HAFIZ TARIQ NASIM, J.- This is a writ petition wherein a request is made to ask respondent No. 1 that under what authority of law she is holding the post of Assistant Director (Community Development), Directorate General, Katchi Abadis & Urban Improvement, Lahore with a further prayer that the orders dated 30-12-2006 and 16-11- 2007 passed by respondent No. 2 be declared illegal and without lawful authority.
2. Learned counsel for the petitioner submits that the Rules for filling of the posts are called Punjab Local Government and Rural Development Department, Directorate General, Katchi Abadis Recruitment Rules, 1993 and the post in question can only be filled in the following manner:- Name of the Post Appointing authority Minimum qualification for appointment Method of recruitment Assistant Director Community Development. Admn. Scy. Masters degree at least 2nd Div. In Social Work or Sociology / Rural Sociology By initial recruitment/ transfer According to the learned counsel, respondent No. 1 was not even eligible for the said post what to talk of suitability. Further submits that respondent No. 1 was appointed on political motivation and not in the exigency of service, which is a sufficient ground for setting aside respondent No. 1's appointment letter.
3. On the other hand, learned counsel for r respondent No. 1 submits that-the petitioner being not an aggrieved person cannot invoke, the jurisdiction of this Court and as such the writ petition is not maintainable and is liable io be dismissed on this short ground. Further submits that respondent- No. 1 being a highly quailed, i.e. Master in Psychology in 1st Division having ten years teaching experience at her credit, was rightly appointed with the approval of the Chief Minister, who being competent authority relaxed the Rules before appointment of respondent No. 1 and the powers of the. Chief Minister exercised in this case, cannot be challenged through writ.
4. Learned counsel lor respondents Nos. 2 to 4 adopted the arguments of Dr. A. Basit, Advocate, learned counsel for respondent No. 1 and requested for dismissal of writ petition.
5. Arguments heard. Record perused.
6. So far maintainability/competency of the writ petition is concerned, when confronted with the law laid down by the Hon'ble Supreme Court of Pakistan reported as Capt. (R) Muhammad Nasim Hijazi V. Province of Punjab (2000 SCMR 1720), wherein it was held as under:- "Under Article 199(2)(ii) of the Constitution of the Islamic Republic of Pakistan the High Court in exercise of its Constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority he is holding the said office. In such-like cases where a writ in the nature of quo warranto is instituted the duty of the petitioner is to lay an information before the Court that such and such officer has no legal authority to retain such office.
For a petitioner who acts, in fact, as an informer is not required to establish his locus standi to invoke the jurisdiction of the Court, Writ of quo warranto in its nature is an information laying against persons who claimed or usurped an office, franchise or liberty and was intended to inquire by what a authority he supported his claim in order that right to office may be determined.-- Any person can move the High Court to challenge the unauthorized occupation of a public office.
On any such application Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provision for appointment."
Learned counsel for the respondents could not advance their case rather contended with the prayer to decide the case on merits.
7. So far respondent No 1's eligibility is concerned, suffice it to refer to Rules ibid, which stipulate a condition that the candidate for the post of Assistant Director (Community Development) be a Master Degree at least 2nd Division in Social Work or Sociology/Rural Sociology and the mode of appointment is "by initial recruitment/transfer", whereas respondent No. 1 is admittedly not holding the1 Master Degree in Social Work or Sociology/Rural Sociology, so on this snort ground respondent No. 1's eligibility cannot be termed up to the mark or in accordance with Rules.
8. So far the mode of appointment is concerned, it is undisputed fact that respondent No.1 was serving in the Education Department as Senior Scale Secondary School Teacher in LDA School in BS-16 and through an application before the 'Chief Minister Punjab she applied firstly in the following terms:- "I am serving as Senior Scale. Secondary School Teacher in LDA School in BS-15. My qualification is M.Sc. 1st Class Psychology and B.Ed. I believe that a post of Assistant Director Community Development is lying with Director General Katchi Abadis, Punjab.
It is requested that my services may be placed at the disposal of Director Central, Katchi Abadis, Punjab on deputation."
9. On respondent No. 1's application the Chief Minister Punjab directed to accede to her request and accordingly through order dated 30-12-2006 she was taken on deputation in LG&RD Department and was posted as Assistant Director (Community Development), Directorate General Punjab, Lahore, in her own pay and scale.
10. After having deputation with the Department of Community and Development, respondent No. 1 applied to the Chief Minister Punjab for her permanent absorption in the Directorate of Katchi Abadis in the following terms:- "As Assistant Director Community Development, Katchi Abadi Punjab, I joined on deputation- in pursuance of Chief Minister's directive No. Since my joining in Katchi Abadis Directorate of Punjab my performance has been satisfactory and above-board. My qualification is M.Sc. Psychology 1st Class and B.Ed. 1st Class. My qualification fulfill the requirement/permanent absorption as Assistant Director Community Development in BS-17.
As per deputation policy issued by the Government of Punjab a deputations may opt for his absorption before the expiry of deputation period.
It is requested that it may kindly be approved for my permanent absorption in the Directorate of Katchi Abadis Punjab against the vacant post of Assistant Director Community Development."
11. On the application of respondent No. 1 the Principal Secretary to the Chief Minister Punjab issued a directive on 09-4-2007 in ,the following terms:- "On presentation of the enclosed application from Ms. Parveen Sikandar Gill, MPA, PW-319, on the above subject, Chief Minister has approved in principle, the subject request, and desired to have a summary in the matter, at the earliest.
Further necessary action may be taken accordingly "
12. Respondent No. 1's case was examined for permanent absorption by the Regulation Wing of Government of Punjab and it was categorically submitted before the Chief Minister by the Secretary Regulation and endorsed by the Chief Secretary in the following words:- "The request of Mst. Ishrat Fatima for her absorption against the post of Assistant Director.(BS-17) cannot be acceded to without relaxation of the Deputation Policy dated 13th August, 1998.
Submitted for order of the Chief Minister as deemed appropriate."
13. The Chief Minister's Principal Secretary Mr. G. M. Sikandar endorsed in the following words:- "Chief Minister has seen and agreed with the proposal of the department, contained in para 4/ante."
14. So far para 4 is concerned, the same is as follows:- "Mst. Ishrat Fatima possesses Master Degree in Psychology and has teaching experience for a period of 10 years. Her leaching skill coupled with educational qualification have enhanced her capabilities of interacting with the community which is beneficial to the organization for achievement of desired results and implementation of Government policies."
15. After the endorsement made by Principal Secretary, Chief Minister confirmed relaxation of deputation policy, which is reflected from the noting dated 03-11-2007 by Mr. G.M. Sikandar, Principal Secretary to the Chief Minister and ultimately respondent NO. 1 was permanently absorbed as Assistant Director in Directorate General Punjab, Lahore, in BS-17 through order dated 16-11-2007.
16. After hearing all the parties at length and perusal of record, some undisputed facts have come to light and those are as under:-
(i) Respondent No. 1 submitted an application directly to the Chief Minister firstly for her deputation and then for her permanent absorption against a post in BS-17 in 'the Government of Punjab.
(ii) The application of respondent No. 1 was recommended by MPA/Chairperson Standing Committee Sports Punjab namely Ms. Parveen Sikandar Gill.
(iii) Well-reasoned advice/opinion by the Secretary Regulations S&GAD, dated 09-6-2007 endorsed by the then Chief Secretary whereby it was specifically submitted before the Chief Minister that the request of Mst. Ishrat Fatima for her absorption against the post of Assistant Director (BS-17) cannot be acceded to without relaxation of the Deputation Policy dated 13-8- 1998.
(iv) The relaxation given by the Chief Minister as stated by Mr. G.M. Sikandar, Principal Secretary of Chief Minister, does not reflect even a single word which could be termed application of independent mind by the Chief Minister and there is not even a single sentence used by the Chief Minister that "being a case of hardship, the Rules are relaxed".
(v) According to the Rules ibid M.A. Psychology was not even eligible for appointment against the said post.
(vi) The post being a BS-17 post was within the ambit of Punjab Public Service Commission and there is no order available in the file which could confirm that the post in question was taken out from the purview of the Punjab Public Service Commission by the Chief Minister.
17. So far the contention of the learned counsel for respondent No. 1 in respect of respondent No. 1's qualification of M.A. 1st Class in Psychology, hard working and efficient is concerned, suffice it to say that merely because respondent No. 1 was described as hard working and efficient officer did not authorize the concerned department/the then Chief Minister to bypass the Rules whereas admittedly in the appointment/absorption of respondent No. 1 against the post of BS-17 a novel way was adopted which fact spoke loud that it was not the department who was interested to absorb respondent No. 1 but it was in fact the MPA who had initiated/recommended and wanted to see respondent No. 1 as Assistant Director in BS-17 in a Provincial Government Department and it is well-settled law that the appointee had to demonstrate that his appointment was in accordance with the law and Rules, which fact is missing in the present controversy. In support of this finding, reliance can be placed on the judgments reported as Dr. Sher Bahadur Khan Panee V. Government of West Pakistan (PLD 1956 Peshawar 77) and A.R. Azar v. Federation of Pakistan (PLD 1958 Lahore 185).
18. So far argument of the learned counsel for the respondents in respective of competency of the Chief Minister for the appointment of respondent No. 1 is concerned, the aforesaid two cases demonstrate that the discretion of even the highest State functionary is circumscribed by law and as against their whims or liking, compulsion or expediency it is the will of the legislature which is to prevail. Unless those in authority starting from the top are willing to surrender their will to the rule of law, later will remain confined to casualty ward.
19. I can also refer a judgment reported as Pakistan Tobacco Board V. Tahir Rana (2007 SCMR 1997) in support of observation above. In the case of Pakistan Tobacco Board even the request of the learned counsel to the extent that his client, whose tenure is to be expired within some months be allowed to complete, was declined by the Hon'ble Supreme Court of Pakistan holding that "we are not inclined to allow the request made".
20. There is an important aspect of the impugned matter which is clearly reflected from the record that respondent No. 1 approached Chief Minister, through MPA and then obtained the impugned order of absorption, which otherwise is misconduct on her part because to bring political or outside influence directly or indirectly to bear on the Governor, Chief Minister, a Minister or any Government Officer in support of any matter relating to the appointment, promotion, transfer, punishment or other conditions of service of a civil servant is a misconduct. When confronted with this ground reality, learned counsel for respondent No. 1 remained contended with his submission that the Chief Minister being Chief Executive of the Province is fully authorized to exercise his powers and respondent No. 1 did approach the competent authority which could not be termed as misconduct.
I am afraid that the contentions of the learned counsel for respondent No. 1 are not in consonance to law laid down in a number of cases like Nisar Ahmed V. Government of Punjab' (1992 PLC (CS)
1020) and Government of the Punjab V. Dr. Shamim Waheed Sheikh (1993 SCMR 1692(2)), wherein it is categorically held that civil servant in approaching the Chief Minister direct was guilty of breach of service discipline. Following the law laid down supra, it is held that respondent No. 1 was in serious breach of service discipline in approaching the Chief Minister direct which should have been taken very seriously by the then departmental authorities but unfortunately no one even asked her for commission of misconduct.
21. Viewing the present case from all angles, it is held that the absorption/appointment of respondent No. 1 as Assistant Director (Community Development) (BS-17) in the department of Local Government and Rural Development is violative of Punjab Local Government and Rural Development Department Directorate General Katchi Abadis Recruitment Rules, 1993 and the power exercised by the then Chief Minister was in excess of his jurisdiction. Resultantly, the order dated 14-11-2007 passed by the Secretary Local Government and Community Development Department is declared illegal.
22. Before parting with this judgment, it is clarified that respondent No. 1 shall be entitled to be repatriated to her parent department as Senior Secondary School Teacher (BS-16) LDA School.
Writ petition is allowed in the above terms.