2011 PLP (C (PLC(CS))

SH. AZMAT SAEED J.

Through the captioned Writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, a direction is being sought to be issued by this Court to the respondent No.1, Punjab Public Service Commission to recommend the names of the present petitioners for appointment as Assistant District Attorneys. 2.??? Brief facts necessary for adjudication of the lis at hand are that on 11-7-2008 respondent No.2 forwarded a requisition to respondent No.1 Punjab Public Service Commission for the recruitment of 135 Assistant District Attorneys in BS-17. Pursuant to the said requisitions an advertisement was issued soliciting applications by or before 13-10-2008. The present petitioners filed their applications which were entertained. The petitioners along with others were subjected to the Selection Process whereafter the Merit List was prepared. 3.??? The respondent No.2 recommended 130 persons for appointment as Assistant District Attorneys. Five seats had been reserved for the disabled and apparently no suitable candidate in this behalf was found. Admittedly none of the petitioners was recommended as their status on the merit list was below 130 varying from 135 to

151. It appears that out of the 130 persons recommended by respondent No.1, a number of persons did not avail of the opportunity to join as Assistant District Attorney for various reasons including the fact that some of such persons had also participated in the recruitment process for appointment as Civil Judges and had succeeded. It is the case of the petitioners that in view of the failure of a number of candidates recommended to join service, the petitioners being next on the merit list are entitled to be recommended? by respondent No.1 and appointed by respondent No.2. Hence, this petition. 4.??? Pursuant to the orders of this Court respondents entered appearance and filed their report and parawise comments. It is not disputed by the respondents that a number of the original recommendees did not join service, as Assistant District Attorneys. It is also not disputed by the respondents that the petitioners qualified and were on the merit list at various serial numbers as mentioned in the petition. But it is disputed that the petitioners are entitled to be recommended and appointed as Assistant District Attorneys. 5.??? The real matter in controversy which has floated to the surface is whether in the facts and circumstances of the case if recommended candidates fail to join, whether the candidates lower on merit list have a right to be recommended by the Commission, and appointed by respondent No.2. In this behalf the learned counsel for the petitioners as well as the Additional Advocate-General Punjab have been heard, and record perused. 6.??? It is contended by the learned counsel for the petitioners that in view of Rule 21-A(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 all candidates on a merit list are entitled to be recommended for appointment in order of merit, during the validity of such merit list. In this behalf learned counsel has also referred to and relied upon Regulations Nos.66, 67, 68 and 69 of the Punjab Public Service Commission, 2000. And further in support of his contention, the learned counsel has relied upon an unreported judgment of this Court dated 1-10-2004 in W.P. 738 of 2004 and judgment reported as 2009 SCMR 382 Government of N.-W.F.P. through Secretary v. Qasim Shah. 7.??? Learned Additional Advocate-General Punjab has controverted the contentions being raised on behalf of the petitioners. It is contended that Regulation 66 of the Punjab Public Service Commission Regulations, 2000 is only permissive in nature and does not vest any right upon any candidate. It only allows a substitute candidate to be provided by the Punjab Public Service Commission from the merit list if requested by the Department making the original requisition. In the instant case, no such request having been made, no right exits in favour of the petitioners. It is further contended that the process for recruitment which commenced with the requisition by respondent 2 to respondent No.1 on 11-7-2008 were conducted in terms of the District Law Officer Appointment Rules, 1977 which provided inter alia the eligibility for appointment as Assistant District Attorneys. The said Rules were repealed through the promulgation of the District Law Officer Service Rules, 2010 which came into force on 21-5-2010, and thereby, the eligibility criteria has been changed and varied therefore the petitioner cannot claim a right to be recommended and appointed under the repealed Rules as it is contended that it is settled law that the Rules which are in force on the day of the appointment are relevant and not the Rules? which? may? have? been? in? force? earlier.? It is further contended that the maximum period of 190 days as provided by sub-Rule (4) of Rule 21-A of the Punjab Civil Servant (Appointment and Conditions of Service) Rules, 1974 lapsed, hence, the right if any of the petitioners has also died its natural death. 8.??? The learned Additional Advocate General Punjab further adds that the retention of a waiting list for future appointments is not permitted in law and has been deprecated by the honourable Supreme Court of Pakistan as such waiting list for future appointment adversely affects and prejudices the rights of future candidates who periodically may become qualified to be considered for appointment for the posts in respect whereof merit list has been formulated. It is added that currently the respondent No.2 does not require any further candidates for appointment to the Post of Assistant District Attorneys and the candidates who have already joined are sufficient for carrying on the functions of the Department concerned and the original requirement of Assistant District Attorneys has been scaled down through a subsequent rationalization of the service structure in question. In support of his contentions learned Additional Advocate-General Punjab relies on 1993 SCMR 1124 Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through its Chairman and others, 1996 SCMR 589 Dr. Faiz-ur-Rehman and others v. N.-W.F.P. Public Service Commission Peshawar, 1990 SCMR 1321 Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sh. Muzafar Ifibal and others? and 2002 MLD 641 Shaukat Ali Zaidi v. Pakistan through Secretary Establishment Government of Pakistan Islamabad and 4 others. 9.??? With the assistance of the learned counsel for the parties, I have minutely examined the various judgments cited at the Bar. In the case of Musa Wazir supra the honourable Supreme Court had laid down the following dictum of law: ?????? "In the case of posts vacated by non-joining of selected candidates or subsequent requisition received, the ordinary course for the Commission and the Government should be to readvertise it." 10.? The honourable Supreme Court further held that the then practice of keeping a waiting list of successful candidates for purposes of appointment to additional or future vacancies was not only unfair and manipulative but would offend against the fundamental rights of citizens, who otherwise would be entitled to apply for such posts in future. Such practice was deprecated and held not condonable on the ground of expediency or administrative convenience. 11.? The aforesaid view was reiterated by the honourable Supreme Court in the case of Dr. Faiz-ur-Rehman (ibid). While in the case of Government of N.-W.F.P. v. Qaim Shah all the selected candidates did not join the posts advertised and a direction of considering the case of the candidates for appointment against available vacancies was upheld in the following terms:

"4.?? Such posts cannot be kept vacant till the next process of recruitment .... It is not denied that respondent was one of the candidates who was selected during the earlier recruitment process whereby twenty persons qualified the test and interview but only sixteen persons were appointed and the remaining selected candidates, including the respondent, were ignored despite the availability of seats." 12.? It is in the above perspective of the law as laid down by the honourable Supreme Court that the Regulations 66, 68 and 69 of PPSC Regulation 2000 relied upon by both the parties and admittedly applicable? to? the? case? of? the? petitioners? must? necessarily? be examined. For facility of reference, Regulations 66 to 69 read as follows:

66.? If a recommended candidate fails to join the post/tender his resignation after joining or declared medically unfit or appointing Authority refuse to issue offer of appointment under Rule 21-A(2) of Punjab Civil Servant (Appointment and Condition Service) Rules 1974 during the validity of the merit list, a substitute can be provided from the same merit list if so requested by the department concerned. 67.? If a candidate recommended against a vacancy of a particular zone or area fails to join the post another candidate from the same zone or area shall be recommended out of the approved merit list of that selection. 68.? If a candidate recommended on all Punjab basis does not join a post in PB-16 or above, the original merit list will be revised and a fresh list will be prepared excluding the name of the candidate who has not joined. A new list of recommendees will then be sent to the department in substitution of the original? one. 69.? For recommending substitutes, the merit list remains valid for one year from the date of issuance of recommendations or till the next closing date for submission of applications for similar post, which ever is earlier. However, the Chairman may extend the validity period for sixty days on case to case basis, if the request from the Administrative Department for substitutes is received? within? validity? period.? For? all? other? purposes, such as additional vacancies, the merit list shall cease to be operative.' 13.? As a general principle of law, in case recommended candidates fail to join, ordinarily the vacant posts need not necessarily or automatically be filled though the successful candidates from the same merit list who were not recommended due to lack of posts. Regulation 66 quoted (ibid), permits the department concerned to request for a substitute from the same merit list but does not enjoin the department or the Government to do so nor makes it mandatory for the Commission to issue further recommendations. Whether in the facts and circumstances of an individual case, such request should or should not be made, is obviously justiciable. One possible reason making it imperative for the Department concerned to make the request to the Commission in terms of? Regulation? 66? would? be? to? avid? keeping? advertised? posts? vacant to the detriment of smooth and efficient running of the department concerned. Needless to say that pre conditions of validity of such merit list must also exist. Furthermore, nothing in Regulations 66 to 68 can be interpreted to resurrect the old deprecated practice of maintaining the waiting list, which appears to have been prohibited also by Regulation 69 (ibid). 14.? In pith and substance through the captioned Writ Petition, the petitioners have sought a direction to be issued to respondent No.2 for making a request to respondent No.1 Commission to provide substitute from the same merit list in lieu of the selected candidates who have not joined their posts. Ordinarily, the department concerned, i.e., respondent No.2 is not required by law to make such a request in the light of the dictum laid down in Musa Wazir's case, (excerpt reproduced above). No special circumstances exists nor has been pleaded by the parties to the effect that in absence of such substitute candidates, working of the department would adversely be affected. To the contrary, it is the case of the respondent No.2 that due to subsequent reorganization, said posts are not required to be filled and the department does not need more Assistant District Attorneys for fulfilling its responsibilities. 15.? There is yet another aspect of the matter. The requisition was made by respondent No.2 to respondent No.1 on 11-7-2008 whereafter advertisement was issued, applications solicited and received. The process of selection concluded and recommendations made by the Punjab Public Service Commission on 16-1-2010. The entire process had been conducted and concluded under the District Law Officers Appointment Rules, 1977 which also provided for the eligibility for appointments as Assistant District Attorneys. 130 persons were recommended and offers of appointment made which were accepted by substantial number of the recommendees. Admittedly some of such recommendees declined to join service as Assistant District Attorneys. In the meanwhile, the District Law Officers Appointment Rules, 1977 was repealed on 21-5-2010 upon the promulgation of District Law Officers Service Rules, 2010 which inter alia varied the eligibility criteria for Assistant District Attorneys by not only including the condition of active practice but by also enhancing the minimum marks required to be obtained in the LLB Examination. Any and all appointments to be made after 21-5-2010 must necessarily conform to and be in accordance with the District Law Officers Service Rules, 2010 as it is settled law that it is the Rules and Regulations applicable on the date of appointment which are relevant and not those which were in force at any earlier point of time, as has held by the honourable Supreme Court of Pakistan in the judgment reported as 1990 SC 1321 ibid in the following terms: ?????? "Law has since been well established that the Rule applicable and the conditions required to be satisfied on the date of appointment is to be taken into consideration and not what were the requirements at an earlier date." 16.? Consequently it also does not appear to be equitable or appropriate to issue direction to a reluctant respondent No.2 to request for and seek substitute candidates from the merit list prepared with the eligibility and suitability determined under the repealed rules substituted through the promulgation of new Rules varying the eligibility criteria, especially? in? the? absence? of? an? exercise? of? determining? as? to? whether? the petitioners are still eligible to be appointed under the new Rules in force. 17.? For the foregoing facts and reasons, this Court finds itself unable to grant the sought for relief and direction, with the result that this petition being devoid of merit is accordingly dismissed. A.R.K./E-1/L.????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.