2003 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

These two petitions bearing Nos. 2138 of 2001 and 2445 of 2001 filed under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 have been preferred against the consolidated judgment, dated 28-4-2001, passed by Federal Service Tribunal, Islamabad in two separate civil appeals.

2. These petitions involving common question of law and facts are proposed to be disposed of through this single judgment. Abdul Hameed petitioner, in C. P. 2445 of 2001 was appointed as Stenographer in BPS-15 in Prime Minister Secretariat vide order dated 8-10-1996 on the recommendation made by Departmental Selection Committee in relaxation of the rules. Later, vide order dated 5-4-1999 he was reverted from the post of Stenographer (B-15) to the post of Stenotypist (B-12) on the ground that the post was filled without advertisement as per requirement of rules on the subject.

3. Muhammad Sadiq petitioner in C. P. 2138 of 2001 was appointed as Stenotypist in Prime Minister Secretariat vide order dated 8-10-1996 on the recommendation of Departmental Selection Committee and was sent to the surplus pool of the Establishment Division. Subsequently the petitioner was adjusted against regular vacancy in the Cabinet Division and was again sent to Prime Minister Secretariat vide order dated 30-7-1997. The petitioner was reverted from the post of Stenotypist to the post of LDC vide order dated 4-3-1999 on the ground that he was appointed as Stenotypist without observing the rule of advertisement of the post.

4. The petitioners on dismissal of their departmental appeals, approached the Federal Service Tribunal through -separate service appeals. The Tribunal dismissed their appeals vide impugned judgment with the following observations:-- "

6. According to serial No.82, paras 3 & 4 even in the case of ac hoc appointment the posts shall have to be advertised without which the appointment will be irregular and thus not valid as per order of the Establishment Division's O.M. No.2/23/78-D, III dated 17-4-1978. The idea in advertising the posts is to call for applications which thereby assures selection and merits due to variety of competitions, in the instant appeals mandatory requirement of Rule 11, already referred to above, was not complied with therefore, the competent authority, perforce, had to revert the three appellants and last one terminated.

7. The respondent has hotly contested the appeal and denied the averments made therein:

8. Pursuant to the aforesaid discussion and the violation of the mandatory rule on the subject, we do not see any justification for interference with the impugned orders resultantly, all the appeals fail and are hereby dismissed with no order as to costs."

5. Learned counsel for the petitioners in seeking leave to appeal against the judgment of Service tribunal has contended that the petitioners were appointed in relaxation of rules and they having served for a considerable period, had earned a legitimate right to hold the said positions, therefore, the reversion of the petitioners on the ground that they were appointed in violation of the rules as the posts were not advertised, would be illegal. The learned counsel emphasized that the order having taken effect, created a valuable right in favour of the petitioners and in support of the argument had placed reliance on Pakistan v. Muhammad Himayatullah (PLD 1969 SC 407) and Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation (2002 SCMR 1034).

6. Learned Deputy Attorney General, on the other hand has contended that the appointments of the petitioners were made in violation of rules therefore, no right would be created in their favour to retain the such appointment in the light of principle of locus poenitentiae and mere fact that the petitioners served for a considerable period, would not validate their invalid appointments. In support of the contention, the learned Deputy Attorney General has placed reliance on Munawar Khan v. Niaz Muhammad (1993 SCMR 1287) and Abdul Jabbar memon. and others (1996 SCMR 1349).

7. The appointments of the petitioners undeniably were made in departure to the method for appointment prescribed under Rule 11 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Under the above rules, the post is necessarily to be advertised in the newspaper before initiating the process of selection departure from this mandatory rule would render the appointment invalid and the defect is not automatically cured with the lapse of time. Learned counsel submitted that the appointment of Malik Azhar Mahmood, Stenotypist in identical manner, was subsequently regularized and the present petitioners despite the opinion of the Law. Division in their favour, were discriminated. We are afraid, the opinion of the Law Division would not cure the illegality in the appointments made in violation of rules and the same cannot be approved and allowed to be perpetuated on the basis of a favourable opinion of Law Division. The act of making of the appointments in departure to the rules amounts to defeat the equal right of employment on merits, therefore, the appointments obtained by the petitioners would not create any right in, their favour for regularization. The mere passage of time would not be a ground to allow the rectification of irregularity on, the ground that the appointees should not suffer for the fault of concerned authorities. It is sad that the public, functionaries through misuse of their powers without observing the rules make appointments to oblige their favourites and deprive the deserving persons from their legitimate right of service: We may observe, that a holder, of public office by misusing his authority in breach of law and public trust, is guilty, of misconduct. The Government while taking notice, of such regularities should take appropriate action against the concerned authorities, under the Government Servants (Efficiency and Discipline) Rules 1973, to ensure the transparency in the appointments and to eradicate the element of favouritism and nepotism for advancement of policy of merits and fairness.

8. We having heard the learned counsel for the parties, find no substance in these petitions and while upholding the judgment of the Tribunal dismiss these petitions with the observation that the posts against which the petitioners were appointed shall not be filled. Without following the prescribed method provided under the rules and the petitioners' shall also be entitled for appointment subject to their eligibility and merit. Leave is refused. M.H./M-650/S Leave refused.