1991 PLP (C (PLC(CS))

Muhammad Iqbal for Petitioner. Faqir Muhammad Khokhar DA.‑G. for Respondents. Date of hearing: 4th March, 1991 The petitioner through this Constitutional petition has prayed that letters Annexures `E' and `HI' dated 29‑11‑1979 and 4‑5‑1980 issued by the respondents are without lawful authority.

2. The relevant facts are that the petitioner after doing his Matric obtained certificate of Civil Draftsman from Government School of Engineering and Polytechnic Institute, Rasool. The petitioner was initially employed by respondent No. 2 as Work Mistry at Okara. Ultimately he was appointed as Overseer vide order dated G‑1‑1977. However, he was informed that since he does not possess the basic qualification for appointment as Overseer, therefore, it is not possible to retain him and if he likes he can be appointed as a Draftsman. The petitioner did not accept this offer. The result was that his services were terminated. The petitioner proceeded to challenge this termination order through this Constitutional petition, which was admitted to hearing and notices were issued to the respondents. The respondents have appeared through learned Deputy Attorney‑General and contested the petition.

3. The learned counsel for the petitioner in support of the petition argued that according to the appointment letter even certificate was sufficient. It is added that in any case the service of the petitioner could not be terminated without show‑cause notice. In this behalf he has referred to the cases of Abdul Majid Sheikh v. Mushafe Ahmed, Section Officer and others P L D 1965 S C 208; Province of Punjab and another v. Tajammal Hussain 1973 S C M R 517; Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan and another P L D 1970 Quetta 115 and Secretary to the Government of Punjab, Irrigation Department and 2 others 1991 S C M R

981. The arguments are summed up with the submission that once the appointment was made, the same could not have been terminated, after the petitioner accepted the appointment and started performing his duties. The submission is that the respondent lost locus poenitentiae. In this behalf learned counsel has referred to the cases of Pakistan through the Secretary, Ministry of Finance v. Muhammad Humayatullah Farukhi P L D 1969 S C 407, Raja Muhammad Nawaz v. Government of the Punjab 1981 S C M R 523 and Muhammad Rafiq Malik v. Secretary to Government of Punjab, Labour Department and 3 others 1985 P L C (C.S.) 472.

4. On the other hand, learned Deputy Attorney‑General argued that the Audit Department objected to, the appointment of the petitioner on the ground that the petitioner does not possess the qualification necessary for the appointment as Overseer. In this behalf he has referred to item 226 of Appendix `A' to Provisional Recruitment Rules for the Non‑Gazetted (Civilians) Class II, III of Pakistan Army. According to which Overseers Grade‑111, who are to be appointed by direct recruitment, should possess diploma or certificate from a recognised Engineering Institute in civil engineering. It is argued that it was verified from the Principal of the Institute from where the petitioner had obtained certificate as to whether it was at par with the Diploma of Overseer. The reply was in negative. It is added that the petitioner was still on temporary basis when his services were terminated. The whole position was explained to the petitioner as is clear from Annexures `G and G1' appended by the petitioner, Thereafter he was given a show‑cause notice (Annexure `H'). The conclusion is that there is no merit in the argument advanced on behalf of the petitioner that he was not served with a show‑cause notice before discharging him from service. The learned Deputy Attorney‑General submitted with reference to the locus poenitentiae that since the appointment of the petitioner was in violation of the rules of service as the petitioner did not possess the technical basic qualification prescribed for Overseer Grade‑III, therefore, this principle is not attracted, Moreso when service was terminated while he was officiating.

5. I have given my anxious consideration to the arguments of the learned counsel for the parties. The admitted position on record is that the petitioner has not qualified the course of Overseer and the course of Draftsman was quite different from the same. This fact is clear from Annexure `C' appended by the petitioner himself. This way it is established that the petitioner did not possess the qualification as required under the rules for appointment of Overseer. Therefore, he was rightly discharged. It is evident from the file that the respondent No. 2 tried its level best to accommodate the petitioner but failed because on the one hand appointment was in violation of rules and on the other hand the petitioner was not prepared to accept the post of Draftsman.

6. The learned Deputy Attorney‑General also raised a preliminary objection to the effect that the petitioner was subject to law relating to Armed Forces, therefore, the matter cannot be agitated in Constitutional jurisdiction. In this behalf he has referred to the case of Muhammad Khurshid Butt v. Government of Pakistan P L D 1983 S C

92. The learned counsel for the petitioner argued that the petitioner was a civilian, therefore, the bar is not attracted. In this behalf he has referred to the case of Abdul Majid Sheikh v. Mushaffe Ahmed PLD 1965 SC 208 and the judgment of Federal Service: Tribunal. These judgments are not relevant and on the other hand the judgment of Muhammad Khurshid Butt ibid is fully applicable in the present case and also a complete reply to the arguments of the learned counsel for the petitioner Therefore respectfully following the same the preliminary objection is upheld. The result is that this writ petition is dismissed both as incompetent as well as on merits. There is no order as to costs. M.Y.H./A‑1232/L Petition dismissed