2016 PLP (C (PLC(CS))

QALANDAR ALI KHAN, J.

The petitioner, Muhammad Afzal, has invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, thereby, seeking direction to the respondents to issue his appointment order against the vacant post of Theology Teacher (TT), according to the merit list prepared by the District Selection Committee.

2. The facts leading to filing of the instant writ petition, briefly stated, are that being eligible, the petitioner applied for one of the advertised vacant posts in Education Department Kohistan, in response to announcement of the vacancies by the District Education officer (Male), Kohistan (respondent No.3), and qualified test conducted by NTS in February, 2014, and was placed at serial No.10 of the merit list. According to the petitioner, the qualified candidates at serial Nos.1, 2, 7, 8 and 9 were appointed as SST whereas candidates at serial Nos.3 to 5 were appointed as TT and candidate at serial No.6 was appointed as AT. The petitioner claimed that there were four vacant posts of TT in District Kohsitan and that respondent No.3 had issued appointment order against four vacant posts of TT on 23.05.2014; but candidate at serial No.4 of the appointment order at GMS Illeel did not join the school and, instead, opted to join the post of SST, thus, leaving the post at GMS Illeel vacant. The petitioner submitted application for his appointment against the vacant post in GMS Illeel after having ascended the top position on merit list in view of the said subsequent development, but his request was not acceded to; hence this writ petition, inter alia, on the grounds that the petitioner had qualified test for the post and thus valuable rights accrued to him as per policy of the government and further that he was about to cross the upper age limit prescribed for appointment in government service.

3. In the written comments, though several legal and factual objections were raised, but the main objection was to the effect that the government of KPK had imposed ban on appointments from waiting list in accordance with the direction of apex Court in Musa Wazir's case reported as (1993 SCMR 1124). The respondents, however, admitted claim of the petitioner to greater extent by not only acknowledging availability of ten vacancies and test and interview of top ten qualified candidates for the ten vacant posts and appointment of the candidates including candidates at serial Nos.6, 7, 8 and 9 of the merit list against the four vacant posts of TT, sans the petitioner who was not appointed despite availability of the vacancy after the last appointed candidate namely, Rashid Ahmad did not join the post of TT in GMS Illeel.

4. Arguments of Haji Sabir Hussain Tanoli, Advocate, for the petitioner and learned Additional Advocate General for the respondents heard, and record gone through with their valuable assistance.

5. As pointed out above, the refusal on the part of the respondent-department to appoint the petitioner against the vacant post of TT, becoming available subsequently due to non-joining of duty by Rashid Ahmad, appointed as TT in GMS Illeel, was because of a misperception prevailing in the education department, and generally observed in a number of cases, that appointment from waiting list was banned in pursuance of Musa Wazir's case; while losing sight of the fact that Musa Wazir's case was in an entirely different context as unlike same posts in the education department, the issues raised in the cited case were pertaining to combined competitive examination for different posts in the provincial government, necessitating appointment against all the posts in one go in order to uphold merit, and close doors for candidates at lower merit position but securing higher Government positions through manipulation of subsequent requisition for such posts, meant for candidates at higher position in the merit list, thus paving way for selection of those candidates who were placed in the waiting due to their lesser merit position.

6. Obviously, the decision of the august apex Court in the cited case relating to waiting list would not be applicable to appointment in the education department. In any case, already having appointed candidates at serial Nos.6, 7, 8 and 9 of the merit list as TT, the respondent-department could not decline appointment to the petitioner at serial No.10 of the merit list as the post of TT was still vacant after the candidate (Rashid Ahmad) did not join the post in GMS Illeel.

7. In view of the foregoing discussion, the writ petition is accepted, and respondents are directed to forthwith appoint the petitioner against the post of TT, keeping in view his eligibility for the post, and merit position, not disputed by the respondent-department. ZC/337/P Petition allowed.