2010 PLP 291 (GBLR)

MUHAMMAD NAWAZ ABBASI, C.J.

These connected Review Petitions have been preferred in the judgment dated 20-9-2008 passed by this Court. The Karakurum International University made appointments against the vacant posts of Professors, Assistant Professors, Associate Professors and lecturers on the basis of written and presentation test of the candidates conducted by Bahria University Islamabad. The method of appointments and criteria of selection was challenged by certain candidates in writ petition before the Chief Court on the grounds, firstly that the appointments were made in violation of the criteria of selection fixed under the rules, secondly, Bahria University for want of subject specialist and lack of experience had no capacity to carry out the tests of the faculties in which the teaching staff was to be appointed and thirdly, the written and presentation test were not in accordance with the rules and selection was not fair and transparent. The University contested the Writ Petition with the assertion that writ petition was not maintainable and that selection was made quite in fair and transparent manner and strictly in accordance with the procedure provided under the rules of the University. The writ petition was dismissed by the Chief Court and petitioner therein being aggrieved of the Order of Chief Court brought a petition for leave to appeal before this Court in which leave was granted and the appeal was finally disposed of vide judgment under Review with the following directions. a) Candidates who, as per test conducted by the Bahria University and qualified in the respective subject and stood qualified in aggregate not less than 40% provided a candidate comes in order of merit (panel) e.g. three persons against one seat, shall be appointed against vacancies existed at the time of advertisement. b) Those candidates who failed to qualify in the respective subject but appointed/adjusted on the strength of qualifying in other subjects and in violation of University rules, their appointments whether permanent or contractual is declared null and void. Also those appointed in spite 3rd division in their entire career shall be eligible to be included in such criteria (a), which also reflects embargo highlighted in the advertisement in the weekly Bade-Shammal dated 26 November 2007. c) Candidates already serving in the institution on contract basis and who got the contractual job in different discipline after going through the process of test/interview and also appeared in the instant test and qualified in their respective subjects and who do not owe any adverse remarks during the contractual service shall be considered appointed in their service against the vacancy they held. d) Since the University/Selection Board in its meeting held on 15 to 17 February, 2008 has foregone the process of interview and selection on rank order was determined the candidates eligible as per given criteria in para "a" will not go through a process of interview/presentation again. The petitioners in Review Petitions Nos. 2 of 2008 and Review Petition No. 6/2008 are aggrieved of para. (b) and (c) above respectively. Whereas KIU also being not satisfied with the directions contained in Para (b) and (c) has filed Review Petition No. 3 of 2008. The case of the petitioners in Review Petition No. 2/2008 is that they were declared qualified on the basis of prescribed criteria of 40% aggregate marks of the test and interview but in consequence to the direction given in Para (b) supra their selection has been nullified. The selection criteria did not contain the condition of essentially qualifying the test and interview in the subject in which their appointment was to be made and further the direction effecting their legitimate right of appointment was given behind their back without notice and providing them an opportunity of hearing since they were not impleaded as party in writ petition. The petitioners in Review Petition No 6/2008 prior to the selection on regular basis were appointed on contract on qualifying the test and interview and their case is that the direction contained in para. (c) above was given for the consideration of their case for regular appointment on the basis of their appointment on contract basis. The University has sought Review of the judgment in respect of direction contained in Para (b) and (c) above on the following grounds: - a) The appointment falling within the purview of Para (b) supra were made strictly in accordance with the criteria prescribed under the rules according to which 40% aggregate marks in test and interview were essential for selection without the condition of also qualifying the respective subject for selection and appointment. b) Notwithstanding the fact that the contract appointments referred in Para (c) were made in the prescribed manner on the basis of test and interview, the posts were advertised for regular appointment subject to the qualifying test and interview to be conducted by the Bahria University, therefore the direction contained therein are contrary to the rules and the prescribed procedure of selection. The learned counsel for the petitioners and KIU have contended that directions of the Court in Para (b) of the judgment were not based on any rule or principle of law rather the same were given on the basis of perception that a person without qualifying test and interview in the subject in which appointment was to be made merely on the basis of 40% aggregate marks would not be eligible for appointment. The contention was that direction of the Court was not only contrary to the rules of University but the same has also substituted the selection criteria in negation of the rules on the subject. The learned counsel for the petitioners in Review Petition No.6/2008 submitted that the failure of University to give effect to the direction contained in Para (c) above was clear violation of the Judgment and deviation to the principle of fair treatment whereas the learned counsel appearing on behalf of the University on the other hand has strongly apposed the legality of the direction contained therein. We having heard the learned counsel for the parties at length and perused the record in depth with their assistance have also carefully examined the rules on the subject and selection criteria of test and interview. There is sufficient force in the contention that selection criteria on the basis of test and interview prescribed under the University rules could not possibly be changed and substituted or amended by the Court. In principle the observation that a person seeking appointment in a specific subject should also qualify the test and interview in said subject is not against any rule or law but it was not a mandatory rule or requirement for the selection as the university being the best judge to fix the criteria for appointment of teaching staff did not consider it necessary to make such conditions as part of selection criteria. The procedure adopted by KIU for selection was in accordance with the University Rules and except the requirement of qualifying test and interview with 40% aggregate marks no other condition was made part of selection criteria and consequently it was not necessary to also qualify the test and interview in respective subject therefore addition of such condition in selection criteria by the Court was not proper. The candidates who were selected on the basis of criteria of 40% aggregate marks in test and interview had a legitimate right of appointment which could not be taken away without providing opportunity of hearing to the affected persons. The petitioners in Review Petition No. 2/2008 were not impleaded as party in writ petition and the direction contained in Para (b) above adverse to their right and interest was made behind their back and they were condemned unheard. The judgment to their extent was rendered in utter disregard to the principle of natural justice and would have no legal consequence. The petitioners and others in Review Petition No. 6/2008 have been appointed on contract basis in the prescribed manner through the process of test and interview and they also qualified the respective subjects therefore would not be required to undergo the same process of test and interview again for the purpose of regular appointment against the same posts, therefore in all fairness they should have been considered for regular appointment on the basis of their contract appointment which were made in accordance with the prescribed method of appointment under the rules and in view thereof we find nothing wrong with the direction contained in Para (c) above. The rule of fair treatment and natural justice would demand that candidates who have qualified the test and interview on the basis of 40% aggregate marks have acquired a legitimate right of selection on their own merits and should have been dealt with accordingly. Similarly the candidates who were appointed on contract basis in the prescribed manner would be entitled to be considered for regular appointment in their own right on the basis of their contract service. In the light of the above discussion to ensure the fair treatment and transparent selection we direct that the Registrar of the University will place the case of petitioners in Review Petitions Nos. 2 of 2008 and 6 of 2008 falling within the purview of Para (b) and (c) of the judgment referred above before the Selection Board for final selection on merits on a date to be fixed by the Vice Chancellor of the University and in the light of the recommendations of Selection Board the competent authority will make appointment accordingly. With the above modification in the judgment under review these review petitions are disposed of. M.H./78/Glt. Order accordingly.