' JALALUDDIN AKBARJI, J.---Writ Petition No,550 of 1993, Dr.Fawad Anwar v. Government of N.-W.F.P.
And others instituted on 2-8-1993, Writ Petition No, 624/93--Sajjad Ahmad v. Government of N.W.F.P.
And others instituted on 25-8-1993, Writ Petition No,686/93, Dr. Faizur Rehman and two others v. N.- W.F.P. Public Service Commission and others instituted on 26-9-1993, Writ Petition No,15/94-- Shabbir Raza v. N.W.F.P. Public Service Commission and others instituted on 3-1-1994, Writ Petition No,16/94, Shafqat Ali Khan v. N.-W.F.P. Public Service Commission and others instituted on 3-1-1994, Writ Petition No,28/94, Noor Habib v. N.-W.F.P. Public Service Commission and others instituted on 6- 1-1994 and Writ Petition No,101/94--Fazle Aleem and 3 others v. N.-W.F.P. Public Service Commission and others instituted on 23-1-1994 seek remedy in substance for their appointments to the respective posts in the service of the Province against the incoming/requisition vacancies from the waiting list maintained by the N.-W.F.P. Public Service Commission. The august Supreme Court of Pakistan in the case of Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission and others, decided on 10-3-1993, reported in 1993 SCM R 1124 decided and enunciated the principle of law in the case of post vacated by non-joinder of selected candidates or subsequent requisitions received the ordinary course for the commission and the Government should be to re-advertise it".
As the common question of law is involved, therefore, we propose to dispose of all these writ petitions by this single judgment delivered in Writ Petition No, 550/93--Dr. Fawad Anwar v.
Government of N.-W F.P. And others.
2. Dr. Fawad Anwar applied for appointment to the post of Medical Officer in response to an advertisement published in October, 1992 of vacancies of 77 male and 16 female Medical Officers.
Interview was conducted between January, 1993 and June, 1993 by the N.-W.F.P. Service Commission (hereinafter' called Commission). The list of selectees was finalised on 27-6-1993.
Meanwhile requisition was made for more vacancies but as no waiting list was kept by the Commission, on which list the petitioner would have been on the top, he was, therefore, not selected and appointed against the incoming ,requisition vacancies. The same is the case of Dr. Sajjad Ahmad. Dr. Faizur Rehman, Senior Medical Officer, Dr. Mir Zaman, Junior Registrar and Dr. Javed Iqbal, Senior Medical Officer are candidates for the posts commonly known as District Specialists who were interviewed by the Commission in the month of January, 1993 for one Specialist post advertised in October, 1992 and more vacancies occurred after the advertisement.
The Commission by letters dated 29-4-1993 informed them that they, have qualified in the interview and due to low position on the order of merit list their names stand on the reserved list, the validity of which list will be for a period of 6 months and the Commission will consider their cases when additional vacancies are received from the Government during the validity period.
Shabbir Raza applied for a post of Lecturer and later on two requisitioned posts of Subject Specialists in historycum-civics in respond to the advertisement in the month of December, 1991 and was interviewed by the Commission on 6-8-1992. The Commission by letter dated 5-10-1992 informed him that he has qualified in the interview and due to low position on the order of merit list their names stand on the reserved list the validity of which list will be for a period of 6 months and the Commission will consider his case when additional vacancies are received from the Government during the validity period. The same is the case of Shafqat Ali Khan, Noor Habib, Fazle Aleem, Wisal Khan, Muhammad Younas and Waris Khan.
3. Learned counsel for the petitioners vehemently argued that the judgment of the august Supreme Court of Pakistan in the case of Musa Wazir is prospective and the said judgment has been delivered in the case of competitive examinations conducted by the Commission which examinations are conducted for general posts from amongst the graduate candidates. The petitioners are candidates for special posts like Medical Officers, District Specialists and Subject Specialists to which post only the petitioners and such like qualified persons can apply and no competitive examination is conducted by the Commission in their selection. The petitioners were only interviewed and thereafter selected or were to be selected for the incoming/requisitioned posts. The Commission in the case of the petitioner is to follow the instructions/standing orders contained in paras.
2.12 and 2.13 of the Procedure of the Commission and onward from 10-3-1993 the Commission is to follow the procedure of advertisement as enunciated in the Musa Wazir case.
4. Mr. Nasirul Mulk, Advocate-General, N.-W.F.P. Formulated the proposition on the reasons, firstly; as to whether the judgment of august Supreme Court of Pakistan applies to the recruitment of the petitioners, and secondly; even if the petitioners' recruitment is not covered by the judgment, then was their selection finalized Learned Advocate-General referred to ratio of the Musa Wazir case and referred to page 1130, paras. 7 and 8 of the judgment and pointed out that every post to be filled in by direct recruitment should be advertised and in case of incoming/requisition vacancies, the posts to be filled in are to be re-advertised. The learned Advocate-General referred to section 2(d) of the N.W.F.P. Civil Servants Act, 1973 (N.-W.F.P. Act No, XVIII of 1973) and Rule 10(a) of the N.- W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 and submitted that initial appointment to a post is to be filled in on the basis of Examination or Test to be conducted by the Commission. The manner, method and procedure of "Test" include in the relevant field interview/viva voce and "Examination" means a written examination prescribed for initial recruitment to any post or service within the meaning of 'N.-W.F.P. Service Commission (Functions)
Rules, 1983. Learned Advocate-General further submitted that the judgment of the august Supreme Court of Pakistan will be prospective but in all these cases the appointments of the petitioners have not been finalised, therefore, the petitioners cannot be appointed to the posts from the waiting list as the appointments are not closed and past transactions. Reliance was placed on judgments-- Sakhi Muhammad and another v. Capital Development Authority, Islamabad, reported in PLD 1991 SC 777 and case of Roshan Ali v. Noor Khan and others reported in PLD 1985 SC 228. The learned Advocate-General referred to Article 189 of the Constitution of Islamic Republic of Pakistan and submitted that the decision of the august Supreme Court of Pakistan deciding a question of law or enunciating a principle of law is binding on all other Courts in Pakistan including a High Court.
5. The appointments to service of Pakistan or of a Province are to be made by or under Act of the Parliament or of the Provincial Assembly as provided in Part XII--Miscellaneous Chapter 1 Services, Articles 240, 241 and 242 of the Constitution of Islamic Republic of Pakistan, 1973. The N.-W.F.P.
Legislature has enacted North-West Frontier Province Civil Servants Act, 1973 (N.-W.F.P. Act No, XVIII of 1973) and the N.-W.F.P. Public Service Commission Ordinance, 1978 (N.-W.F.P. Ordinance XI of 1978) and have framed rules thereunder which besides conditions of service prescribe the method, manner and procedure for appointment to a post in the service of the Province. The whole scheme for "initial appointment through Commission" is to be made by advertisement of the vacant posts.
The procedure for selection to a post through Commission is to be made on the basis of examination or Test to be conducted by the Commission. The Test include single paper screening test in the relevant filed/general knowledge and interview/viva voce. The selection by Commission is always made by Examination or Test or both and in this methodology, manner and procedure the word competitive examination is irrelevant as the selection by the Commission is on competitive basis either by test or examination or even both. The dictum of the august Supreme Court in Musa Wazir case has not made any distinction between Examination or Test in selection of a candidate for a vacant post. The petitioners in the Musa Wazir case were selected by the Commission through examination and of course test whereas the petitioners herein have been subjected to selection to the vacant posts by test.
6. The principle of law enunciated in Musa Wazir case by the august Supreme Court of Pakistan is as under:-- "In the case of posts vacated by non-joinder of selected candidates or subsequent requisitions received the ordinary course for the Commission and the Government should be to advertise it."
' Further: "The practice of keeping a waiting list in a competitive examination system is actually introducing a contradictory concept. The waiting list is maintained in a qualifying examination while in a competitive examination all vacancies are filled up in one go. Even if the filling up was staggered the competitive examination is one and has to be treated as one selection for the purposes of recruitment and it cannot be divided into subsequent selection and prior selection, the competitive examination remaining one and the same. Besides, .The system which had prevailed in the Province was highly manipulative and unfair. The practice in the matter of recruitment, promotion etc. Has always to be such so as to foster' competence, discipline and efficiency in public service.
Not only these objects should be advanced but they must appear manifestly to be advanced. If the system is arbitrary, capricious, unfair, leads to abiding heart burning and litigation then it is derogatory of the laudable objects for which the public service was required to be established."
' Any deviation for selection to a vacant post from the above principle of law will be also in violation of Fundamental Right (Article 18 of the Constitution).
7. N.-W.F.P. Public Service Commission is following the procedure in the instructions, standing orders, rules relevant to the present case or framed and made probably earlier than 1973 Constitution which are as under:-- "2.12. The principle underlying instruction 2.11 is that the advice of the Commission should be sought regarding the filling of specified post and that there should be definite recommendation on each occasion when the advice is sought. The idea of asking for additional names is to appoint the next candidate recommended in order, of merit if the candidate recommended for the post fails to pass the medical examination or does not join within the time specified by the Department, such list of additional names will be valid for six months only from the date of the Commission's recommendations. It will be against the spirit of Article 189 of the Constitution to maintain a waiting list from among the candidates recommended in reserve and to fill from it vacancies falling afterwards or which has not been reported to the Commission for advice at all. The proper course when any subsequent vacancy occurs is for the Department concerned to make a fresh reference to the Commission though there would be no objection to the Commission taking into consideration persons who may have been previously recommended but were not actually selected. The Department, while sending a requisition, may mention the number of vacancies at the time and any additional number of vacancies, that are likely to occur in the near future so that, the Commission may take the opportunity to select more candidates than the number of actual vacancies at the time of reference and recommend them later when a reference is made for filling additional new vacancies.
2.13. Ordinarily, every post to be filled by direct recruitment should be advertised, but some modification may be necessary in the case of technical posts. The number of suitable candidates available for these posts is sometimes less than the number required and little purpose is served by advertising the unfilled post afresh. In such cases the Commission may not re-advertise the vacancies but may consider any application from an eligible candidate received after the selection has been completed on its merits. Such candidate may be interviewed, and if found suitable, recommended for appointment against the unfilled post. The recruitment should, in no case be kept pending indefinitely, and the unfilled posts should be re-advertised after an appropriate interval, which may in no case exceed twelve months."
' The above rules are in conflict with Fundamental Right (Article 18 of the Constitution), Part XII Miscellaneous Chapter 1 Services, the N.-W.F.P. Civil Servants Act, 1973 (N.-W.F.P. Act XVIII of 1973), N.- W.F.P. Public Service Commission Ordinance, 1978 (N.-W.F.P. Ordinance XI of 1978) and the Rules framed thereunder and as such ultra vires of N.-W.F.P. Act XVIII and N.-W.F.P. Ordinance XI of 1978 on ratio legis of Musa Wazir case.
8. The petitioners were on the waiting list or were to be on the waiting list according to the above procedure of the Commission and, therefore, they cannot be selected and appointed to the incoming/requisition vacancies. The vacant post including the incoming/requisition posts are to be re-advertised. In the case of Roshan Ali (PLD 1985 SC 228) the august Supreme Court of Pakistan examined the implication of Article 189 of the Constitution of Islamic Republic of Pakistan and laid down the following dictum:-- "Article 189 of the Constitution of Islamic Republic of Pakistan in clear terms states that any decision of the Supreme Court shall, to the extent that it decides a question of law, or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. As the proceedings were pending and on the same question the law was re-enunciated which in terms widened the scope and nature of rights of the allottees held in the course of settlement under the Rehabilitation and Settlement Law it was binding on the Courts. By reason of this Constitutional provision, the remand order based, as it was, on the earlier view of the Supreme Court had per force subrogated to the subsequent re-enunciation of law by Supreme Court. The reliance on section 105(2) of the C.P.C.
Could not operate as a bar against an overriding Constitutional provision giving effect to a re- enunciation of law by Supreme Court. It was not a case where the controversy had been finally disposed of in accordance with the law prevailing at that time and the decision in the case was a past and closed transaction in which case the subsequent decision could not have had the effect to reopen the case by reason of Article 189 of the Constitution."
' In the case of Sakhi Muhammad (PLD 1991 SC 777) it was held as under:-- "Held, consequence of the Supreme Court judgment was that as from the date of decision all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities were obliged by virtue of the Constitution to apply the rule laid down by the Supreme Court in cases coming up before them for decision-- of the Supreme Court did not have and it could not be contended that it had, the effect of altering the law as from the commencement of relevant law so as to render void of its own force all relevant orders of the Authority or of the High Court made in the light of the earlier interpretation."
' On the authority of the above judgments of the august Supreme Court of Pakistan, this Court will not issue a writ to the Commission or to the Government for appointment of the petitioners to a post in the service of the Province on the basis of waiting list which has been declared ultra vires of N.-W.F.P Act XVIII and N.-W.F.P. Ordinance No, XI of 1978 on the enunciation of the principles of law laid down in the Musa Wazir case (1993 SCM R 1124). A fortiori, the appointment of the petitioners to a post in the service of Province 5s not closed and past transaction and, therefore, the principle of law laid down by the august Supreme Court of Pakistan in Musa Wazir case will apply to the case of the petitioners.
' For the foregoing reasons, the petitions in hand fail and are hereby dismissed having no force in law.