1998 PLP 1541 (CLC)

to the petitioner and seems to be advertised once the ban is seeking to push up some other lifted/relaxed. incumbent and he started deferring the appointment of the petitioner taking refuge under the ban of the Provincial Government on postings. The Political Assistant and the office of the Deputy Commissioner reported that the instant case was not covered by the ban as it proceeded on the directive of the President and the Provincial Government had already sanctioned the post and allocated necessary funds and even directed the appointment of the petitioner against the said post. However, the Deputy Commissioner instead through vide his order, dated 14‑7‑1994 has once again written to the Provincial Government requiring relation of ban as a special case for appointment of the petitioner as Jamadar. Border Military Police. Copy of the letter is attached as. Annexure F. Para.

6. That the directive of the President of There is no direction to appoint the Pakistan was executed by the petitioner with effect from 1‑7‑1994. Provincial Government and the In fact the petitioner is referring to Commissioner had also sought sanction order of the post which says implementation of such order. The that the post would stand created with post of Jamadar created for Lund tribe effect from 1‑7‑1994. Since creation and the direction to appoint the of post does not in any way entail petitioner with effect from 1‑7‑1994 appointment of petitioner so once the being illegally obstructed by the ban is lifted the post would be filled Deputy Commissioner/Respondent up according to law. No. l the funds had also been allocated for the said post and already a month has gone but the post remains vacant and the petitioner has been clamouring all throughout but his appointment is being deferred on the pretext‑of ban which does not apply to the, petitioner's case. After going through the comments filed by the Deputy Commissioner, D.G. Khan, there is hardly any ground to believe the contention of respondent No.5, that the post was created for him and he stood appointed with effect from 1‑7‑1994 on creation of the post. The stand of the Deputy Commissioner, D.G. Khan and perusal of the order of the President:‑‑‑ "Commissioner, D.G. Khan may please initiate Jamadari separate for Lund Tumman." reveal it clearly that only post was created. The Home Secretary has erroneously appended a note after creation of post under erroneous assumption that the post was created under the directive of the President for appointment of respondent No.5 in the present writ petition. There was no such direction by the President for appointment of Bashir Ullah or for relaxation of his age of 2 years 6 months. The post was to be filled in normal course in accordance with the Punjab Civil Servants (Appointment and Promotion) Rules, 1974. However, the petitioner came to know about the joining of respondent No.5, as Jamadar at B.M.P. Line Saddar, D.G. Khan and submitted Civil Miscellaneous No. 1854 of 1994 in this Court. The comments on the said application were also called for. Commissioner D.G. Khan has not submitted the comments on the said application so far. Ch. Muhammad Azhar, the then Deputy Commissioner, D.G. Khan failed to submit the comments on the application of the petitioner. While he was under transfer all of a sudden he passed the order of appointment of respondent No.5 during pendency of the writ petition contrary to the comments filed by him in this writ petition as well as in Writ Petition No.3639 of 1994 filed by Bashir Ullah respondent against D.C. etc. to the effect that the post shall be filled in accordance with law after due advertisement. The appointment of respondent No.5 in derogation of written comments submitted in this Court by respondent No. l is wholly without jurisdiction.

6. The post of Jamadar was created for Tumman Lund Tribe of D.G. Khan which was to be filled in accordance with the procedure laid down in the Punjab Civil Servants (Appointment and Promotion) Service Rules. Respondent No.5 has come directly as Jamadar without having any extraordinary qualification for the said post. The petitioner is a Chief of Tumman Lund and was entitled to the post on account of seniority‑cum‑fitness. The order of his appointment (respondent No.5) in view of clear cut denial in the comments by the Deputy Commissioner, has been made in clandestine manner contrary the established principles of law. As such the impugned order of appointment of respondent No.5 is hereby declared wholly without jurisdiction and nullity in the eye of law.

7. The question of jurisdiction raised by the learned counsel for respondent No.5 is not called for the present case. It is a case in which interpretation of order creating a post of Jamadari in Tumman Lund under directive of the President is involved. The President has only created a seat. He has never passed an order for the appointment of respondent No.5 as Jamadar Tumman Lund. The question of terms and conditions of service is not involved is of no consequence and is repelled.

8. The post of Jamadar in Tumman Lund shall be filled in by the respondent No.3 in accordance to Punjab Civil Servants. Appointment and Promotion Rules, 1974, keeping in view the principle of seniority‑cum‑fitness from the force of Tuman Lund Tribe. The petition is accordingly allowed with costs. A.A./A‑255/L Petition allowed.