2014 PLP (C (PLC(CS))

IBAD-UR-REHMAN LODHI, J.

The petitioner's father was an employee in Education Department and died during service. In view of Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, the petitioner was appointed in place of his deceased father as a Junior Clerk and the appointment letter was issued on 5-12-2008 against a vacant post in Government High School, Kharotta Syedan, District Sialkot; however, such appointment was shown as on contract basis.

2. According to the contentions of the petitioner, he met with a road side accident on 1-2-2010 and was constrained to absent from duty and, therefore, he was proceeded against by the Department and by means of order dated 30-4-2010, passed by the Executive District Officer (Education), Sialkot, his contract was ordered to be terminated.

3. A departmental appeal, filed by the petitioner, remained unsuccessful, when the District Coordination Officer, Sialkot, dismissed the same on 19-9-2011.

4. The petitioner has filed this petition challenging his termination and dismissal of his departmental appeal.

5. The point for consideration in this petition is the import and effect of Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, which reads as under:

"17-A. Notwithstanding anything contained in any rule to the contrary, whenever a Civil Servant dies while in service or is declared invalidated/in-capacitated for further service, anyone of his unemployed children, may be employed by the Appointing Authority against a post to be filled under rules 16 and 17 for which he/she possesses the prescribed qualifications and experience and such child may be given 10 additional marks in the aggregate by the Public Commission or by the appropriate Selection Board or Committee, provided he/she otherwise qualifies in the test/examination and/or interview for posts in BS-6 and above. Provided further that one child of a Government who dies while in service or is declared invalidated/incapacitated for further service shall be provided a job against posts in BS-1 to 5 in the department in which the deceased Government servant was working, without observance of formalities prescribed under the rules/procedure. Provided such child is otherwise eligible for the post."

6. Keeping in view the above-referred rule, in case of death of a civil servant, who dies during service, his any one unemployed children is to be appointed against a post to be filled under Rules 16 and 17 thereof. Rule 17 deals with the initial appoints of all posts in Grade-1 and above. In both of these rules, when a term "Post" is used, it necessarily referable to the post, which was being held by the deceased father of the aspiring child for the appointment.

7. Admittedly, the father of the petitioner was a regular employee in Education Department.

8. Today, the learned Assistant Advocate-General, who is assisted by a Senior Headmaster from the respondent-Department, has verified that the vacant post against which the petitioner was adjusted, was a regular post.

9. I have also noted that in the appointment letter, although it is mentioned that the appointment was on contract basis, but no period of contract has been prescribed in whole of such document.

10. Even otherwise, when the appointment was made under Rule 17-A of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, we have to restrict ourselves to the terms and conditions provided in the relevant rules. By going through the whole of the scheme provided in the said rules, the appointment on contract basis is alien to such scheme of law provided under the said rules, particularly, Rules 3 and 7 thereof, which talk about the initial recruitment, the appointment on acting charge basis, or appointment on current charge basis, the appointment by promotion on officiating basis etc., but nowhere, in whole of the said scheme, the Authority has been made competent to appoint any person on contract basis.

11. Initially, the appointment was made on 5-12-2008 and admittedly the petitioner had been performing his duties till February, 2010, thus, even if the initial appointment was considered as temporary appointment, by efflux of time and on account of the fact that initial appointment was made against a regular post and additionally that father of the petitioner had been working against regular post, and the petitioner was adjusted in his place, the appointment made on 5-12-2008 will be considered as a regular appointment.

12. The petitioner was treated as contract employee and was proceeded against in his such capacity and his appeal was also dismissed by the Departmental Appellate Authority holding that a contract employee has no right of appeal under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, thus, all actions against the petitioner, while treating him as an employee on contract basis have lost their any efficacy.

13. The petitioner was a regular employee as a Junior Clerk in Education Department and he was to be dealt with on any available disciplinary grounds by giving him a status of regular employee and it was not done, as such, the punitive actions taken against the petitioner are not sustainable.

14. The order dated 30-4-2010, passed by the Executive District Officer (Education), Sialkot, terminating the contract of the petitioner and similarly the appellate order, announced on 19-9-2011 by the District Coordination Officer, Sialkot, are set-aside, being illegal and without lawful authority, and the petitioner is ordered to be re-instated into service with effect from 30-4-2010 with a clarification that for the period commencing from 30-4-2010 and ending 12-11-2013, the petitioner will not claim any financial benefits, but his appointment since 5-12-2008 will be considered as that of a regular employee and except financial benefits, all other allied benefits shall be extended in his favour.

15. The petitioner is directed to give his joining report to the Headmaster of Government High School, Kharotta Syedan, District Sialkot, tomorrow and it will be responsibility of the Department to adjust the petitioner suitably.

16. This writ petition stands allowed in the terms as articulated above. JJK/A-144/L Petition allowed.