Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL AZIZ VS Respondent: GOVERNMENT OF KHYBER PAKHTUNKHWAHonorable Justice Muhammad Daud KhanGhulam Mohyuddin Malik,S. Sikandar Hayat Shah
2015 P L C (C.S.) 958
[Peshawar High Court]
Before Nisar Hussain Khan and Muhammad Daud Khan, JJ
ABDUL AZIZ and another
versus
GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others
Writ Petition No.1348-P of 2014, decided on 21st January, 2015.
Constitution of Pakistan---
----Art. 199--- Constitutional petition--- Civil service--- Advertisement through Public Service Commission for appointment of Research Officers/Hydro-Geologist (BPS-17)--- Alteration in prescribed qualification by the department after final selection by the Public Service Commission---Effect---Petitioners were recommended by the Public Service Commission for appointment but required qualification was changed by the department---Validity---Recommendation of Public Service Commission had conferred a vested right on the petitioners which could not be taken away by the Authority under the garb of change or alteration of prescribed qualification---Department kept stuck to the requirement of qualification provided in the advertisement till final selection of petitioners by the Public Service Commission---Alteration in prescribed qualification was mala fide was on record on the part of department---Department was directed to follow/honour the recommendations of Public Service Commission and appoint the petitioners against the posts advertised---Constitutional petition was accepted in circumstances.
Miss. Farzana Qadir v. Province of Sindh through Secretary, Ministry of Health, Government of Sindh Secretariat, Karachi and another 2000 PLC (C.S.) 225 rel.
Ghulam Mohyuddin Malik for Petitioners.
S. Sikandar Hayat Shah for Respondents.
Date of hearing: 21st January, 2015.
JUDGMENT
MUHAMMAD DAUD KHAN, J.--- Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have prayed for issuance of an appropriate writ directing the respondents to appoint them against the posts of Research Officer/Hydro-Geologist (BPS-17).
2. Brief facts giving rise to the filing of the instant petition are that on receipt of requisition for appointment against the two posts of Research Officer/Hydro-Geologist (BPS-17) from the Secretary to Government of Khyber Pakhtunkhwa, Public Health Engineering Department/respondent No.3 herein (hereinafter called as PHED) vide letter dated 14-3-2011, the Khyber Pakhtunkhwa Public Service Commission/respondent No.2 herein vide Advertisement No.2/2011 serial No.71 invited applications from eligible candidates and out of 39 candidates, after thorough examination, 7 candidates were found eligible and called for interview on 30-3-2012, but none of them qualified therein. Again, the Khyber Pakhtunkhwa Public Service Commission (hereinafter referred to as the Commission) vide Advertisement No.01/2013 serial No.38 invited applications from suitable candidates and out of 52 candidates, after detailed scrutiny, 05 candidates were found eligible and called for interview on 10-10-2013 wherein the present petitioners succeeded and, therefore, they were recommended for their appointment against the subject posts vide letters dated 1-11-2013.
3. Para-wise comments were called for by this Court from respondents Nos.1 to 3. Respondents Nos.1 and 2 in their joint comments took the stance that the earlier interview held on 30-3-2012 was duly attended by their representative wherein none of the candidates was found qualified in Hydro-Geology. According to them, the prescribed qualification of Agriculture and Civil Engineering in PHE Service Rules, 2010 for the post of Research Officer/Hydro-Geologist was not in consonance with the scope of job to identify ground water potential in the project area by conducting Electrical resistivity survey and seismic survey and preparation of geological map for determining the type and thickness of the acquifers and, therefore, it became essential to amend the ibid Rules, 2010 by including the qualification therefor as M.Sc. with Geology/Hydro-Geology or Geophysics or Sediment-logy as a subject.
4. The Commission in its detailed comments took different stance other than the stance taken by respondents Nos.1 and 3 in their comments and fully defended its case.
5. We have considered the submissions advanced by the learned counsel for the petitioners as well as the learned A.A.-G. for official respondents and perused the available record. As the question of law involved in the matter pertains to the rights of litigant public, therefore, while admitting the instant petition for regular hearing, we are inclined to decide the same today on merits.
6. Perusal of the case record shows that the PHED/respondent No.3 herein forwarded his letter No.SO(Estt)/PHED/4-1/2011/R.O. dated 14-3-2011 to the Commission 'Requisition for Recruitment' in duplicate for filling in the two vacant posts of Research Officer/Hydro-Geologist (BPS-17) completed in all respect along with a copy of Agriculture and Civil Engineering in PHE Service Rules, 2010 wherein the prescribed qualification for the subject posts was as under:---
"2nd Division M.Sc. (Hydro-Geology OR B.Sc. (Civil/ Agriculture Engineering) with two years relevant experience OR 2nd Division M.Sc. (Water Resources/Civil Engineering) from a recognized University."
The Commission as per rules and regulations in the light of Advertisement No.2 of 2011 serial No.71 received 39 applications out of which, after thorough scrutiny, 7 candidates found eligible were called for interview on 30-3-2012, but none of them qualified the same. Upon the issuance of second Advertisement No.1/2013 serial No.38 the Commission received 52 applications which were deeply searched wherein 5 candidates found eligible were called for interview on 10-10-2013 in which the present petitioners, who qualified the same, were recommended for their appointment by the PHED/respondent No.3 herein against the subject posts vide letters dated 1-11-2013.
7. As observed above, the Commission after finalizing the process of test and interview not only informed the present petitioners/ recommendees by registered post letters but also communicated its recommendations and result with respect to the petitioners the same day on 10-10-2013 to the PHED/respondent No.3 herein vide Confidential letter dated 1-11-2013.
8. In the background of above situation, vide letter No.SO(Estt)/PHED/4-1/2007 dated 8-10-2013 the PHED/respondent No.3 herein requested the Commission to postpone the interview to be conducted for the subject posts on 10-10-2013 till the approval of the Central SSRC and that too after the period of more than two years. Again, the respondent No.3 herein on the 3rd day of his above letter on 10-10-2013 informed the Commission that the nomination of Mr. Ishrat Ali SE(HQ) as a representative of PHED/respondent No.3 herein for the interview scheduled for 10-10-2013 was withdrawn.
9. As far as the Summary submitted by the Secretary PHED for Chief Minister is concerned, suffice it to say that paras 6 and 7 of the Note, being very much relevant, are reproduced hereinbelow:---
"A Note was moved to the Chief Secretary Khyber Pakhtunkhwa, being appointing authority in the instant case with the request to accord approval to the rejection of appointment of recommendees of the Public Service Commission mentioned in para 1 above and that the posts would be re-advertised once amendments process attained finality to which he did not agree (Annex-VI)."
"7. As pointed out by the Establishment Department, Rule 5 of Khyber Pakhtunkhwa Government Rules of Business, 1985 provides a mechanism to rule out the advice/recommendations of Public Service Commission. Verbatim, extract of rule 15 is given below:---
"15. Public Service Commission
The advice of the Public Service Commission shall ordinarily be accepted by the Department in all matters where it is obligatory to consult the Commission under any rules or regulations for the time being in force. If it is proposed not to accept the advice of the Commission, it shall be submitted to the Chief Minister through the Establishment and Administration, who the Chief Minister through the Establishment and Administration, who may give an opportunity to the Public Service Commission of further justifying its recommendations before a final decision is taken (Annex-VII)."
The above legal position makes the instant matter further clear that in case of appointment in BPS-17 and above through Commission, the Chief Secretary, being the competent authority and none else, correctly applied the law by following the Khyber Pakhtunkhwa Government Rules of Business, 1985.
10. In a similar situation involving identical question a Division Bench of Karachi High Court in the case reported as Miss. Farzana Qadir v. Province of Sindh through Secretary, Ministry of Health, Government of Sindh Secretariat, Karachi and another (2000 PLC (C.S.) 225) had allowed the writ petition. Recommendation of the Public Service Commission has conferred a vested right on the petitioner which cannot be taken away unilaterally by the authority under the garb of change or alteration of prescribed qualification. Since floating of advertisement till final selection by the Commission, the respondents kept stuck to the requirement of qualification provided in their advertisement. But the moment petitioners were recommended, the respondents woke up from their slumber and came forward with volte-face with change/alteration of criteria and required qualification which is glaring indication of their mala fide. Such an arbitrary action of respondents cannot be countenanced on any ground whatsoever.
11. For the reasons discussed above, we would allow the instant petition, direct the PHED/respondent No.3 to follow/honour the recommendations of the Commission and appoint the petitioners against the posts of Research Officer/Hydro-Geologist (BPS-17). There shall be no order as to costs.
AG/72/P Petition allowed.