1996SCMR589 (PLP)

SAIDUZZAMAN SIDDIQUI, J.

We propose to dispose of the abovementioned seven appeals by a common judgment as the point of law arising in these appeals is identical. The appellants were interviewed for different posts by the N.-W.F.P. Public Service Commission (hereinafter to be called as 'the Commission' only). They were, however, not recommended by the Commission for appointment, because of their low position in the merit list. The appellants in their respective petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan before the Peshawar High Court contended, that the Commission under its policy decisions used to maintain a waiting list of such candidates, who qualified in an interview/test but were not recommended for appointment because of their low position in the merit list. This waiting list of candidates remained valid for a period of six months from the date of its preparation and if during this period any vacancy occurred in any department and a requisition for the same was received by the Commission, the Commission used to recommend a suitable candidate out of this waiting list for appointment instead of holding fresh test/interview. It was further contended before the High Court that the Commission in the case of appellants, however, either did not maintain the waiting list of successful candidates or in cases it did maintain such waiting list, it refused to recommend the candidates against future vacancies in view of the decision of this Court in the case of Musa Wazir and others v. N.-W.F.P. Public Service Commission and others (1993 SCMR 1124). The appellants also contended before the High Court that the interviews/tests in the case of appellants having taken place before the date of decision is Musa Wazir's case (supra), which applied prospectively, the appellants' names should have been shown in the waiting lists of the candidates in accordance with the prevailing practice and they should have been recommended by the Commission against the vacancies which occurred within six months of preparation of such waiting list. The learned Judges of the High Court, however, did not agree with the contentions of the appellants and dismissed their petitions. Leave was granted in the above appeals to consider the following legal contentions:

"The learned counsel for the petitioners submitted that on the basis of the similar list other candidates interviewed for appointments in medicine and surgery were given jobs after the decision in Musa Wazir's case and that the petitioners were thereby discriminated in refusing them the concession on the same grounds and that this plea of the petitioners was not considered by the learned High Court. He further submitted that the cited judgment of this Court was distinguishable and could not operate retrospectively. According to him, the reserved list had been prepared, before the announcement of judgment in the said case, conferring a vested right in the petitioners within six months of the issue of the result of the petitioners and that they could not be deprived of this right. " Mr. K.M.A. Samdani, the learned counsel for the appellants in Civil Appeal No. 581/94, contended before us that the decision in Musa Wazir's case did not declare preparation of waiting list of candidates by the Commission in all cases, illegal: According to learned counsel, maintenance of a waiting list of candidates in a qualifying examination was not disapproved under the abovementioned decision of this Court. According to Mr. Samdani, the appellants' interviews before the Commission were in the nature of qualifying examination and as such the Commission ought to have maintained a waiting list of qualified candidates and should have nominated the appellants against future vacancies which occurred within six months of preparation of waiting list. It is also contended by Mr. K.M.A. Samdani that the appellants were interviewed the Commission long before the decision of this Court in Musa Wazir's case and therefore, the rule laid down in Musa Wazir's case was not attracted in the case of appellants. Mr. Samdani's last argument was, that the Commission had acted in a discriminatory manner in cases of appellants as the Commission on the basis of waiting list of candidates, maintained by it, did recommend some candidates even after the decision of this Court in Musa Wazir's case, supra. The learned counsel for the appellants in other appeals adopted the arguments of Mr. K.M.A. Samdani. The learned Advocate-General, N.-W.F.P., on the other hand contended that after the decision of this Court in Musa Wazir's case, supra, the maintenance of a waiting list of successful candidates by the Commission was discontinued and therefore, all vacancies 'occurring in the departments of the Government after the date of that decision are to be filled after fresh advertisement and interviews by the Commission. This Court in Musa Wazir's case, supra, while disapproving the practice of maintenance of a waiting list of candidates by the Commission in a competitive test observed as follows:-- "

9. In an exceptional situation such additional vacancies subsequently reported to the Commission would get assimilated to the vacancies already advertised and the selection will take place from the result of the combined competitive examination as a single selection.

10. It is also advisable for the Government and the Commission to consider or not whether it is more for, proper and regular to have annual or once in two years a combined competitive examination instead of keeping the practice erratic and uncertain. A practice of holding combined competitive examinations once x year or once in two years would end to certain extent the frustration and the disappointment that prevails in the fresh graduates who are eligible to take such examinations and to compete but are denied the opportunity to do so.

11. The practice of keeping a Waiting list in a competitive examination system is actually introducing a contradictory concept. The waiting list is maintained in a qualifying examination while in a competitive examination all vacancies are filled up in one go. Even if the filing up is staggered the competitive examination is one and has to be treated as one selection for the Purposes of recruitment and it cannot be divided into subsequent selection and prior selection the competitive examination remaining one and the same. Besides, the system which has prevailed in the Province is highly manipulative and unfair. Observation of the High Coon on merits reproduced above shows that it came to the conclusion that the practice of the Commission was unfair, created apprehension in the minds of the candidates, was manipulative in the hands of those dealing with the candidates and was the cause of heart burning in the persons affected and working in the Government service. The practice in the matter of recruitment, promotion etc. has always to be such so as to foster competence, discipline and efficiency in public service. Not only these objects should be advanced but they must appear manifestly to be advanced. If the system is arbitrary, capricious, unfair, leads to abiding heart burning and litigation then it is derogatory of the laudable objects for which the public service is required to be established.

13. So far as the Commission?s policy and practice spelt out in the letter dated 8th January, 1989 reproduced in the judgment is concerned, there are certain legal objections to it. In the first place, the examination being competitive, there could be no practice of maintaining a list of qualified candidates for six months or its revalidation by the Government for a longer period. Requisitions made cannot be adjusted out of such lists without proper advertisement. As held by this Court in the case of Abdul Jabbar Memon (Human Rights Case No.104/1992) it would otherwise be a violation of the Fundamental Rights of the citizens and not condonable on any ground of expediency or administrative convenience.

14. As for the receipt of subsequent requisitions from the Government, the options open to the Commission are two. Firstly, it can keep the very first advertisement for the competitive examination so open ended as to assimilate in the same selection the subsequent requisitions received by a date to be specified by the Commission after holding of the competitive examination and compiling of the results. The second alternative would be to carry forward these vacancies and hold a separate competitive examination for recruitment. Considering the extent of frustration and uncertainty prevailing in the qualified youths of the country, the latter course may be beneficial, in the long run and held in evolving a system of regularly holding the competitive examinations each year, or once in two years or once in three years. When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case." The first contention of the appellants is that they were interviewed by the Commission for specific posts/jobs and they were declared successful in the test/interview and as such they should be deemed to have appeared in a qualifying test before the Commission. It is, accordingly, contended by the appellants that as the decision of this Court in Musa Wazir's case, supra did not disapprove the practice of maintenance of waiting list of candidates by the Commission in the case of qualifying test, the appellants were not only entitled to have their names entered in a waiting list to be prepared according to the practice in vogue in the Commission at that time but were also entitled to be nominated against the future vacancies occurring within a period of six months from the date of preparation of the waiting list. It is true that 'in Musa Wazir's case, supra, this Court while discussing the validity of waiting list maintained by the Commission in respect of competitive test did observe that a waiting list is maintained in a qualifying examination but this observation did not mean that the practice of maintenance of waiting list by the Commission, in the case of qualifying examination was approved by this Court. It is, however, not necessary in these cases to go any further in this regard as in our view the appellants had not appeared in any qualifying test held by the Commission. In the present cases, the appellants had appeared before the Commission for interview in response to advertisement for specific job/post. Therefore, by their very nature of the interviews, the appellants will be deemed to have participated in a competitive test as they alongwith several other candidates competed .for appointment to a particular post/job. We may also mention here that in Musa Wazir's case, supra, this Court not only held that keeping of waiting list in a competitive examination amounted to introducing a contradictory concept but it was also held that such practice was violative of Fundamental Rights (Article 18 of the Constitution) guaranteed under the Constitution in view of the decision of this Court in the case of. Abdul Jabbar Memon (Human Rights Case No. 104/1992). Therefore, the contention of appellants that the rule laid down by this Court in Musa Wazir's case, supra, was not attracted in the cases of appellants and they were entitled to have their names entered in a waiting list of candidates to be prepared according to prevailing practice, is devoid of any merit. The next contention of the appellants is that they were interviewed by the Commission before the decision of this Court in Musa Wazir's case, supra, which applied prospectively, and therefore, they should have been nominated against the future vacancies according to the practice in vogue in Commission, at the time of their interview. This contention equally has no merit. The decision in Musa Wazir's case, supra, no doubt, did not affect the past and closed transactions namely, the cases where appointments were already finalised before the decision in Musa Wazir's case, supra, was given by this Court on basis of the then prevailing practice of maintenance of waiting' list of candidates. However, after the date of the decision in Musa Wazir's case, supra, no further recommendation could be made by the Commission on the basis of the waiting list of candidates. The admitted position in the above appeals is that none of the appellants were either recommended by the Commission or appointed against any post on the basis of waiting list of candidates on the date the decision was given by this Court in Musa Wazir's case, supra. The appellants, therefore, could not claim any benefit on the basis of the old practice of Commission of maintaining a waiting list of candidates. The last contention of the appellants is that some persons were recommended by the Commission out of the waiting list maintained by it even after the date of the decision of this Court in Musa Wazir's case, supra, which amounted to discriminatory treatment of the appellants' cases. This contention cannot be appropriately gone into in these cases, as the persons who were allegedly appointed on the basis of the waiting list after the decision of this Court in Musa Wazir's case, supra, are not parties to these proceedings. No case for interference with the order of High Court is made out. The appeals are, accordingly, dismissed but there will no order as to costs in the circumstances of the cases. A.A./F-380/S?????????????????????????????????????????????????????????????? Appeals dismissed