' RAZA AHMAD KHAN, J.---The Registrar, University of Peshawar, respondent No.4 herein, advertised two permanent posts of Assistant Registrar Establishment and Academic respectively, besides other administrative, technical and teaching posts on open merit basis which appeared in the local press on 29-8-1989. The petitioners applied for the said posts and, after routine scrutiny of their applications, were directed to appear before the selection board, respondent No.2 herein, for test and interviews. The petitioners were thus selected and recommended for appointment to the appointing authority, the Syndicate University of Peshawar, respondent No.3 herein.
2. In its meeting held on 23-5-1990, however, the Syndicate deliberated on the recommendations made by the Selection Board and decided to refer back the recommendations to the Selection Board for re-interview/reconsideration presumably in the light of the observations that the Selection Board should have been "more considerate and accommodative towards those applicants who are already in the University service, for appointment to higher posts. Likewise, the Administrative Staff of the University should be given due consideration for their services while appointments for higher administrative posts are recommended". In the wake of this, they named certain employees of the University, nine in number, in their minutes of the meeting of even date.
3. On the receipt of back reference it appears that some of the members of the Selection Board took strong notice of the reconsideration of their recommendations alongwith alternate candidates for each post concerned. Consequently the Selection Board did not feel necessary to reconsider any of their recommendations and rather re-affirmed the same.
4. During the second meeting of the respondent No.3 held on 12th September, 1990. It was decided to re-advertise the said posts on the ground of difference of opinion between respondents 3 and 2 over the recommendations of the latter.
5. The two petitioners thus invoked the Constitutional jurisdiction of this Court, whereby they called the decision of respondent No.3 dated 12-9-1990 in question and sought declaration to the effect that the impugned action/decision of respondents 3 and 4 is without lawful authority and of no legal effect and that respondent No.3 be directed to consider the petitioners for appointments on the post of Assistant Registrars in accordance with the recommendations of respondent No.2.
6. We have heard Mr. Jehanzeb Rahim, Advocate learned counsel for the petitioner and Mr.Z.
Mehfuz Khan, Advocate, learned counsel for the respondents at length and also perused the available record of the case with considerable degree of care.
7. It is contended on behalf of the petitioners that the respondent No.3 has exceeded its powers vested in it under section 22(2)(r) when read with paras. 6 and 7 of the First Schedule of the University of Peshawar Act (No. H of 1974) (hereinafter refer to as the Act), which respectively pertains to the power and duties of the Syndicate and the constitution and functions of the Selection Board; in that while the latter is responsible to consider the applications received in response to advertisement and recommend to the Syndicate the names of suitable candidates for respective appointments, the former is to follow the same and make the appointments. According to the learned counsel, "the unresolved difference of opinion" could only be in respect of sub-paras.
(2) and (3) of para. 7 of the First Schedule which is not the case in the instant matter and rather respondent No.2 have tried to intrude into the sphere of functions exclusively those of the Selection Board by directing "to give due consideration to the administrative staff of the University for their services and show more consideration and recommendation towards such applicants", and in this regard they forwarded the names of certain employees of the University for reconsideration of their cases over and above the selection already made by the Selection Board including the posts for which the petitioners were found the most suitable. He, therefore, urged that when the selection is to be made on open merits, such direction was unwarranted and while it was rightly not followed by respondent No.3, the action of respondent No.2 in re-advertising the post was mala fide and as such liable to be struck down.
8. As against this, the learned counsel for the respondents maintained that the Selection Board is merely a recommendatory body and its recommendations are not binding on respondent No.2. He too, while referring to the overriding powers of the Syndicate, relied on sub-para. (4) of para. 7 of the First Schedule; in that in the event of an "unresolved difference of opinion", the decision of Syndicate is to prevail over that of the Selection Board. Supporting thus the impugned actions of respondents 2 to 4, learned counsel for the respondents argued that there has been no statutory violation of any rule and this petition, therefore, merits dismissal.
9. We have given our serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
10. A reference to the available record reveals that the recruitment to the posts, including those for which the petitioners were the candidates, was to be made on the basis of merits. It was for this reason that respondent No.2, the Selection Board, prior to making the recommendations, took written test, checked the scripts and considered marks thereof at the time of the interviews.
11. On the other hand, we find that the Syndicate, respondent No.3, as per minutes of its meeting held on 23rd May, 1990 tried, instead, to introduce a new element of selection and issued rather a directive to the Selection Board in this regard, which the latter declined to follow and hence the impugned decision of re-advertising the posts on the ground of "unresolved difference of opinion".
12. In this context of the matter, what needs to be examined, firstly is as to whether the recommendations of the Selection Board, under the law, were binding on the Syndicate and, secondly, as to whether such a difference of opinion as in the instant case, can be deemed as having given rise to a legitimate "unresolved difference of opinion".
13. This situation would require a close scrutiny of and a reference to para. 7 of the First Schedule as also clause (r) of subsection (2) of section 22 of the Act which read as under:- "Function of Selection Board.-- 7.--(1) The Selection Board shall cosider the applications received in response to advertisement and recommend to the Syndicate the names of suitable candidates for appointment to teaching and other posts.
(2) The Selection Board may recommend the grant of a higher initial pay in a suitable case for reasons to be recorded.
(3) The Selection Board may recommend to the Syndicate the appointment of an eminently qualified person to a Professorship in the University on terms and conditions other than those prescribed.
(4) In the event of an unresolved difference of opinion between the Selection Board and the Syndicate, the decision of Syndicate shall prevail."
Powers and duties of Syndicate.-- Section 22 --(1)................
(2) Without prejudice to the generality of the foregoing powers, and subject to the provisions of this Act and the statute, the Syndicate shall have the powers--
(r) to appoint University Teachers and other Officers on the recommendation of the Selection Board in the initial pay of four hundred and fifty rupees per mensum or above; A plain reading of the aforequotcd provisions of law, relevant to the point under examination would reveal that although the language of section 22(2)(r) suggests that the Syndicate is to follow the recomendations of the Selection Board yet, when read with paragraph 7 of the First Schedule, it can be said with an amount of certainty that the possibility of difference of opinion between the two has been duly visualised by the legislature and accordingly we cannot help repelling the arguments of the learned counsel for the petitioner that the Syndicate is to blindfoldedly follow the recommendations of the Selection Board. We also do not feel inclined to subscribe to his view that only with regard to sub-paras. (2) and (3) of para. 7 of the First Schedule, there can give rise to an "unresolved difference of opinion" between the Selection Board and the Syndicate. Rather we are clear in our mind that in the light of sub-para. (4) of Para. 7, the decision of the Syndicate shall prevail over that of the Selection Board in case of such difference of opinion as stands unresolved in respect of and including sub-para. (1) of para. 7 as well.
14. But the question that begs for an answer is as to whether the expression "unresolved difference of opinion" contemplated a genuine/legitimate difference of opinion or a self-created one. There cannot be two opinions about the proposition that it is only the former kind of unresolved difference of opinion that the legislature contemplated and would attract the provisions of sub- rule (4) of para. 7 whereby the opinion of the Syndicate is to prevail over that of the Selection Board. For, we are of the firm view that it would be, inter alia, applicable when recommendations of the Selection Board are suffering from such infirmities as go to the roots of the selection process and is violative of the terms and conditions of slection prescribed and with reference to the advertisement made and the basis laid down therein. A reference to the record, in this regard, disclosed that there has been no illegality, irregularity or impropriety in the method or mannerism of selection of suitable candidates for the posts of Assistant Registrars so advertised, on the part of respondent No.2; nor the selection made was in negation of the terms and conditions of the employment so prescribed.
15. In fact, the learned counsel for the respondents could not point out any illegality, irregularity or impropriety in the process of selection on the part of respondent No.2 which could have merited interference therewith on the part of respondent No.3; nor there is any indication, much less any allegation, that the Selection Board has failed in the performance of its duties in terms of sub-para.
(2) or (3) of para. 7.
16. In this regard, we are constrained to observe that respondent No.2 while deviating from the principles of employment of the candidates on the basis of pure merits, rather encroached upon the functions of respondent No.3 by forwarding the names of certain candidates for various posts, including those of Assistant Registrars, who were University employees. This is indicative of the fact that respondent No.2, in all its wisdom, not only tried to alter the criteria of selection but also attempted to influence the process of selection of candidates which, when viewed in the light of paragraph 7(1) of the First Schedule, is the sole province of the Selection Board.
17. In the circumstances, we find nothing wrong in the views expressed by respondent No.2 when it declined to follow the dictates of respondent No.3 and adhered to the recommendations made by it earlier. Such a situation, in our considered view, cannot be termed as legitimately giving rise to "unresolved difference of opinion" and as such would not fall within the ambit of sub-para. (4) of para. 7 of the First Schedule.
18. We, therefore, feel no hesitation in holding that the impugned decision/action of respondents 3 and 4 in setting aside the recommendations of respondent No.2 and re-advertising the posts of Assistant Registrars, Establishment and Academic, was not well-founded and cannot be sustained in law. Consequently the opinion of the Syndicate, having no legal basis, cannot prevail over that of the Selection Board within the meaning of sub-para. (4) of para. 7 of the First Schedule.
19. We also cannot help observing that it is high time that once th6 selection of candidates for filling the vacancies in various departments other than the University in general, and in the University itself in particular, is to be made on the basis of merits, the tendency towards giving priority to one group of persons over the other must be arrested inasmuch as, when afforded an opportunity, a fresh entrant, with a higher level of intelligence cannot be crucified at the altar of expediency of an experienced personnel, unless such experience is a part of the terms and conditions of the employment. Such an attitude while is likely to close the doors of all such new entrants into service with less or no experience at all, non-infusion of new blood thus shall cause stagnation in the working of the department concerned on the one hand and would result in unemployment, frustration and loss of brain-bank on the other.
20. Viewed in the perspective of the foregoing discourse, while we allow this writ petition, we hereby declare the impugned actions/decisions of the respondents 3 and 4 as without lawful authority and of no legal effect and direct respondent No.3 to consider the petitioners for appointment on the posts in accordance with the recommendations made by respondent No.2. There shall, however, be no order as to costs.