`IN THE HIGH COURT OF SINDH, AT KARACHI

Present:
Mr. Justice Syed Hassan Azhar Rizvi
Mr. Justice Adnan-ul-Karim Memon

C.P No. D- 2798 of 2014

Arhum Aziz Shaikh ……………….……. Petitioner

Versus

Province of Sindh & others ………… Respondents

C.P No. D- 2415 of 2014

Raja Muhammad Asad Khan ……………….……. Petitioner

Versus

D.E.O. Sanghar and others ………… Respondents

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Date of hearing: 04.10.2017

Mr. Mohsin Ali Advocate for Petitioner.

Mr. Waqarullah Korejo Advocate
for Respondent No.3.
Mr. Abdul Jalil Zubedi Assistant
Advocate General Sindh along with
Mr. Asadullah abro, Additional Secretary
Education and Literacy Department and
Mr. Yar Muhammad D.E.O. District Sanghar.
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JUDGMENT
ADNAN-UL-KARIM MEMON,J:- The above referred

Constitutional Petitions are being disposed of vide this Single

Judgment, as common question of law and facts are involved

therein.
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C.P No. D- 2798 of 2017

2. Brief facts of the case in nutshell are that in pursuance of

advertisement published in ‘Daily Kawaish’ dated 19.04.2012

inviting application for appointment of Primary School Teachers

(PST-BPS-9), Junior School Teachers (JST-14) and High School

Teachers (HST-15) on contract basis for the period of three years,

Petitioner applied for the post of Primary School Teacher (BPS-9),

As per Petitioner, Respondents started recruitment process, after

processing the application of the Petitioner, in the month of

January, 2013 on different dates, the Respondent No.2 conducted

written test through National Testing Service (NTS). Petitioner

added that after conducting the written test, the Respondent No.2

issued a final merit list of successful candidates with regard to

recruitment test for Primary School Teachers. Petitioner asserted

that he secured 91 marks out of 100 and stood top in the Union

Council-I, Shadadpur, District Sanghar. Petitioner further claims

that he having successfully qualified the written test had legitimate

expectation of recruitment for the post applied for. Per petitioner,

on 04.02.2013 the Respondent No.2 issued a press release,

announced 20 extra bonus marks awarded to female candidates,

such announcement was made after the announcement of result

by NTS; that the act of Respondent No.2 tantamount to circumvent

the recruitment process as well as merit list which is without

lawful justification; that the Respondent No.2 has no authority or

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jurisdiction in law to announce such grace marks to Female

candidates which is in violation of law. Petitioner further added

that he approached the Respondent No.3 for further process of

recruitment, but to no avail as he was informed by the officials of

the Respondent No.3 that there is no seat vacant for male

candidates in Union Council I, Shahdadpur, District Sanghar. Per

Petitioner, he was surprised rather shocked to know that there is

no seat for male candidates after qualifying written test and

securing the 1st position in UC-1, Shahdadpur. Petitioner further

added that he has forwarded a complaint regarding injustice made

to him by the Respondents in the recruitment process conducted

in District Sanghar. Petitioner averred that in terms of Rule 4 of

the Sindh Civil Servants (Appointment, Promotion & Transfer)

Rules 1974, the Respondent No.3 is the competent authority for

the appointment of candidates in BPS-9 to BPS-11. Petitioner

further added that Respondents are under legal obligation to

complete the process by recruiting the successful candidate/

Petitioner, however the Respondents have failed to recruit/

consider the Petitioner without any lawful justification or reason.

C.P No. D- 2415 of 2014

3. Facts of the case are that Petitioner that in pursuance of

advertisement published in ‘Daily Kawaish’ inviting application for

appointment of Junior School Teachers (JST-BPS-14), Primary

School Teachers (PST-9) and High School Teachers (HST-15) on

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contract basis for the period of three years, Petitioner applied for

the post of Junior School Teacher (BPS-14), As per Petitioner,

Respondents started recruitment process, after processing the

application of the Petitioner, in the month of January, 2013 on

different dates, the Respondent No.2 conducted written test

through National Testing Service (NTS). Per petitioner he appeared

in the test of for the post of Junior School Teacher (Science) and

obtained 78 marks in Union Council Shahpur Chakar Taluka

Shahdadpur and secured 2nd position. As per Petitioner that there

are four seats of Junior School Teacher (Science) and the

Respondents are trying to appoint their blue eyed candidates in

violation of merit.

4. Upon notice, the Respondents filed para wise comments.

5. Mr. Mohsin Ali learned counsel for the Petitioner has

argued that the Respondents have violated the rights of the

Petitioner by failing/delaying to issue appointment letter, despite

the fact that the Petitioner has successfully passed the prescribed

examination; that after successfully clearing the examination, the

Petitioner has acquired a vested right and interest to be appointed

on the post of Primary School Teacher (BPS-9) which cannot be

nullified/denied by the whimsical and arbitrary actions of the

Respondents; that the Respondents are acting in violation of the

prescribed Rules as mentioned under the terms of Rule 4 of Sindh

Civil Servants (Appointment, Promotion & Transfer) Rules 1974,

where the Respondent No.3 is the competent authority for

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appointment of the candidates; that the action of the Respondents

is in violation of the Fundamental Rights of the Petitioner

guaranteed under Articles 18, 24 and 25 read with Articles 4 and 8

of the Constitution; that due to omission/failure of the

Respondents to fulfill their legal obligations and timely discharge of

their duties/functions, the Petitioner is being deprived of his lawful

rights to be considered for appointment against the post of Primary

School Teacher (BPS-9), that the policy 2012 is discriminatory thus

not sustainable in law. He lastly prays for allowing the instant

petitions.

6. Mr. Waqarullah Korejo learned counsel for Respondent

No. 3 has raised the issue of maintainability of the captioned

Petitions and argued that as per Teachers Recruitment Policy

2012, the required need based post of PST, JST and HST has been

fulfilled. He further added that the merit list has been prepared by

the District Recruitment Committee (DRC) under the

Chairmanship of Director School Education and other senior

officers of district. He further added that no violation deviation

from recruitment policy 2012 has been made which may jeopardize

the entire recruitment process for which the World Bank is

assisting the province of Sindh in general and teaching personnel

in particular. Learned counsel argued that in C.P. No. D-2798 of

2014 there were total 04 vacancies position available in Union

Council–I, Taluka Shahdadpur District Sanghar; that as per data

shared by District Education Sanghar, no seat of Primary School

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Teacher for (M), one seat of Primary School Teacher (F) and three

seats of Primary School Teacher mixed were available in the Union

Council–I Shahdadpur; that there was no male seat available in

Union Council-I Shahdadpur therefore Petitioner was not selected

due to low mark in UC-I, whereas the last Female candidate in that

UC obtained 87 marks plus 20 Gender marks total marks 107

therefore she was recommended accordingly as per recruitment

policy 2012. Learned counsel argued that in C.P. No. D-2415 of

2014 Petitioner obtained 78 score through NTS in Union Council

Shahpur Chakar Taluka Shahdadpur District Sanghar. Per learned

counsel further submitted that as per District Recruitment

Committee merit sheet, the one Male and two Female position of

Junior School Teacher (Science) was calculated and approved in

Union Council of Petitioner and the candidate secured 80 marks in

written test and was recommended for the post of Junior School

Teacher on the other hand petitioner obtained lesser scored then

the successful candidate hence he was not recommended.

7. Mr. Abdul Jalil Zubaidi learned Assistant Advocate

General Sind representing Respondents No.2 has argued that the

instant petition is not maintainable on the ground that as per the

Teachers Recruitment Policy 2012, the petitioner has alternate

remedy available to him to file an application to the Chairman of

District Recruitment Committee (DRC) for redressal of the

grievances if any; that no violation or deviation from Recruitment

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Policy 2012 has been made; that the entire recruitment process for

which the World Bank is assisting the Province of Sindh in general

and teaching personnel in particular; that the teachers recruitment

in phase III are purely need base appointments made under the

guidelines of the donor agency (World Bank); that total four (4)

vacancy positions was available in UC Shahdadpur-1 Taluka

Shahdadpur District Sanghar. Learned AAG in support of his

contention has produced a copy of Primary School Teacher final

passed candidates list issued by National Testing Service Pakistan

and District Recruitment Committee report for the post of PST,

Taluka Shahdadpur District Sanghar and argued that petitioner

obtained 91 marks in NTS and there were three seats in Union

Council-I, Shahdadpur, one for Female and two seats for mixed

category however there was no seat for Male candidate in the

subject Union Council. He further argued that the last seat in

mixed category was filled by candidate who obtained 102 marks

and last seat was filled by Female candidate who obtained 103

marks in the subject UC. Upon query by this Court as to why 20

gender marks were allowed to Female candidates in reply to the

query he referred to Recruitment Policy 2012 and referred clause

20 of the Policy that ‘Female candidates’ will be given additional 20

marks to qualify Female candidates. In support of his contention

he relied upon the order dated 07.07.2017 passed by the Hon’ble

Supreme Court in Civil Appeal No. 190-K of 2015 and argued that

instant petition is not maintainable as the World Bank Policy 2012

has not been called in question. Learned AAG has endorsed the
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stance taken by the learned counsel for Respondent No.3 in the

above captioned petitions and argued that in policy matters of

educational institution this Court has no jurisdiction to interfere in

the appointment process initiated under Teachers Recruitment

Policy 2012.

8. We have heard learned counsel for the parties and

perused the material available on record and case law cited at the

bar.

9. Petitioner applied for the appointment of Primary School

Teacher (BPS-9) to be filled on merit subject to availability of lead

best vacancy in Union Council of candidate. Record reflects that in

National Testing Service Petitioner obtained 91 score. We have

gone through the press release dated 04.02.2013 which prima

facie shows that 20 marks will be given to Female candidate who

have secured 60 marks in written test. As per vacancy position

shown in the District Recruitment Committee report is that there

were three seats available one for mixed category two for Female

candidates. Report further reflects that three Female candidates

who obtained 102, 103 and 107 marks respectively in Union

Council Shahdadpur 1.

10. Reverting to the plea taken by the learned counsel for the

petitioners that 20 additional points were given to Female

candidates which is against the law, suffice it to say that as per

Clause 20 of Teachers Recruitment Policy 2012, reads as under:-

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20. Selection / Ranking Criteria for candidates

Minimum 60 marks in written test are required for merit

determination. The merit list will be prepared for the PST,
JST and HST will be as under:-

i) For the appointment of PST, the merit will be determined

on the basis of Union Council subject the availability of
need based vacancy in UC of candidate.

ii) For the appointment of JST, the merit will be determined

on the basis of Union Councils, subject to the availability
of need based vacancy in UC of candidate and;

iii) For the appointment of HST, the merit will be determined

on district basis subject to availability of need base
vacancy.

Female candidates will be given additional 20 marks

to qualified female candidate. Repeat test will be
conducted in any UC or Taluka where number of
qualified candidates is less than the eligible number of
need based vacancies. The specific criteria will be
developed for the repeat test.

11. We are therefore of the considered view that the criterion for

selection and appointment, provided under Teachers Recruitment

Policy 2012 is fare, just and reasonable. This Court has already

decided the similar matter in the case of Shabbir Hussain Vs.

Executive District Officer (Education), Larkana and five others

(2012 CLC 16).

12. As regards the contention of the learned AAG that the courts

may not interfere with the policy matters of educational

institutions we completely agree with the said contention of

learned AAG. This proposition of law is enunciated by the Hon’ble

apex court in the case of Government College University, Lahore

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through Vice Chancellor and others Vs. Syeda Fiza Abbas and

others. (2015 SCMR 445)

13. We are of the view that mere selection in written test could

not, by itself, vest candidate with a fundamental right for

enforcement through the Constitutional jurisdiction of this Court.

Admittedly the authorities had not issued any offer of appointment

to the candidate to the Petitioner and appointment to the post is

subject to the Teachers Recruitment Policy 2012.

14. During the course of arguments learned Assistant Advocate

General has referred to the advertisement published in ‘Daily

Kawish’ dated 19.04.2012 and argued that the appointment on the

post referred were on contract basis for a period of three years. He

further states that the project of School Education was being

financed by the World Bank and appointment of the candidates

were made as per criteria fixed for appointment by the World

Bank in Education Policy 2012.

15. We have noted that the appointment of the candidates was

on contract basis for three years as per advertisement for the posts

applied by the candidates and apparently such period has already

been expired. On the basis of contentions of the parties with the

material produced, it seems that appointment letters of the

candidates, who qualified for the post of Primary School Teacher

and Junior School Teacher were on contract period, thus this

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Court cannot over look this aspect of the case, while issuing a writ

in the nature of mandamus.

16. It is a settled principle of law that for the purpose of

maintaining a Constitution Petition it is the duty and obligation of

the Petitioners to point out that the action of the Respondents was

in violation of their rules and regulations, which the Petitioners

have failed to point out and failed to make out their case for

discrimination as well.

17. In the light of above facts and circumstances of the case, we

reach to the conclusion that the petitioners have failed to make out

their case for appointment for the post of Primary School Teacher

and Junior School Teacher. Consequently, the instant Petitions are

dismissed along with listed application(s).

18. Foregoing are the reasons for our short order dated

04.10.2017.

JUDGE

JUDGE

Shafi / P.A