1. S. SAEED ASHHAD, J.---The petitioners through this petition have sought declaration that the action of respondent No,2 in not sending their names to respondent No,1 in response to the requisition of respondent No,1, is illegal, void and of no legal effect, and for direction to respondent No,1 for their appointment as Section Officers.
2. Brief facts of the case are that the petitioners appeared in the Combined Competitive Examination 1993, held in 1995 by the Sindh Public Service Commission for selection against the posts of Section Officers and 64 candidates were selected for appointment. Subsequently, three successful appointed candidates did not join the post of Section Officers as such three posts of the Section Officers had become vacant due to non-acceptance of the said three appointed officers.
3. Respondent No, 1 vide its letter dated 10-10-1996 addressed to the respondent No,2 made a requisition for forwarding the names of the three candidates from amongst the successful candidates of the 1993 examination who could not be absorbed due to non-availability of the post, for appointment on the posts lying vacant. Respondent No,2, however, did not accede to the above request of the respondent No, 1 . The petitioners sent a notice to the respondents requesting them for their appointment on the abovementioned vacant posts and respondent No,2 vide its letter to petitioner's advocate refused to do so stating therein that as per policy of the Commission and decision of the Hon'ble Supreme Court of Pakistan, a waiting list of Successful Candidate is not to be maintained and no such list was available in the Commission's office and published an advertisement for holding competitive examination for filling up the said three posts. Hence the above Constitutional petition.
4. Pre-admission notices were issued to both the respondents for their appearance. Pursuant to the notices Mr. Muhammad Sarwar Khan, Addl. A.-G. appeared on behalf of both the respondents.
5. We have heard the arguments of Mr. Abdul Saeed Khan Ghori, learned counsel for the petitioners and Mr. Muhammad Sarwar Khan, Addl. A.-G. for the respondents, and have gone through the material available on record and the case-law pertaining to the facts and circumstances of the case.
6. Mr. Abdul Saeed Khan Ghori submitted that it has been the practice of respondent No,2 that whenever certain successful appointed candidates did not join the advertised post, then the names of the next available candidate who had been declared successful but could not join for want of vacancy previously, used to be recommended for appointment against the post becoming vacant due to non-acceptance. But in the case of the petitioners, respondent No,2 has deviated from its accepted practice and precedent and instead of recommending the names of the petitioners, who were on the list of successful candidates, directed holding of fresh competitive examination for filling up of the vacancies, falling vacant on account of non-acceptance of some of the successful candidates, which action of the respondent No,2, was not only unjustified and prejudicial but also violative of the Constitutional right of the petitioners. The petitioners have prayed that the recommendations of respondent No,2 for fresh advertisement for appointment for the said post, be withdrawn and respondent No,1 be directed to take the petitioners, whose names appear in the reserve list into service.
7. Mr. Muhammad Sarwar Khan, Additional Advocate-General vehemently opposed the arguments advanced by Mr. Abdul Saeed Khan Ghori and submitted that the petitioners have failed to establish that it was a practice and precedent of respondent No,2 to recommend names of successful candidates in a particular examination for filling up the vacancy or the vacancies occurring on account of non-acceptance by some of the successful appointees and that one instance of the above nature would not amount to laying down a practice or precedent. He further submitted that the Supreme Court of Pakistan in the case of (i) Musa Wazir and 2 others v. N.-W.F.P.
8. Public Service Commission reported in 1993 SCM R 1124 and (ii)- Dr. Faiz-ur-Rehman v. N.-W.F.P.
9. Public Service Commission, Peshawar reported in 1996 SCM R 589, have very strongly deprecated the practice of the N.-W.F.P. Public Service Commission of maintaining a waiting/reserved list for the purpose of filling up the post/appointment left vacant on account of non-acceptance by some of the candidates appointed to the post advertised on the ground that such a policy resulted in awarding better/superior post or posts to candidates, who actually were placed lower than some of the candidates who had been inducted into service, but did not get the cadre of their choice and results in indiscrimination as well as is unjust to the candidates appointed on merit but not clearing the test of their own choice on account of their lower position, which would still be higher then the position obtained by the candidates on the reserved/waiting list, who would be subsequently inducted on account of vacancy.
10. We have considered the arguments advanced by the learned counsel for the parties and have also gone through the case-law relied by Mr. Muhammad Sarwar Khan, learned Additional Advocate-General, Sindh. The only question involved in this case is whether the petitioners who were declared successful in the Annual Competitive Examination of 1993 but could not be appointed for want of vacancies, have any right or entitlement to be appointed to the post advertised in case of any vacancy occurring on account of refusal of one or more of the appointed candidates/officers to accept the post/appointment or to leave the same after joining. For resolving this question, two aspects require consideration. Firstly, whether respondent No,2 can or should maintain a waiting/reserved list of the Successful Candidates in an examination, who could not be accommodated due to lack of vacancy. Secondly, whether it would be expedient and advisable to hold fresh competitive examination for filling up post for which a competitive examination had already been held and results announced. Such questions were considered in detail by our Supreme Court in the two cases mentioned hereinabove. As regards the maintenance of a waiting/reserved list the Supreme Court in the case of Musa Wazir and 2 others v. N.-W.F.P.
11. Public Service Commission, reported in 1993 SCM R 1124 expressed the following views:-- "As for the receipt of subsequent requisitions from the Government, the options open to the Commission are two. Firstly, it should keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment. Considering the extent of frustration and uncertainty prevailing in the qualified youths of the country, the later course would be beneficial in the long run and help in evolving a system of regularly holding the competitive examinations each year, or once in two years or once in three years. When the selection was made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selections has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case."
12. In the case of Dr. Faiz-ur-Rahman v. N.-W.F.P. Public Service Commission, Peshawar, reported in 1996 SCM R 589 on the identical question of maintenance of a waiting/reserved list the Hon'ble Supreme Court while deprecating the practice of maintaining a waiting/reserved list by the Commission for posts to be filled by competitive examination/interviews expressed the following views:-- "11. 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 is staggered the competitive examination is one and has to be treated as one section 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 has prevailed in the Province is highly manipulative and unfair. Observation of the High Court on merits reproduced above shows that it came to the conclusion that the practice of the Commission was unfair, created apprehension in the minds of the candidates, was manipulative in the hands of those dealing with the candidates and was the cause of heart burning in the persons affected and working in the Government service. It further expressed as follows:--
13. "So far as the Commissions's policy and practice spelt out in the letter dated 8th January, 1989 reproduced in the judgment is concerned, there are certain legal objections to it. In the first place, the examination being competitive, there could be no practice of maintaining a list of qualified candidates for six months or its revalidation by the Government for a longer period. Requisitions made cannot be adjusted out of such lists without proper advertisement. As held by this Court in the case of Abdul Jabbar Memon (Human Rights Case No, 104 of 1992) it would otherwise be a violation of the Fundamental Rights of the citizens and not condonable on any ground of expediency or administrative convenience."
13. It is, thus, clear that the view of our Supreme Court is against the practice of maintaining a waiting or a reserved list of the candidates who though successful in a particular competitive examination yet could not be appointed or accommodated in service due to post having been filled up, for filling up some posts becoming vacant subsequently, on account of refusal of some of the selected/appointed candidates either to join the post advertised or having already joined the post advertised but later on left the posts.
14. As regards the submission of Mr. Abdul Saeed Khan Ghori, that respondent No,2 had adopted a policy and practice according to which the successful candidates in any particular examination not absorbed or posted due to lack of vacancy used to be kept as reserve candidates for filling up of any of the posts, which would become vacant on account of refusal/non-acceptance by any of the selected candidates/appointees and making reference to the case of appointment of Mukhtiarkars in the examination of 1995, the same does not merit consideration as one solitary instance of the above nature would not amount to adoption of a policy and practice and further that the Supreme Court in the case of Dr. Faiz-ur-Rehman etc. v. N.-W.F.P. Public Service Commission and others (supra), has not only deprecated such a policy and practice but has also provided an elaborate procedure to be adopted by the Commission for filling up the vacancies occurring due to refusal or non-acceptance of posts by some of the selected/appointed candidates. The procedure prescribed by the Supreme Court provides two options to the Commission to meet the above eventuality. First, to keep the first advertisement for the competitive examination so open ended as to absorb in the same selection the subsequent requisition received till a specified date after holding of the competitive examination and compiling of the results, and secondly, to carry forward these vacancies and hold a separate competitive examination for recruitment. It will be useful to reproduce the relevant portion of the judgment, which is as under:-- "14. As for the receipt of subsequent requisitions from the Government, the options open to the Commission are two. Firstly, it can keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment.
15. When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case."
16. In view of the above, we do not find any merit in this petition and accordingly, dismiss the same in limine.