2004 PLP (C (PLC(CS))

IJAZ-UL-HASSAN KHAN, J.

The facts of the case necessitating the filing of the present writ petition are relatively straightforward. The Provincial Government placed a requisition for one post of Assistant Information Officer (BPS-16) in the Information Department for selection through N.-W.F.P. Public Service Commission. The post was advertised through local Dailies by the N.-W.F.P. Public Service Commission in the year 1997.

2. Petitioner Ikramullah Saeed, possessing M. SC. Degree in Journalism with mass communication, applied for recruitment. The N.-W.F.P. Public Service Commission held test and interview for the- post in the year, 1998. The petitioner qualified the test, was placed on top of the merit list and was selected by N.-W.F.P. Public Service Commission. However,' despite the recommendations of N.-W.F.P. Public Service Commission, the petitioner was refused to be appointed on the ground that according to Circular No. BI/5-8/97-98 FD, dated 12-5-1998 issued by Government of N.-W.F.P., Finance Department all existing posts stood abolished and there was complete ban on filling up fresh posts under the Government.

3. The petitioner, in the circumstances, has invoked Constitutional jurisdiction of this Court by way of filing instant writ petition with prayer that respondents Nos.2 and 3 i.e. Secretary and Director Information., Government of N.-W.F:P., Peshawar, be directed to implement the recommendations of respondent No.4 i.e. N.-W.F.P. Public Service Commission, Peshawar and appoint the petitioner against the vacant post of Assistant Information Officer.

4. In the comments submitted on behalf of respondent No.2, the clam of the petitioner, having appeared in the competitive examination conducted by N.-W.F.P. Public Service Commission and secured the top position, has not been controverted but it is maintained that the petitioner has been refused to be appointed in view of the circular referred to above.

5. Having heard the arguments of Mr. Ruhul Amin Advocate for the petitioner and Ms. Musarrat Hilali, Additional Advocate-General for Respondents in the light of the material available on the record i.e. the grounds mentioned in the body of the writ petition, the writ comments submitted by the respondents, the rejoinder filed by the petitioner and the documents appended therewith, we find ourselves in agreement with learned counsel for the petitioner that having qualified the competitive examination and secured the first position, a valuable right has accrued in favour of the petitioner from which he cannot be deprived of by the Government for no just cause. It is not denied that if right has vested in due course of time to any citizen, he cannot be deprived of the same later' on. It is admitted in the comments that eight, posts of Assistant Information Officers were at the strength of the Directorate in 1997-98. Two posts out of eight were for Headquarter Office and the rest six for divisional offices. In 1997, two posts of Assistant Information Officers were vacant. One post was advertised through Public Service Commission. During Devolution of Power Plan 2000 the Government sanctioned further more six posts of Assistant Information Officers for Headquarter Office as a result of right-sizing. To fill up the sanctioned strength of Assistant Information Officers, four posts were to go to promotion direct recruitment quota. Consequently four officials were appointed and the rest four posts are still lying vacant. A request to surplus pool officials was made but no such qualified officer was available. It may be observed here that budget for the year 1998-99, 2000-2001 and 2002-2003 has already been allocated for the aforesaid post. This allocation clearly tends to suggest that the post of Assistant Information Officer has not been abolished. When attention of Ms. Musarrat Hilali. Additional Advocate- General was drawn to this aspect of the matter she had no plausible reply to make. We have also been informed that the Provincial Government in its meeting held on 18th August, 2003 has decided to lift ban on fresh recruitment, through order, dated 9th September, 2003 and thus the plea of ban on fresh recruitment, is not available to answering respondents.

6. No doubt it is true that a writ cannot be issued in vacuum. It is a discretionary relief to be given by the Courts based on grounds which are serious, solid, cogent, specific and reasonable and the person approaching the Court must have a bona fide claim and direct personal I interest in the act which tie challenges before his prayer for review is I entertained. In the present case the petitioner having qualified the competitive examination and placed on top of the merit list, department has no legal justification to deny him the relief claimed. Personal right of the petitioner has been invaded and thus he has a locus standi. Discretionary relief under Constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to Court with clean hands for enforcement of a legal right obtained .in a lawful manner. The writ jurisdiction conferred upon the High Court by the Constitution is discretionary in nature but the right to apply .for the writ certainly is not a. privilege on the contrary, it is of the most valuable rights that can be conferred upon a citizen.

7. As a sequel to above we accept the writ petition and direct respondents Nos.2 and 3 to implement the recommendations of respondent No.4 -i.e. Secretary N.-W:F.P Public Service Commission, Peshawar. There shall be no order as to costs. H.B.T/.2O/P Petition accepted.