This judgment will dispose of Writ Petitions Nos, 4966/89, 4967/89, 5796/89 and 6003/89 as all of them involve the similar question of law.
The facts necessary for the disposal are that the Punjab Public Service Commission through an advertisement in the dailies announced the holding of a competitive examination to fill 48 posts of Civil Judges which was to be held on the basis of a Notification issued on 29-8-1988. According to this announcement one seat was reserved for a disabled person and out of the rest of the 47 seats, 20 per cent were allocated on the whole Punjab basis on merit and the remaining were allocated to Zone I and Zone II on percentage basis. It is the case of the petitioners in all these writ petitions that the respondent/Punjab Public Service Commission had only made recommendations respecting 43 seats and no recommendations respecting 5 remaining seats have been made which have been kept vacant. It is argued that the Notification dated 29-8-1988 provides that if no suitable candidate is available from the Zone to which a vacancy is allocated the vacancy will be added to merit quota and be filled by suitable candidate irrespective of the Zone. On the basis of this, it has been strenuously argued that out of 5 seats kept vacant, 4 of them belonged to Zone II and these could not be filled because of the non-availability of the qualified candidates from that zone. It is their case that if these 4 seats are added to merit quota in accordance with the aforesaid Notification, the petitioners would stand a fair chance. It has also been argued by the learned counsel appearing for Muhammad Iqbal petitioner in Writ Petition No, 6003/89 that the unfilled vacancy of disabled quota be also added to the merit quota on that very principle applicable to Zonal seats instead of keeping the post vacant which adds to the suffering of the general public.
Learned counsel has further argued that the amendment incorporated through circular dated 24- 4-1989 would not be applicable to the present requisition as the petitioners had taken their examination much before its introduction in accordance with the conditions laid down in the Punjab Public Service Notification dated 29-8-1988 as also in the advertisements appeared in the daily Newspapers on 16-9-1984. On this basis it has been argued that the aforesaid circular would not be applicable to the examination held prior to its issuance as the same cannot be made applicable retrospectively. It is also argued that since it had remained the consistent practice of the Punjab Public Service Commission in the past to add unfilled vacancies to the merit quota in such like situation, the same cannot be declined on the basis of circular dated 24-4-1989 which is inapplicable to the petitioner's case. Reliance is placed upon Punjab Public Service Commission and another v. S. Maruf Ahmad Ali PLD 1988 Supreme Court 356.
The learned Law Officer has controverted the stance taken by the learned counsel for the petitioners. He has placed reliance upon a circular dated 4-11-1985 issued by S&GAD, which was further amended by circular dated 24-4-1989. Since the entire emphasis of the learned Law Offiter is on these two circulars, it would be of advantage to set out these circulars: "I am directed to refer to this Department's circular letter No, SOR-111- 10-4/73, dated the 18th July, 1973, on the above subject and to say that Zonal formula for filling vacancies in posts of BPS-16 and above reserved for initial recruitment, requires that 20% of the vacancies would be filled strictly on merit irrespective of the domicile of the candidates and 80% of the vacancies should be allocated to the two Zones in the prescribed ratio. Under the existing instructions, in case suitably qualified candidates are not available from the Zone to which a vacancy has been allocated, it should be added to the merit quota and filled strictly on merit."
2. According to the scheme of things there are two Zones in the Punjab. A question has arisen as to what should be done in a situation where a vacancy is advertised for only persons domiciled in one Zone and no candidate is found suitable for the vacancy from that Zone. According to the existing policy such vacancy is required to be diverted to merit quota, but this is not practicable because due to the absence of applications from candidates of the other Zone there is no one to be considered on merit. Addition of such vacancy to the merit quota of the next selection for the same category of posts would tantamount to a presumption that no suitable person would become available from the concerned Zone even against the next requisition. In order to safeguard the interests of the particular Zone, it has been decided that the unfilled vacancies, in these circumstances, should be added to the quota of the concerned Zone against the next requisition/advertisement of the Department for filling similar posts and this process should continue till candidates from that Zone become available. Stopgap arrangement may be made to carry on work till the vacancies are filled on regular basis."
"I am directed to refer to this department's letter of even number dated 4th November, 1985 on the above subject and to say that for the word 'a' appearing between the words 'where' and 'vacancy' in para. 2 of the said letter, the word 'any' may be substituted. It is clarified that the revised instructions regarding adding the unfilled vacancies to the quota of the concerned zone against the next requisition/advertisement for filling in the similar posts arc applicable to all unfilled vacancies."
3. The perusal of these circulars relied upon by the learned Law Officer shows that it has got no relevancy to the facts of the present case. The aforesaid circulars only apply to a situation where the vacancies were advertised for only one Zone and in case of non-availability of qualified candidates from that particular zone, such vacancies could not have been diverted as the applications according to the circular were invited only from one Zone and there being no application from the other Zone, the question of addition of such unfilled vacancies would not have arisen. In that eventuality there is no question of transferring the unfilled vacancies because of the absence of any candidate from any other Zone. The above-stated circulars have got no application to the facts of the present case where the applications were invited from both the Zones. Similarly the amendment made on 24-4-1989 in the circular by substituting the word "any" for "a" would not change the complexion of this letter/circular as the same is restricted to the situation where the applications were invited for one Zone only. The writ petition can be accepted on this short ground that reliance of the respondent on the circular was not apt.
4. As far as the departmental practice adding such unfilled vacancies to the merit quota prior to the introduction of circular dated 24-4-1989 the same has not been denied by the learned Law Officer. This being the situation, the Punjab Public Service Commission, has got no valid reason to depart from the established practice. On the basis of the circular dated 24-4-1989, which has got no relevancy to the facts of the present case. The other argument that one seat reserved for disabled persons be also added to merits quota is devoid of any force. It is pertinent to mention here that this seat has been reserved to ameliorate the plight of disabled persons through the Ordinance passed in 1981 known as Disabled Persons (Employment and Rehabilitation) Ordinance XL of 1981. Furthermore, Government Circular dated 31-3-1985 has also provided that the recruitment of able bodies persons will not be made against posts reserved\ for the disabled persons. In this background no direction can be made respecting the addition of this seat to the merit quota. Accordingly I accept the writ petition to the extent that the refusal of the Punjab Public Service Commission to add four unfilled vacancies of Zone II to the merit quota on the basis of two circular letters mentioned in the preceding paragraph is illegal and without jurisdiction. It is directed that the aforesaid four seats be added to the merit quota and be filled in accordance with the merit list compiled by the Punjab Public Service Commission.
The parties are left to bear their own costs.