2017 PLP (C (PLC(CS)N)

MUHAMMAD GHAZANFAR KHAN J.

The petitioner, namely, Aziz-ur-Rahman, son of Rozi Khan, through the instant Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks issuance of directions to the respondents/department, i.e. respondent No.6 (Director Agriculture Engineering Department Tarnab Peshawar) to adjust him on the post of Junior Clerk with all back benefits in view of the order bearing No.4881-84/DAE/Estt:, dated Tarnab the 18/5/1993.

2. In essence, the grievance of the petitioner is that vide order dated 18/5/1993, referred to above, he was initially appointed as a junior Clerk (BPS-5) and he was working satisfactorily in the same capacity when vide order bearing No.557-59/DAE/Estt:/dated Tarnab the 24/10/1993, his designation was changed to that of Assistant Moulder in BPS-5 which was unjustified. Thereafter, in view of circular bearing No.SOR-1(S&GAD)1-200/98 dated 08-06-2001 issued by the Government of Khyber Pakhtunkhwa, Establishment and Administration Department, the Deputy Commissioner D.I.Khan, respondent No.9 herein, vide order bearing No.856-76/DC(S.Pool) dated D.I.Khan the 19/02/2014, adjusted him against the post of Naib Qasid (BPS-1) in Government Middle School Wanda Umar Khan, followed by order bearing No.2609-15 dated D.I.Khan the 27/02/2014 issued by the District Education Officer (Male) D.I.Khan, respondent No.8 herein. The petitioner has thus prayed that the aforesaid acts of the respondents are in sheer violation of the provisions contained under Chapter-II and Section 11-A of Civil Servants Act, 1973 coupled with fundamental rights guaranteed to him by the Constitution of Islamic Republic of Pakistan, 1973. 2.(sic) Confronted with the above situation, Mr. Adnan Ali Khan, the learned Assistant Advocate General appearing on behalf of the respondents failed to controvert the same, rather he candidly conceded that the petitioner has unlawfully been deprived of his valuable rights accrued to him under the law.

3. We have carefully gone through the record of the case and considered the submissions of learned counsel for the parties.

4. Admittedly the petitioner was appointed as a Junior Clerk in BPS-5 by respondent No.6 vide order dated 18/05/1993, whereafter he was satisfactorily performing duties in the same capacity when his designation was unlawfully and against his determent changed to that of Assistant Moulder though in the same pay scale of BPS-5 by the same authority vide order dated 24/10/1993. Then when the petitioner became surplus in the department in view of the Circular of the Government of Khyber Pakhtunkhwa dated 08-06-2001 mentioned above, he was again made a rolling stone and male treated by the Deputy Commissioner D.I. Khan respondent No.9 herein, by adjusting him against the post of Naib Qasid (BPS-1) in Government Middle School Wanda Umar Khan.

5. When the petitioner was initially recruited against a permanent vacant post of Junior Clerk in BPS-5 by respondent No.6 after fulfilling all the codal formalities on the subject and when he satisfactorily performed duties as such for five months, then the change of his designation to that of Assistant Moulder by the same authority though in the same scale was a glaring irregularity and illegality committed by him (respondent No.6). Thereafter, when the petitioner became surplus in the department in view of the aforesaid Circular of the Government of Khyber Pakhtunkhwa, though he was not legally entitled for such male treatment as he was a permanent employee, then at least he was required to had been adjusted against the post of Junior Clerk and not the post of Naib Qasid in BPS-1, which is nothing but a sheer example of discrimination and illegality committed by the respondents concerned which merits outrightly to be set at naught.

6. Under the law, once a civil servant is appointed on a post, then in view of the provisions contained under Section 3(2) of Civil Servants Act, 1973, the same holds out a guarantee to him and on absorption, the terms and conditions of his service which could adversely affect cannot be changed. The employee who is declared surplus would be entitled for appointment on post carrying the basis pay scale equal to the post held by him prior to being rendered surplus. Wisdom in this respect is derived from the case-law reported as Mrs. Farkhanda Talat v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others (2007 SCMR 886).

7. As a result, the writ petition is accepted, the impugned orders of respondents are declared illegal, null and void ab initio and respondent No.6 is directed to adjust the petitioner forthwith on the post of Junior Clerk where he was initially posted. He shall be entitled to all back benefits accrued to him under the law from the post in question. ZC/44/P Petition allowed.