1998 PLP (C (PLC(CS))

SAIDUZZAMAN SIDDIQUI, J

The above appeal with the leave of this Court is directed against the judgment of a learned Division Bench of Peshawar High Court dated 15-5-1994 whereby a writ petition filed by respondent No. 1 was partly accepted and the appointment of the appellant against the post of Library Clerk, BPS-5., in Government College Lund Khawar, Mardan, was set aside with further direction to re-advertise the post and fill up for same on merits in accordance with the law. Leave was granted in the above case to consider the following contentions:-- "It was contended by the learned counsel for .the petitioner that the petitioner and respondent No. l both being civil servants, the dispute, if any, was within the jurisdiction of the Service Tribunal. Respondent No. l having failed to file a departmental appeal/representation and having approached the Service Tribunal the learned High Court had no jurisdiction to interfere with the said order. It was further contended that the post was duly advertised and petitioner was appointed on the post by the competent Authority on merits, therefore, mere fact that the application of the petitioner or that of the respondent was forwarded to the competent Authority by the Education Minister had bearing on the said order. It was further contended that the respondent No. l having failed to substantiate his claim for promotion to the post, the learned High Court was not justified in setting aside the impugned order rather the writ petition was liable to be dismissed without making observation regarding the appointment of the petitioner made some 2 years before passing of the impugned order when he was duly qualified for the post. Leave is granted to consider the above contention. " We have heard the learned counsel for the parties at length.

2. The relevant facts of the case are that a post of Library Clerk. BPS-5, was advertised on 5-5-1992 in two local dailies of Peshawar, The last date for receipt of the applications was fixed in the advertisement as i6-5-1992 whereas the interviews for the appointment to the above post were to be held on 23-5-1992. Respondent No.l, who was at that time serving as Naib-Qasid in the Government College Lund Khawar, Mardan, applied for the above post on the basis of his experience It appears that the Deputy Director Education (Colleges) N.-W.F.P., Peshawar, on 23-4-199, addressed a letter to the Principal, Government College Lund Khawar, Mardan, with reference to a D.O. Letter No.PS/MIN/FOOD/N.-W.F.P. 921 dated 24-1992, earlier addressed to the Principal Government College, Lund Khawar, Mardan, for appointment of the appellant as Junior Clerk in his College which was ordered by the Minister for Education, N.-W.F.P. It further appears that on the basis of above letter of Deputy Director Education (Colleges), the Principal Government College, Lund Khawar, Mardan, issued to the following appointment order on 5-5-1992:-- OFFICE OF THE PRINCIPAL GOVT. DEGREE COLLEGE LUND KHAWAR (MARDAN) As per directive/order of the Minister of Education and with reference to the Director of Education (Colleges) N.W.F.P., Peshawar Letter No. 11185/A-167/Apptt: JC/CA-VIII, dated 23-4-1992 Mr. Yousaf Ali son of Mr. Musanif Shah is appointed against the vacant post of Library Clerk with effect from 5-5-1992, at Government College, Lund Khawar in the BPS-5 of Rs.1085--49--1770 plus usual allowances admissible to him under the rules: NOTE: (1) Charge report should be submitted to all concerned to duplicate. (2) No TA/DA etc. l is allowed on his 1st appointment. (3) Appointment is purely on temporary basis and liable to termination'' at any time without assigning any reason/notice. (4) In case he wants to resign to post, he will have to serve the department with one month's notice period. (5) Will he governed by such rules and regulations as may be issued for category of Government servants to which he belongs. (6) He will have to produce the medical certificate of his health and age from the Civil Surgeon concerned. (Prof. Nasiruddin), Principal Gov. College fund Khawar, Mardan. Endst. No.428-31/apptt: dated CC. Lund Khawar the, 5-5-1992. Copy of the above is forwarded to the:

(1) Minister of Education, N.-W.F.P., Peshawar. (2) Director of Education (Colleges) N.-W.F.P., Peshawar. (3) Official concerned. (4) Office record."

3. The appointment of the appellant in the manner cited above, was challenged by respondent No.1 in a Constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan before the Peshawar High Court being Writ Petition No.914 of 1992. The above petition was accepted by a learned Division Bench of the Peshawar High Court as follows:--

5. The appointment of the respondent Yousaf Ali against the vacant post was incompetently made on the recommendation of the Provincial Minister for Education as is evident from the very order of his appointment dated 5-5-1992 which is worded thus:-- "OFFICE OF THE PRINCIPAL GOVERNMENT DEGREE COLLEGE LUND KHAWAR (MARDAN) As per directive/order of the Minister of Education and with reference to the Director for Education (Colleges) N.-W.F.P., Peshawar Letter No. 111.85/A-167/Apptt: JC/CA-VIII, dated 23-4-1992, Mr. Yousaf Ali son of Mr. Musanif Shah is appointed against the vacant post of library Clerk with effect from 5-5-1992 at Government College Lund Khawar in the PBS No. 5 of Rs.1055--40--177(1 plus usual allowances -is admissible to him under the rules. The letter of the Director of Education (Colleges) N.-W.F.P., Peshawar alluded to in the above order may be reproduced hereunder with advantage:-- NO..../R-167/ appt:JC/CA-VII, dated Peshawar the 23-4-1992. To, The Principal Government College, Lund Khawar (Mardan) SUBJECT: APPOINTMENT OF JUNIOR CLERK. The D.O. Letter No. PS/MIN/FOOD/ N.-W.F.P. 92, dated 2-4-1992 addressed to Principal, Government College, Lund Khawar for appointment of Mr. Yousaf Ali son of Musanaf Shah as Junior Clerk at his college which was ordered by the Minister for Education, N.-W.F.P. to your goodself with the remarks "Please appoint as requested. "' The advertisement of the post in the Newspaper was just an eyewash as the order of appointment of the respondent was issued on the very day of publication of the advertisement in the local dailies. The Provincial Minister for Education certainly transgressed his powers and did what he was not supposed to do and the authorities competent to make the appointment in their keenness obey his illegal orders flouted the rules with utmost facility and crossed all limits or consciousness. No words are strong enough to deprecate this tendency which has unfortunately gained an unabated momentum and is gradually destroying the whole gamut of office management in Government Departments and other institutions. The appointment in question being void by all standards is thus not sustainable. In this context we may refer to an authority of the Supreme Court of Pakistan reported as Munawar Khan v. Niaz Muhammad (1993 SCMR 12831 wherein it was observed that the Ministers and M.P.As. are under oath to discharge their duties in accordance with the Constitution and the departmental authorities competent to make appointments are obliged to exercise their judgment and discretion honestly and objectively without being influenced by the judgment of anyone else including their superiors.

5. There is no material on the record to lend support to the contention that the petitioner was recommended by the administration committee of the College for appointment through promotion against the 20% quota earmarked for Naib-Qasids etc. Similarly, there is nothing on the record from which it could be gathered that the said quota has not yet been exhausted. In this backdrop we are of the view that it will be more appropriate if the post is readvertised and filled up on merit in accordance with the rules. This writ petition is, therefore, accepted, the appointment of the respondent Yousaf Ali against the post of Library Clerk (BPS-5) Government Degree College Lund Khawar, is set aside as being without lawful authority and of no legal effect. The post shall now be readvertised and filled up on merit in accordance with the rules No order as to costs. "

4. In support of the appeal, the learned counsel for the appellant firstly contended that the appellant and respondent No. 1 being civil servants, the dispute arising with regard to the terms and conditions of service, was not cognisable by the High Court under Article 199 of the Constitution. It is further contended by the learned counsel that mere fact that the appointment of appellant was recommended by the Minister did not invalidate the said appointment if it was otherwise made in accordance with the rules. The learned counsel for respondent No. l as well as the learned counsel appearing for Government of N.-W.F.P. supported the order of learned Division Bench of Peshawar High Court.

5. It is an admitted position on record that the post of Library Clerk was advertised on 5-5-1992 in the press inviting applications up to 16-5-1992 and interviews were to be held on 23-5-1992. It is also an admitted position that the appointment of appellant was made against the said post on 5-5-1992 i.e. the date on which advertisement was made in press inviting applications from the prospective candidates. From the record placed before us, it is quite clear that the appellant was appointed on the basis of recommendations of the Education Minister. The aforesaid appointment was totally illegal as it was made contrary to the law laid down by this Court in the case of Munawar Khan v. Niaz Muhammad 1992 SCMR 1287, Abdur Rashid v. Riazuddin 1995 SCMR

999. Abdul Jabbar Memon: In re 1996 SCMR 1349. Therefore, to the extent that the learned Judges of the High Court reached the conclusion that the order of appointment of appellant against the post of Library Clerk was without jurisdiction, is not open to any exception. However, the learned counsel for the appellant contended that the High Court had no jurisdiction in the matter as the subject matter of the writ petition related to the terms and conditions of service, which is exclusively cognisable by the Service Tribunal constituted under Article 212 of the Constitution. The contention of the learned counsel has no force. In a recent pronouncement of this Court reported as Ahmad Salman Waris v. Nadeem Akhtar PLD 1997 SC 382 this Court held that where a person applies for appointment to a post under the Government and is not recruited, he does not fall within the category of civil servant and as such the bar contained in Article 212 of the Constitution does not apply in his case. In the present case, respondent No.l had applied for appointment against the post of Library Clerk but he did not succeed and therefore, he could not be said to be a civil servant as defined in the N.-W.F.P. Civil Servants Act for the purposes of agitating the matter with regard to illegal appointment of the appellant. We, therefore, hold that the writ petition filed by respondent No. l was maintainable before the Peshawar High Court. The learned counsel is unable to point out any legal infirmity in the impugned judgment of Division Bench of Peshawar High Court. No case for interference with the judgment of the High Court is made out. The appeal is, accordingly, dismissed with no order as to costs. M.B.A./Y-2/S Appeal dismissed.