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Petitioner: RAFIULLAH VS Respondent: GOVERNMENT OF N.-W.F.P
1999 P L C (C
1999 P L C (C. S.) 235
[Peshawar High Court]
Before Shakirullah Jan and Nasir‑ul‑Mulk, JJ
RAFIULLAH
versus
GOVERNMENT OF N.‑W.F.P. through Secretary Education, Peshawar and 20 others
Writ Petition No. 1265 of 1996, decided on 15th January, 1998.
Civil service‑‑
‑‑‑‑Appointment‑‑‑Constitutional petition‑‑‑Civil servant in his Constitutional petition had challenged notifications issued by Authority in respect of appointment of civil servants, praying that those notifications should be declared, illegal, mala fide, void, without lawful authority and of no legal effect‑‑‑Object of the notification was to ensure a fair degree of selection of civil servants, minimise the chances of discretion and favourtism, which object was neither arbitrary nor illegal‑‑‑Civil servant could not show that policy laid in the notifications was in flagrant disregard of any relevant provision of law‑‑‑High Court in its Constitutional jurisdiction could not substitute its own opinion so long as Authority had followed rules and procedure properly‑‑‑Constitution of Pakistan (1973), Art. 199.
Saeed Baig for Petitioner.
Riaz Ahmad Khan, A.A.‑G. for Respondents Nos. 1 to 3.
Date of hearing: 16th October, 1997.
JUDGMENT
MIAN SHAKIRULLAH JAN, J.‑‑‑Rafiullah, Projectionist at Government College of Education for Elementary Teachers (F) Khawaza Khela, Swat, Petitioner herein, has questioned the Notifications dated 23‑5‑1995, 24‑5‑1995, 28‑3‑1996 and 29‑3‑1996 issued by respondent No.2 herein, and has prayed for declaring the same to be illegal, mala fide, void, without lawful authority and of no legal effect with the direction to respondent No. l to appoint and select Senior English. Teachers strictly on batch‑wise/year‑wise merit according to law.
2. According to the contents of the writ petition, the petitioner is employed as Projectionist in Education Department and posted as such in Government Elementary School for Women, Khawaza Khela, Swat. The Government of N.‑W.F.P. vide Notification dated 5‑12‑1994 proposed to appoint 660 Senior English Teachers on the posts which were lying in various schools of N.‑W.F.P. According to the notification 70% of the posts were to be filled in on the basis of batch‑wise/year‑wise merit from among (in‑service) Teachers and 30% on the basis of open merit competition. On 8‑12‑1994 these posts were advertised in the newspapers and the petitioner also applied for appointment on open merit. Interview was held by the Selection Committee in the month of January, 1995. The petitioner got 58 marks including 7 marks for service. The Director, Secondary Education vide Notifications dated 23‑5‑1995, 24‑5‑1995, 28‑3‑1996 and 29‑3‑1996 appointed respondents 4 to 21 on the vacant posts. The petitioner made an application to respondent No.2 challenging the appointments of these persons being without merit and on the basis of mala fide, but with no fruitful result.
3. The respondents were asked to file comments which were filed on 19‑5‑1997 by them. In the comments it has been stated that the petitioner had not qualified the interview. It was further stated in para., 5 of the grounds that petitioner being Projectionist could not be considred in the quota allocated for in‑service teachers on the basis of year‑wise/batch‑wise merit. Even the in‑service teachers who had qualified B.Ed. in the same session with the petitioner i.e. 1992, have not been considered for appointment on the basis of year‑wise/batch‑wise merit.
4. We have heard the learned counsel for the parties and also perused the material placed on file.
5. The material placed on file indicates that respondents Nos.4 to 21 were appointed on the basis of open merit and not on the basis of year?wise/batch‑wise merit. The petitioner could not even qualify the interview. The in‑service teachers in Zone‑III who had passed their B.Ed./M.Ed. in the year 1990 were considered for appointment on the basis of batch‑wise merit, whereas the petitioner has qualified B.Ed. examination in the Session 1992. In this view of the matter, the objection of the petitioner over the appointments of respondents Nos.4 to 21 is without any substance. The respondents themselves have admitted in the comments that petitioner belong to Zone‑III, having passed his B.Ed. examination in the year 1992, whereas from the quota of in‑service teachers, appointments were made only of those candidates who had qualified B.Ed./M.Ed. in the Session 1990.
6. The learned counsel for the petitioner also raised an objection over the Notification dated 11‑2‑1987 and adopted the arguments of the learned counsel for the petitioner in Writ Petition No. 641 of 1995. It may be mentioned that the learned counsel for the petitioner has not taken this ground in his writ petition thereby depriving the respondents to properly answer the question in their written reply. Anyhow, the argument is without any substance. The aim of the notification is to ensure a fair degree of selection, minimise the chances of discretion and favouritism, which aim is neither arbitrary nor illegal and neither it was shown that the policy contained in the said notification is in flagrant disregard of any relevant provisions of the service law.
7. We while sitting in our extraordinary writ jurisdiction cannot substitute our opinion for that of the Selection Committee so long as the Rules and Procedure had been properly followed. We, therefore, see no merit in this writ petition and the same is dismissed accordingly.
H.B.T./37/P ??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.