2019 P L C (C.S.) 1291
[Balochistan High Court]
Before Muhammad Noor Meskanzai, CJ and Muhammad Ejaz Swati, J
AQEEL AHMED and others
Versus
LASBELLA UNIVERSITY OF AGRICULTURE and others
C.Ps. Nos.1038 of 2015 and 207 of 2016, decided on 25th August, 2016.
Civil service ---
----Advertisement for appointment against the post of Deputy Registrar (BPS -18) of the
university--- Petitioners had applied against the post of Deputy Registrar which was
advertised by the University but same was filled up through promotion--- Validity ---First post
while calculating the ratio of posts for promotion and initial recruitment would fall to the
share of promotion quota ---Official (respondent) had already been appointed as Deputy
Registrar and second post was meant f or initial recruitment ---Petitioner having applied in
response to the public advertisement stood first ---Impugned notification for appointment
through promotion had been issued after advertisement ---Post for promotion had already
been filled by the Univers ity---Advertisement for appointment of Deputy Registrar through
initial recruitment had neither been withdrawn nor there was any post for promotion---Appointment of Deputy Registrar through promotion instead of initial recruitment was a mala fide said prom otee lacked experience of five years and his appointment was not
sustainable, in circumstances ---Notification appointing said promotee was declared without
lawful authority having no effect, which was set aside ---University was directed to decide the
fate of advertised post of Deputy Registrar as per merit of test already held--- Constitutional
petition was disposed of, in circumstances.
Director, Directorate- General of Intelligence and Investigation and others v. Messrs
Al-Faiz Industries (Pvt.) Limited a nd others 2006 SCMR 129; Syed Mehmood Akhtar Naqvi
and others v. Federation of Pakistan PLD 2013 SC 195; Muhammad Yasir v. Federation of Pakistan PLD 2012 SC 132 and 2004 SCMR 639 rel.
Mazhar Ilyas Nagi for Petitioner (in Constitutional Petition No.1038 of 2015).
Khalid Ahmed Kubdani for Respondents Nos.1 and 2 (in Constitutional Petition
No.1038 of 2015).
Ghulam Mustafa Buzdar for Respondent No.3 (in Constitutional Petition No.1038 of
2015).
Amanullah Kanrani for Petitioner (in Constitutional Petition No.207 of 2016).
Khalid Ahmed Kubdani for Respondents Nos.3 and 4 (in Constitutional Petition
No.207 of 2016).
Nizamuddin Advocate General for Respondents (in Constitutional Petition No.207 of
2016).
Ghulam Mustafa Buzdar for Respondent No.5.
Date of h earing: 28th June, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The petitioners Aqeel Ahmed and Abdul Latif
pursuant to advertisement made by Lasbella University of Agriculture, Water and Marine
Sciences (hereinafter referred to "the University") in the year 2014 applied for the posts of Deputy Registrar (BPS 18) (hereinafter referred to "the posts in question"). The petitioner Aqeel Ahmed applied through proper channel. The petitioners qualified written test conducted by the National Testing System ('NTS') on 14th December 2014. The petitioner
Abdul Latif stood at serial No.1, while petitioner Aqeel Ahmed at serial No.2 of the merit list. Thereafter pursuant to letter dated 16th April 2015, they appeared before the Selection Board for interview. According to t hem, they did well during interview. It is the case of the
petitioners that the official respondents (competent authority) instead of deciding the fate of the aforesaid posts diverted the post in question to the quota of the departmental candidates and res pondent No.3 Mr. Faisal Khan (Assistant Registrar) (NPS 17) was promoted to the
rank of Deputy Registrar vide Notification dated 5th November 2014 thereinafter referred to "the impugned Notification"). The petitioners came to know about the impugned Notifi cation
in the month of October 2015.
2. The petitioner Aqeel Ahmed filed Constitutional Petition No.1038 of 2016 and the
petitioner Abdul Latif filed Constitutional Petition No.207 of 2016 against the impugned Notification. Since both the petitions are bas ed on similar facts and against the impugned
Notification, therefore, are being disposed of through the common judgment.
3. The respondents Nos.1 and 2 in their parawise comments had asserted that induction
of the respondent No.3 has been made in accordanc e with the Recruitment, Rules and
Procedure. It is further contended that the petitioners have failed to qualify the NTS test for the post of Deputy Registrar, therefore, under the compelling circumstances and keeping in view the need of the University, ac cording to the respondents, the post of Deputy Registrar is
still remained vacant and would be re- advertised soon. In respect of appointment of
respondent No.3 as Deputy Registrar, the official respondents contended that Mr. Daulat Khan was appointed on pr omotion quota vide notification dated 23rd May 2012, who
proceeded on study leave for M. Phil/PhD under faculty development program by the Higher Education Commission (HEC) of Pakistan and in absence of Deputy Registrar, the competent authority LUAWMS Depa rtment promoted the most Senior Assistant Registrar i.e. the
respondent No.3 on the post of Deputy Registrar to coup the need of the University related to
administrative matters. The official respondents candidly mentioned in their parawise comments that o ut of two sanctioned posts of Deputy Registrar, one post had been filled to
promotion quota, whilst the second post is still vacant.
4. The respondent No.3 has also filed parawise comments and taken the same stance as
reiterated by the respondents Nos.1 and 2.
5. The learned counsel for the petitioner Aqeel Ahmed contended that the promotion of
the respondent No.3 vide impugned notification is illegal and without lawful authority; that the posts of Deputy Registrar were advertised for initial recruitments, but the promotion on the said post of respondent No. 3 was in violation of Sub -rule (3) of Regulation Act of the
Statutes 2010 and Sub- rule (5) of Rule 9; that the respondent No.3 was initially appointed as
lecturer (Islamiat), who was transferred from a private College to the University and merged as Assist ant Registrar without adopting the proper course of law; that the aforesaid Rule
provides ratio of 50/50% quota fixed for departmental candidates and direct recruits; that the promotion quota was filled by the Department by promoting Mr. Daulat Khan as Deputy Registrar BPS -18 vide notification dated 23rd May 2012, therefore, the promotion of the
respondent No.3 was also illegal, unlawful and disregard of eligibility criteria described in the Statutes of LUAWMS; that the impugned notification dated 5th November 2014 is also in derogation of Articles 9 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution); that the petitioner Aqeel Ahmed met the criteria, both educational and eligible for the post, but he has been deprived from hi s vested rights; that the Department had taken
stance that the post in question is still vacant and intends to re -advertise the same, but after
afflux a time, the petitioners might be deprived due to their age or other disqualifications,
therefore, the off icial respondents arc under legal obligation to decide the fate of the
advertised post.
6. Learned counsel for the petitioner Abdul Lateef while adopting the argument of the
learned counsel for the petitioner Aqeel Ahmed added that after test and interview of the
advertised post, the competent authority was under legal obligation to decide its fate and appointment of respondent No.3 was in negation of the Statutory Rules.
The learned Advocate General contended that in the advertised posts, none of the
cand idates qualified and the same is still vacant; that the impugned notification whereby the
respondent No.3 was promoted had no nexus with the advertised post nor for such posts under the Statutes 2010 any advertisement is required; that initially Mr. Daulat Khan was
promoted to the post of Deputy Registrar, who proceeded on study leave for M. Phil/Ph.D under the faculty development program by the H.E.C; that thereafter the respondent No.3 was given an additional charge and thereafter he was promoted against the said promoted
quota; that the petitioners, though applied for the advertised post i.e. Deputy Registrar and appeared in NTS test, hut could not succeed; that the advertised post was neither diverted to the initial recruitments nor the respondent No.3 w as appointed on the said post.
The learned counsel for the respondent No.3 reiterated the same arguments as agitated
by the learned Advocate General and further contended that the respondent No.3 was
transferred from College to University and merged as As sistant Registrar with due process of
law; that he was also holding the additional charge of the post in question and thereafter
when Mr. Daulat Khan the then Deputy Registrar left for M.Phil/Ph.D, the post meant for promotion was lying vacant, which was f illed through promotion quota, therefore, the post
occupied by the respondent No.3 does not fall within the criteria of initial recruitments nor
had any nexus with the advertised post. He further contended that the grounds agitated by the
learned counsel f or the petitioners against the respondent No.3 that he was a contract
employee in a private College and his emergence in the University had also been made in
violation of Rules, has not been agitated in the petitions, therefore, the grounds, which have not been taken in the petitions, cannot be considered.
7. We have heard the learned counsel for the parties and perused the record. We find
that Lasbella University of Agriculture, Water and Marine Sciences (LUAWMS) was constituted and established at Uthal in accordance with Lasbella University of Agriculture,
Water and Marine Sciences Act, 2010 (Act No. IX) (hereinafter the "LUAWMS Act, 2010"). The Service Statutes to regulate the routine matters of appointment, promotion and conditions of Services of the LUA WMS (Service) Statutes, 2010 (hereinafter referred to
"Service Statutes, 2010") which comprises posts specified in Column No.2 of the Appendix
I, II and III and appointments criteria for such posts. The method of recruitment and required
qualification for appointment against the post of Deputy Registrar (NPS 18) had been prescribed at serial No.5 of the Appendix of the Service Statute, 2010, which is reproduced herein below:
S.No. Nomenclature of the
Post Minimum qualification for
initial recruitment Method of
recruitment
5 Deputy Registrar Postgraduate or equivalent
qualification preferably 1st Class from HEC recognized University with 5 years administrative experience in post equivalent to grade -17 in
University, Government Department, or Autonomous Organization. Preference will be given to those candidates who have higher academic qualification and computer
Skills. i) 50% by initial
recruitment ; and ii) 50% by promotion from amongst the members of the service holding the post of Assistan t
Registrar PBS -17
with minimum five years experience as such, on seniority cum-fitness basis
Subsection (3) of section 8 of the Service Statutes 2010 provides the ratio post for
promotion and initial recruitment, which reads as under: --
"(3) While calculating the ratio of posts for promotion in and initial recruitment, the first post shall fall to the share of promotion quota."
8. The appointments by promotion and appointments by initial recruitment against the
post in NPS -18 and above are to be made according to the aforesaid provision. The first post
fall to the share of promotion quota and second post if any would be for initial recruitment.
The appointment by promotion and initial recruitment against the post in BPS -18 and above
are to be made on the recommendation of the Selection Board as provided in Sections 8 and 9 of the Service Statute, 2010. A syndicate of the University w as constituted under the
(LUWAMS) Act, 2010 vested powers under Section 20(2) of the LUAWMS Act, 2010 to
appoint University Teacher and officer on the recommendation of the Selection Board.
9. In the instant case in December 2014, two posts of Deputy Regis trar (BPS -18) were
sanctioned / available and as per LUAWMS Service Statutes, 2010, the post of Deputy
Registrar BPS -18 criteria had been fixed as postgraduate or equivalent qualification
preferably first class from the H.E.C. recognized University with fi ve years administrative
experience in the post equivalent to Grade -17 in University, Government Department, or
Autonomous Organization and the method of recruitment: (1) 50% on initial recruitment; and (2) promotion.
Sub- rule (3) of Statutes 2010 provides that while calculating the ratio of posts for
promotion and initial recruitment, the first post shall fall to the share of promotion quota. The official respondents in view of the aforesaid provision promoted Mr. Daulat Khan as Deputy Registrar in BPS -18 vide notification dated 23rd May, 2012 and thereafter as per the
aforesaid provision, for the second post of Deputy Registrar, it was meant for initial recruitment, therefore, a public advertisement was made in the month of May 2014. The petitioners applie d for the said post and as per merit list, the petitioner Abdul Lateef stood at
Serial No.1, while the petitioner Aqeel Ahmed stood at Serial No.2. The petitioner Aqeel Ahmed had also filed an appeal before the Registrar LUAWMS at Uthal, but having no
response. The impugned notification whereby the respondent No.3 was promoted as Deputy
Registrar from the post of Assistant Registrar BPS -17 issued on 5th November 2014 after the
impugned advertisement. It appears that the post for promotion had already been f illed as per
Sub- rule (3) of Rule 8 of the LUAWMS Service Statues, 2010 by promoting Mr. Daulat
Khan vide notification dated 23rd May 2012, therefore, the quota related to promotion had been filled by the official respondents and thereafter the official re spondents were under
legal obligation to have filled the second post through initial recruitment, for which the impugned advertisement was published. The contention of the learned Advocate General and the learned counsel for the respondent No.3 that the se cond post for initial recruitment is still
vacant and the impugned notification had been made for the first post of Deputy Registrar, which was meant for promotion and in this respect explanation had been given that since Mr. Daulat Khan, who had initially occupied the first post for promotion had left for M. Phil/PhD
and the respondent No.3 was promoted on the said post. This contention of the learned Advocate General and learned counsel for the respondent No.3 is contrary to the record. It is quite obviou s that vide notification dated 23rd May 2012, the first post for promotion had
been filled by promoting Mr. Daulat Khan and thereafter neither any such notification was withdrawn by the competent authority nor there is any explanation on the part of the of ficial
respondents to explain that how and on what basis after issuance of notification dated 23rd May 2012, the respondent No.3 was promoted on the same alleged post as asserted by the official respondents and the respondent No.3. The explanation on their part is vague and
unjustified, as the Notification dated 23rd May, 2012, is still in field and in such
circumstances, there was no post for promotion. It appears that after issuance of impugned
notification dated 5th November 2014, whereby the respondent No.3 was promoted as Deputy Registrar, the official respondents had taken the aforesaid stance, which is based on malice and also contrary to the LUAWMS Service Statutes, 2010 and cannot be sustained. The advertised post of Deputy Registrar was meant for appointment by the initial recruitment
as provided under subsection (3) of Section 8 of the LUAWMS Service Statutes, 2010,
therefore, the criteria for appointment was to be adhered as provided under Rule 9 of the
LUAWMS Service Statutes, 2010, but in this r espect, the course adopted by the official
respondents appears to be not only contrary to Service Regulations, but it smacks malice. It is well settled principle that thing should be done as required to be done or not at all. In Director, Directorate -Gener al of Intelligence and Investigation and others v. Messrs Al -Faiz
Industries (Pvt.) Limited and others 2006 SCMR 129 it is held that, "If the law had prescribed method for doing anything in a particular manner, such provision of law is to be allowed in let ter and spirit and achieving or attaining the objective or performing or doing of
a thing in a manner other than provided by law would not be permitted".
10. Admittedly, the respondent No.3 was initially appointed as Lecturer in Islamiat vide
notification dated 14th October, 2008 on contract basis for a period of two years and
thereafter vide notification dated 3rd February, 2010, he was assigned the additional charge of Assistant Registrar without any sanction of the competent authority. It is noted that t he
initial appointment of the respondent No.3 was as Lecturer in Islamiat in BPS -17 on contract
basis for a period of two years, but without his regularization by the competent authority, vide notification, he was assigned the additional charge of the Assi stant Registrar and
thereafter vide notification dated 24th April 2010, his nomenclature was changed from Lecturer of Islamiat to Assistant Registrar BPS -17 without approval of the competent
authority, however, vide notification dated 19th October 2010, th e services of various
employees including the respondent No.3 were regularized from the date of their joining, which shows that the respondent No.3 joined his post of Assistant Registrar vide notification dated 24th April 2010. Whereas the Appendix- II of S ervice Statutes, 2010 prescribed the
qualification for promotion from the Assistant Registrar to Deputy Registrar BPS -18 i.e. first
class from the postgraduate or equivalent qualification from Higher Education Commission recognized University with five yea rs administrative experience, therefore, on 5th November
2014, when the impugned notification for promotion of the respondent No.3 was issued, even he was also lacking/fulfilling the experience of five years, thus his appointment through promotion on this ground too, the impugned post cannot be sustained. Since the impugned post was initial recruitment, therefore, promotion of the respondent No.3 vide Notification dated 5th November, 2014 is clear deviation of subsection (3) of Section 8 of the LUAWMS Servi ce Statutes, 2010, which cannot be sustained. In Syed Mehmood Akhtar Naqvi and
others v. Federation of Pakistan PLD 2013 SC 195, the Hon'ble Supreme Court observed that "whenever there are statutory provisions or rules or regulations which governs the meth od of
appointment, the same must he allowed".
In Muhammad Yasir v. Federation of Pakistan PLD 2012 SC 132, the Hon'ble
Supreme Court clarified that "when called upon to do so, the Courts are duty bound to examine the integrity of the selection process". R eference may also be made to the judgment
reported in 2004 SCMR 639.
In view of the above, Constitutional Petitions Nos. 1038 of 2015 and 207 of 2016 are
allowed to the effect that Notification dated 5th November 2014 is without lawful authority
and had no legal effect, thus is hereby set aside. With the result the official respondents/competent authority is directed to decide the fate of the advertised post of Deputy Registrar as per merit list of test held on 14th December, 2014.
ZC/82/Bal Petitio ns allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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