1998 PLP (C (PLC(CS))

The admitted facts involved in the present petition are that .the petitioner rendered war service from 2-10-1941 to 31-3-1-1946. He was appointed on 9-8-1946 as Assistant Clerk to the Irrigation Department against war vacancy. Prior to that respondent No. 4 was appointed as Assistant Clerk on 1-4-1943 as a non-war service candidate. The petitioner was given war service benefits in terms of tile provisions of the Punjab Government Service (War) Amendment Rules, 1943 and was treated to have been inducted in service on 20-2-1942. Subsequently respondent No. 4 was confirmed as Assistant Clerk with effect from 1-4-1944 while the petitioner was confirmed as Assistant Clerk with effect from 15-8-1947.

2. The petitioner filed a representation that he should be given seniority as a confirmed Assistant Clerk with effect from 21-2-1943 by giving him the war service benefit and he should be treated senior to respondent No.

4. This representation was not decided but kept pending because in the meantime the matter came up before the Hon'ble Supreme Court on the scope and effects of the provisions of the aforesaid Rules of 1943. This case was later on decided in 1961 and is reported as Manzoor Ahmad v. Province of Punjab (PLD 1961 S C 166). In view of the law laid down in the aforesaid case the representation of the petitioner was accepted on 25-2-1975 and he was confirmed as Assistant Clerk with effect from 1-4-1944, which is the date on which the permanent vacancy became available. The petitioner carried further promotions with effect from this date. However, on 8-6-1976, without notice to the petitioner, the Chief Engineer, Irrigation, Lyallpur withdrew the benefits of war service given to the petitioner vide Annexure 'H'. This is the basic order, which has been impugned in the present Constitutional petition.

3. This is an admitted position that respondent No. 4 during the pendency of this petition, has already died and respondent No. 5 has retired. 4, While the case of the petitioner is that he was appointed against the war reserved vacancy, the deceased respondent No. 4 took stand that petitioner was not appointed . against such a vacancy. In the parawise comments submitted by the Superintending Engineer (respondent No. 3) it has been admitted that the petitioner was appointed against a war reserved vacancy. Para, No. 2 of the parawise comments is reproduced below:- "The petitioner was actually appointed on 19-8-1946 against a war vacancy. Later on his case of war service was considered by the then competent Authority and the same was got verified by the Accountant-General during 1948 as such the dates of promotion/confirmation as narrated in the para are admitted except that the date of confirmation as S.D.C. is 19-1-1948 and as Accounts Clerk is 15-3-1954 and not 4-10-1955 and 15-7-1974 as given in para.

2. Further date of promotion as Head Clerk is 11-1-1957."

5. It may thus he seen that so far as the factum of appointment of 'the petitioner against War Reserved Vacancy is concerned it is admitted between the parties. Subsequently some officers on behalf of the Punjab Government have been taking the stand that the petitioner was not appointed against war reserved vacancy. However, the learned Additional Advocate-General under instructions from the Office Superintendent of the Superintending Engineer, Irrigation, Sargodha has informed that the office record prior to 1960 has already been destroyed. In the absence of the original record which stands destroyed, the parawise comments filed in July, 1979 have to be accepted. Accordingly it is held that the petitioner was appointed against a War Reserved Vacancy.

6. It was specifically urged in the writ petition in ground (iii) of para, 12 that the impugned order had been passed by the Chief Engineer, Lyallpur without providing opportunity of hearing to the petitioner and he had been condemned unheard. This averment of the petitioner has not been denied either by the Superintending Engineer or the Chief Engineer, or the Secretary, Irrigation in the parawise comments separately submitted by them. The learned Additional Advocate-General in this view of the matter is also not in a position to contend that the impugned' order aforesaid had been passed with notice or after affording opportunity of hearing to the petitioner. In these circumstances, I find that the impugned order is illegal and nullity in the eye of law.

7. For what has been discussed above, this writ petition is accepted with no order as to costs. Accordingly the impugned order dated 8-6-1976 passed by the Chief Engineer, Lyallpur (now Faisalabad) and other consequent orders are declared to be without lawful authority and of no legal effect. It is, however, clarified that acceptance of the writ petition shall not adversely affect the service benefits given to respondents Nos. 4 and 5 as one A of them has already died and the other one has retired. C.M.S./A-163/L Petition accepted.