' Responding to an advertisement published by respondent No,4 at the instance of respondent No,2 to fill up two posts of Judicial Members for the Income Tax Appellate Tribunal, against the Punjab quota, the petitioner applied and according to him after the selection process he was placed at No,1 and that Shehzada Kabir Ahmad (latter added as a party to this case vide order, dated 17-4- 1994 passed in C.M. No,908 of 1994 as respondent No,5), were placed at Nos.1 and 2 in the order of merit. However, therefore, one Irshad Ahmad was assigned No,2 position and the petitioner was relegated to No,3 as an alternative candidate. The persons at Nos.1 and 2 recommended for appointment while the petitioner at No,3 was kept on the waiting list as the alternative candidate.
According to the writ petition, respondent No,2 found that respondent No,5 had adverse service record and the Establishment Division advised respondent No,2 to refer the matter to respondent No,4 for recommendation of the alternative candidate. However, respondent No,2 put up a summary to the Prime Minister proposing that only one adverse A.C.R. Is not to be a bar to appointment of respondent No,5 as a Member. Respondent No,5 was dismissed from -his service in the Provincial Government as an Additional District Judge on 21-3-1992. Still respondent No,2 pat up a summary that dismissal from the Provincial Service would not be a bar to appointment against a Federal post: that on 9-4-1992 the Justice Minister ordered that the petitioner may be appointed as an alternative candidate but respondent No,2 did not comply. It was only on 21-12-1992 that respondent No,2 referred the case to respondent No,4 and nomination of respondent No,5 was withdrawn on 14-2-1993. Respondent No,4 instead of recommending the appointment of petitionersought orders for re-advertising the post. On a representation by the petitioner the Justice Minister again ordered on 19-3-1993 that a summary for petitioner's appointment be put up but respondent No,2 processed the case for re-advertisement and ultimately the post was re- advertised on 2-9-1993 by respondents Nos.2 and 4. According to the petitioner the said Mr. Irshad Ahmad and respondent No,5 were not qualified to be appointed as Judicial Members of the said Tribunal in terms of section 133 of the Income Tax Ordinance, 1979 as they had not been working as District Judges. It has also been alleged that respondent No,4 went rather out of the way in the matter of recommending the said Irshad Ahmad (respondent No,3).
2. Respondent No,4 in its written statement has taken the position that on the requisition of the Law and Justice Division six posts of Judicial Members in B.S.21 reversed for merit (1), Punjab (2), N.-W.F.P.
(1), Sindh Urban (1) and Balochistan (1) were advertised; that amongst others respondent No,3 had also applied whose condidature was initially not accepted but later on his appeal/advice of Justice Division was sought and the Law Secretary opined that respondent No,3 is eligible. It was thereafter that an interview was conducted and respondent No,3 was assigned third position in overall merit. As to the precise prayer of the petitioner that he ought to have been recommended as an alternative candidate, it has been stated that respondent No,4 recommends an alternate candidate only if such a request is made by a Sponsoring Ministry and that too within a period of one year from the date of communication of original nomination. In this particular case neither an alternative nominee was sought nor such a recommendation was possible after the period of one year fixed for reserved list. In response to the averments of the petitioners as to disqualification of respondent No,3 it has been stated that the relevant provision i,e, the said section 133 does not lay down that a person has to hold the office of District Judge, rather it refers to a person who has exercised the powers of a District Judge and that respondent No,3 had been exercising the said powers. A wit has been made that in case petitioner's interpretation of the said provision is to be accepted then he himself is not qualified for the job. The provision of keeping the waiting list pending for one year has also been justified.
3. I may also note here that going by the date of birth of Shehzada Kabir Ahmad and Irshad Ahmad Chaudhary recorded in the awards statement (16-10-1940 and 20-8-1937 respectively) it can be reasonably assumed that both the said gentlemen stand retired by now and this also explains their absence at the time of hearing.
4. Learned counsel argues that there has been a failure on the part of Justice Division in the matter of immediately seeking recommendation of an alternate candidate i,e, the petitioner when respondent No,5 had been found to be ineligible and that his client is not to suffer for the said inaction. Learned counsel further suggests that respondent No,4 has no authority to recommened a candidate. It has an authority to select a candidate for appointment and after exercising the said power rather performance of the said function it ought to have placed the entire list of selected candidates leaving it to the Ministry to make an appointment from the said list in case one or the other of the top nominees were to be found not fit for appointment.
5. I have given some thoughts to the submissions made by the learned counsel. I find that the entire case of the petitioner rests on the factual position that he being at No,3 was on the waiting list as an alternate candidate and respondent No,4 Commission was bound to recommend him in the event of stated ineligibility of respondent No,5. This practice of maintenance of waiting list by the respondent Commission came up for consideration in the case of. Musa Wazir and 2 others v.
N.-W.F.P. Public Service Commission (1993 SCM R 1124). The practice was deprecated as introducing a contradictory concept. It was observed that waiting list is maintained in a qualifying examination while in a competitive examination the 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. It was further observed by Shafiur Rehman, J. In his Lordship leading opinion that the examination being competitive, there can 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 and that it would otherwise be violation of the fundamental rights of a citizen and not condonable on any ground of expediency or administrative convenience. It was further concluded in the said judgment that 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 re-advertise it.
6. The judgment in. Musa Wazir's case came up for consideration before the Supreme Court of Pakistan in the case of Dr. Faizur Rehman v. N.-W.F.P. Public Service Commission (1996 SCM R 589). It was sought to be argued that the said judgment did not declare preparation of waiting list of candidates by the Commission in all cases to be illegal and that maintenance of a waiting list of candidates in a qualifying examination (as against a competitive examination) was not disapproved by the apex Court. It was further contended on behalf of the appellants in the said case of Dr. Faizur Rehman that the interviews of the appellants in the said case before the Commission were in the nature of qualifying examination and as such the Commission ought to have maintained a waiting list of qualified candidates and should have nominated the appellants against future vacancies occurring within six months of preparation of the list.
7. The said contentions were repelled and it was held that the Supreme Court did not approve the practice of maintenance of waiting list by the Commission even in the case of qualifying examination. It was further observed that after date of decision in Musa Wazir's case no further recommendation could be made by the Commission on the basis of the waiting list of candidates.
The petitioner, therefore, is asking for a relief the grant whereof stands prohibited under the said judgments of the Supreme Court of Pakistan. The writ petition is accordingly dismissed with no orders as to costs.