2006 PLP 1163 (SCMR)

RANA BHAGWANDAS, J.

Leave to appeal in the aforesaid identical petitions was granted against the judgment, dated 30-5-2000 passed by a Division Bench of the Peshawar High Court, D.I. Khan Bench in different writ petitions following the judgment of a Full Bench of the said Court, dated 12-5-2000 striking down the selection and recruitment policy of the Government of N.-W.F.P. in the Education Department for recruitment to the posts of P.T.C. Teachers.

2. It may be pertinent to observe that prior to the judgment, dated 12-5-2000, system of selection and recruitment of P.T.C. Teachers resorted to by the Provincial Government was of preferential treatment given to the candidates qualifying from Elementary P.T.C. Colleges of N.-W.F.P. over all others qualifying from similar or equivalent Institutions in the country. This policy was declared as illegal, void, discriminatory and violative of Article 25 of the Constitution by the Full Bench. While C.A. Nos.1071 to 1073 and 1904 to 1908 of 2000 are directed against the judgment, dated 30-5-2000 adopting the verdict of the Full Bench with a further declaration that all appointments made pursuant to the earlier policy are void ab initio and without lawful authority, C.A. No.1903 of 2000 is directed against the judgment, dated 12-5-2000 preferred by the Government of N.-W.F.P. and its functionaries. C.A. No.1910 of 2000 is, however, directed against the judgment, dated 12-4-2000 rendered in Writ Petition No.660 of 1999 dismissing the writ petition challenging the advertisement for selection and recruitment of P.T.C. Teachers on the basis of earlier policy.

3. Prior to the Full Bench judgment, certain writ petitions filed before different Benches of the Peshawar High Court impugning the process of selection based on the earlier policy giving undue preference ?to the candidates qualifying from? Elementary P.T.C. Colleges of N.-W.F.P. were dismissed but the view has been tremendously revised and reviewed by the Full Bench. 4.? We have heard learned counsel for the petitioners as well as Sardar Shaukat Hayat, learned Additional A.G., N.-W.F.P. On perusal of the impugned judgment, dated 12-5-2000 rendered by Full Bench of the High Court, we are of the firm view that it does not suffer from any legal infirmity or misconstruction of material facts and the law. Indeed it lays down correct and harmonious interpretation of the provisions contained in Article 25 of the Constitution, which guarantee equal treatment before law and equal protection of law to all citizens similarly placed. Since all the educational institutions situated within the country are duly recognized by the University Grants Commission and their certificates and diplomas are given equivalence by the said Commission, there is no warrant for discriminating the candidates qualifying from Institutions other than Elementary P.T.C. Colleges managed and controlled by the Government of N.-W.F.P. Reference may be made to Oliver Brown v. Board of Education of Topeka 347 U.S. 483, 349 U.S.294, Sharin Munir v. Government of Punjab PLD 1990 SC 95 and Attiyya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161. For these reasons, Appeal No.1903 of 2000 preferred by Government of N.-W.F.P. stands dismissed.

5. Adverting to the appeals directed against judgment, dated 30-5-2000 passed by D.I. Khan Bench of the Peshawar High Court, it may be observed that the declaration to the effect that all appointments made under the earlier policy are illegal, void and without lawful authority is difficult to sustain being against the law as the judgment, dated 12-5-2000 would operate prospectively and not retrospectively adversely affecting the rights already accrued to the teachers appointed before the declaration of law by Full Bench of the High Court. Admittedly, appointments made prior to the said judgment were neither inherently illegal nor ultra vires the law. These appointees were amongst the candidates who qualified from Elementary Y.T.C. Colleges of N.-W.F.P., Allama Iqbal Open University, Islamabad and other Institutions on merits and having regard to the qualifications obtained by such persons. Many of the appellants were even not party to the writ petitions before the High Court, therefore, their vested rights cannot be lightly disturbed to their disadvantage. Their case is protected by the doctrine of past and closed transaction, which cannot be reopened. We are fortified in this view by the dictum laid down in Attiyya Bibi Khan (supra) at page 1183 of the report and Zaffar Ali Shah v. Federation of Pakistan PLD 2000 SC 869 relevant on page 1211.

6. Having held above, we declare that the appointments made prior to the Full Bench judgment shall remain intact and would not be affected by the judgment of the High Court as, in the eye of law, these are past and closed transactions and would be protected by the dictum laid down in Zafar Ali Shah (supra). Reference may also be had to the doctrine of ,locus poenitentiae as upheld in Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah PLD 1969 SC 407.

7. In most of the appeals, learned counsel stated at the Bar that the appellants/respondents were duly selected by the relevant Selection Committees of the Government on merits but their appointments have been withheld on account of order of status quo passed by this Court while granting leave to appeal on 17-8-2000. Since these appeals are being finally disposed of, such selectees subject to academic qualifications shall be immediately appointed to their respective posts as, prima facie, there is no other embargo in their way. We are informed at the Bar that a large number of vacancies of P.T.C. Teachers exist at the moment. Such of the appellants who were non-suited in C.A. No.1910 of 2000 shall be sympathetically considered for appointment in the first instance and, if they are otherwise qualified and suitable for the job, they must be given preference over new entrants. In case some of the affected appellants/respondents are over-age by passage of time. Provincial Government shall consider their case with utmost compassion and fairness by relaxing upper age limit. Needless to urge that technicalities should not thwart the course of justice, as legal procedures are essentially meant to regulate the proceedings and to advance the cause of justice rather than to frustrate the ends of justice. 8.???????? With these observations C.A. No.1910 of 2000 is allowed and judgment of the High Court, dated 12-4-2000 is set aside. Remaining appeals are allowed and disposed of in terms of the observations as indicted above. M.H./H-12/SC???????????????????????????????????????????????????????????????????????????????????? Appeals allowed.