2000 PLP (C (PLC(CS))

TALAT QAYUM QURESHI, J.‑‑‑Sher Alam, the petitioner submitted application before. District Education Officer (Male) Secondary, Mansehra for his appointment as Chaukidar claiming therein that land on which Middle School Khakoo was constructed was gifted by his father and that as per instructions contained in Letter No. E&A (S&GAD)5(153)/95 dated 6‑6‑1996 facility of appointment of one child of retiring civil servant in BPS Nos.1 to 4 was allowed, against post in BPS 1 to 4 provided the applicant fulfils the prescribed qualification for the post. He was informed by respondent No.2 that there was a ban on posting and he would be considered for appointment after the ban was lifted. The petitioner, however, came to know that respondent No.2, ignoring the application of the petitioner, appointed respondent No.3 during the ban period utterly in violation of rules. The petitioner had preferential right of appointment against the said vacancy of Chowkidar and respondent No.3 was appointed on the recommendation of MNA/MPA.

2. This Court called for the comments of respondent No. 2 who submitted the comments and in paragraph No.3 it was stated that as per instructions circular issued by the Government appointment/posting against the post in Class IV servant should be made after obtaining the consent/recommendation of the concerned MPA. In paragraph No.9 it was stated that respondent No.3 was appointed after fulfilling/observing all the formalities. The D.O. letters issued from MPA, PF‑45.(Mr. Wajiuz Zaman Khan), and from the MNA (Mr. Muhammad Nawaz Khan Allai) MA‑10 were also placed on record.

3. Mr. Saeed Ahmad Shah, Advocate the learned counsel presenting the respondent No:3 argued that respondent No.3. had the requisite qualifications and‑ he was appointed after fulfilling the legal formalities and has been serving against the said post since.1997.

4. We have heard the learned counsel for the parties and perused the record.

5. The respondent No.3 has been appointed purely on the recommendation of MNA of MA‑16 (Mr, Muhammad Nawaz Khan Allai)and MPA PF‑45 (Mr. Wajiuz Zaman Khan) ignoring that there was a ban imposed by the Government on the appointments vide Government Circular No.SOR‑1(S&GAD) 1.‑/85 dated 21‑10‑1997 and circular dated 20‑8‑1997. The respondent No. l even did not bother to wait for the lifting of the ban on the appointments by the Government. The post was neither advertised nor publicity or information was given in the locality from which the recruitments were to be done. The appointment of respondent No.3 is, therefore, against rules. In case 'Munawar Khan v. Niaz Ali' 1993 SCMR 1287 it was held:‑‑‑ "What‑ we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisement, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments shall be made after the publicity in the area from which the recruitments had to take place. This will, however, not apply to short term leave vacancies or to contingent employment." In para. 8 it was held:‑‑ "As regards the allocation of quota of posts to the local MPAs or MNAs for recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies; all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to the Ministers/MNAs/ MPAs and appointments made thereunder are all illegal ab initio and have to be held so by all Courts, Tribunals and Authorities."

6. In view of the above discussion and judgments cited above, we accept the writ petition in hand and declare that the appointment of respondent No.3 was made in violation of rules, regulations and law laid down by august Supreme Court of Pakistan. We direct respondent No.2 to re‑advertise the said post and make appointment strictly in accordance with law. H.B.T./84/P Petition accepted.