IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
1. Mr. Justice Irfan Saadat Khan
2. Mr. Justice Aftab Ahmed Gorar
C.P NO.D-1233 OF 2010
Date of hearing: 31.01.2013.
Date of decision: 12.02.2013.
Petitioners: Through Mr. Ayatullah Khowaja, Advocate.
Official Respondents: Through Mr. Allah Bachayo Soomro, A.A.G.
Respondent No.5: Through Mr. Badal Gahoti, Advocate.
O R D E R
IRFAN SAADAT KHAN, J:- This Constitutional Petition has been filed with the following prayers:-
(a) To direct the Respondents to issue the appointment letter of Primary School Teacher to the Petitioner as per the results of written/assessment test on merits.
(b) Any other relief(s) which this Honourable Court may deem fit and proper in the circumstances of the present petition.
(c) Cost of the petition may be borne by the Respondents.
2. Briefly the facts of the case are that Posts of Primary School Teachers were announced by the Education and Literacy Department, Government of Sindh in Daily Kawish Newspaper dated 24.09.2008. That in response to the said advertisement the Petitioner also applied for the post of P.S.T from District Badin. The written tests/assessment tests were arranged by the University of Sindh for the Candidates and the Petitioner after obtaining the admit card appeared in the said test. It is averred that the Petitioner obtained highest marks in District Badin (Male Candidates) in the said written test. The Petitioner, thereafter, made a number of visits to the office of the Respondent No.3 about his appointment but he was informed that the appointment letters will be issued after finalization of merit list, which is to be received from Karachi. The Petitioner then came to know that appointment letters have been issued to certain candidates. The Petitioner then again visited the office of the Respondent No.3 with the request that since he had secured the highest marks from his district he should be issued appointment letter but no positive reply was given. After getting disappointment from the office of Respondent No.3 regarding issuance of appointment letter to the petitioner, the present petition has been filed.
3. Mr. Ayatullah Khowaja, Advocate, appeared on behalf of the Petitioner and submitted that the Petitioner is a highly qualified person and is a Hafiz-e-Qur’an as well. He submitted that the petitioner has fulfilled all the prerequisite conditions required for the said post and also obtained the highest marks in his district. According to the learned Counsel, the appointment letter should have been issued by the Respondents in favour of the petitioner but, according to his information and belief, the appointment letters have been issued to the blue eyed boys of the Respondents and the persons having political influence. He stated that a number of visits were made by the Petitioner in the office of Respondent No.3 but he was always kept on false hopes whereas the Respondents in their comments have stated that the Petitioner had not submitted his application within time and he was issued admit card as an extra candidate and as such he was not found competent enough to qualify for the appointment. He stated that the wife of the Petitioner Mst. Sanam also applied for the appointment of Primary School Teacher (Female) and the Petitioner and his wife were allotted application form Nos.449 & 450 respectively. Learned Counsel further stated that the Petitioner’s wife received the admit card but the Petitioner did not. However, in any case the Petitioner was allowed to appear in the test on the respective day after issuance of a provisional admit card. He states that since the Petitioner has been issued an admit card and was allowed to appear in the test hence the Petitioner could not subsequently be declared as an extra candidate and a person not qualified for such appointment. The learned Counsel stated that there were several candidates who were issued admit cards on the test day and they were considered extra candidates and some of those extra candidates were even given the jobs but the Petitioner was not given the appointment letter as he has not fulfilled the illicit demands of the Respondents. He therefore, submitted that since the Petitioner qualifies to be appointed for the said post he has been denied his fundamental right and thus this petition may be allowed in his favour by giving directions to the Respondents to issue him the appointment letter.
4. Additional Advocate General Sindh Mr. Allah Bachayo Soomro on the other hand, has vehemently denied the submissions made by the learned counsel for the Petitioner. He states that by virtue of financial agreement entered between the World Bank and the Government of Sindh recruitments of teaching personnel were to be made under certain conditions. He submitted that the Donor Agency i.e World Bank itself had monitored the whole process of the appointment, which has been done in a transparent manner. He submitted that there were 340 posts and all these posts have been filed up with eligible candidates. He further submitted that 7700 candidates appeared in the written test out of which 567 (male candidates) qualified in the test by securing 60% and above marks and from them 340 (male/female) candidates were found eligible, as per the criterion laid down by the World Bank for such appointment. He further submitted that since the Petitioner does not qualify, as per the policy agreed with the Donor Agency, that is why the Petitioner was not considered for the recruitment. He further submitted that the claim of the Petitioner is incorrect and baseless since at the very outset the Petitioner did not apply for the post in the stipulated time or within the extended time. He invited the attention of the Bench to the newspaper clippings attached with his statement. He further stated that on the day of the test a number of candidates appeared at the place where the test was to be taken and since some of the candidates were not issued admit cards due to late submission of their applications those candidates created law and order situation. He further submitted that in order to control the situation, which was getting bad to worse, the management of the Respondent No.1 decided that in order to accommodate those candidates to whom admit cards had not been issued provisional admit card be issued to them and they may be allowed to participate in the test just to avoid unhappy situation being created by those extra candidates and the Petitioner was among those candidates who were not issued the admit cards in time since, according to the Respondents, he applied belatedly for the said post. He further submitted that the Reform Support Unit, Education & Literacy Department, Government of Sindh vide letter dated 11th May 2010 has made the following order:-
On the test day several candidates claimed that they have submitted applications within the due time but have not gotten the admit cards from Sindh University. For the sake of fairness these candidates were allowed to sit in the examination with the understanding that their claim will be verified by the district governments in coordination with Sindh University and only those candidates will be deemed eligible who had submitted applications within the due date.
Therefore, all the candidates who have submitted their applications within the due date and time are considered legitimate Applicants. Furthermore, only these candidates can be considered for recruitment after the verification of the record. All other candidates are considered extra and ineligible for consideration as they had not submitted their applications within the due date.
5. He further submitted that thereafter an extensive verification was made by the office of Respondent No.3 and it was found that the Petitioner has not submitted his application within time and was considered as an extra and ineligible candidate that is why he was not considered for the appointment. In the end the learned Additional Advocate General Sindh submitted that since the Petitioner was not found an eligible candidate as per the rules and regulations formulated by the Donor Agency i.e World Bank, the claim of the Petitioner for appointment is baseless and the petition is liable to be dismissed. In support of his contention learned Additional Advocate General Sindh has also relied upon a decision in the case of Shabbir Hussain son of Moula Bux V. Executive District Officer (Education) Larkana and 5 others by a Division Bench of this Court reported as 2012 CLC 16 wherein, according to him, under identical circumstances the petition was dismissed.
6. Counsel representing the Respondent No.5 adopted the arguments of the Additional Advocate General Sindh and submitted that the case of the Respondent No.5 is totally different from the case of the Petitioner since he was considered as an extra candidate but that was due to the reason that the Respondent No.5 lost his admit card and was issued an another admit card. In support of his argument learned Counsel has produced a letter dated 20.12.2012 issued by the University of Sindh affirming that though the Respondent No.5 has appeared as an extra candidate instead of enrolled candidate but that was due to the reason that he had lost his admit card and was issued another admit card. The learned Counsel further stated that the Respondent No.5 had got the job after fulfilling all the codal formalities as mentioned by the Donor Agency i.e World Bank and the claim of the Petitioner that he be appointed by removing the Respondent No.5 is totally illegal and uncalled for as he has obtained the job after fulfilling all the criterion laid by the Donor Agency in this regard. He therefore, submitted that the claim of the Petitioner is not only incorrect but is also false. In the end the learned Counsel submitted that this petition being bereft of any merit is liable to be dismissed.
7. We have heard all the learned counsel at considerable length and in order to do substantial justice we had obtained from the Respondent No.3 the list of all the candidates who had appeared in the test held on 24.5.2009, we have also obtained the results of the said regular candidates and extra candidates, we have also obtained list of enrolled candidates who have secured 60 marks or above, we have also obtained list of extra candidates who secured 60 marks or above, we have also obtained merit list of the candidates from District Badin, and have perused the record and the decision relied upon by Additional Advocate General Sindh.
8. It is an undeniable fact that the Petitioner did not apply in respect of the post announced timely. It is also an admitted fact that the petitioner was not issued the computerized admit card. It is also an admitted fact that the status of the petitioner throughout remains as that of an “EXTRA CANDIDATE” A minute perusal of the record would reveal that the said posts of Primary School Teachers were advertised with the financial assistance of the World Bank who in this regard have laid down certain parameters so that there would a transparency in the appointments. The learned Counsel for the Petitioner has not denied the fact that the said tests were conducted under the guidance of the World Bank. The primary and foremost condition with which the said posts were advertised was to recruit the candidates purely on merit-cum-need basis. At the very beginning it was decided that 340 persons were to be inducted in the entire district Badin, firstly, on U.C basis and then on Taluka and District level. A number of candidates appeared in the written tests out of which 340 candidates, who were initially required, were selected who were found eligible and qualified in securing 60% or above marks. Hence, as per the statement given by the Respondents and Additional Advocate General Sindh, all the appointments of 340 candidates were made under the supervision and guidance of the World Bank hence there is no question of either appointment of blue eyed boys or persons having political influence arises. A comprehensive list has also been furnished to us by mentioning the marks obtained by those candidates and as per that list it is apparent that the candidates, who were found eligible were given the appointments.
9. Now coming to the case of the Petitioner as stated above, it is an admitted fact that admit card was not issued to the Petitioner rather as per his own averments a hand written provisional admit card was issued to him. A perusal of the letter dated 11th May 2010 would clearly reveal that as on the test day a number of candidates appeared who had not been issued the admit card and those candidates were allowed to sit in the examination with the categoric understanding that their claim firstly would be verified and only those candidates would be considered who would be deemed to be eligible for the said posts in order to maintain transparency. This letter further reveals that all the candidates who are considered extra and ineligible on the ground that they had not submitted their applications within the due date. The Counsel representing the petitio0ner since had not denied the fact that the Petitioner was considered as an extra candidate hence in our view he was found an ineligible candidate by the Respondents for the said post.
10. We have further observed that it has categorically been mentioned by the Respondents No.1 & 3 that no discriminatory treatment has been made with the petitioner since all those candidates who have not filed their applications within due date were considered as extra candidates. In our view since the Petitioner has been categorically termed as an extra candidate as he has not applied within the due date, no benefit could be given to him. Hence, as per the policy issued by the Chief Program Manager the candidates who have not submitted their applications within due date have been considered as extra and ineligible. Hence, we are of the view that neither any discriminatory treatment has been given to the Petitioner nor in the light of the admitted fact that he has filed a belated application he could claim any vested right for the appointment of the said post.
11. We have also observed that the learned Counsel during the course of the arguments has invited our attention to the order passed by this Court on 27.09.2011 wherein the E.D.O Education Badin sought one week’s time to accommodate the Petitioner however in our view this statement given by the E.D.O could not be made the basis for appointment on the simple premise that firstly the E.D.O Education Badin has no authority under the law to make appointment of Primary School Teacher which is being done by a committee comprising of as many as six persons known as D.R.C Committee and secondly there was no categoric assurance recording appointment of the petitioner which in our view, has to be made according to the rules and regulations and E.D.O Education has no authority under the law to guarantee or to give such assurance in respect of any appointment. Moreover, a perusal of the order dated 27.09.2011 would reveal that the E.D.O Education Badin sought time to “accommodate the petitioner” which by no stretch of imagination be considered as an assurance regarding appointment of the Petitioner or an assurance for giving him the designated job.
12. So far as the claim of the Petitioner against the Respondent No.5 that he be removed and the Petitioner be appointed, suffice to say that it is apparent from the record that the appointment of Respondent No.5 has been made by fulfilling the legal requirements. So far as the contention raised by the Petitioner that the Respondent No.5 has been considered as an extra candidate, here again we would like to observe that the Director of University of Sindh has categorically affirmed that since the respondent No.5 had lost his admit card he was allowed to appear in the test as an extra candidate and this concession given by the University to Respondent No.5 in our view, could not be considered that he falls under the category of candidates as mentioned in letter dated 11th May 2010.
13. During the course of the arguments, learned Counsel for the Petitioner has also admitted the fact that the posts of Primary School Teachers were further advertised thereafter and the Petitioner has once again applied for appointment. Here a question would arise that when the Petitioner was sanguine that he deserves to be appointed at the first instance as Prima School Teacher what was the need for applying yet again for the same post meaning thereby that the Petitioner himself was not sure about his appointment in respect of first phase of the appointment and thereafter applied for appointment in the second phase as well.
14. We therefore, keeping in view the above facts find that the Petitioner has failed to point out any illegality committed by the Respondents and has also miserably failed to justify his appointment since he has categorically been found to be an ineligible candidate on the ground that he has not submitted his application within the stipulated time.
15. It is also interesting to note that the learned Counsel for the Petitioner has failed to demonstrate that the action of the Respondents was violative of any rule and regulation or the law in force for the time being, as no such eventuality has been pointed out and the only assertion which has been made being that the directions be issued to the Respondents to issue letter for appointment of the Petitioner.
16. The petition is, therefore, found to be without any legal force and is hereby dismissed.
17. However, before parting with the order we would like to observe that if the Petitioner is still interested to have a career in teaching he may wait till vacancies are advertised by the Respondents whereby he shall be free to apply again.