2012 PLP (C (PLC(CS))

AYESHA A. MALIK, J.

This writ petition impugns order dated 21-4-2012 passed by the respondent No.2 cancelling the recruitment process and the merit list for the post of Instructor Grade-II (BS-8) in the office of District Officer (Civil Defence) Bhakkar.

2. Learned counsel for the petitioner contends that the vacancy for Instructor Grade-II was advertised in daily "Nawa-e-Waqt", Lahore. The petitioner applied for the post on 8-3-2012. Candidates were interviewed and the final merit list was posted on 14-4-2012, which showed that the petitioner had secured 86 marks out of 100 and was placed at serial No.1 on the merit list. Therefore, the counsel submits that the petitioner should have been appointed against the vacancy of Instructor Grade-II. However, on 21-4-2012 the respondent No.2 issued a letter to cancel the process of recruitment for the said post. Learned counsel for the petitioner argued that apparently some inquiry was undertaken wherein it was disclosed that the candidate at serial No.2 was the son of respondent No.3, who had utilized his position to place the name of his son on the merit list at serial No.2 and was also trying to disqualify the petitioner from his position at serial No.1 on the merit list. He further submits that it is on account of the efforts of respondent No.3, that the impugned order was passed. Hence this petition.

3. Respondents have filed their reply and parawise comments. It is their case that no merit list was prepared and if at all there is a list, it was a provisional list and not a final list. Furthermore, it was argued that it was well within the discretion of the respondents to cancel the merit list, if it is concluded the recruitment process was full of irregularities.

4. Heard learned counsel for the parties and reviewed the record available on the file.

5. The basic legal question arising in this petition is that once the final merit list was issued whether the petitioner should have been considered for the appointment of Instructor Grade-II. In this regard the first requirement was to ascertain whether a final merit list was issued. Although the respondents have denied that any merit list was made, the fact of the matter is that the merit list was issued and this is borne out of the impugned order itself, which states that "complaints were received regarding defective preparation of education qualification marks list (merit list), as prescribed in the Recruitment Policy, 2004, for recruitment against the post of Instructor Grade-II (BS-8) in the office of District Officer (Civil Defense), Bhakkar". The respondents were unable to establish any further steps required to finalize the merit list. As per the record, the procedure for recruitment was finalized and there was nothing outstanding in the process. Therefore, there is no basis for the respondents to allege that a merit list was not prepared or that the existing list is a provisional list.

6. The next question is, if the merit list was finalized what were the irregularities in the recruitment process so detected. As per the report of the respondents there were allegations against respondent No.3 for managing the recruitment of his son, who was shown at serial No.2 on the merit list. The entire objection, irregularity or illegality with the recruitment process is in relation to respondent No.3 and his son. In terms of the inquiry report, it was found that the candidate at serial No.2 of the merit list was not eligible for the post, yet his name is found on the merit list. Therefore, in view of this irregularity the recruitment process was suggested to be cancelled and a fresh advertisement was recommended for the post. The findings in the inquiry process do not reveal any irregularities but instead show how the respondent No.3 utilized his position to process his son's case. This cannot be termed as an "irregularity in the recruitment process". It reveals an abuse of authority, which offends the due process of law. Reliance is placed on a case titled "Shabana Akhtar v. District Coordination Officer, Bhakkar and 2 others" (2012 PLC (C.S.) 366). In such cases it is necessary to arrest the abuse of authority by ensuring that it does not prejudice the merit of a deserving candidate.

7. The case of the petitioner is quite simple; he applied in terms of the recruitment policy; was cleared by the competent authority after being interviewed and tested, and his name appeared at serial No.1 of the merit list. As such a right had accrued in his favour and he should have been considered for the appointment of the post of Instructor Grade-II. Any allegation pertaining to undue favour advanced by the respondent No.3 for his son at serial No.2 should not and cannot be used to cancel the entire process. Firstly, a vested right is created in favour of the petitioner when his name appeared at serial No.1 on the merit list. Secondly, the allegations raised have nothing to do with the petitioner. He is neither involved in the matter nor is there any complaint against him. Therefore, there is no reason to doubt his merit. Furthermore, since there is only one vacancy for the post of Instructor Grade-II, the person enjoying the top position on the merit list is entitled to the appointment. Accordingly, there appears to be no reason to cancel the recruitment process and the existing merit list. Hence there is no reason to re-advertise the post. In this regard, reliance is placed on a case titled "Hafiz Mukhtar Ahmad v. Government of the Punjab and others" (2005 PLC (C.S.) 1449), which holds that a right is seated in favour of the petitioner when his name is displayed on the merit list. There is no doubt that the authority passing or making the list has the power to recall, modify or cancel the same, however, such power is subject to the exception that it must be done in accordance with law and it should not be to the detriment of the right accrued. In the instant case, the petitioner's merit is not in question, as he was the deserving candidate. Notwithstanding the abuse of authority by the respondent No.3, the recruitment process to the extent of the petitioner has been finalized. He has a right to be appointed as Instructor Grade-II, in terms of the final merit list.

8. For the foregoing reasons, this petition is accepted. The impugned order dated 21-4-2012 is set aside and the respondent No.2 is directed to issue an appointment order in favour of the petitioner against the post of Instructor Grade-II (BS-8) in the office of District Officer (Civil Defence) Bhakkar. K.M.Z./N-39/L Petition allowed.