prepared by the DSC.
5. Arguments heard and record perused.
6. The qualification for the post of Junior Clerk (BPS 11) as mentioned in the advertigement and provided in the relevant rules has not been disputed by either side rather the petitioner was found duly qualified, and was at serial No.2 of the merit list but the only question, which created an impediment in the way of the petitioner for his selection and appointment against the post of Junior Clerk was that he was overage up-to 04-years 01-month and 14-days as pointed out in the comments by the respondents. The petitioner has also not diputed his date of birth on the basis of which working papers were prepared by the DSC rather he approached this Court with a prayer for issuance of writ in terms of directing the respondents to treat him in accordance with law. In our observation, what prevailed upon the appointing authority was rule 5 of the Khyber Pakhtunkhiga Initial Appointment to Civil Posts (Relaxation of Upper Age Limit) Rules, 2008 and it was contended by the respohdents that in accordance with the aforesaid rule, when other eligible candidates were available within the prescribed age limit then neither the authority was bound to appoint the overage candidate nor in such circumstance, his age could be relaxed notwithstanding proviso to rule 4 of the Rules of 2008. Thus, the only question which requires resolution through instant petition is that whether rule 5 as interpreted by DSC exists and if so, in which cases, the age could be relaxed and up-to what extent? Prior to amendment vide Khyber Pakhtunkhwa Act No. IV of 2011 rule 5 of The North-West Frontier Province Initial Appointment to Civil Posts (Relaxation of Upper Age Limi) Rules, 2008 was as under: -
5. The age relaxation under, category (iii) specified in rule 3, shall be subject to;
(a) full justification in support of the proposal; and
(b) a certificate to the effect that no eligible ,candidates within the Prescribed age limits are/were available. The certificate shall be provided by the concerned Departments.
The above reproduced rule was substituted by the Act No. IV of 2011 and vide Notification No. SOE- III(E&AD) 2-11-2007 dated 26.10.2011 it was substituted and at time of advertisement followed by the process of recruitment, the amended rule was in field which for ready reference is reproduc6d: "5, The age relaxation specified in column No.3. against serial No. (iii) of the TABLE of rule, shall be subject to cogent reasons and sound justification of the case."
7. It appears that at the time of recruitment the appointing authority and for that matter the departmental selection committee have not gone through from the rule which was in field and even at the time of filing of comments the repealed rule was quoted thus, on the wrong assumption the process, to the extent of petitioner, was not concluded fairly and justly to its logical conclusion. Wrong application of law resulted into failure of proper exercise of fu'risdiction by the authority and in such an eventuality, this court has got power to undo the error of the act done contrary to law. In Suo Motu Case No.24 of 2010 and Human Rights Cases Nos.577o1-P, 57719-G, 57754-P, 58152-P, 59036-S, 59060-P, 54187-P, 58118-K of 2010, 1291-K and 1292-K of 2011 (PLD_2011_SC_963), it was observed by the Supreme Court that: "Powers of High Court and Supreme Court under Arts.199 & 184(3) of the Constitution is categorized as 'power of judicial review!---Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the ConstitUtion, quash the executive action or decision which is contrary to law."
8. Turning to rule 3 of the Rules of 2008, which provides that "Maximum age limit as prescribed in the recruitment rules sha I be relaxed in respect of the candidates mentioned in column No.2 t9 the extent mentioned against each in column 3 of the table below". Serial No.1 column No. 2 pertains to Category Of Candidates wherein it was provided that if the candidate belongs to a backward area as specified in the appendixof the Rules of 2008 is entitled to three years automatic relaxation. This has properly been considered by the appointing authority but even then, as per her comments, the petitioner was overage by 04-years o1-month and 14-days. Serial No. iii of rule 3 pertains to General Candidates, regarding which, in column No.3 it has been provided up-to two years by appointing authority, which is relevant in case of the petitioner and it shall be read in juxtaposition with rule 4, which reads as under: "A candidate shall only be allowed, relaxation in age in one of the categories specified in rules No.3; Proyided that the candidates from backward areas, in addition to automatic relaxatianof three years under category (ii) specified in rule 3, shall be entitled to one of the relaxations available to Government servants, general or disabled candidates, whichever is relevant and applicable to them."
Emphasis provided The plain reading of the proviso to rule 4 provides a further age relaxation in addition to the one already provided to a candidate belonging to a backward area. The category, for which, the petitioner has applied is General Category, thus, up-to 02 years over and above to 03 years automatic age relaxation could be granted by the appointing authority. A look at the comments of the respondents, whereby the petitioner has been found overage by 04-yers 01-month and 14- days and the date of birth of the petitioner as per the documents annexed with the instant petition is 11.02.1987, thus, on the cutoff date as given in the advertisement i.e., 25.03.2021, age of the petitioner was 34-years 01-month and 14-days. By providing an automatic age relaxation of three years in consonance with rules 3 serial No. ii column No.3 of the Rules of 2008, he requires the relaxation of 01-year 01-month and 14-days as enumerated by the respondents in the comments.
Thus, he was in the surfeit of 01-year 01-month and 14-days only, which could be relaxed by the appointing authority under serial No. ii, column No.3 of rule 3 of the Rules of 2008 in juxtaposition with proviso to rule 4 of the ibid rules.
9. By no stretch of interpretation of rules pf 2008, the petitioner could be deprived from his selection for the post, for which, he has applied being qualified and by extending the age relaxation, which was within the powers of the appointing authority thus, he was entitled to be treated in accordance with law. The purpose of the law for age relaxation was to ensure that candidates i.e., of disabilities, government servant, female, widow or son or daughter of a deceased civil Servant or general candidate belonging to backward area be given a concession in the process of recruitment in accordance with law. Therefore, the petitioner was entitled for age relaxation by the appointing authority over and above to the automatic age relaxation under serial No. ii column No.3 of rules 3 of Fules of 2608. The jurisdiction of this Court under article 199 of the constitution could well be exercised when the authority has exceeded from power, or acted in violation of the rules or law. Rel: Hamza Bashir and others Versus Pakistan Medical Commission through President and others (PLD 2021 LAHORE 654) wherein it was held that: (This COurt can always in constitutional jurisdiction review the decision-making process in order to ensure that the competent authority has acted in accordance with law, maintained the principles of natural justice and due process and ha' s not in any manner abused its authority).
In the case of President National Bank of Pakistan and others Versus Wailas Ahmed Khan (2023 SCMR 766) it was held by the august Supreme Court that "doctrine of judicial 'review mandated as a tool to watch over the actions of administrative authorities and in essence imposes on all authorities to act fair and square in all matters encompassing legitimate expectation. Reliance is placed on Uzma Manzoor v. Vice-Chancellor Khushal Khan Khattak University, Karak (2022scmR 694)." It is settled law that when a thing is required to be done in a particular manner it must be dolie in that manner and not otherwise. Reliance can be placed on the principle enunciated in case titled "Qamar Javed vs. Gul Jahan" (2005 MLD 132q), "Syed Bashir Hussain vs. Abdul Waheed" (2013 MLD 1675), "SNGPL VS. OGRA" (PLD 2013 Lahore 289), "Cantonment Board Clifton vs. Sultan Ahmad Siddique" (2016 CLC 919), "Muhammad Akram David vs. Bashir Ahmad Soauk" (2016 CLC 1751), "Hassan Bakhsh vs. Sultan" (2016 MLD 1157). "Ajmir Shah, Ex-Sepoy vs. the Inspector General, Frontier Corps Khyber Pakhtunkhwa and another" (2020 SCMR 2129)."Muhammad Hanif Abbasi v. Imran Khan Niazi" (PLD 2018 SC 189), "Shahiela Bibi v. Habib Bank Limited" (PLD 2016 SC 995) and Human Rights Cases Nos.4668 of 2006 and others (PLD 2010 SC 75Q)."
Record reveals that there were 17 posts of Junior Clerk, out of which, 13 were advertised on merits, 03 were left for women under 10% quota and 01 for minority under 5% quota. Three appointments have been made under female quota whereas, record reflects that on merits 10 candidates have been appointed as Junior Clerk (BPS-ii) vide appointment order dated 09.03.2022, thus, vacant posts are still available, as such, there is no hurdle/obstacle/barrier in the way of the petitioner towards his prayer.
II. Thus, for the reasons discussed above, the instant petition stands allowed. Respondent No.2 is directed to consider the petitioner for grant of age relaxation being the appointing authority in term of rule 3 serial ii column 3 and provisci to rule 4 of the rules of 2018 and to consider for him for appointment against the post of junior clerk.