2018 PLP (C (PLC(CS)N)

ABDUL SHAKOOR, J.

The petitioner has invoked the constitutional jurisdiction of this Court by praying that: "(a) A writ may be issued to the respondents Nos.1 to 3 to the effect that the total experience marks of petitioner be rectified/ corrected to be marks instead of 4 marks and the aggregate marks of the petitioner be rectified/corrected to be 60 instead of 57. (b) A writ may be issued to the respondents Nos.1 to 3 to appoint the petitioner to one of the impugned post accordingly. (c) Any other remedy with efficacious and appropriate in the peculiar circumstances of the case may also be graciously granted, though not specifically prayed for."

2. Brief facts of the case of the petitioner are that respondents/ Khyber Pakhtunkhwa Public Service Commission vide advertisement No.02/2011 dated 07.04.2011 advertised 67 posts of Principal/Vice Principal for the Khyber Pakhtunkhwa Elementary and Secondary Education Department, for which eligibility criteria referred to in said advertisement is as follows: "Master Degree with M.Ed/M.A (Education) or equivalent qualification from a recognized university with nine years teaching/ administrative experience in recognized Secondary/ Higher Secondary School". Note:- The teaching experience will be counted after acquiring Master Degree in one of the general subjects or M.Ed. Age Limit: 25 to 40 years. Pay Scale: BPS-18 Eligibility: Male Allocation: Merit" Petitioner in pursuance to said advertisement, being a teacher of Higher Secondary School of District Swat, considering himself qualified in terms of above mentioned qualification for the post of Principal, had applied for it. The petitioner, as a result of test and interview respecting the above mentioned post, was awarded aggregate 57 marks out of which, he secured 37 marks in his interview whereas he was given 16 marks for his academic qualification and 04 marks for his experience. He being aggrieved from the awarding of aforesaid marks, applied to Public Service Commission for enhancing the same, but the Commission did not find favour with his that submission, and accordingly it did not enhance the marks of petitioner. Petitioner being aggrieved from the act of respondent No.1 KPK Public Service Commission of not correcting and enhancing his marks as he asked for, which details has been given in Para 10 of this petition, invoked the constitutional jurisdiction of this Court by filing Writ Petition No.291 of 2015, which was decided on 21.06.2016, whereby this Court directed the Public Service Commission to re-hear the case of the petitioner and carefully examine all his record including his entire experience according to the rules applicable therefor and decide his appeal afresh giving reasons within a period of one month positively, after receipt of the judgment of this Court dated 21.06.2016. Petitioner in the light of the aforesaid order of this Court preferred an application before the Public Service Commission, copy of which is available on the record of file of this petition. The said application of the petitioner, which he filed in the light of aforesaid order of this Court, was rejected and decision thereof was intimated to the petitioner and Additional Registrar of this Court vide letters No.065142 dated 19.08.2016 and No.064437 dated 12.08.2016, respectively. Petitioner being aggrieved from the rejection of his aforesaid application filed the present petition before this Court.

3. This Court upon the petition in hand has called the comments from the Public Service Commission, wherein it is averred that the petitioner was not entitled for the marks which he asked for through his appeal, so that's why it was rejected. As per the stance of respondents that petitioner had availed leave without pay w.e.f. 16.03.1998 to 13.07.1999 and also served as Primary School Teacher w.e.f. 24.06.1997 to 11.07.1999, thus, the said period in addition to other details mentioned below excluded from his experience. a. Qualification Marks Years of Passing B.Sc 303/550 1990 M.Sc 497/1100 1995 M.Ed 614/1200 612/1000 2002 1412/2650 15.98= 16+04+37=57 (b) Additional Qualification Nil Experience: PST/SET/Lectures Since: 24.06.1997 Applied For: Nil S. No. Name Qualification Institution where, served with period Total Experience YY-MM-DD 1 Shoukat Ali M.Sc. (Maths) 6-12-1995 M.Ed. 16-04-2002

1. Teacher Hamdarad School From 16-12-1973 to 29-08-1996 Y Y M M D D Total 13 01 22 00 08 13

2. Teacher PSS School From 23.09.1996 to 05.05.1997 00 07 13 Req 09 00 00 3 SET from 12-07-1999 11 09 26 Entitle 04 01 22 Total Experience 13 01 22 In the light of aforesaid details, petitioner has secured total 57 marks, thus, he was placed at order No.100 in terms of his merits and last candidate recommended for the post of Principal/Vice Principal, who was on merit order No.67 and secured 59 marks, resultantly, petitioner could not be recommended for his appointment as Principal/Vice Principal (BPS-18). They further stated that he has not mentioned experience of teaching of Robican Public School w.e.f. 16.03.1998 to 13.07.1999 in his application form which he submitted before the Commission in pursuance to the aforesaid advertisement. They also added in their comments that same experience in the light of the judgment of the august Supreme Court of Pakistan which was rendered in the case of "Haider Taj v. KP/PSC and others" could not be counted afterwards of filing of his application. Lastly, respondents have stated that the petitioner as per requirement of rule 16 of Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987, did not obtain the permission of Government for his employment in private school namely Robican Public School and College Swat for a period w.e.f. 24.06.1997 to 11.07.1999, thus, in terms of said rules, his experience which he gained in the same School was not considered in his experience which he claimed for in his aforesaid appeal. Rule 16 of KPK Government Servants (Conduct) Rules, 1987 is reproduced hereunder for convenience. "(16) Private trade, employment or works:- (1) Government servant shall, except the previous sanction of the Government, engage in any trade or undertake any employment or work, other than has official duties: Provided that he may, without such sanction, undertake honorary work of a religious, social and charitable nature or occasional work of a literary or artistic character, subject to the condition that his official duties do not thereby suffer and that to occupation or undertaking does not conflict or is not inconsistent with his position or obligations as a Government servant but he shall not undertake or shall discontinue such work if so directed by Government. A Government servant who has any doubt about the priority or undertaking any particular work should refer the matter for the orders of government." In the light of above stance, the Public Service Commission prayed for the dismissal of this petition.

4. We have heard the arguments of the learned counsel for the petitioner and learned A.A.G. for official respondents and carefully gone through the record available on the file of the petition in hand.

5. We have given our serious consideration to the respective submissions of the counsel for the parties but we could not convince by the plea of petitioner which he has advanced before us for acceptance of his petition as he prayed for. It is clear as a day of light that the petitioner has passed his M.Sc (Maths) on 16.12.1995 and M.Ed on 16.04.2002, thus, in terms of the condition referred to in the advertisement, which are reproduced herein above, the petitioner's experience was to be counted after his obtaining 1st Master Degree. It is also an admitted fact that the petitioner has not obtained previous sanction of the Government for doing an employment in the afore referred Private School when he was on leave without pay. As such, his that period of experience, in view of ibid Rule 16 of Khyber Pakhtunkhwa Government Servants (Conduct) Rules, 1987, in private school could not be counted towards his experience in regard to the post of Principal/ Vice Principal. It is highly ironical petitioner on the one hand has obtained leave without pay for the period commencing from 06.05.1997 and ending on 12.07.1999 while on the other hand he has claimed the said period of his teaching in the aforesaid Private School be counted towards his experience of teaching as a Secondary/Higher Secondary School Teacher. This clearly shows petitioner is blowing hot and cold in one breath as the same is not permissible under the principle of administration of justice which clearly says, no one can make hot and cold blow simultaneously. It is proven fact that the petitioner, as per the rule ibid, has not obtained permission of the Government for his employment in the said school. The learned counsel representing the petitioner in the light of aforesaid submissions of the respondent Public Service Commission when asked by this Court as what is the defence of the petitioner in respect of non-counting of his experience, which he claimed for in his appeal referred to herein above, submitted that the experience of one Taj Wali PTC/PST of GPS Sufaid Sang Peshawar in similar situation is that of petitioner has been considered valid by the Public Service Commission for the purpose of his appointment as Vice Principal/Principal in BPS-18. Except that submission, he did not cite any law or case law laid down by Superior court which would negate to the stance of respondent Public Service Commission. As far as the case of Taj Wali is concerned, this Court is not convinced to make it justification for the acceptance of this petition, as it is settled principle of administration of justice that two wrongs cannot make one as right, thus, petitioner, in view of said principle, cannot get any advantage of that wrong, if it is committed by Public Service Commission in the case of said Taj Wali. 7.(sic) This Court have noticed that working of petitioner, in private school without the permission of Government when he was on leave without pay, was gross violation of rule 16 of KPK Government Servants (Conduct) Rules, 1987, on his part, for which, he could be proceeded against on disciplinary grounds but he has little realization of that misconduct. It is very unfortunate that petitioner, despite committing the said misconduct, is seeking the reward of it by saying that his experience of aforesaid private school be counted towards his experience for the purpose of appointment as Vice Principal/Principal BPS-18. 6.(sic) In the light of above discussions, this Court does not find any substance in the petition in hand, accordingly it is dismissed. ZC/303/P Petition dismissed.