2003 PLP (C (PLC(CS))

MIAN MUHAMMAD AJMAL, J.

Leave to appeal is sought against the judgment of the N.W.F.P., Service Tribunal, Peshawar, dated 27-5-2001 whereby Appeal No.1315 of 2000 of respondent No.1 was accepted, the order impugned therein was set aside and he was ordered to be re-instated as Junior Clerk in the Government Service with full back-benefits.

2. Brief facts are that the petitioner was appointed as Junior Clerk BPS-5 in the Office of Political Agent, Kurram Agency, Parachinar vide order, dated 1-12-1996. His appointment and the appointments of Wali Khan and Muhammad Alam were challenged by Muhammad Anwar, respondent No. 1 and 5 others through three separate appeals before the Commissioner, Kohat Division, Kohat which were consolidated and vide common order, dated 3-1-1998 the same were accepted and the appointment orders were set aside. The operative part of the order reads as under:-- "All these facts fortify the claim of the appellants to their appointment as Junior Clerk and Daftri in the Office of the Political Agent Kurram. Therefore, recognizing their claim, I accept the appeal preferred in this Court and set aside the Orders No.5732/Acctt:, and No.5736/Acctt:, dated 1-12-1996 in respect of S. Muhammad Zahir Shah as Junior Clerk and Mr. Abdul Wali as Daftri. Both these officials stand terminated from service with effect from the issue of this order as their very appointment is void and ultra vires of the rules. As far as, the appointment of Mr. Muhammad Alam is concerned he has been promoted/appointed from Sap Clerk which is in accordance with the recommendation of the Selection Board/Committee. From the perusal of the seniority list submitted by Superintendent PA's Office Kurram and record it transpired that the officials in the list under head Benevolent Fund deserve to be promoted/appointed as Junior Clerk/Daftri respectively on regular basis as promotion of three incumbents from the Levy Sap Clerks has very recently been made as Junior Clerk/Daftri. Now it is the right of Benevolent Fund Clerks to be promoted/appointed as Junior Clerk and Daftri. Their case is, therefore, remanded to the Political Agent, Kurram with the direction that the irregularity may be rectified by appointing/promoting the officials serving as Benevolent Fund Clerks. The list provided by Superintendent, PA's Office Kurram is enclosed (Annexure G). To ensure persistent carriage of justice the practice of posting/absorption of the existing Benevolent Fund/Levy Soldier Clerks already in practice may be continued as they have the superior right of promotion/appointment on the regular posts. However, no further appointments as Levy Soldier Clerk and Benevolent Fund Clerk be made in future. "

3. Feeling aggrieved by the said order, the petitioner filed appeal before the Senior Member Board of Revenue, Peshawar which was disposed of by him vide his order, dated 22-1-1999 as under:-- "A hearing was given to the appellant and comments furnished by Commissioner, Kohat Division were perused. The view-point of the Commissioner is that respondents No.3 to 5 had superior right over the appellant because they were senior, experienced and qualified. I have studied the case and am of the firm opinion that the appellant and respondent had no right to be appointed as Junior Clerks against the post meant for initial recruitment. The Government instructions regarding appointment of Government employees are very clear, it is mandatory on the Appointing Authority to advertise the posts in the National Press and constitute a Departmental Promotion and Selection Committee for selection of regular incumbents. Maintaining the seniority list of employees, who are neither Government servants nor are paid from Government treasury, is totally irregular. Appointment of any official from these temporary incumbents without following the laid down procedure is totally irregular. I therefore, accept the appeal to the extent that the appointment of the petitioner made by Political Agent, Kurram and appointment of the respondents ordered by the Commissioner vide his impugned order, dated 3-12-1998 is not covered under, the Government rules and policy. All of them have no right to continue or claim right of appointment against the regular post. It is directed that the posts be advertised and, selection be made on the recommendation of Departmental Promotion and Selection Committee. The appeal is disposed of accordingly with no order as to cost. "

4. Thereafter the Commissioner, Kohat Division vide his letter, dated 20-7-1999 directed the Political Agent for implementation of the order, dated 22-1-1999 passed by the Senior Member Board of Revenue, as a consequence whereof the Political Agent vide his order, dated 11-5-2000 withdrew the orders, dated 4-4-1998 issued by him and terminated Muhammad Anwar, Junior Clerk and Islam Khan, Daftri from service.

5. Feeling aggrieved by the said order. Muhammad Anwar respondent No. 1 filed Appeal No. 1315 of 2000 before the N.W.F.P. Service Tribunal Peshawar which has been accepted vide judgment impugned herein, whereby he has been reinstated in service with back-benefits.

6. We have heard the learned counsel for the petitioner and have perused the record of the case. The petitioner, who was a matriculate, was appointed as Junior Clerk in B.P.S.-5 as a special case by respondent No.3 without observing codal formalities whereas respondent No.1 was initially appointed with the qualification of F.A. as Sap Clerk on 20-2-1986 and he unproved his qualification to B.A. during the course of his service. A Selection Committee was constituted by respondent No.2 vide his order, dated 23-4-1992 to scrutinize the appointments and promotions etc. who recommended that the vacancies of Junior Clerk arising in the establishment of Political Agent, Kurram be filled in, out of the Sap Clerks paid from Benevolent Fund on the basis of their seniority. Respondent No.1 was transferred and posted as Junior Clerk in the Benevolent Fund of P.A. Kurram on 10-8-1992 and he served from his inception for more than 14 years. Respondent No. 1 possessed better academic qualification and had sufficient long experience to his credit and was a better candidate than the petitioner in all respects for the post of Junior Clerk in the Government service.

7. Learned counsel for the petitioner failed to point out any legal infirmity in the impugned judgment or to make out a case involving a substantial question of law of public importance warranting interference by this Court under Article 212(3) of life Constitution of Islamic Republic of Pakistan, 1973.

8. Consequently, this petition being without any merit is dismissed and leave refused. M.B.A./M-859/S Petition dismissed.