2017 PLP (C (PLC(CS)N)

MUHAMMAD YOUNIS THAHEEM, J:- Through instant petition, Muhammad Aziz Ullah, the petitioner, seeks Constitutional jurisdiction of this Court, praying that:- "On acceptance of this Writ Petition, the refusal of respondents in respect of awarding BPS-16 to the petitioner may be declared as illegal, unconstitutional, without lawful authority, against the principle of equity and equality and violation of recruitment rules of 2005. The respondent may further please be directed to award BPS-16 to the petitioner from date of appointment with all arrears and consequential benefits by setting aside the order dated 4.2.2014."

2. Initially petitioner applied for a post of Pesh Imam BPS-10, advertised in daily newspaper dated 18.1.2006 by the respondents and after observing all legal formalities, he was appointed as Pesh Imam vide appointment order No.949/Estt: dated 12.6.2006. Having experience of 10 years, the petitioner moved an application for his upgradation to BP-16 being qualified for the same under the Peshawar University statutes, but no response was given to his application by the respondents. Feeling aggrieved, the petitioner filed Writ Petition No.2763-P/2011, which was decided by this Court on 12.4.2012 with the direction to respondents to decide the abovementioned Departmental appeal within shortest possible time. The then Registrar Islamia College Peshawar University, vide order No.3755 dated 15.5.2012 turned down his departmental appeal for upgradation on the ground that he did not qualify the prescribed length of service/experience i.e. 10 years in BPS-10. Dissatisfied from the said decision, the petitioner filed Writ Petition No.2190-P/2012, which was decided by this Court on 13.6.2013, with the direction that petitioner has claimed his upgradation to BPS-16 but benefit of this upgradation has not been extended to the petitioner by the then competent authority on flimsy ground of non-furnishing of sufficient details by the petitioner about his experience, so the respondents were directed by this Court to put up the matter of petitioner as Agenda item before the Syndicate of Islamia College, University being a competent authority to conduct probe into the matter and Syndicate may grant him benefit of BPS-16 within three months.

3. The Syndicate did not comply with the said order, upon which COC No.338-P/2013 in WP No.2190- P/2012 was filed by the petitioner but the same was disposed of on 18.2.2014, as at the very outset learned counsel for petitioner informed the Court that direction of this Court in consequence of decision in Writ Petition No.2190-P/2012, has been followed by the Syndicate.

4. It is pertinent to mention that the 5th meeting of Syndicate Islamia College, University of Peshawar was held on 30.12.2013, and brought the matter of petitioner on agenda item and decided the same which is reproduced as under:- "Agenda Item # 4 Consideration of Writ Petition No.2190-P/2012 of Maulana Muhammad Aziz Ullah, Pesh-E-Imam, Islamia College, Peshawar. Decision:- The Syndicate decided that Mulana Muhammad Aziz Ullah being ineligible, can't be awarded BPS-16."

5. Being aggrieved from the decision of Syndicate, petitioner has filed the instant Writ Petition.

6. Parawise comments were requisitioned from respondents, who along with preliminary objections raised some factual objections also. The Paras 4 and 6 of their comments in response to facts of petition are reproduced as under:- "

4. The respondent University has not framed its own recruitment rules so far, albeit as per the decision, the post of Pesh Imam was advertized in BPS-10 and the petitioner having qualified the selecting process was appointed as such, therefore, he has been treated in accordance with law and no illegality or irregularity has been committed by the respondents.

6. The post of Pesh Imam was carrying BPS-10, which was duly advertised in the same scale, the petitioner applied to the post, he was selected and given offer of appointment in BS-10, which he accepted and as such was appointed, now he cannot turn around and claim appointment in BS-16.

7. In response to the comments filed by respondents, the petitioner also filed his rejoinder and reiterated his stance. In this respect Para 10 of rejoinder on fact and Para G on ground are reproduced as under:- "'

10. Incorrect. The Honorable High Court, Peshawar heard the W.P. No.2190-P/2012 on 13.6.2013 and directed the respondents to put the matter before the Syndicate and the matter should be finalized within threre months, but the respondents failed to finalize the matter in three months, therefore, the petitioner filed a COC petition No.338-P/2013 and response of that petition the respondents filed the decision of Syndicate, which means that the respondents did not finalized the matter within three months thus violating the orders of Hon'ble High Court. G. Incorrect. It is clearly mention in Section 55 of the rectification dated 18.2.2009, that Islamia College University, Peshawar should follow the rules and regulation of University of Peshawar until this University do not frame its own Statutes, Regulation and Rules and in the rules 2005, BPS-16 has been mentioned against the post of Pesh Imam, therefore, the petitioner cannot be deprived from his legal right of BPS-16."

8. Arguments heard and record perused.

9. Admittedly the matter pertains to appointment and promotion, Governed in terms of Section 27(1)(B) of Peshawar University Act, 1974, according to which terms and conditions of services of University employees (BPS-1 to 16) were regularized through appointment and promotion statutes 2005, wherein the qualification for the post of Pesh Imam BPS-16 is given as under:- "

1. Sanad of Shahadat-Ul-Alamia from a recognized Wifaq in at least 2nd division and at least 10 years experience as Imam/Naib Imam in BPS-10/11 in a mosque (new entrants shall be exempted of the bar of BPS.

2. Hafiz of parts of Al-Quran or Certificate of Darse Nizami from a recognized Dar-ul-Uloom with 20 years experience as Khateeb/Imam in a mosque.

10. Perusal of decision about Agenda Item No.4 transpires that the judgment of this Court in Writ Petition No.2190-P/2012 dated 13.6.2013, has not been correctly acted upon. Neither probe has been made in the matter nor benefit to the petitioner has been extended so the above decision of Syndicate in the said Item No.4 is not speaking one, void and in contravention of the referred judgment of this Court. Besides, order No.47/Estt: dated 15.1.2007 available on file reveals that one Abdul Jalil placed at Serial No.5, was appointed as Muazzin in BPS-11, who was lateron upgraded to the post of Pesh Imam in BPS-16, thereby violating all the criteria, rules, regulations narrated in the comments and decision of Syndicate, without considering the mandatory experience of 10 years as Pesh Imam and other requisite qualification as compared to the academic qualification of petitioner in his bag, i.e. M.A. Islamiyat, L.L.B, Arabic (Hons), Diploma in Sharia Law, Fazil Wifaqual Madaris, Fazil Darsi Nizami, Mphil, and Ph.D, though petitioner served as Pesh Imam in various mosques of Auqaf Department from 1992 to 2002, which was duly supported by the Certificate, issued by the Auqaf Department, Peshawar but even then he was deprived from his legal rights and the other person having no experience of Pesh Imam rather served as Muazzan was appointed in BPS-16 as Pesh Imam, which is clear violation of University of Peshawar Employees (BPS-1 to 16) Appointment and Promotion Statutes, 2005. Hence, it is a case of extreme discrimination, offending the fundamental rights vested in the petitioner under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 by not considering him for upgradation despite having experience of 10 years on his part, which criteria has been bulldozed, bypassed and forgotten in the case of other person namely Abdul Jalil. As such, this petition is allowed, order dated 4.2.2014 passed by respondents is set aside and respondents are directed to appoint the petitioner to a upgraded post of Pesh Imam in BPS-16 and other benefits to him also with effect from 4.2.2014. ZC/273/P Petition allowed.