2014 PLP 643 (SCMR)

MUHAMMAD ATHER SAEED, J.

This petition for leave to appeal has been filed against the judgment of the learned High Court of Sindh, Karachi dated 15-5-2013 in C.P. No.D-3506 of 2011 whereby the learned High Court of Sindh had allowed the petition filed by the present respondent and had directed the present petitioners to issue amended list placing the respondent at S.No.43 of the list of DDOs so that he can be accordingly given posting.

2. Brief facts of the case are that the petitioners had issued an advertisement in various newspapers for combined competitive examination 2008 to fill 43 posts of Deputy District Officer (Revenue) BPS-17 (26 rural and 17 urban) and 48 seats of Section Officer BPS-17 (29 rural 19 urban) plus vacancies in some other posts. The respondent being eligible applied for competitive examination and indicated his choice in the order of priority as under:-- (1) Deputy District Officer (Revenue) (2) Section Officer The result was declared vide press release of the petitioner No.PSC-Exam:(CS)/2011/256 dated 26-1-2011 and admittedly the respondent was placed at S. No. 44 of the merit list and since all the 43 candidates who had surpassed him in the merit list had opted for the post of DDO, he was placed at S.No.1 of the list of Section Officers. However, the respondent learnt that one Abdul Qudoos Sheikh son of Muhammad Siddique whose domicile was rural like that of the respondent and who had been placed at S.No.8 of the nominees of the DDO had opted not to join services as he had also passed the CSS examination. The respondent vide his application dated 2-2-2011 requested the petitioners that since his first choice was for the post of DDO and since a vacancy had occurred in the post of DDO due to non-joining of one of the candidates, therefore, he being placed at S.No.44 and first in the list of Section Officer, he may be posted as DDO. His application/appeal was, however, not responded to by the petitioners and therefore on 25-10-2011 he filed a petition before the learned High Court of Sindh, Karachi which was disposed of by the impugned judgment as mentioned above. Hence this petition for leave to appeal.

3. We have heard Mr. Adnan Karim, Additional A.-G. instructed by Sohail Qureshi, Additional Secy. Services, Abdul Aziz, AD Regional Office, Karachi, Hadi Bux Kalhoro, Secy. SPSC and the respondent present in person.

4. The learned AAG submitted that the respondent was recommended by the Sindh Public Service Commission for appointment against the post of Section Officer BPS-17. He was therefore offered the said post and was appointed as Section Officer vide notification dated 17-10-2011 and after receipt of the offer letter and completion of legal formalities he had joined service on 26-10-2011. He drew our attention to the advertisement and pointed out that it was combined competitive examination for different posts and candidates had to be selected on merits and on basis of the option exercised by them. He conceded that respondent had declared his first option for the post of DDO but since 43 candidates who were higher in the merit list than him and who had opted for the post of DDO were selected therefore he could not be accommodated and was accommodated on his second choice i.e. Section Officer. He, however, candidly conceded that respondent was placed at S.No.44 of the merit list. He also conceded that one Abdul Qudoos Sheikh s/o Muhammad Siddique who had been placed at S.No.8 and had opted for and was selected as DDO had regretted to join commission and therefore, only 42 seats of DDOs were filled and one vacancy occurred. He, however, strenuously argued that there is no provision in the Sindh Public Service Commission Recruitment Management Regulation 2006 for re-allocation of some candidate from other service but once the vacancy had occurred, the post had to be re-advertised with reference to the department and since, 'the respondent had already joined as Section Officer therefore his appointment as DDO will mean re-allocation from the service of Section Officer to the service of DDO which is not permissible under the law. He further submitted that the respondent had not raised any objection and had joined as Section Officer and therefore the objection cannot be raised at this stage. He referred to Sindh Public Service Commission Recruitment Management Regulation 2006 and drew our attention to regulation No.0329 which reads as under:-- "0329 Re-Advertising

When a post is advertised and suitable candidates are not available, the post should be re-advertised within a period of 45 days without reference to the Department." He also referred to regulation No.1108 which deals with the procedure for allocation of service and submitted that in view of these two regulations no re-allocation can be made from on post to another post in which a vacancy arises which has to be re-advertised and in this connection he relied on the judgments of this Court in the cases of Musa Wazir and 2 others v. N.-W.F.P. Public Service Commission through its Chairman and others reported in 1993 SCMR 1124 and Dr. Faizur Rehman and others v. N.-W.F.P. Public Service Commission Peshawar and others reported in 1996 SCMR

589. The learned AAG also challenged the maintainability of the petition before the learned High Court as according to him the respondent was a civil servant and the matter concerns terms and conditions of service and therefore the constitutional jurisdiction of the learned High Court was barred under Article 212 of the Constitution of Islamic Republic of Pakistan 1973. He submitted that the learned High Court had fallen in error by issuing impugned directions and prayed that the impugned judgment being against established principle of law be set aside.

5. The respondent opposed the arguments of the learned AAG and supported the impugned judgment. He submitted that he was not in civil service when/he filed the petition as he had joined the services on 26-10-2011 and had filed the petition much earlier. He also submitted that it was not a matter of terms and conditions of service but sheer mala fide on the part of the petitioners in not accommodating him on the seat which had not been filled till then. He argued that the two judgments relied on by the learned AAG are both distinguishable. He, therefore, prayed that the petition being meritless may be dismissed.

6. We have examined the case in the light of the arguments of the parties and have carefully perused the records of the case including the impugned judgment and the Sindh Public Service Commission Recruitment Regulations 2006 mentioned above.

7. About the maintainability of the petition before the learned High Court, we are inclined to agree with the contention of the respondent that the grievance of the respondent does not relate to terms and conditions of service but the respondent's claim for allocation to a particular service before joining service is to be decided. We are, therefore, of the view that the petition was not barred by Article 212 of the Constitution and was maintainable.

8. Regulation No.0329 which has been reproduced above only provides that the post should be re-advertised when no suitable candidate is available and therefore it is not a mandatory clause that in any case when any vacancy occurs the post has to be re-advertised. The other regulation No.1108 also does not create any hurdle in accommodating the respondent. We have also perused the two judgments relied on by the learned AAG and have found that the facts in those judgments are clearly distinguishable. In Musa Wazir case (quoted supra) the question was whether after merit list of competitive examination has been prepared and selection of successful candidates has been made, a waiting list can be prepared for further requisition of vacancies occurring. In this case this Court has observed as under:-- ":.. Combined competitive examination

Posts vacated by non-joinder of selected candidates or subsequent requisitions for additional posts

Remedy

Where posts were vacated by non-joinder of selected candidates or subsequent requisitions were received, the ordinary course for the Public Service Commission and the Government should be to re-advertise those posts

Advisable practice in exceptional situation. In the case of posts vacated by non-joinder of selected candidate's or subsequent requisitions received the ordinary course for the Commission and the Government should be to re-advertise it. In an exceptional situation such additional vacancies subsequently reported to the Commission would get assimilated to the vacancies already advertised and the selection would take place from the result of the combined competitive examination as a single selection." This Court has also referred to letter dated 8-1-1989 issued by the Commission in which it was specifically pointed out as under:-- "The Federal Public Service Commission makes re-allocation only in the cases where the original nominees, fail to join the post. Therefore, this readjustment is only in limited cases and the new requisitions which are received thereafter are carried over to the next year examination which is their yearly feature." It is, therefore, clear that the commission has already made clear that in case of non-joining of original nominee, re-allocation can be made for the post and this Court has not deprecated such practice.

9. In the case of Dr. Faizur Rehman (quoted supra) again the question before this Court was whether waiting list can be maintained or not and therefore, it has no nexus with this case.

10. In the presont case, the facts are very clear that admittedly the respondent had been placed at S.No.44 of the merit list and was allocated Section Officer group, however, due to non-joining of one of the original nominee Abdul Qudoos Sheikh son of Muhammad Siddique a vacancy had occurred and since apparently the respondent had the rural domicile like that of the Abdul Qudoos Sheikh and was on the top of the list, therefore, there was no bar in re-allocating him to the DDO group, as he has already qualified competitive examination. The learned High Court had allowed the petition in the following terms:-- "However, the case of the petitioner is different. In the present case the post did not fall vacant but was not occupied at all. Then such post had to be filled and should have been given to the candidate who was next on the merit list. The petitioner being the next in the line of the merit list should have been given the post of Deputy District Officer which was never occupied."

11. The learned AAG has failed to convince us that the above observations of the learned High Court are un-reasonable or against the regulations of the Sindh Public Service Commission. On the other hand, we are of the considered opinion that the judgment of the learned High Court is unexceptionable and no interference is called from this Court. This petition being meritless is therefore dismissed and leave to appeal refused. MWA/P-10/SC Petition dismissed.