2018 PLP (C (PLC(CS)N)

IJAZ ANWAR, J.

Through this Revision Petition the Government of Khyber Pakhtunkhwa through Advocate General, Khyber Pakhtunkhwa, Peshawar has called in the question the judgment and decree dated 23.12.2015 of the learned District Judge, Bannu, whereby appeal preferred by the respondent/plaintiff has been allowed and the judgment and decree dated 04.3.2015 passed by the learned Civil Judge-X, Bannu has been set aside, the suit filed by the respondent/ plaintiff was decreed.

2. Brief facts of the case are that the respondent filed a suit against the petitioners/defendants for declaration and permanent mandatory injunction to the effect that she belongs to Union Council Nezam Dirmakhel, Bannu and applied for the post of PST on the basis of open merit and union council-wise recruitment policy. After completion of recruitment process the respondent name appeared at serial No.8 of the union council merit list. The candidates at serials Nos.1 to 5 from said merit list were placed in District open merit list and were appointed whereas the candidates at serials Nos.6 and 7 were appointed against union council-wise quota. However, Mst. Bushra Noreen at serial No.6 of the merit list did not take over the charge and the said post fell vacant which is still lying vacant, therefore, she being next on union council-wise merit list is entitled for the appointment.

3. The respondents were summoned. They submitted written statements, wherein they raised several legal and factual objections. From the divergent pleading of the parties, the learned trial Court framed issues and the parties produced evidence in support of their respective stance. On conclusion of evidence, the learned trial Court heard arguments of learned counsel for the parties and dismissed the suit of respondent /plaintiff vide judgment and decree dated 04.3.2015.

4. Feeling aggrieved from the judgment and decree of the learned trial Court, the respondent/plaintiff preferred Civil Appeal before the learned District Judge, Bannu, who after hearing both the learned counsel for the parties, allowed the same. Resultantly, the judgment and decree of the learned trial Court were set aside and the suit was decreed in favour of the respondent as prayed for.

5. Being dis-satisfied from the judgments and decrees of the learned appellate court, the petitioners have filed the present revision petition.

6. Learned AAG argued that there were seven posts of PST in the union council Dirmakhel, on open merit list of the said union counsel, the respondent figured at Serial No.8, though the candidate namely Bushra Naureen has not taken over the charge but that post has since been filled through fresh recruitment and that it was duly taken note of by the learned Civil Judge when it dismissed the suit, however, the learned appellate Court failed to consider this aspect of the case and dislodged a very well reasoned judgment and decree of the Civil Judge.

7. The learned counsel for the respondent supported the judgment of the appellate Court by stating that it has correctly reversed the findings erred by the learned Civil Judge.

8. Arguments heard, record perused.

9. The facts admitted by the petitioners are that after the necessary selection process when the final merit list was prepared, the respondent figured at serial No.8. Seven candidates were issued the order of appointments, however, the candidate at serial No.6 Bushra Naureen has not joined her post, and thus the candidate at serial No.8 would automatically be upgraded and placed at serial No.7. Two main defences have been raised, one in the written statement and another added in the evidence. (i) No concept of waiting lists in the matter of appointment not maintained any in the department (ii) post was subsequently filled through fresh recruitment.

10. The maintenance of waiting list for appointment in the Public Service Commission was previously maintained. The apex Court in its judgment report (1993 SCMR 1124) titled "Musa Wazir and 2 others v. N.W.F.P Public Service Commission" held the maintenance of waiting list for six months as illegal and thereafter maintenance of waiting list was discontinued that is still followed.

11. However, here the situation is completely different, because fresh or new posts have not been created but the post advertised has not been filled despite selection process and preparation of merit list, the candidate appointed has not joined the post, therefore, such vacant post cannot be allowed to remain vacant but has to be filled from the candidate next in merit.

12. Recently, the apex Court in a number of judgments have distinguished the judgment of Musa Wazir's case ibid and held that in case of non-joiner of the appointee the next in merit shall be offered the post. The Public Service Commission has also issued a circular letter to this effect. Reference can be made to 2009 SCMR 382, 2014 PLC (C.S.) 526 and 2012 PLC (C.S.) 600.

13. The next point of the petitioners and mainly relied by the lower Court was that the post left vacant on account of non-joiner has been filled through fresh recruitment and hence the respondent cannot be appointed.

14. In view of latest pronouncement of the apex Court and followed by this Court in numerous judgments, it was the responsibility of the petitioners to have extended the offer of appointment to the candidate next in merit. The respondent neither can be blamed nor she will suffer for the inaction of the petitioners. The record pertaining to the non-joiner is available with department, because when a candidate duly appointed failed to join within the period prescribed in the appointment letter, a report is duly forwarded to the appointing authority. Thus if they do not perform their duty in offering the appointment to the next in merit, then the Courts will come to rescue such candidate. The appellate Court was alive to the situation and the recent law, has rightly interfered and allowed the appeal.

15. For the aforesaid reasons, the judgment and decree of the learned appellate Court do not suffer from any infirmity, misreading or non-reading of evidence, thus needs no interference. Accordingly this revision petition has no merit is dismissed. ZC/49/P Revision dismissed.