Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Case No: ICA. No. 292/2011.

Rafaqat Ali Versus Executive District Officer

(Health), etc.

JUDGMENT

Dates of 21.06.2011.
hearing.
Appellant by: Mr. Zahid Farani Sheikh, Advocate for the
appellant.
Respondents Mr. Kaleem Ilyas, Additional Advocate
by: General.
Mr. Shameem-ur-Rehman, Litigation
Officer.

Syed Mansoor Ali Shah, J:- Brief facts are that

Executive District Officer (EDO), Health, Narowal advertised,

inter-alia, 56 seats for initial recruitment to the post of School

Health and Nutrition Supervisor in BS-17. The appellant

applied for the said post and went through the recruitment

process as prescribed under the Recruitment Policy, 2004 dated

17.09.2004. Thereafter, merit list of 56 candidates was prepared

on 26.01.2010 and furthermore, a Waiting List of 14 candidates

from amongst the successful candidates was also prepared by

the District Recruitment Committee. The appellant was placed

at Sr. No.10 of the Waiting List on the basis of seniority. Later

on, only 47 out of 56 candidates joined and, therefore, nine

seats fell vacant which were filled out of the Waiting List. As a

result, the appellant moved up to Sr. No.1 of the Waiting List

I.C.A. No.292/2011 2

and waited for the next vacancy. Subsequently, a post fell

vacant due to termination of the officer holding the said post

but the appellant was not considered for the said post on the

ground that the Waiting List was valid for 90 days from the

date of appointment i.e., from 26.01.2010 till 26.04.2010. This

time frame was fixed by the District Recruitment Committee,

Health department, Narowal on 07.01.2010. As the vacancy had

occurred on 17.06.2010, the Waiting List had since lapsed.

2. Counsel for the appellant argued that the appellant has a

right to be considered for the said post as the appellant is at

no.1 of the Waiting List and has successfully passed through

the recruitment process. He also argued that mere passage of

time cannot deprive the appellant of his right to appointment.

3. Learned Law Officer, as well as, Litigation Officer

representing the department, failed to give any reason or logic

behind the fixation of 90 days. The only submission made by

the learned Law Officer was, the recruitment process has to

come to an end and, therefore, a cut off date had been given.

4. Arguments heard. Record perused.

5. In all 650 candidates 1 applied for the post of School

Health and Nutrition Supervisor in BS-17, out of which 450

candidates qualified to sit the interview and from amongst them

candidates were selected against 56 posts. Next 14 candidates

1
Comments of the Respondents
I.C.A. No.292/2011 3

on merit were put on the Waiting List (1/4th of the total number

of seats).

6. Prefatory paragraph to the Recruitment Policy, 2004

mandates:

“One of the major objectives of the government is

to provide maximum job opportunities to the
unemployed youth. However, in the government
sector, posts have to be filled essentially in
accordance with requirement to achieve the
objectives of good governance and efficient service
delivery.” (emphasis supplied)

As per Policy, the District Recruitment Committee was under

an obligation to ensure that the recruitment process reflects

good governance and efficient service delivery. Learned law

Officer giving the rationale behind 90 days submitted that the

recruitment process has to be brought to an end, hence the time

frame. EDO (Health) in his comments dated 28-2-2011 2

submitted the following reasons for having a cut off date:-

“If the petitioner is adjusted at any vacant seat, then

remaining 5 candidates (from 11-15 of waiting list)
will claim for their adjustment. This will create
huge problems/complications for department.”
(emphasis supplied)

7. Both the reasons lack logic and are unsatisfactory. No

additional plausible explanation has been given for fixing

90 Days as the life span of the Waiting List.

2
Corrigendum No. 3282/EDO(H)NWL dated 28-2-2011.
I.C.A. No.292/2011 4

8. The purpose of preparing a Waiting List from amongst

the successful candidates is to have a contingency reserve. A

pool of successful candidates who can immediately fill

vacancies as they arise. Instead of initiating the recruitment

process afresh (which surely involves time and cost), it is

convenient to fall back on the Waiting List of successful

candidates and fill the vacancies immediately.

9. Waiting List is also advantageous because the

recruitment process may not be initiated for a few posts that fall

vacant and as a contingency, the candidates shortlisted in the

waiting list can fill these posts. Waiting List, is actually a list

of selected eligible candidates, who have successfully filtered

through the recruitment process. They are a valuable human

resource available in case any vacancy arises. As vacancy can

arise at any time, the contingency plan in the shape of an

operational Waiting List must also be available as long as the

post continues. Hence, there can be no time frame or a cut off

date for the expiry of the Waiting List. It is surely not binding

on the candidates to remain on the waiting list, they are free to

search for other and better employment prospects, but till they

do so, their names continue to be retained on the Waiting List.

The only time Waiting List might lose its utility is when the

eligibility criteria to the post in question is altered or if the post

itself is abolished or restructured or reorganized. In this

I.C.A. No.292/2011 5

situation, the candidates on the waiting list are no more eligible

and, therefore, fresh recruitment will be called for.

10. In the present case no plausible reason has been furnished

to this court why the Waiting List lapses after 90 days and

why not after 180 days or after 300 days or remains open ended

with no time frame? Discretion exercised by the District

Recruitment Committee in fixing the above period has no

logical foundation, is unstructured, unreasonable, irrational

and unfair.

11. The meaning and scope of discretion have come up

before the courts earlier. In Sharp V. Wakefield (1891 AC 173),

Lord Halsbury observed:-

“ ‘Discretion’ means when it is said that something

is to be done within the discretion of the authorities
that something is to be done according to the rules
of reason and justice, not according to private
opinion...according to law and not humour. It is to
be, not arbitrary, vague, and fanciful, but legal and
regular. And it must be exercised within the limit,
to which an honest man competent to the discharge
of his office ought to confine himself….”

In Judicial Review of Administrative Action, by De Smith

(1995) it is observed:

“The term itself implies vigilance, care, caution and

circumspection. When the legislature confers
discretion on a court of law or on an administrative
I.C.A. No.292/2011 6

authority, it also imposes responsibility that such

discretion is exercised honestly, properly and
reasonably.”

In Union of India v. Kuldeep Singh [(2004) 2 SCC 590] The

word ‘discretion’ standing single and unsupported by

circumstances signifies the exercise of judgment, skill or

wisdom as distinguished from folly, unthinking or haste;

evidently, therefore, a discretion cannot be arbitrary but must be

a judicial thinking. The word in itself implies vigilant

circumspection and care; therefore, where the legislature

concedes discretion, it also imposes a heavy responsibility.

12. We rely with advantage on Aman Ullah Khan and others

V. The Federal Government of Pakistan through Secretary,

Ministry of Finance, Islamabad and others (PLD 1990 SC

1092), relevant para therefrom reads as under:-

“Wherever wide-worded powers conferring

discretion exist, there remains always the need to
structure the discretion and it has been pointed out
in the Administrative Law Text by Kenneth Culp
Davis (page 94) that the structuring of discretion
only means regularizing it, organizing it, producing
order in it so that decision will achieve the high
quality of justice. The seven instruments that are
most useful in the structuring of discretionary
power are open plans, open policy statements, open
rules, open findings, open reasons, open precedents
and fair informal procedure. Somehow, in our
context, the wide worded conferment of
I.C.A. No.292/2011 7

discretionary powers or reservation of discretion,

without framing rules to regulate its exercise, has
been taken to be an enhancement of the power and
it gives that impression in the first instance but
where the authorities fail to rationalize it and
regulate it by Rules, or Policy statements or
precedents, the Courts have to intervene more
often, than is necessary, apart from the exercise of
such power appearing arbitrary and capricious at
times”. (emphasis supplied).

Further reliance with advantage is placed on Chairman,

Regional Transport Authority, Rawalpindi V. Pakistan Mutual

Insurance Company Limited, Rawalpindi (PLD 1991 SC 14),

Director Food, N.W.F.P. and another V. Messrs Madina Flour

& General Mills (Pvt.) Ltd. & 18 others (PLD 2001 SC 1),

Chief Secretary Punjab and others V. Abdul Raoof Dasti (2006

SCMR 1876), Abdul Wahab and another V. Secretary,

Government of Balochistan and another (2009 SCMR 1354)

and Delhi Transport Corporation V. D.T.C. Mazdoor Congress

and others (AIR 1991 SC 101).

13. Once the appellant has been placed on the Waiting List,

he develops legitimate expectations to be considered for

appointment as soon as vacancy arises. Denying appointment to

the petitioner on the ground of lapse of waiting list by mere

efflux of time (especially without informing the appellant of

such a policy) offends legitimate expectations of the appellant.

“If a public authority so conducts itself as to create a legitimate

I.C.A. No.292/2011 8

expectation that a certain course will be followed it would often

be unfair if the authority were permitted to follow a different

course to the detriment of one who entertained the expectation,

particularly if he acted on it…The doctrine of legitimate

expectations is rooted in fairness.” 3 Thus when a person

invokes ‘legitimate expectation’ he does not rely upon an

enforceable common law or statutory right; he is merely asking

to be dealt with fairly4.

14. We hold that the appellant could not have been deprived

appointment to the vacant post on the ground that the Waiting

List lapsed after 90 days. The period of 90 days fixed by the

District Recruitment Committee, Health Department, Narowal

dated 07.01.2010 is unreasonable and irrational and is,

therefore, not sustainable.

15. We also beg to differ with the reasoning of the learned

single judge who diminished the importance of a Waiting List

and harboured under an impression that there was no vacancy

amongst the 56 seats and therefore no writ in favour of the

appellant could be issued.

16. For the above reasons we declare the duration of Waiting

List for a period of 90 days as unreasonable and irrational as a

result the Waiting List is held valid. Therefore, this appeal and

3
Bingham LJ in R v, IRC exp IMK (1990) 1 WLR 1545 – reference:
Judicial review of Public Actions- Justice (R ) Fazal Karim- page 1366
4
Judicial Review of Public Actions- Justice (R ) Fazal Karim- page 1367
 I.C.A. No.292/2011 9

the writ petition are allowed and the order of the learned Single

Judge dated 04.05.2011 is set aside. Respondents are directed

to appoint the appellant (at Serial No. 1 of the Waiting List)

against the vacant post of School Health and Nutrition

Supervisor (B.S.17) with immediate effect.

(Abdul Waheed Khan) (Syed Mansoor Ali Shah)

Judge Judge

M .Tahir*

APPROVED FOR REPORTING