SHAHID KHAN. J.- Muhammad Zeib, the petitioner, has called in question the validity, legality & exercise of jurisdiction of the learned appellate Court in respect of the judgment & decree, dated 03.10.2022 and sought restoration of judgment & decree of the learned trial Court, dated 25.06.2022, thereby the suit for declaration, perpettial & mandatory injunctions, in respect of his appointment against the post of Clinical Technician Pathology (BPS-12) in the Health Department of District Dir Upper, was dismissed.
2. In essences, the plaintiff ("the petitioner"), namely, Muhammad Zaib, filed a civil suit bearing No.132/1 instituted on 16.08.2019, for declaration, perpetual-cum-directory injunctions against the defendants ("the respondents") to the effect that the respondent No.3 invited applications from the eligible candidates for filling-up various categories of technical vacancies including 03 vacant position of the Clinical Technician Pathology (BPS-12) in the Health Department at District Dir Upper, on which, the petitioner submitted an application to the respondent No.3 for his appointment against the post of Clinical Technician Pathology, he being well qualified and fully eligible. He participated in the tests & interviews conducted by the respondents and his name was placed at serial No.5 of the merit lists of successful candidates, however, two out of five successful candidates didn't opt to join the post of Clinical Technician Pathology. By virtue of this, the petitioner being on waiting list at serial No.5 stood at serial No.3 of the merit lists and thus, he was entitled for his appointment against the post referred to above but even then, his appointment was refused by the respondents despite the fact that the petitioner approached them time & again.
Hence, he filed the subject suit against the respondents.
3. In response to summons of the Court, the respondents turned up before the learned trial Court, contested the suit by submitting their joint written statement and thereby, they refuted the claim of petitioner by raising various legal as well as factual objections. The learned trial Court decreed the suit in favour of the petitioner against the respondents through its summary judgment, dated 25.06.2022, against which, the respondents approached to the learned appellate Court by preferring an appeal and the same was allowed after hearing arguments of learned counsel for the parties by remanding the case to the learned trial Court with certain directions for its decision on merits in accordance with law. It obliged the petitioner to approach this Court for achieving the target through filing the subject civil revision petition u/s.115 of the Code of Civil Procedure, 1908.
4. Arguments of learned counsel for the parties were heard and record gone through with their able assistance.
5. It is transparent from the floating facts surfaced on the face of record that the learned trial Court has summarily decreed the suit of the petitioner against the respondents despite the fact that the respondents in their written statement have raised various legal & factual objections. As stated above, the petitioner seeks his appointment against a technical post of Clinical Technician Pathology (BPS-12) on the ground that he is well qualified and fully eligible for the requisite post as his name was placed at serial No.5 of the merit list. The respondent No.3 was required to fill-up 03 posts of Clinical Technician Pathology (BPS012), whereas, two out of five successful candidates in the merit list didn't opt to join their posts referred to above, therefore, by virtue of this, he was deserved to be appointed as Clinical Technician Pathology (BPS-12) from the waiting list being his name was on the top of the waiting list. This fact needs thorough inquiry which couldn't be decided without recording of evidence, pro & contra, therefore, the learned appellate Court has rightly remanded the case to the learned trial Court for decision afresh on merits in accordance with law after recording of evidence of the parties (pro & contra) and to provide opportunity of hearing to both the parties.
6. The record made available before the Court, prima facie, support the judgment of the appellate Court, being well founded, based on correct appreciation of material placed on file in conformity with law on the subject while that of the trial Court is suffering from misreading and non-reading of material available on record and law on the subject as well. In the present case, findings of the learned Courts below are at variance, when findings of the two Courts below are in conflict with each other, then preference should be given to the findings recorded by the first appellate Court.
Reliance is placed on the case of Enavat Sons (Pvt.) Ltd. v/s Govt: of Pakistan throujih Secretary Finance and others reported as 2007 SCMR 969. In this case, the Hon'ble apex Court held: "10. It is well-settled proposition of law that in the event of a conflict between the judgments of trial Court and the First Appellate Court, preference should be given to the views of the Appellate Court, who had the opportunity of examining and analyzing the evidence of the parties."
Similarly, in the case of Muhammad Hassan vs. Khawala Khalil-ur-Rehman, reported as (2007 SCMR 576), it was observed that: "In case of divergent findings of the two Courts below, the High Court will have to give due attention to the findings of the Appellate Court unless it suffers from grave irregularity or the same are perverse or the reasons given by the Appellate Court are not sustainable."
7. In view of the above discussion, learned counsel for the petitioner has not been able to pinpoint any jurisdictional defect, illegality or material irregularity in the impugned judgment & decree of the learned appellate Court. Consequently, the subject revision petition stands dismissed being bereft of merits.