1989 PLP 1301 (CLC)

MUHAMMAD ISHAO KHAN, J.‑ Miss Gulshan Naheed has filed this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for declaring the impugned action/decision of the respondents to be without lawful authority and of no legal effect. She has further prayed that respondents may be directed to perform their legal duties i.e. respondent No.l should recommend petitioner to respondent No.2 for appointment on the vacant post.

2. Briefly stated the facts of the case are that the petitioner is a Demonstrator in the Khyber Medical College, Peshawar; that respondent No.l held an interview on 1‑7‑1987 for the post of Assistant Professor Pathology in the Khyber Medical College, Peshawar in which the petitioner qualified but could not be recommended for appointment because of her low position on merit and limitation of vacancies. However, the said respondent informed the petitioner on 13‑7‑1987 that her name stood on the reserved list and she would be considered on merit as and whet additional vacancies were received within the validity period (6 months) of the said list. She further mentioned in the petition that on 1‑1‑1988 a post of Assistant Professor had fallen vacant in the Khyber Medical College, Peshawar pursuant to resignation of one Dr. Simi Mahmood Jan. The Principal Khyber Medical College sent requisition to respondent No.2 herein for filling the said vacancy. The said respondent in turn asked respondent No.l heron to recommend someone for the said post but respondent No.l did not recommend any person. The Principal, Khyber Medical College once again on 4‑5‑1988 asked respondent No.2 to appoint petitioner against the vacant post as she is the only doctor available on the reserved list and falls within its validity period but no heed was paid to it. The petitioner personally approached respondents 1 and 2 for her recommendation and appointment on the said post without any success, although the petitioner had qualified respondent No.l's interview and is on its reserved list and also within its validity period and she could be appointed on the vacant post for which the Principal, Khyber Medical College had made requisition but due to internal politics of the respondents she has not been appointed so far.

3. Comments were called from both the respondents which they submitted accordingly. We have heard the learned counsel for the parties and have also perused the record. A look at the resignation of the said Dr. Simi Mehmood Jan dated November 1, 1987, placed on record, would show that she has submitted her resignation to be effective from Ist January, 1988 treating notice period from Ist November, 1987. Therefore, in our view respondent No.2 was under a legal duty to ask respondent No.l to recommend petitioner for appointment on the vacant post because she was the only candidate appearing on the reserved list and p also within its validity period. The respondents arc not legally correct by saying that no candidate was available on the reserved list. A reference to Clause (c) of Appendix "E" placed on the rile would clinch the matter in this regard and the l same is reproduced as under:‑ (c) "When a requisition for additional posts is received within 6 months of the issue of the recommendations in an earlier requisition for similar posts and marked candidates are available, recommendations in respect of additional posts shall be made from the available list of marked candidates." As mentioned earlier, Annexure 'B' placed on record clearly shows that although petitioner had qualified in the interview for the post of Assistant Professor Pathology but she could not be recommended to the Government for appointment due to her low position on the order of merit list and limitation of vacancies but her name stood on the reserved list with the condition that the Commission will consider her as and when additional vacancies are received from the Government within validity period of the reserved list i.e. 6 months. The j resignation of Dr. Simi Mehmood Jan which was submitted on Ist November, 1987 and was accepted by the Department with effect from 1‑1‑1988 clearly shows that the vacancy had fallen vacant within the validity period of 6 months and, F therefore, the respondents were legally bound to appoint the petitioner, the only candidate appearing on the reserved list and having qualified the earlier test, against the said post of Assistant Professor of Pathology Khyber Medical College. Peshawar. Having not done so, they have rendered their action to be without lawful authority and of no legal effect.

4. As a net result we would allow this writ petition, as prayed for, with costs. AA./726/P Petition allowed