' SALEEM AKHTAR, J.---The petitioner seeks leave to appeal against the judgment of the learned Judges of the Division Bench whereby the Constitution petition filed by respondent No,1 was allowed.
2. Briefly the facts are that respondent No,1 was appointed as Assistant Provost (Girls) on 5-2-1978 by respondent No,1, University of Peshawar. She performed her duties as such up to 17-4-1988 when by an office order dated 17-4-1988 her post was "redesigned as Warden and transferred to New Tribal Hostel for Girls on her own pay and scale along with post with immediate effect". The University by office order dated 3-2-1990 allowed move-over to respondent No,1 to Grade-18 with effect from 1-12-1989. The University advertised the post of Assistant Provost in the daily Mashriq dated 29-8-1989. Respondent No,1 protested against it by her application dated 29-3-1990 and claimed that she was already the Assistant Provost and requested that she should be relieved of additional job of the Warden New Tribal Hostel for Girls and be sent to her own post. No steps seem to have been taken after that, but again an advertisement was published in September, 1990 for the post of Assistant Provost in two newspapers. Respondent No,1 again protested, but she was advised by the University Authorities- that it was an additional post of the Assistant Provost for the entire University (boys plus girls) and respondent No,1 may also apply for the same. Respondent No,1 accordingly applied for the said post on 29-10-1991. The petitioner had also applied for the same post and the Selection Board recommended the appointment of the petitioner as Assistant Provost and also recommended that another post of Assistant Provost (Male) be created.
Respondent No,1 thereupon filed a suit for declaration in the Court of Civil Judge 1st Class, Peshawar. The application for temporary injunction was dismissed upon which she filed an appeal before the District Judge, Peshawar where interim relief was granted. Respondent No,1 later withdrew the appeal and the suit and filed Constitution petition, which was allowed by the impugned judgment. The learned Judges were of the view that respondent No,1 was transferred with her post of Assistant Provost to the redesigned post, which means that the post of Assistant Provost was no longer available for advertisement and that the action taken by the University was with mala fide intention and with intent to damage respondent No,1. The learned Judges were also of the view that having assumed the charge of the post of Resident Warden, respondent No,1 could not be estopped from challenging the appointment of the petitioner. It was further held that the order redesigning the post of Assistant Provost could not he made by the Registrar and that the post of Assistant Provost was not available to be filled by initial recruitment.
3. Mr. Abdul Karim Kundi, learned A.S.C. Contended that the post of Assistant Provost (Girls) had been abolished and new post was created in respect of which advertisement was made and the petitioner was selected for that post. From the record referred by the learned counsel it seems that the post of Assistant Provost (Girls) was redesigned and not abolished and that the University advertised the post of Assistant Provost which according to the learned counsel for the petitioner was not for female, but Assistant Provost (General). The learned counsel alternatively contended that this post was completely independent from the post held by respondent No,1 and even if it was not abolished by creating a new post and appointing petitioner on that post cannot be held to be mala fide, illegal and without jurisdiction. The learned counsel further contended that respondent No,1 having applied for the post and being unsuccessful had filed petition in the High Court and she is estopped from challenging the appointment of the petitioner. It was further contended that considering the relevant statutes, the Constitution petition filed by respondent No,1 was not maintainable. Reference has been made to University of Peshawar and 2 others v. Ch. Sardar Ali (1992 SCM R 1093). The contentions raised require consideration. Leave is granted.
4. The learned counsel for the petitioner has applied for stay of the impugned judgment. The arrangement as noted in order dated 9-7-1996 passed in Chamber shall continue till further orders.