' RAZA AHMAD KHAN, J.--The petitioner applied for the post of Civil Judge in response to an advertisement of respondent No, 1 and was allotted Roll No, 57, but soon thereafter he received a show-cause notice dated 31-12-1987 from respondent No, 1 to the effect that by virtue of Government of N.-W.F.P. Services and General Administration Department Notification No, SORI(S&GAD)1-8/83, dated 12-1-1985, he stood ineligible for the Civil Judges competitive examination to be held from 2-1-1988 because he has already availed of four chances, namely two chances in Extra Assistant-Commissioners 1979 and 1983 and two chances in Civil Judges competitive examinations 1983 and 1984. Consequently the admission letter dated 14-12-1987 allotting the petitioner his Roll No, etc. Was withdrawn. In the same show-cause notices it was also pointed out that the petitioner was ineligible in the competitive examination of Extra Assistant Commissioners 1987 held from 1st to 8th October, 1987 due to the fact that as per Notification referred to above he had already availed of four chances earlier and that the petitioner suppressed this information in the relevant column of his present application. In his reply dated 20- 1-1988 to the show-cause notice the petitioner contended that the chances availed of by him prior to the Notification of 1983, and for that matter even prior to the Notification of 1985 cannot be computed towards total number of chances for the purpose of the notifications referred to above.
This however did not find favour with the respondent No, 1 and vide their letter dated 13-3-1988 the position was reiterated to the effect that under the Notifications of 1983 and 1985, and even as per advertisement for the post, the petitioner has applied for, it was clearly stipulated that the candidate who has already availed of four chances of the competitive examination would be ineligible. It was reaffirmed that the petitioner had also concealed correct information in his application and consequently the action of withdrawing the letter of admission was justified and that the petitioner was no more eligible for any future competitive examination also to be conducted by respondent No,
1. The petitioner seems to have remained in correspondence with respondent No, 1 but without any fruitful results. He has now invoked the Constitutional jurisdiction of this Court to declare the action of respondent No, 1 as illegal, without jurisdiction and of no legal effect seeking a direction to be issued to the respondent No, 1 to call the petitioner for interview.
' We have heard Mr. Abdus Samad Khan, the learned counsel for the petitioner and Mian Muhammad Ajmal, the learned Additional Advocate-General on behalf of the respondents.
' The learned counsel for the petitioner raised the same contention as was consistently and persistently urged by the petitioner in the correspondence between him and respondent No, 1 and in essence his case has been and is that Notification of 1985 will not he operative retrospectively and as such his appearances earlier in competitive examinations for the posts mentioned therein would not stand in his way to avail of as many chances as stipulated by the said notification.
A reference to the Notification of 1985 would reveal that not only it materially modified the Notification of 1983 in terms of raising the number of chances of appearing in competitive examinations from 3 to 4 but also categorized the combined and individual examinations. The number of chances to be availed of were however subject to the condition that a maximum of three chances only shall be allowed in any of the combined or individual examinations which are as follows:-
(a) Combined Examination for recruitment to the posts of Extra Assistant Commissioners, Section Officers and Excise and Taxation Officers and such other posts which the Government may include in this category;
(b) Examination for recruitment to the posts of Civil Judge;
(c) Examination for recruitment to the posts of Assistant Conservators of Forests.
' The contention of the respondent however was the same as manifested from their show-cause notice and subsequent correspondence on the subject with the petitioner in that under the Notification of 1985 he is left with no chance to appear in the competitive examination. The learned counsel however laid more stress on the alleged concealment on the part of the petitioner of the chances earlier availed of by the petitioner than the one he had applied for and in this application of his he violated the warning as contained in para. 12(c) of the instructions on the very application form, while furnishing requisite information in this regard in column 20 thereof. In the light of this factual aspect, the learned counsel for the respondents submitted that the respondent No, 1 was justified in their impugned action of declaring the petitioner ineligible not only for the competitive examination applied for but also for any such future examination.
We have given our serious consideration to the factual and legal aspects of the case and find that from a plain reading of Notification dated 8th November, 1983 it transpires that the chances of appearing in such competitive examination earlier to its publication were two in all which, as per the said notification, were raised to three. The petitioner has admittedly appeared in Extra Assistant Commissioners' examination in 1983 (besides in 1979) and for Civil Judges' examination in 1983 as also in 1984. It will thus be seen that the petitioner had already exhausted his chances to appear in such examinations before the issuance of Notification dated 12th January, 1985. Consequently the petitioner cannot claim any benefit under the latter Notification of 1985. In fact, both the notifications are rather complimentary than negatory to each other and a combined effect of both the notifications, therefore, would be that each and every chance availed of by a candidate, even earlier than the Notification of 1983 shall be computed towards resolving the issue of his eligibility under the Notification of 1985, as it stands today, to participate in the competitive examination.
' Accordingly, following this principle, we find that the case of the petitioner, without any ambiguity, falls within the ambit of the two notifications referred to above issued under section 26 of the North-West Frontier Province Civil Servants Act, 1973 and we have no hesitation in holding that the petitioner was rightly debarred as such by respondent No, 1 vide his impugned order. Otherwise too, we are constrained to observe, that the conduct of the petitioner was not above-board in submitting his latest application. Perusal of the application form of the petitioner and the conditions printed thereon, which he was supposed, nay rather, bound to follow while filling it, discloses that he did not leave his hands much cleaner by suppressing and concealing the requisite information relating to availing of earlier chances and accordingly grossly violated instruction No, 12(c) which administers, inter alia, warning to a candidate that: "Withholding of any material information will disqualify you for the post applied for."
' In this context of the matter the impugned action of respondent No, 1 cannot be assailed on any ground.
' The upshot of the foregoing discussion is that this writ petition, having no merits is dismissed in limine. C.M. No, 369 of 1988 having become infructuous is also dismissed accordingly.
Petition dismissed.
1988 PLC (C.S.) 4 [Peshawar High Court] Before Fazal Elahi Khan and Raza Ahmad Khan, JJ LIAQAT ALI and another versus THE SELECTION COMMITTEE through its Chairman, Agriculture, Forests and Cooperative Department and 2 others Writ Petition No, 400 of 1987, decided on 6th November, 1988.
North-West Frontier Province Ad hoc Civil Servants (Regularization of Services) Act (H of 1987)-- ---5. 3, proviso, cl.(II)--Constitution of Pakistan (1973), Art. 199--Ad hoc appointee not found to be possessed with all the requisite qualifications--Effect-Ad hoc appointee if not found to be possessed with requisite qualifications prescribed for the post, his services could not be regularized and Government in such situation would be within its rights to terminate his services--Where persons were duly qualified in accordance with rules, non-inclusion of their names in the Notification for regularizing their posts and order of termination of their services was unlawful having no legal effect--Services of petitioner were deemed to have been regularized-- Respondent-Authority was directed to include the names of such ad hoc appointees in the notification. [p. 6] A & B Jehanzeb Rahim Khan for Petitioners. Bashirullah Khan, Addl. A.-G. For Respondents.
Date of hearing: 4th October, 1988.
' RAZA AHMAD KHAN, J.--In response to an advertisement appeared in daily "Mashriq" Peshawar published by respondent No, 1, the Selection Committee through its Chairman, Agriculture, Forest and Cooperative Department, Peshawar for the posts of Statistical Investigators; the two petitioners applied for and were selected by respondent No, 1 on merits and were appointed by Government of N.-W.F.P. Respondent No, 3 in BPS-16 on ad hoc basis alongwith twenty other Statistical Investigators who were notified as such on 7th January, 1985 and informed accordingly vide an endorsement of the Notification by the Director of Agriculture, N.-W.F.P., Peshawar vide his No, 11/98/E-I/313-83/DA, dated 7th January, 1985.
2. It was in September 1986 that the Government of N.-W.F.P. Decided to regularize the services of the ad hoc employees in the province and to this end the North-West Frontier Province Ad hoc Civil Servants (Regularization of Service) Act, 1987 was enacted. Pursuant to the said legislative measure, respondent No, 2 issued a Notification No, SOE(AD)II(2)286/86-87, dated 14-61987 whereby the ad hoc appointments of the Statistical Investigators of Agriculture Department were regularized with effect from 21-1-1987. Respondent No, 2, vide another Notification seemingly dated 28-6-1987 of the even number, terminated the services of the petitioners with effect from 28th July, 1987 for the reason that the petitioners were found to have not studied Mathematical Statistics as one of the subjects in their M.Sc. (Maths.) examination and as such they do not possess the prescribed qualification for appointment to the posts of Statistical Investigators which is Master's Degree in Statistics or Mathematics or Maths. With Statistics as one of the subjects.
3. Aggrieved from this situation, the petitioners have filed this Constitutional petition to seek a declaration that the impugned acts and orders of respondents are without lawful authority and of no legal effect, and prayed for withdrawal of the termination letter dated 28-6-1987 and to publish their names in the list of Regular Employees.
4. We have heard at length the learned counsel for the petitioners Mr. Jehanzeb Rahim Khan and the learned Additional Advocate-General Mr. Bashiruilah Khan appearing for the respondents.
5. The case of the petitioners is: #TBS (i) #TBE That they were appointed by respondents on the basis of qualifications as mentioned in the advertisement dated 25-10-1984 published in daily "Mashriq" Peshawar on ad hoc basis and, holding M.Sc. (Maths) Degree, they fulfilled the qualification prescribed as such.
(ii) That the contention of the respondent No, 1 to the effect that the petitioners were found to have not studied Mathematical Statistics as one of the subjects in their M.Sc. (Maths) classes and as such not eligible for appointment, is ill-founded inasmuch as, it is pot conformity with the qualifications required for the appointment of Statistical Investigator (BPS-16), as mentioned in the rules for the said posts which are:
(a) Master's Degree in Statistics, or
(b) Master's Degree in Mathematics, or
(c) Master's Degree in Economics with Statistics as one of the subjects from a recognized University.
(iii) That the petitioners cannot be denied regular appointment, the principle of locus poenitentiae notwithstanding, on a simple excuse that for want of requisite qualification they should not have been appointed at the first instance; particularly when they have already put in a service for about 21/2 years and are likely to become overage for all Government services.
5. The learned Additional Advocate-General on behalf of the respondents contended that notwithstanding the qualifications mentioned in advertisement dated 25-10-1984, when the respondent found that the petitioners did not possess the requisite qualifications as mentioned in the rules or for that matter as mentioned in a latter advertisement dated 11-7-1987, the services of the petitioners have been rightly dispensed with because they were not possessed of the requisite qualifications in that the petitioners were having Degrees of M.Sc. (Mathematics) but not with Statistics as one of the subjects and since this was one of the requirements for their regularization as per clause (ii) of the Proviso to section 3 of the N.-W.F.P. Ad hoc Civil Servants (Regularization of Services) Act, 1987, the services of the petitioners were rightly terminated. He, however, conceded that at the relevant time there was no selectee of the N.-W.F.P. Public Service Commission, who had preferential right of appointment to the post.
6. A reference to the advertisement dated 25-10-1984 would show that the basic qualification prescribed for the post of Statistical Investigators was M.Sc. Degree in Statistics or Maths or Economics. The record also reveals that after receiving the applications of the petitioners, they were presumably interviewed and thereafter having been found to be duly qualified, were appointed as Statistical Investigators by the respondents on ad hoc basis. Meanwhile the N.-W.F.P.
Ad hoc Civil Servants (Regularization of Services) Act, 1987 was legislated whereby the services of all ad hoc employees were required to be regularized provided, inter alia such civil servants possess the qualifications and experience prescribed for the post to which they are appointed on regular basis. It seems that in the process of compliance with the requirement of the newly- enacted law, the respondents found the petitioners deficient in the requisite qualifications and issued the impugned order of termination of their services.
7. A perusal of the comments submitted on behalf of the respondents would disclose that the M.Sc.
(Math's), or for that matter M.Sc. In Statistics, inevitably would be with Statistics as one of the subjects and it is this understanding of the relevant rules which weighed with the Government not to regularize the services of the petitioners. On the contrary, as the learned counsel for the petitioners contended, this interpretation of the rule is not only ill-founded but also misleading inasmuch as the additional subject of Statistics, according to him, is only for Master's Degree in Economics and not for Master's Degree in Math's: nor for that matter for Master's Degree in Statistics, which, if insisted, would sound illogical. In this context of the matter there seems to be force in his argument that it is only Master's Degree in Economics with Statistics as one of the subjects and there being no such condition attached to the Master's Degree in Mathematics, the petitioners were qualified for regularization of the ad hoc service. The petitioners holding the degrees of Mathematics, therefore, were qualified and were entitled to have been regularized under the new law and their exclusion from the impugned order dated 14-6-1987 was unjustified.
8. Without entering into the merits or demerits of all the points raised by the learned counsel for the petitioners during the course of his arguments, the sole question which we consider as having material bearing on the fate of this petition is as to whether the petitioners did possess the qualifications prescribed for the posts as required under clause (ii) of the proviso to section 3 of the North-West Frontier Province Ad hoc Civil Servants (Regularization of Services) Act, 1987 at the relevant time.
9. While we agree with the learned Additional Advocate-General that an ad hoc appointee if not found to be possessed with all the requisite qualifications prescribed for the post, his services, under the North-West Frontier Province Ad hoc Civil Servants (Regularization of Services) Act, 1987, cannot be regularized and the Government in such a situation will he within its rights to terminate the services of such appointees; in the instant case we find that the petitioners were duly qualified in accordance with the rules, as discussed above and non-inclusion of their names in the Notification dated 14-6-1987 and for that matter order of termination of their services as per Notification dated 28-6-1987 was unlawful and with no legal effect.
10. In the light of the foregoing, we allow this writ petition and declare the impugned orders of respondents as without lawful authority and of no legal effect. n the result the services of the petitioners shall be deemed to have been regularized under section 3 of the N.-W.F.P. Ad hoc Civil Servants Regularization of Services) Act, 1987 and the respondents are directed to act in the matter in accordance with law and include their names in the list of Statistical investigators dated 14-6- 1987. We, however, leave the parties to bear their own costs.