1996 SCMR 379 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This is a petition for special leave to .appeal from the judgment dated 7‑12‑1994 of the Peshawar High Court, Dera Ismail Khan Bench, Dera Ismail Khan, whereby the Constitutional petition preferred by respondent No. l was accepted.

2. Respondent No. l after passing his C. T. Examination was appointed on 16‑10‑1976 against a vacancy of C.T. post. During his service with a view to improving his qualification, respondent No. l passed his B. Ed. Examination. On his application, the name of respondent No. l was registered on merit for appointment against the post of S.E.T. (BPS‑15) alongwith his other batch‑mates in Zone IV, covering the applicants from the Districts of Kohat, Bannu and Dera Ismail Khan. The Teachers were to be appointed as S.E.Ts. on availability of the vacancies, therefore, respondent No. l waited for his turn to come and used to make inquiry from time to time. To. his utter dismay, he came to know in June, 1992 that while ignoring the petitioner some incumbents, namely, respondents Nos.2 to 13 junior to him on merit had been appointed against the vacancies of S.E.Ts. then falling in BPS‑15 now in BPS‑

16. After exhausting departmental remedies respondent No. l filed a petition for issuance of writ directing the petitioners to act according to the standing orders issued under Government of N.‑W.F.P., Services and General Administration Department No.SOS‑III(S&GAD) 3‑39/70 dated 2‑10‑1973 read with two orders of even number respectively dated 10‑10‑1973 and 21‑1‑1974 and appoint the former as S.E.T. on his own merit with all back benefits and that the appointments of respondents Nos.2 to 13 be declared to be unlawful and of no legal effect.

3. The petitioners' stance in their comments was that the application of respondent No. l for registration was not considered because it was not received in proper form and within time. Nonetheless, it was urged that "the name of respondent No. l was also registered in Zone IV consisting of Kohat, Bannu and D.I. Khan Districts but due to non‑follow up and pursuance of the petitioner (respondent No.1 herein) his name was missing in the final selection list." (Underlining is ours for emphasis). In ground‑wise comments, this stand of the petitioners was reiterated saying that "the petitioner‑respondent No.l's name was registered but due to lack of proper follow‑up, he could not achieve the object".

4. The learned Judges of the Division Bench overruled the objection that the application for registration was not considered because it was received late holding that "respondent No.l was not a new entrant in service applying for appointment for the first time that he should have made application". Again it was noted that under a distinct paragraph of Letter No.yW2 3/14/SET/Distribution dated 31st August, 1989 from Director of Education (petitioner No.1 herein) if the name of certain candidate was omitted due to oversight, may also be appointed if found due on his turn with their counterparts and, therefore, omissions were within the contemplation of the petitioners. Another patent objection raised on behalf of the petitioners that request of respondent No.l could not be acceded to because the post of S.E.T. after upgradation to BPS‑16 had been placed under the purview of N.‑W.F.P. Public Service Commission was repelled on the following reasoning:‑‑ "The second stance of the learned Government Pleader was that the latest developments have made the appointment of the petitioner rather complicated because the appointment in BPS‑16 is now made only through Public Service Commission. This argument rather the lately imposed condition does not affect the case of the petitioner because had he been not ignored due to lapse on part of the department and, had he continued on his own merits, he would never have been effected by the condition concerning appointment through Public Service Commission. Petitioner has clearly been denied a substantial right and was subjected to serious discrimination by giving preference to his juniors. " In this background, the writ as prayed for was issued. .

5. Mr. Saif:r Rehman Kiyani learned Advocate General in support of this petition reiterated before us the pleas raised in the High Court which we have already noted.

6. We have noticed that the plea of the petitioners qua the. delay ‑in submitting the application for registration of name of respondent, No. l in the list for appointment as S.E.T., was rightly not entertained. In this view of the matter, we are inclined to hold that, besides the reasons that found favour with the learned Judges of the Division Bench, the petitioners have no case for grant of leave in that we have already underlined the stand taken by them, in their A comments that the name of respondent No. l was registered but, he had failed to pursue the matter. It needs hardly be emphasised that what implied "the failure to pursue." While making appointment of S.E.Ts., it was the bounden duty of the petitioners to have adhered to the registered list of the candidates irrespective of the fact whether some candidates had approached them by way of, pursuing the matter' or not.

7. We are, therefore, not inclined to grant leave to the petitioners. This petition for leave to appeal is accordingly dismissed. A.A./G‑540/S Leave refused