1995 PLP (C (PLC(CS))

In accordance with the mandate of the Constitution, Punjab Civil Servants Act, 1974 was promulgated and Punjab Highways Department (Land Acquisition Control Office) Service Rules, 1988 were framed under section 23 of the Punjab Civil Servants Act, 1974.

5. It is pertinent to mention here that prior to the framing of these rules, the Board of Revenue Punjab through its letter No.5332‑87/3003‑E(F)V, dated 30th July, 1987 wrote a memorandum that it had got no objection for the framing of Rules and recommended the following set up:‑ Existing Nomenclature Proposed Nomenclature Qualification Method of recruitment 1. . 2 ..

3. Naib‑Tehsildar Assistant Land Control Officer(BPS‑14) Intermediate (i) 50% by initial recruitment. (ii) 50% by promotion from having 10 years' experience.

6. Accordingly, Punjab highways Department (Land Acquisition Control Office) Service Rules, 1988 were promulgated through Notification No. SOR I11‑1‑25/81, dated 17th March, 1988 and earlier rules of 1963, namely, the West Pakistan Building and Road Department (Land Acquisition Control Subordinate Service) Rules were repealed. In the Schedule the method of recruitment to the post of Assistant Land Control Officer (formerly designated as Naib‑Tehsildar) is as under:‑ (i) 50% by initial recruitment (18‑25 years age). (ii) 50% by promotion on seniority‑cum‑fitness basis from amongst Supervisors/Head Clerks with 5 years service as such. The Appointing Authority, according to the Schedule, in making appointment to the post of Assistant Land Control Officer was prescribed as Director, Admn: A reference is also necessary to the Proviso added on 17‑5 1987 to Rule 3 of Punjab Civil Service (Ratio of Recruitment) Rules, 1973 "Provided that the marginal benefit of fraction exceeding or equal to 50% shall got to the share of departmental promotion wherever a percentage is prescribed both for promotion and initial recruitment." It is admitted and not denied that there were nine sanctioned posts of ALCOs (formerly known as Naib‑Tehsildar) out of which five posts were to go the promotees and the remaining four to the direct recruitees. It so happened that Mr. Waqas Mehmood‑respondent, Petitioner in Writ Petition No.5911/94 applied direct to the Chief Minister (Annexure `L') on 11‑10‑1990 for his appointment as ALCO in the Land Acquisition Wing of the Highways Department. A directive was issued by the Chief Minister Secretariat on 29th of October, 1990 making direction for his appointment and immediate compliance report. The matter was taken by the Authorities and the Chief Engineer, Punjab Highways Department brought to the notice of Secretary, Communication and Works Department on 29th of November, 1990 pointing out that no post was available against direct quota, as such, Mr. Waqas Mehmood could not be accommodated. Thereafter, a few directives were issued from the Chief Minister, Secretariat for the compliance of the directive earlier issued. Ultimately on the 7th of January, 1991 two orders were issued one by the Chief Engineer, North Zone, Punjab Highways Department relaxing the upper age limit to the extent of two years in the case of Waqas Mehmood and the other by Director Administration appointing him on ad hoc basis.

7. It is argued that since out of nine sanctioned posts four had already gone to the direct appointees, as such, the appointment of Waqas Mehmood on the 5th post on ad hoc basis on direct quota is against the Rules. Learned counsel for Waqas Mehmood has mainly argued on the maintainability of the writ petition in view of the bar placed by Article 212 of the Constitution of A Islamic Republic of Pakistan, 1973. It is pertinent to mention here at very out set that this argument would not be available to him as he himself has challenged his ad hoc termination through Writ Petition No. 5911/94.

8. I have noticed that in the appointment of Waqas Mehmoood normal rules of recruitment were not followed and his was also made during the ban period. However, I do not want to dilate upon the aspect of ban as the writ petition merits acceptance on the short ground that the respondent was initially appointed on a post falling in quota of promotees thus violating the ratio provided under the rules. This denial of due share prescribed by the rules certainly generates frustration and despondency amongst the civil servants. It is also brought to my notice by Mr. A. Karim Malik, learned counsel for the 8 petitioner which fact is also reflected from the letter, dated 2nd of May, 1994 that the Chief Minister was apprised of all those developments and had agreed with the department qua the discontinuance of services of Waqas Mahmood with immediate effect, so as to allocate the same to the senior most from the promotees. By no stretch of imagination the post reserved for the promotees could be given to the initial recruitees in the manner stated above. It is also pertinent to mention here that during the pendency of this writ petition the Supreme Court observed as under in the ad hoc appointments:‑ "While inquiring into various complaints of violation of Fundamental Human Rights, it has been found that the Federal Government, Provincial Government, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Rights (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession." The simple conclusion from the aforesaid resume is that the appointment of the petitioner in the manner on ad hoc basis to the post reserved for promotees is against rules and cannot be approved. As reflected from the connected writ petition the department itself has taken note of this glaring illegality which factum is reflected from the letter dated 2nd of May, 1994 impugned in Writ Petition No. 5911/94 wherein it has been decided to discontinue the ad hoc appointment of Waqas Mehmood. In this background, Writ Petition No.809 of 1991 filed by Syed Zahoor‑ul‑Hassan Naqvi is accepted with no order as to costs and the connected Writ Petition No.5911 of 1994 of Waqas Mehmood is hereby dismissed. There shall be no order as to costs in the circumstances. A.A./Z-143/L Order accordingly.