' SYED MANZOOR HUSSAIN GILANI, J---This appeal, with leave of the Court, is filed against the judgment passed by a learned Single Judge of the High Court at Mirpur on 23-12-2003 in Writ Petition No,68 of 2002 filed on 17-8-2002.
2. The facts forming background of the case are that the respondent was appointed as Assistant Engineer on fixed pay of Rs,3,880 per month in Mirpur Development Authority on 29-4-1999 against the protection work, Sector F/3 part 5. He claims to have been confirmed as Assistant Engineer by the M.D.A. Subject to approval of the Board vide order dated 30-8-1999. A meeting of the Board was convened in which cases of different persons were placed for confirmation, one of the cases was of respondent. The Selection Board recommended his appointment in its meeting held on 26-8-2000.
The respondent claims that he was removed from service arbitrarily without giving any notice and affording an opportunity of being heard to him, vide order dated 25-7-2002. He called in question this order before the High Court which culminating into the impugned judgment.
3. The case of the appellants is that respondent was appointed on work charge basis subject to approval of Board, on the basis of a note sent by the Prime Minister for his appointment. According to the appellants, when the matter was placed before the Board on 4-12-2000, the Board decided that the post should be advertised and then be placed before Board in its next meeting. It was twice placed before the Board, but was not approved, and finally the order dated 25-7-2002 was issued which was assailed before the High Court.
4. The learned Advocate appearing for the appellants contended that the respondent was appointed as work charge Assistant Engineer on a consolidated pay subject to confirmation of the Board but he was not confirmed. According to the learned Advocate, there was no post available in the M.D.A. Neither the appointment of respondent was made in accordance with the rules regulating the appointment in the M.D.A. He was liable to be removed at any time.
5. The learned Advocate appearing on behalf of respondent defended the judgment passed by the Court below, contending that the respondent, being qualified in the filed of Civil Engineering was appointed by the competent authority in accordance with the rules. According to him, the Selection Board had recommended respondent's appointment/confirmation along with two others, who are still in service but respondent has been removed arbitrarily and without giving him any notice. When he was asked as to whether the post against which the respondent was appointed was advertised, he conceded that it was not 'advertised then, but is advertised now. He was again asked as to whether there was any post available when he was appointed, he replied that as he was appointed against the post, it implies that the post was available. The learned Advocate for the respondent placed reliance upon the cases reported as Development Authority Muzaffarabad and another v Shahid Qureshi and 7 others (2004 SCR 80) and Federation of Pakistan through Secretary Establishment Division, Islamabad and another v. Gohar Riaz (2004 SCMR 1662). He contended that the order impugned before the High Court has rightly been set aside and it does not warrant any interference by this Court.
6. We have considered the arguments in the light of the record and the authorities of law relied upon by the learned Advocate for respondent.
7. The case of the appellants throughout has been that no post of Assistant Engineer was available in the M.D.A. According to record placed before the Court, the respondent was appointed on the direction of the Prime Minister and in view of the non-availability of any such post, he was appointed on work charge basis on a consolidated pay subject to approval of the relevant Selection Board. The contention of the learned Advocate for the respondent that as the respondent was appointed as Assistant Engineer, hence it implies that the post was available, is devoid of force for the reason that had the post been available, he would not have been appointed on work charge basis on consolidated pay paid from contingency fund. The appointments against the available posts are always made in a transparent manner, and on the recommendations of the Selection Board after undergoing the exercise of test/interview etc. This is a prerequisite in all fields of the services in the public sector.
8. The service structure in the M.D.A. Is governed by the rules known as Mirpur Development Authority Establishment Service Rules, 1991. Under sub-rule (5) of rule 5 of the said rules, the competent authority is obliged to determine the merit of each person to be considered for appointment to a particular post on the basis of criteria laid down in the rule. Under clause (b) of Sub-rule (i) of rule 7 of the said rules, no person shall be appointed to the post in the service of the authority unless he passes such a departmental examination as is prescribed; and under sub-rule
(vi) of rule 7 the appointment to the service shall be made on the basis of merit and suitability of the persons.
9. It is the celebrated rule that merit and suitability can be judged only when the post is advertised and the competitors possessing such qualifications as are prescribed qualify the test held by the concerned authority for the post on the basis of which one or more than one, as the number of the posts may be, can be appointed on the recommendation of the relevant Selection Board. It is admitted at Bar by both the parties that the post was not advertised nor was any competitive test held to determine the suitability of the respondent to be appointed against the post. In the absence of fulfilling the criteria laid down by the rules, the appointment cannot be said to be valid, not to speak that it was permanent appointment. The law is settled that when the rules govern a post in an establishment, those have to be adhered and if not adhered, the rules do not protect the incumbent. The Courts can grant only such relief which is allowed by law. The law in the case in hand, is, the rules referred above, and nothing beyond that.
10. It is clear from perusal of the record that the respondent's appointment was made on 29-4-1999 on consolidated pay of Rs,3880 as Assistant Engineer on work charge basis and the subsequent order was issued on 30-8-1999 which stipulates the conditions of the service. An order placed before the Court dated 29-12-1999 reveals that the respondent was paid from contingency for the period between 28-8-1999 to 30-11-1999. The Board did not approve his appointment stating that his case be placed before the Board by following the due process for initial appointment after advertisement of the post.
11. The authority relied upon by the learned Advocate for the respondent in support of his contention i,e, Federation of Pakistan through Secretary Establishment Division, Islamabad and another v. Gohar Riaz (2004 SCMR 1662) is quite distinguishable as far as the facts of the present case are concerned. The aggrieved person in that case was proceeded under Removal from Service (Special Powers) Ordinance, 2000 on the ground of misconduct and exercising political influence to get himself employed in the Department. The case in hand is very simple that the respondent was appointed as a work charge Assistant Engineer, paid from contingency and was not appointed in accordance with the rules discussed above. Similarly, reliance on the other authority i,e, Development Authority Muzaffarabad and another v. Shahid Qureshi and 7 others (2004 SCR 80) is equally not tenable, as aggrieved person in the cited authorities were employed in the Mazaffarabad Development Authority after the approval by the Selection Committee. The Government thereafter issued a notification appointing a Committee in the matter. It terminated the services of some of the employees. The order was challenged before the High Court, consequently the notification of the Government, which constituted the Committee for scrutiny of the employees of M.D.A. And its recommendations for termination of 22 employees of the authority was declared as without lawful authority. The employees' case was that they were permanently appointed after the approval by tile Selection Committee and the M.D.A. Alone was competent to retain or remove them, not the Government, while the case in hand is otherwise as discussed above.
' In view of above, accepting the appeal, the impugned order dated 23-12-2003 is hereby set aside with costs.