2020 P L C (C.S.) 109
[Balochistan High Court]
Before Abdul Hameed Baloch and Naeem Akhtar Afghan, JJ
FEROZ SHAH
Versus
The SECRETARY EDUCATION DEPARTMENT, GOVERNMENT OF
BALOCHISTAN CIVIL SECRETARIAT QUETTA and others
Constitution Petition No.681 of 2016, decided on 23rd September, 2019.
Civil service ---
----Appointment ---Non -availability of sanctioned post ---Scope --- Petitioner had applied
for the post of watchman and had appeared in the interview ---Petitioner was found
successful for the post so app lied by him ---District Recruitment Committee recommended
the name of petitioner for appointment, however, the department noted that the orders would be issued against clear sanctioned vacant post ---Record revealed that department had
invited applications f or only one vacant post of driver ---No vacant post of the watchman
was published in the advertisement ---Petitioner had not applied for the clear sanctioned
post as advertised in the newspaper by the department ---Held; no direction could be issued
to the de partment for appointment of petitioner ---Constitutional petition, being devoid of
merits, was dismissed.
Director, Social Welfare, N. -W.F.P. v. Sadullah Khan 1996 SCMR 1349 rel.
Rehmatullah Barech for Petitioner.
Abdul Latif Kakar, A.A.G. for Responden ts.
Date of hearing: 17th September, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ----This judgment disposes of Constitutional
Petition No. 681 of 2016, whereby the petitioner prayed as under:
"a) Declaring that as per merit list/recommendations dated 31.03.20 16 passed and
issued by respondent No.3 as well as list/letter dated 27.1.2016 issued by respondent No.1, the petitioner is entitled for appointment as Class -IV.
b) Declaring that the final list/letters dated 12.2.2016 and 17.2.2016 issued by the responde nts Nos.1 and 2 respectively are based on political influence/pressure and
on the basis of favoritism and nepotism, thus the petitioner has been deprived from his legal and lawful right of appointment on the post of Class -IV.
c) Pending disposal of the ma in petition, the official respondents may be restrained
from issuing any appointment order of any candidate on the Class -IV post i.e. U/C
Saddar -I Chagai (Government Girls Middle School KIlli Rasool Bakhsh Sumalani).
d) Any other relief which this Hon'abl e Court may found deemed fit and appropriate
in the circumstances of the case may also be awarded with cost of the proceedings, in the interest of justice and equity.
2. Brief facts of the case are that the Education Department Balochistan through
Advertis ement in daily 'Jang' Quetta on 29th December, 2014 invited applications for
vacant posts of different categories from eligible candidates of different districts of the province; that the petitioner pursuant to the said advertisement also applied from Chag i for
the post of Watchman and appeared in the interview; that after the interview vide merit list dated 31.3.2015 the petitioner names stood at S.No.9 from Union Council Saddar -I
Government Girls Middle School Killi Rasool Bakhsh Sumalani, thus only the petitioner was succeeded and found successful candidate for the post so applied by him; that the respondent No.3 sent merit list dated 31.3.2014 to the respondents Nos.1 and 2 with recommendation of formal appointment order of the petitioner and others; tha t the
respondent No.1 while approving the recommendation of the respondent No.3 sent the merit list/letter vide letter dated 27.1.2016, bearing No.SO(III -M)5-10/2015- Edu:/7474- 81 to the
respondent No.2 with note that 'The orders shall be issued against cle ar sanctioned vacant
post', thereafter on 12th February the respondent No.1 is issued another letter/merit list of the Class -IV of the District Chagi, whereby the earlier departmental approval/merit list
dated 27.1.2017 was directed to be treated as cancel led/withdrawn with note that the order
shall be issued against Clear sanctioned vacant post. The petitioner being aggrieved of the subsequent merit list, whereby his name was not mentioned, has invoked the jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
3. We have heard the learned counsel for the parties at reasonable length, perused the
documents appended with memo. of petition as well as the reply submitted by the official respondents. The perusal of record reveals that the respondent No.2 through Adverti sement
in daily 'Jang' Quetta on 29th December, 2014 invited applications for vacant posts of different categories from eligible candidates of different districts of the province, whereby only one post of the class -IV (Driver) was lying vacant in District Chagi as mentioned in
column No.9 of the advertisement. The Chairman District Recruitment Committer (DRC) after conducting test and interview, recommended the names of successful candidate for appointment, wherein the petitioner's name was enlisted at S.No.9 for appointment as watchman, while on 27.1.2016 the respondent No.1 had conveyed the list to respondent
No.2 for issuance of appointment orders of the successful candidate in non- teaching cadre
of the District Chagi with note that:
"The orders shall be issued against the clear sanctioned vacant post"
4. The record transpired that no vacant post of the watchman was published in the
advertisement. The competent authority vide order dated 12th February, 2016, bearing
No.SO(III -M)5-10/2015 Education/9354- 62 Government of Balochistan Education
Department, informed the respondent No.2 about departmental approval dated 12th February, 2016, bearing No.SO(III -M)5-10/2015 Edu/7474- 81, to be treated cancelled.
Thereafter on 17th February 2016 the competent authorit y has issued merit list for
recruitment of the post of Class -IV, District Chagi for the years 2014- 15. The list reveals
that all the recommended candidates are Naib Qasid. Since the petitioner applied for the post of watchman but no post of watchman was advertised by the department.
5. Thus, it can safely be concluded that the petitioner has not applied for the clear
sanctioned post as advertised in the newspaper by the department and post of watchman, for which the petitioner had applied, was not advertise d by the department, therefore, no
direction can be issued to the official respondents for appointment of the petitioner.
6. For rendering this view we are fortified from the dictum laid down by the Hon'able
Supreme Court of Pakistan on the case of Directo r, Social Welfare, N. -W.F.P. v. Sadullah
Khan 1996 SCMR 1349, whereby the Hon'able Supreme Court held as under:
"While inquiring into various complaints of violation of Fundamental/ Human Rights, it has been found that the Federal Government, Provincial G overnments,
Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right
(Article 18 of the Constitution) guaranteeing to every citizen freedom of profession.
Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith.
Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement. "
Thus in v iew of above, petition being devoid of merits is dismissed accordingly.
SA/107/Bal. Petition dismissed.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,
let us know.