1991 PLP (C (PLC(CS))

Sir, I am directed to refer to your letter No.SORI (S&GAD)1 23/85, dated 7th November,1988 on the above subject and to say that in case of recruitment through competitive examination held by FPSC, the vacancies caused by non-joinders etc. are filled by re-allocation. The re allocation is made in accordance with the merit position of candidates which necessitates change of group/service already made. If same principle is applied in case of recruitment in N.-W.F.P., the Section Officers already appointed may be considered for appointment as EACs and DSPs in accordance with their merit position. The vacancies caused by the appointment of such Section Officers may be allocated to the other candidates in the waiting list keeping in view their merit position. The Estt. Div. is, however, not aware of the rules/regulations governing such appointment. It may be better to consult the Law Department of N: W.F.P. Government in this regard. Your obedient servant (Sd.) (JAN MOHAMMAD KHAN) Section Officer (T.V) After receipt of the opinion from the Federal Government a high level meeting was convened in which the Chief Secretary, Government of N.-W.F.P. also participated and it was resolved on 18-2-1989 that re allocation of posts shall be made in line with the opinion expressed by the Cabinet Division Federal Government in spite of the fact that it was opposed by the Public Service Commission. Relevant whereof is reproduced as follows:- "After detailed discussion, it was agreed that the N: W.F.P. Public Service Commission should also follow the practice being followed by the Federal Govt. and re-allocation of candidates should be made accordingly upto the period for which the waiting list is valid and subject to the prescribed zonal allocation formula, option of the candidates and the recommendations of the Public Service Commission regarding suitability of the concerned candidates for a specific post:" This decision was conveyed to all concerned vide letter No.SOS II(S&GAD) 2(9)/73-KC, dated 22-2-1989 which reads as follows:-- GOVERNMENT OF N.-W.F.P. SERVICES & GENERAL ADMIN. DEPARTMENT (SERVICES WING) NO.SOS-II(S&GAD)2(9)/73-KC. Dated Peshawar, the 22nd Feb: 1989. To

1. Mr. Mahboob Ali Khan, Secretary to Govt. of N.-W.F.P., Law Department, PESHAWAR.

2. Mr. Mir Naeemullah Khan, Chairman, N.-W.F.P. Public Service Commission, PESHAWAR. Subject: Re-allocation of posts. Sir, I am directed to enclose herewith a copy of the minutes of the meeting held on 18th February,1989 at 10 A.M. under the Chairmanship of Chief Secretary N.-W.F.P. on the subject noted above for your information/appropriate action. Your obedient servant. (LIAQAT ALI) Encl: as above Deputy Secretary (Services). Endst: No.SOS-II(S&GAD)2(9)/73, dated Pesh. the 22-2-1989. A copy is forwarded to:-- (1) Additional Secretary (Regulation),S&GAD. (2) Additional Secretary (Services) S&GAD. (3) Private Secretary to Chief Secretary N.-W.F.P, (4) Deputy Secretary (Regulation) S&GAD. (5) Private Secretary to Secretary, S&GAD. (BISMILI.AH SHAH) Section Officer (Services-II). It appears that reluctance was shown by the Public Service Commission to implement the decision as is expressed in letter No.20012-88/3791, dated 20-4-1989 from the Secretary, Public Service Commission to the Secretary Government of N.-W.F.P. S&GAD. It was stated that the Commission carried out an exercise for re-allocation in the case of non-joinders on the principle that every subsequent requisition is a separate selection and non-joinders to be treated accordingly. After making proposal for re-allocation, the S&GAD was asked to consider the same in case the proposed re-allocation formally is agreed upon in which case recommendation would be conveyed. It is pertinent to note that re-allocation was proposed against the vacancies created by non joinders in accordance with the minutes of the meeting on 22-3-1989.

6. There is force in the contention of the learned counsel for the petitioner that there is no concept of maintaining a waiting list of the candidates for absorption of newly created posts and that the list maintained is only for absorption of the vacant posts created by the non-joinders and that too in accordance with their merit list. This can be spelt out from the provisions of the Ordinance and the Function Rules framed thereunder as these are silent on this aspect of the case. There is also no clear-cut policy of the respondents/Government on this matter. 1t was, therefore, deemed necessary to ask for the opinion of the Government of Pakistan Establishment Division when objection was raised by the petitioners. The learned counsel for the respondents did not produce any material to show otherwise.

7. Such being the case, we feel that the learned counsel for the petitioners apprehension that requisition of piece-meal posts and absorption of candidates from the waiting list on the newly created posts, apart from being an unhealthy practice, would create serious doubts in the minds of those who though superior on merit in the examination have not been accommodated on post according to their preference. For example, Khawaja Wajihuddin, petitioner herein, at serial No.14 of the merit list was brought to his third choice while those at serial Nos. 28, 54, 67 and 91 were given first and second preference of service on the creation and requisition of new posts on the basis of the same competitive examination. In the instant case, piece-meal requisitions of posts were made on three different occasions within six months of the competitive examination which were filled from the impugned waiting list without re-allocation. No urgency was shown by the respondents Government nor any pointed out by the learned counsel for the respondent for such an exercise and even if there was any urgency, that could have been met by appointment of suitable persons on contract basis for a period of six months or less pending selection of candidates on the basis of examination to be conducted by the Commission. Furthermore, there could have been made ad hoc appointment or the post could be filled by transfer of officers already holding posts on regular basis on equated grade under Provincial or the Federal Government till such time when the competitive examination was to be held as provided under Rule 4 of the N.-W.F.P. Public Service Commission Function Rules, 1974. We are of the view that it was for the reasons stated above that Establishment Division, Government of Pakistan purposely did maintain a waiting list of the successful candidates for appointment not on the posts created vacancies after the competitive examination but for a limited purpose i.e. for appointment on the vacancies caused by the non joinders and after re-allocation.

8. Be that as it may, we are of the view that the present writ petitions are not maintainable as the petitioners are not "aggrieved persons" within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan 1973. No vested right of the petitioners recognised by law stands invaded or denied to them. Undoubtedly, petitioners appeared in the competitive examination for the limited posts advertised and after they qualified the examination a merit list was published to which the petitioners never raised any objection. They were offered posts in different cadres according to their preferences within the limited posts. The petitioners accepted such offers and joined service without any grievance and reservation. They have, therefore, been left with no vested right to ask for re-allocation and re-determination of their preferences on the creation and requisition of new posts. In the absence of any law, rules, or policy for re-allocation of posts on the creation of new posts, after the competitive examination, no grievance can be raised. The question as to who is an "aggrieved person" for invoking constitutional jurisdiction under sub-Article (2) of Article 98, at present sub-Article (1) of Article 99,came for consideration in Associated Cement Companies Ltd. v. Pakistan through the Commissioner of Income Tax, Lahore Range, Lahore and 7 others P L D 1978 Supreme Court 151 when their Lordship observed as follows:-- "Aggrieved party" within the meaning of sub-Article (2) of Article 98, it would be imperative for a party to show that any of his proprietary or personal rights, as recognised by the laws of country, has been invaded or denied to him .. Inevitably, therefore, if a person is unable to show that any of his rights as recognised by law has been invaded or denied to him then he would have no cause of action to seek any relief, for evidently he cannot claim to be "aggrieved". Seen in this context, Article 98 (ibid ), which clearly does not confer upon or create any substantive right in a party, would seem to provide to a party only an additional remedy provided he is able to show that any of his personal or proprietary rights, duly recognised by law, has been invaded or denied to him.

9. It was not denied by the learned counsel for the petitioners that no grievance was raised by the petitioners to the allocation of posts in accordance with merit in the first selection and the petitioner joined service without any reservation, it, therefore, can be safely held that their selection is a past and closed transaction. In Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others P L D 1973 Supreme Court 144, their Lordships after making observations that the recommendation of the Public Service Commission is advisory in nature which may or may not be accepted by the President (Governor in the present case) further held that if such recommendation is in flagrant disregard of the law and rules by the functionaries, the powers of judicial review vested in superiors Courts and the same cannot be taken away. It therefore, is for the petitioners to point out that they have any vested right which was denied to them or that any law or rules have been violated which the petitioners failed to establish.

11. For the reasons stated above, the petitioners having accepted the vacant posts for which they had appeared in the competitive examination are no more. "aggrieved persons-' within the meaning of the word used in Article

199. Consequently W.P. No.320 of 1989 and W.P. No.335 of 1989 stand dismissed with no order as to costs.

12. As regards W.P. No. 337 of 1989, admittedly the petitioner was declared successful in the N.-W.F.P. Public Service Commission examination held in 1987, however, he was not allocated any post because of his merit position and reservation of quota for Zone No.2 but was placed on the waiting list alongwith other successful candidates. On the creation of new posts and requisition respondent No.1 recommended those on the waiting list at serial Nos. 28, 57, 64, 67, 71, 83, 87, 91 and 91) to respondent No.2 for appointment against the said vacant posts. The petitioner who was at serial No.24 of the said list was not recommended for appointment rather a letter dated 19-9-1988, was addressed to the petitioner by the Public Service Commission obtaining his consent for acceptance of the post of ETO to which the petitioner consented in writing on 27 9-1988. At that time the petitioner had no knowledge of the newly created posts. Such being the case respondent No.1, after completion of all the formalities, sent its recommendation to respondent No.3, namely Government of N.-W.F.P. through its Secretary, Excise and Taxation Department, Peshawar vide letter dated 6-10-1988 for appointing him as ETO, However, two days before his publication of appointment petitioner was informed that ETO post was a liaison one and for a limited period and asked the petitioner to undertake that no claim whatsoever would be made on termination of his services. Reluctantly the petitioner signed the undertaking on 21-1-1989 whereafter the required appointment Notification was issued on 23-1-1989, and petitioner's representations before respondents 1 and 2 were turned down. It was at this juncture that the petitioner came to know of the creation of aforementioned posts and recommendation of respondent No.1 for appointment of respondent No.6 at such vacancy from the waiting list and thereafter the recommendation of 13 persons on various posts requisitioned. The petitioner having been ignored for appointment in the newly requisitioned posts has challenged the recommendation of the Public Service Commission and appointment of respondents 5 to 14 on the newly created posts in disregard of the petitioner's merit list simply that he has been appointed on a temporary and liaison post, to be illegal, without lawful authority and of no legal effect.

13. At the time of hearing of this writ petition when the attention of the learned Assistant Advocate-General (Mr.Hamid Saeed Malik) was drawn to the merit list as well as to the letter issued by respondent No.1 dated 19-9-1988, whereby the petitioner was asked to intimate his willingness to serve as ETO was not qualified to be temporary and liaison post, the learned Assistant Advocate-General wanted to ask the Department whether any substantive post of ETO was available in the department or not. After getting information from the Department this Court was informed that there is a substantive post of ETO and that the Department would have no objection if it is ordered that the petitioner be retained as ETO on such substantive post in terms of the offer made to him by respondent No.1 vide letter dated 19-9-1988. Such being the case and for the reasons that the petitioner has been ignored, at the time of allocation of newly created posts to those lower in merit on the waiting list it is equitable and just that the petitioner be deemed and declared appointed on a substantive post of ETO from the date of his taking over the charge of such. Order is made accordingly. There shall be no order as to costs. AA./1145/P Order accordingly.