Higher Qualification of Eligible Candidates and Fundamental Rights

Higher Qualification of Eligible Candidates and Fundamental Rights Case Laws Constitutional Law Delegated Legislation Discrimination Employment & Incentives Fundamental Rights Intelligible Differentia Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Solutions - Constitutional Law Striking Down of Subordinate Legislation Subordinate Legislation Mr. Justice Muhammad Sajid Mehmood Sethi in his judgment has decided the issue regarding higher qualification of eligible candidates and fundamental rights in Writ Petition No. 1803 of 2016.

1. Brief facts of the case are that respondent No.2 advertised 89-posts of Line Superintendent Grade-I in BPS 15 on behalf of respondent No.1. Petitioners, being Bachelors of Science in Electrical Engineering, applied for the said posts and appeared in the test conducted by National Testing Service (“NTS”) on 12.07.2015. They cleared the test and were placed at Sr. Nos.17, 9 and 33 respectively. Petitioners appeared in the interview but their names did not surface in the list of successful candidates. The selected candidates were not even graduates but also secured lower position in the merit list issued by NTS. Petitioner No.2 submitted an application to respondents, but no attention was paid to his request. Feeling aggrieved, petitioners filed W. P. No.27312 of 2015, which was disposed of vide order dated 14.09.2015, passed by this Court. In pursuance of the direction contained in aforesaid order, respondents passed order dated 28.10.2015, which has been assailed through instant petition, with the following prayer:

“In view of the submissions made above it is therefore respectfully prayed that this Petition may kindly be accepted and the process of recruitment for the posts of Line Superintendent Grade-I by the Respondents may kindly be declared to be illegal, without lawful authority and of no legal effect. It is further prayed that impugned Order dated 28.10.2015 passed by Respondent No.3 and impugned Order dated 12.03.2010 passed by Respondent No.5 but reiterated by the Chief Engineer (Admin) Power, PEPCO be declared illegal and may kindly be set aside in the interest of justice. It is also further prayed that the Petitioners may kindly be declared to be eligible and may kindly be appointed as Line Superintendent Grade-I in LESCO.

It is further prayed that the Respondents may kindly be restrained from filling the posts of Line Superintendent Grade-I, till the disposal of the writ petition………”

2. Learned counsel for petitioners submits that petitioners are graduates and their qualification is higher than the requisite criteria, but despite that respondents appointed less qualified persons. He further submits that petitioners have been subjected to gross discrimination.

3. On the other hand, learned counsel for respondents defends the impugned order and submits that petitioners, being over-qualified, were not appointed as per policy, in order to avoid their disgrace. He adds that petitioners have failed to point out any illegality or legal infirmity in the impugned order, which is liable to be upheld under the law.

4. Arguments heard. Available record perused.

5. The order dated 28.10.2015, passed by respondent No.3, is reproduced here under:

“Honorable Lahore High Court in subject writ petition filed by Mr. Waqas Aslam s/o Muhammad Aslam Nayyar in the judgment dated 14.09.2015 was ordered as under:

“In view of the factual controversy involved in this case, I deem it appropriate to send a copy of this petition along with its annexures to respondent No.1, who shall treat it as an application and shall decide the same strictly in accordance with law through a reasoned order after hearing all necessary parties within a period of four weeks of the receipt of a certified copy of this order. Disposed of.”

In view of above, you Mr. Waqas Aslam were called for personal hearing on 21.10.2015 at 11:00 am to address the grievance vide this office letter No.HRD / RC / 38039-40 dated 15.10.2015.

After hearing you in person, it is clear to you, vide PEPCO’s letter No.17123-38/MD/PEPCO/E-II/16/3039/09/UTS dated 12.03.2010, graduate engineers cannot be employed on lower posts (i.e. Line Superintendent Grade-I) and you did not meet the prescribed qualification in service rules for the post as advertised on 30.04.2015. Hence, you were not considered further for recruitment under LESCO.”

6. Likewise, order dated 12.03.2010, passed by the Chief Engineer (Admn.) Power PEPCO, is reproduced here under:

“The HRD PEPCO has informed to reiterate the instructions of M.D. (PEPCO), for not employing graduate engineers on lower posts to save them from disgrace. The instructions may kindly be brought to the notice of all concerned for compliance in letter and spirit.”

7. Perusal of above reproduced orders shows that petitioners were refused appointment on the pretext that they possessed higher qualification and their appointment on a lower scale would earn disgrace for them. It is evident that required qualification for the post of Line Superintendent Grade-I BPS-15 was “Matric with 3-years Diploma in Electrical/Electronic Technology from any Government Poly Technical Institution in Grade-B with 3-years experience in the trade from any Government Institute”. It appears nowhere in the said advertisement that candidates having higher qualification would not be entitled to apply for the said post.

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