2004 PLP (C (PLC(CS))

"D.G. Ordnance Service v. Muhammad Abdul Latif (2003 SCMR 410) "Government of the Sindh v. Abdul Sattar Sheikh and others" (2003 SCMR 819) He further submits that the respondents have no lawful authority to issue advertisement qua the post in-question on the well known principle of approbate and reprobate. Iii support of his contention he relied upon the following judgments:-- "Shahzad Gul v. Addl. Secretary Home, Government of N.-W.F.P. and others" (1999 SCMR 1028). "Government of the Balochistan v. Marjan Khan" (2003 SCMR 444) "Chairman Minimum, Wage Board, v. Fayyaz Khan Khattak" 1999 SCMR 1004= 1999 PLC (C.S.) 1160. He further submits that action of the respondents is hit by Article 25 of the Constitution as the action of the respondents is discriminatory in a character in view of paras No.3 and 5 of the Constitutional petition, N which was not denied in its true perspective by the respondents in the report and parawise comment.

3. The learned counsel of the respondents submits that action of the respondent is in accordance with law. The Competent Authority has framed the policy on 14-4-1996 as is evident from Annexure R/2 attached with the report and parawise comments. He further submits that case of the petitioner was sent to the Chairman, who did not agree as the Director General, LDA his subordinate has failed to send summary in accordance with law. He further submits that action of tire respondents is not hit by Article 25 of the Constitution, as cases mentioned by the learned counsel of the petitioner in paras. No.3 and. 5, are not exact], similar qua the case of the petitioner, therefore, action of the respondents is valid. He further submits that this Court has no jurisdiction to give direction to the respondents to regularize the service of the petitioner in violation of rules and regulations of the respondents. He further submits that the Competent Authority constituted Committee. The first Committee did not recommend the case of the petitioner, whereas second Committee has recommended the case of the petitioner, therefore, the Competent Authority was testified to direct the office to fill the post in question through advertisement in terms of policy of the respondents dated 14-4-1996.

4. The learned counsel of the petitioner in rebuttal submits that the petitioner was selected for the post of litigation officer/legal assistant after completing all the legal formalities. The petitioner requested the respondents failed 1991 for regularization of hi; services but the respondents failed to regularize the services of the petitioner malafidely: The respondents allegedly approved the procedure of recruitment and promotion on 1,4-4-1996; whereas the petitioner has agitated the matter before the respondents before 14-4-1996 as is evident from the documents attached by the petitioner with the Constitutional petition. The petitioner has also filed Constitutional Petition No.682-96, which was disposed of by this Court vide order dated 12-11-1991; on the statement of the legal advisor of the, L0DA respondents.

5. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record

6. It is admitted fact that the Competent Authority as constituted a Committee consisting of Additional Director LDA. Director Legal, LDA and Ch. Muhammad Rashid Ahmad and Mr. Rehan Bashir, Legal. Advisors of the LDA. The Committee had granted one tine for, regularization of service of petitioner in view of peculiar circumstances of the case of the petitioner, thereafter the Committee was constituted by the competent authority and the Committee recommended the name of the petitioner for regularization, therefore, the petitioner has accrued 113 vested right. The Competent Authority had discarded the recommendation of the Committee without issuance of any notice to the petitioner. The case of the petitioner was placed before the competent Committee in its meeting. The Committee in its meeting held on 31-1-2002, recommended the case of the petitioner unanimously alongwith other persons, therefore, the Competent Authority has no lawful authority to discard the same without issuance of notice to the' petitioner and without applying its independent mind. It is better and appropriate to reproduce the impugned order of the respondents, to resolve the. controversy between the parties. "It was decided that seven posts of Litigation Officer should be filled in through open competition. An advertisement shall be given in press inviting applications from eligible candidates. Present officials will also be allowed to participate. However, they would be given benefit of their experience, length of service and relaxation of age if required." Mere reading of the aforesaid order of the authority does not contain any reason; therefore, the same is not in accordance with law. After addition of section 24-A in the General Clauses, it is the duty and obligation of the Competent Authority to pass the impugned order after applying its independent mind with reasons, as per law laid down by the Honourable Supreme Court in "Messrs Airport Support Service's case" (1998 SCMR 2268). It is also admitted fact that the petitioner has accrued vested right as the Committee has recommended the case, of the petitioner to the Competent Authority, therefore, it is the duty and obligation of C Competent Authority to disagree with the recommendation of the Committee with reasons and after issuance of the notice t.: the petitioner. This procedure was not adopted as is evident from the impugned order. The Committee did not adopt, this procedure, which is in violation of principle of natural justice. The vested right accrued to the petitioner, cannot be taken-away without issuance of notice to the petitioner as per principle laid down by the Honourable Supreme Court in "Zakir Ahmad's case (PLD 1965 SC 90) and "Pakistan Chrome Mines Ltd.'s case (1983 SCMR 1208).

7. In view of what has been discussed above, the impugned order of the Competent Authority for advertisement is set-aside, meaning thereby the recommendation of the Committee shall be placed before the Competent Authority. The Competent Authority .shall pass its afresh order after applying its independent mind after providing proper hearing to all- the concerned including the petitioner, preferably within 3 months after receiving the order of this Court. The petitioner is directed to appear before the Director General, LDA/Competent Authority, in his office at 11.00 a.m. on 12-11-2003, who is directed to pass afresh order either himself or send the same to the Competent Authority, who is also directed to pass afresh order in the terms of aforesaid direction of this Court. Office is directed to provide one copy of this order to Mian Muzaffar Hussain, Legal Advisor of the respondents LDA, who is directed to send the same to the aforesaid Director General, LDA/Competent Authority for necessary action and compliance. With these observations, the writ petition is disposed of. H.B.T.//M-2371/L Order accordingly.